Sex-Abuse Measure Fails Fairness Test
Rocky Mountain News [Denver CO]
May 1, 2006
State Senate President Joan Fitz-Gerald got choked up last week after succeeding in her months-long crusade to pass legislation targeting the Catholic Church. It's a good thing Lady Justice can't shed tears, too, or she'd be sobbing still.
House Bill 1090 violates so many standards of precedent, fairness and common sense that we hardly know where to begin. So we'll confine ourselves to five issues.
First, the bill is special legislation targeting a single entity, which the Colorado Constitution forbids. No, the bill doesn't mention the Catholic Church in lifting the statute of limitations so adults can sue for incidents that allegedly occurred decades ago. It is superficially neutral. But the bill was conceived for no other purpose than to punish the church; legislative hearings focused on the likely effects on the church; and the coalition of trial lawyers and a national victims' group pushing the bill is geared to move against one and only one institution.
Second, the bill ignores state Supreme Court precedent that says you can't move the legal goal posts by changing a statute of limitation retroactively. In a 1980 case the court said, "Where a statue of limitations has run . . . the right to plead it as a defense is a vested right which cannot be taken away or impaired by subsequent legislation."
How much clearer can the court get?
Third, contrary to what proponents claim, the bill does nothing to protect children. What it does, as Sen. Shawn Mitchell, R-Broomfield, points out, is provide "therapeutic legal opportunities for alleged middle-aged victims."
Mitchell goes on to explain, "Today's children are protected by the criminal law, by civil law, by greater awareness about sexual abuse, by a changed culture that doesn't give the same deference to religious leaders as it did decades ago and by a statute of limitations that has been lifted going forward."
Fourth, the bill would punish no one who is actually guilty of anything. Existing allegations involving the Denver archdiocese, for example, go back to a time long before the current archbishop or even his predecessor. Dioceses do not maintain a hoard of bullion for legal contingencies. If settlements are not covered by insurance, they will come out of programs funded by today's churchgoers.
Fifth, the older the alleged incidents -up to 35 years old, under HB 1090 - the more likely it is that evidence will be stale or non-existent, witnesses will be difficult to find, and memories will be frayed. The greater the opportunity for fraud, too.
"If we change our justice system for every legal demon," warns Mitchell, "we won't have a system of justice; we'll have a system of bounties."
The House already passed HB 1090, but not in the punitive version adopted by the Senate. Representatives should stand their ground and refuse to be stampeded into endorsing a wretched proposal.
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