Thursday, May. 31, 2007
As I have argued more than once, the
key is to abolish the statutes of limitation on childhood sexual abuse - both criminal and civil. Most states are moving in
a forward direction in this respect, in that they are at least extending the statutes of limitations on childhood sexual abuse,
with a few, like Alaska and Maine, abolishing them outright. This was the right decision: Surely the interests of the victims
and society as a whole are more valuable than the perpetrator's need to be free from concern about prosecution or litigation.
In this area, abolition will eventually happen, because it is the only just solution to an intractable social problem.
The question is just how quickly, and how many additional victims will suffer due to the delay.
Because of the Supreme
Court's unfortunate 5-4 decision in Stogner v. California, no legislature can abolish the criminal statutes of limitations retroactively. Rather, they may only abolish criminal limitations
with respect to future cases. Importantly, however - because this restriction comes from the Constitution's Ex Post Facto
Clause, which only applies to criminal penalties -- the same is not true for civil statutes of limitations. In many states,
civil statutes of limitations many be abolished not only prospectively, but also retroactively. If a civil statute of limitations
is eliminated, even for a "window" of a year or so, the public learns more than it would ever know otherwise about
the identity of the dangerous child abusers in our communities.
In 2003, California abolished the statute of limitations
on childhood sexual abuse claims. As a result, over 800 victims came forward, and at least 300 perpetrators were named, of
whom the public had previously been ignorant. Before then, those 300 perpetrators were comfortably relying on the statute
of limitations to keep their crimes secret - and likely preying on new victims, thanks to a cloak of anonymity. Luckily for
us, California had the foresight to pass a law that should be a model for the country.
Additional Recent Proposals
to Abolish the Child Abuse Statute of Limitations Are A Welcome Development
The grassroots movement to abolish
the statute of limitations in childhood sexual abuse cases is swelling, and it cannot be turned back. Over the past year,
legislative proposals to this effect have been made in numerous states, including Alaska, Maine, Maryland, Delaware, and Pennsylvania.
Hearings will be held on such legislation in Washington, DC this Friday, June 1.
The story of statutes of limitation
for childhood sexual abuse in the United States is one of incremental, but constant reform. It is not unusual for a given
state to have amended its sex abuse statutes of limitation as often as annually. The more we learn about how much we don't
know about the predators out there, the more legislators are persuaded that there must be more time for victims to not only
seek individual justice, but also bring this information to the courts and the public.
Such reform should -- but doesn't
always -- pass the first time around. That is just the way the legislative process sometimes works, and fortunately, given
the fervor of those behind these reforms, they will be re-introduced in those states where they have not yet been enacted.
It is simply inevitable.
Aiding abolition forces is the fact that their opposition has fast lost any moral high ground
it might have claimed- arguing in favor of those persons and institutions who actively cover up child abuse and protect abusers,
and trumpeting the "rights" of the perpetrators to rest secure in the knowledge that, after a certain amount of
time has passed, they will never be prosecuted.
On the other side of the issue, it's important to remember that
this is an area in which victims' delay in coming forward is profoundly understandable. When a child suffers abuse, the
profound psychological effects last a lifetime. For a victim, coming forward typically means revisiting intense pain, confronting
misplaced but real feelings of shame, revealing a painful incident to their families (including their own children), and having
the courage to confront their abuser - even though he or she was typically a trusted adult, often an authority figure, and
sometimes was freighted with the intimidating religious authority a priest carries. No wonder it takes years.
effect such reforms have, is on the date the victim may go to court. They do not change the substantive law, nor the burdens
of proof borne by the defendants or victims. They literally do nothing but open the previously locked courthouse door, telling
victims that they should be permitted their day in court, in order to prove to the world that they were wronged in a most
Perhaps there is one other effect - such laws are bound to make pedophiles and all past or would-be child
predators nervous. Couldn't happen to a nicer group of people.
Before investing any more effort in choosing between
prison and death for known pedophiles, as a society we really need to focus on identifying the silent and secret society of
child predators that is now enjoying the existing statutes of limitations. Revealing these existing predators is the most
effective way of protecting our children right now - before further abuse occurs