Bill would revive sex abuse victims' right to sue

By Peter Hall
Morning Call
March 28, 2016

State Rep. Mark Rozzi, D-Berks, who was abused by a priest as a child, is fighting to remove statutes of limitations on prosecution of sex-abuse crimes.

A movement to revive the legal rights of older sexual abuse survivors in Pennsylvania is gaining momentum in Harrisburg in the wake of new charges that Catholic Church officials conspired to hide sexual predators in their midst.

Rep. Mark Rozzi, D-Berks, has been fighting for four years to pass legislation that would create a two-year window for sexual abuse survivors to file lawsuits against pedophiles and the institutions that harbored them, no matter how long ago they suffered the abuse. The current law in Pennsylvania requires victims to file civil lawsuits by age 30 and criminal charges by age 50.

Rozzi is calling for legislation similar to statute of limitations reform passed in eight other states. If it is successful, it will set the stage for a court fight over whether it violates the state Constitution.

Opponents, including the group that represents Catholic dioceses and bishops in Pennsylvania, say such a measure would illegally strip those accused of wrongdoing of a defense they're entitled to under the state Constitution. The bill would change the rules by adding more time to the clock after it had already run out, they say.

"Pennsylvania's courts have consistently held that legal defenses — including the statutes of limitations — are treated as vested rights and are protected from being changed after the fact," said Amy B. Hill, a spokeswoman for the Pennsylvania Catholic Conference.

Those who support lifting the civil statute of limitations say claims that it would be unconstitutional are meritless and that more and more courts — most recently in Connecticut and Massachusetts — are siding with them.

"The constitutionality issue is always a red herring they throw out there. It's a legal canard," said Jeff Anderson, a Minnesota attorney who has used revival laws in five states to file hundreds of civil suits on behalf of victims of child sex abuse. "These laws have withstood every challenge from California to Minnesota to Delaware to Georgia. Their argument has never prevailed."

He said the language in Pennsylvania's Constitution is similar to that in most states, including the eight that have opened temporary windows for victims to file retroactive suits.

Duquesne University law professor Bruce Ledewitz, an expert on Pennsylvania constitutional law, said it's far from clear how Pennsylvania's Supreme Court would regard a revival law here. The court has never tackled head on whether the statute of limitations as a defense is a right that cannot be stripped away.

"If the legislation is passed and the statute of limitation extended to cases already barred, the matter will undoubtedly be litigated. But those who say that the legislation would be unconstitutional seem to me to have the better support," Ledewitz said.

For Rozzi, who was abused by an Allentown Diocese priest when he was a child, it's a battle worth fighting.

"If it passes and has to go through court, then so be it," Rozzi said. "We think we'll win that fight. What I don't want is colleagues not supporting it because they've been scared off by the Catholic Church and this fake threat that it violates the Constitution. Approve the bill and let the courts worry about that. We know it's just a scare tactic."

He's been fighting unsuccessfully for four years to persuade his colleagues of that. But he's convinced this time will be different.

Rozzi said he expects House Judiciary Committee Chairman Ron Marsico, R-Dauphin, to introduce a bill to eliminate the statute of limitations for criminal charges filed against any future suspects of child sex assault. He doesn't expect it to include a window that would allow victims to file a lawsuit against their abuser for past assaults, but said it would enable him to add an amendment for a two-year window for civil cases.

Rozzi need not look far for evidence of that shift among his colleagues. Formerly staunch opponents of reform have said they're prepared to advance legislation that would allow new victims of sexual abuse to file criminal charges no matter how long they wait to come forward.

One is even willing to go further. After years of blocking bills that would have given victims a chance to sue the church, Rep. Thomas R. Caltagirone, D-Berks, last week announced he had changed his stance.

"After many hours of soul searching, praying and deliberations, I have decided to come out in support of my good friend, state Representative Mark Rozzi, in his efforts to combat child sexual abuse within Pennsylvania," Caltagirone said in a written statement. "I feel compelled to act and do what I can to move legislation forward that will help protect our children: past, present and future. To that end, I support the removal of the time limits for criminal charges and civil matters, as well as a limited window for civil action to be filed by past victims of childhood sexual abuse."

The revelation more than a decade ago that leaders in the Archdiocese of Boston and elsewhere had concealed allegations of sexual abuse against dozens of priests set off a wave of legal reform. Dozens of states eliminated the criminal statute of limitations for victims of childhood sexual abuse going forward.

Nine states have also lifted limitations entirely for civil lawsuits or opened a temporary window of between two and four years for victims of past crimes to file suits no matter how far in the past the abuse occurred.

In Pennsylvania, the criminal statute of limitations was extended in 2007 until the victim's 50th birthday. It was extended to age 30 for civil lawsuits in 2002.

Eliminating the statute of limitations for civil lawsuits is important because most victims take decades to come forward, if they ever do, said Marci Hamilton, a Cardozo School of Law Professor who advocates for statute of limitation reform.

Hamilton added that the greatest benefit of eliminating or suspending statutes of limitation is that civil lawsuits bring the church's secret archives into the public record, revealing the identities of accused predators who had escaped prosecution.

The Pennsylvania Catholic Conference's position that a revival statute like Rozzi's would be unconstitutional is based on a 2013 analysis by attorney Jason Kutulakis, a member of the Pennsylvania Task Force on Child Protection, who died in January.

Kutulakis wrote in a brief to state legislators, including Marsico and Caltagirone, that he believes Rozzi's bill would run afoul of about two dozen words in the state Constitution's Remedies Clause that stand "as an immovable barrier against the elimination of certain fixed rights." Among them, Kutulakis wrote, is the right to a defense against claims that are blocked because the statute of limitations has expired. To take away such a defense by passing legislation to revive claims after the limitations period is over would violate the clause, he said.

But Hamilton contends the clause protects only plaintiffs' rights to sue against changes in the law and doesn't provide the same protection for a defense under the statute of limitations. She noted that the supreme courts in Massachusetts and Connecticut reached similar conclusions last year in challenges to laws reviving expired claims.

"The Pennsylvania Supreme Court will find very persuasive both the Connecticut and Massachusetts comprehensive opinions on this issue," Hamilton said.



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