Lawmakers Want to Limit Sex Abuse Lawsuits

By Peter Harriman
Argus Leader
March 8, 2010

In an effort to close the door on what he sees as frivolous class-action lawsuits, Chamberlain lawyer Steve Smith crafted a piece of legislation passed by the South Dakota Legislature that opponents say unfairly limits the ability of child sexual abuse victims to recover damages from the institutions that employed their abusers.

House Bill 1104 says any abuse victims over the age of 40 can sue only the individuals who abused them and not churches, schools or other institutions with which an abuser was associated. It passed the House 52-14 and the Senate 26-7.

The bill is expected to reach Gov. Mike Rounds' desk early this week. Rounds' Spokesman Joe Kafka said the governor has not yet taken a position on whether he will sign it. But Robert Koenig of Sioux Falls, who filed one of the landmark South Dakota child sexual abuse lawsuits in 1992 and who opposes HB 1104, said he was contacted Friday by a Rounds' staffer soliciting his opinion.

Out-of-state lawyers

The bill was sponsored by the District 21 delegation - Reps. Thomas Deadrick, R-Platte, and Kent Juhnke, R-Vivian, and Sen. Cooper Garnos, R-Presho. Smith said he asked them to carry the legislation because he lives in the district.

He said he proposed the bill because lawyers from California and Florida have been trying in recent years to construct massive class-action lawsuits from throughout Indian Country by recruiting former boarding school students and others who said they were victims of sexual abuse at the hands of faculty, staff and clergy. Some of that abuse occurred as long ago as before World War II.

Smith, who has represented the St. Joseph Indian School in Chamberlain in abuse cases, said it is impossible to defend such institutions after such a long period of time has passed because witnesses die. He also said at some point there should be severability between an institution and its former employees if an institution has gone through several generations of leadership since it hired that person or refused to publicly disclose them when their actions came to light.

Smith said the lawyers trying to recruit class-action members are reaping what they sow when it comes to the bill.

"When you're playing a predatory practice, you better get ready for a predatory response. They created the monster that got them to this bill that got passed."

However, Koenig and others see HB 1104 as a retrenchment from the precedent established in the wake of Koenig's case that institutions can never avoid responsibility for abuse they allow to occur.

"It's a step backward for justice for abused children in this state," he said. Koenig points out that he was 47 when he filed his suit against the Rapid City Catholic Diocese.

He dismisses Smith's claim that at some point institutions should not be sued for events that took place long ago.

"Because they don't do it anymore doesn't change the fact that it happened," Koenig said. "The lives they ruined 40 or 50 years ago are still ruined. We don't have a statute of limitations on murder, and there's nothing more murderous than raping a child. It kills their spirit."

Opponents off-guard

Sen. Nancy Turbak Berry, D-Watertown, voted against HB 1104. Like Smith, she is a lawyer, and in the past she has represented rape victims.

"Institutions benefit from being able to use their employees. ... You don't get the benefits of employees and escape their responsibilities," she said. "They have no right to try to disown themselves from the conduct of their employees."

Smith admits opponents had little opportunity to organize against his proposal. Koenig insists he would have been in Pierre testifying against the bill had he known about it.

"Nobody knew I was doing this," he said.

Smith said he thought long and hard before advancing what became HB 1104.

"It was personally and professionally trying," he said.

"I understand Senator Turbak's concerns. They are legitimate. I'm not going to downplay them. ... But by the same token, 99 percent of the time no one knows of these abuses until suddenly a claim arises 20 years down the road."

He acknowledges the bill could potentially block victims of abuse from recovering civil damages.

But in the end, Smith comes back to what he sees as out-of-state lawyers' efforts to create unfounded class-action lawsuits.

"I hate con men," he said. "That's what this is pointed at."

Reach Peter Harriman at 575-3615.


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