State-by-State Changes Sought in Limits on Sexual-Abuse Lawsuits
Sexual-abuse "window" legislation, similar to the law that led to diocesan payouts of over $1 billion in California in 2003, is snaking its way through state legislatures across the nation.
BY Sue Ellen Browder
June 30-July 13, 2013 Issue | Posted 6/24/13 at 3:00 PM
SACRAMENTO, Calif. — Sexual-abuse "window" legislation, similar to the law that led to diocesan payouts of over $1 billion in California in 2003, is snaking its way through state legislatures across the nation.
Senate Bill 131, which was passed in early June by the California Senate, could put the Catholic Church again in financial jeopardy by opening up yet another year in which civil cases alleging sexual abuse that happened decades ago could be filed in court.
"Our chief concern with this bill is that it goes backwards, that it opens up the statute of limitations all over again for one year in 2014," said Kevin Eckery, spokesman for the California Catholic Conference.
When California passed the 2002 law that opened up a one-year "window" into the legal system in 2003 for anyone to sue the Church for past alleged sexual abuse, assurances were made that this "one time" legal initiative would allow the Church to address past sex scandals and then move forward, a promise that seems to be forgotten.
But there’s a new twist to the legislation this time around: The 2014 legal "window" would apply not only to the Catholic Church, but to all private and nonprofit organizations, such as the YMCA/YWCA, private schools, private businesses, Protestant churches and Little League.
Meanwhile, public schools, juvenile-detention centers, foster-care services and other state-run agencies, where most child sexual abuse actually occurs, would be immune to any alleged acts of abuse before 2009.
Further, if at any time in the future a physician or mental-health professional tells a client that his or her problems were caused by childhood sexual abuse, the person has five years from the revelation to sue for monetary damages.
"In 2003, we said that, in order to do the right thing and settle all these claims, we’re just going to surrender our insurance policies, and then if anything else happens, we’re not covered," Eckery said. As a result of the 2003 settlements, the Church’s insurance policies were forfeited and no longer exist.
He said 2003 was about "making things right."
"While it was certainly expensive, you couldn’t quibble with the justice of it all," Eckery observed. "But now, when we’ve exhausted our insurance and sold property, it’s, like, wait. Three bites of the apple?"
According to Eckery, 55% of the $1.2 billion paid out to more than 1,000 plaintiffs in the 2003 settlements went to the plaintiffs’ attorneys.
Opportunity — for Whom?
"With S.B. 131, we have an opportunity to turn the tide of violence in California by taking a stand for the humane treatment of children," said California state Sen. Jim Beall, the bill’s author.
"S.B. 131 is about justice for the victims of abuse, period," Beall said at an April 16 news conference.
But others suggest bills like this are springing up in one state after another not so much as a matter of justice, but as part of a coordinated national effort spearheaded by attorneys with the less honorable intention of making money.
"Is this bill really supposed to be helping to protect kids and prevent abuse?" Eckley asks. "Well, yes, that’s what the author says. Then why doesn’t it do anything on the criminal side? Nothing."
"This bill," he added, "seems to be more about lawyers than about victims."
"One of the basic concerns about ‘window’ bills is that they’re contrary to the fundamental reasons why we have statutes of limitation," said L. Martin Nussbaum, a Colorado Springs, Colo., attorney whose firm has been involved in thousands of claims on behalf of more than 15 dioceses and religious orders.
"We have statutes of limitation to encourage prompt claim-making, so if there’s a problem, corrective actions can be quickly taken," Nussbaum explained. "These statutes also improve the quality of evidence, so that courts may try cases when memories are fresh, when documents exist, and when insurance was purchased in light of the legal standards at the time, not standards developed 40 years earlier."
Since California passed the nation’s first "window" law in 2002, similar bills have sprung up in one state after another. Delaware, Hawaii and Minnesota have already passed such bills, and at least 12 other states are considering similar legislation.
In some states, such as Colorado and New York, these laws have been defeated. But at least in New York, a new legislative session brings yet another "window" bill to the floor.
"The primary ‘window’ bill in New York, like so many around the country, is fundamentally flawed and unjust," said Dennis Poust of the New York State Catholic Conference. "This is because the bill [like the one in California] effectively discriminates against victims based solely on where the abuse occurs."
"If this bill were to pass, someone could bring a lawsuit against the Catholic Church charging sexual abuse going back 50, 60 or 70 years," Poust said. "But if the same abuse occurred in a public institution just a few years ago, that victim would not be allowed to sue."
Such laws create what Poust called "two classes of victims — one who can bring a lawsuit for a claim of abuse from, say, 1940, and another who would be time-barred from pursing a lawsuit for abuse that occurred in 2005."
The New York State Catholic Conference supports legislation that does not have a one-year "window" but would extend both civil and criminal statutes of limitations going forward, giving today’s victims more time to sue and applying the same rules to both public and private institutions. "This, we believe, is the best and most just way of addressing this difficult issue," Poust said.
In Minnesota, newly passed child-abuse "window" legislation does apply to all organizations, public and private.
The Minnesota bill, which passed the legislature in May and which Gov. Mark Dayton is expected to sign into law, will retroactively open up a three-year window for abuse allegations on which the statute of limitations has long expired.
"One of our biggest problems with this bill is that our institutions could be sued on the basis of ‘you should have known’ something was going on,’" said retired Lutheran pastor Karen Bockelman, chair of the Minnesota Religious Council, which opposed the bill.
In cases where virtually everybody involved is now dead, Bockelman said, "trying to prove that you didn’t know what somebody claims you should have known will be exceedingly difficult."
Not only are 40-year-old insurance policies "woefully inadequate" for the hefty settlements being offered today, Bockelman noted, but "for some churches, the company that insured them 40 years ago has gone broke."
Institutions in Minnesota are now stuck with what Bockelman called "forever liability."
Mass. and Pa.
According to an Associated Press article, an attorney who helped lead an $85-million abuse settlement against the Archdiocese of Boston is helping to spearhead the battle to raise the statute of limitations on sexual-abuse lawsuits in Massachusetts. The bill would give plaintiffs, who now have until age 21 to bring civil lawsuits against alleged offenders, up to age 55 to file.
Another legislative battle is going on in Pennsylvania. Last year, the state Legislature decided that before they reacted to the Pennsylvania State University and Philadelphia Archdiocese sex scandals they would have a bipartisan commission study the issue.
The upshot was a report, commonly called the "Heckler Report," after the commission’s chairman, David Heckler, the Bucks County district attorney.
The report recommended an overhaul of Pennsylvania’s child-abuse laws. The report called for, among other measures, doing a better job of defining "sexual abuse" and "perpetrator," lengthening the list of persons required to report child abuse and increasing the penalties for not reporting.
However, the commission concluded they could not recommend "window" legislation on the grounds that the potential for "staleness of evidence" was too great and such laws were probably unconstitutional.
Nevertheless, advocates continue to push for these laws with great zeal.
Yeshiva University law professor Marci Hamilton wrote in a 2009 opinion piece in the New York Daily News that the claim the Catholic Church could be destroyed financially should "window" legislation be enacted "is fearmongering, plain and simple. The interests — indeed, the rights — of victims to seek justice do not threaten the survival of the church."
"It’s true," Hamilton wrote, "that the San Diego Diocese tried to file for federal bankruptcy to protect its assets, but this was not a real financial crisis. In fact, due to its wealth and efforts to hide these assets, the diocese settled to avoid being thrown out of court."
Speaking of what she perceives as dioceses’ deep pockets, Hamilton said that "the big irony should be lost on no one: Even as it claims that dioceses are strapped for cash, the Catholic Conference is spending a significant amount of money to keep window legislation from passing — not only in New York, but in states across the country."
Other lawyers agree money is, indeed, the issue at stake, but they say it’s the plaintiffs’ lawyers who are after more of it.
Now that the Catholic Church has many effective child-protective measures in place and the number of new claims against the Church has significantly plunged, attorneys who specialize in suing the Church "seek to mine old claims," attorney Nussbaum observed.
Said Nussbaum, "That’s the economic dynamic that’s driving this ‘windows’ legislation movement."
Sue Ellen Browder writes from Ukiah, California.
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