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Proposed D.C. Council bill lifting civil statute of limitations for abuse cases ‘does nothing to make a single child safer,’ chancellor testifies

By Richard Szczepanowski
Catholic Standard
June 16, 2017

https://goo.gl/ehDaNL

The Archdiocese of Washington – offering its support to a proposal that would eliminate in the District of Columbia the statute of limitations for prosecuting criminal cases of sexual abuse – has urged a D.C. City Council committee not adopt a companion proposal that would eliminate the statute of limitations in pursuing civil cases of sexual abuse.

“Retroactively eliminating the statute of limitations on civil lawsuits against private institutions does nothing to make a single child in the District of Columbia safer,” Kim Viti Fiorentino, chancellor and general counsel for the Archdiocese of Washington, told the Council’s Committee on the Judiciary and Public Safety June 15. “Legislation that mandates comprehensive, ongoing, preventive and transparent child protection procedures and policies would serve our community well.”

Fiorentino was one of more than a dozen people to speak at a public hearing on the two proposals.

Bill 22-0021, the “Sexual Abuse Statute of Limitations Elimination Amendment Act of 2017,” would eliminate the criminal statute of limitations for first, second, third, and fourth degree sexual abuse and for first and second degree sexual abuse of a child. Bill 22-0028, the “Childhood Protection Against Sexual Abuse Amendment Act of 2017,” would eliminate the civil statute of limitations for recovery of damages related to child sex abuse claims and would provide a two-year period for people with previously barred child sex abuse claims due to statute of limitations to bring those claims to court.

“It is in this context (of) the archdiocese’s care for all of the people and children of our community, that we support Bill 22-21 which amends the criminal statute of limitations, but we cannot support Bill 22-28 which proposes to eliminate the civil statute of limitations both prospectively and retroactively,” Fiorentino told the panel.

Fiorentino said the proposal to eliminate the civil statute of limitations “does nothing to ensure the same opportunities for survivors of abuse in public settings such as schools, summer camps, after-school programs, juvenile facilities, foster homes, hospitals, and other government facilities.”

Currently, the District allows a six-month window to press claims of sexual abuse against the city government. The city would not be included in the proposals being considered by the council.

“Families who utilize District government-administered programs should not be excluded so we would strongly urge that considerations of fairness and parity between public and private institutions be paramount,” she said.

That sentiment was echoed by Dr. Charol Shakeshaft, a researcher with Virginia Commonwealth University’s School of Education. In written testimony presented to the committee, Shakeshaft said “the elimination of the civil statute of limitations … ignores the victims of sexual abuse who were abused by employees of D.C. public schools.”

The D.C. City Council has twice looked at and revised the statute of limitations in cases involving sex abuse, once in 2004 and again in 2008.

At-Large Councilmember David Grosso, one of the sponsors of the bills, said he was prompted to revisit the issue based on the high profile sex abuse cases of Bill Cosby and of former Penn State assistant football coach Jerry Sandusky and by the 2015 release of the movie “Spotlight” which portrayed the Boston Globe’s investigation into child sex abuse allegations in the Archdiocese of Boston.

“There are few actions more depraved than sexual violence against children,” Grosso said. “Most survivors do not come forward until years later in adulthood.” He added that the legislation was designed “to encourage and empower victims.”

Naida Henao, staff attorney for the Network for Victim Recovery of D.C., spoke in favor of the bills saying they “shift the focus away from the imaginary stopwatch.”

“Timelines function as ultimatums that are akin to saying, ‘speak now or forever hold your peace’,” she said. “The status quo fosters silence, not justice.”

However, those who are against eliminating the statute of limitations also cite justice and fairness as reasons for their opposition.

Richard Gilbert, a member of the legislative committee of the D.C. Association of Criminal Defense Lawyers, said the proposals are “an unwise and unnecessary change to long-established principles which govern our criminal justice system.”

“Statutes of limitations … are one way in which the presumptive innocence (of the accused) is given tangible effect,” Gilbert said. He added that doing away with a statute of limitations “would place the defendant where he cannot produce subjective evidence for his defense.”

D.C. Council Chairman Phil Mendelson noted that the City Council “has looked at this issue at lease twice over the past decade and a half” and has previously extended the statute of limitations in sex abuse cases.  Right now, D.C. law allows victims of sex abuse to bring claims within seven years of reaching adulthood or three years from the time the victim knew or reasonably should have known that he or she was being abused – whichever is later.

Mendelson said he was concerned that without a statute of limitations anyone can make any accusation at any time, but current D.C. law “offers safeguards to protect innocent people.”

“The role of the justice system is about fairness,” he said. “The issue here is what is the fair process. We have to be mindful of the balance to protect children and protect the rights of the accused.”

C.J. Mahoney, a lawyer who serves as outside counsel for the Archdiocese of Washington, told the committee that the current law “strikes a reasonable balance between, on the one hand, the need to provide victims with a reasonable amount of time to bring claims after coming of age with, on the other, the need to provide basic procedural fairness to defendants in these cases.”

He added that the elimination of the statute of limitations for abuse-related claims “would upset this balance and put organizations like the archdiocese in an unfair and untenable position.”

He cited as an example a “potential claim” of someone who alleges they were abused by a priest in 1972.

“One, the central issues in the case would be whether the archdiocese was negligent in supervising the priest. The person directly responsible for supervising priests in 1972 was Cardinal (Patrick) O’Boyle, who has been dead for 30 years,” Mahoney said. “Others with knowledge of the events of over 40 years ago likely are deceased as well. It’s possible that relevant documents from this time period that might refute the allegations no longer exist.”

He questioned “how is the archdiocese to defend itself against the claims like this when the only evidence comes in the form of the plaintiff’s testimony?” He added that it would also be difficult for a jury today “to apply the standard of care expected of employers in the early 1970s, when procedures that are commonplace today like background checks, mandatory reporting, and child-protection training were not used widely if at all.”

He also urged the city council to “focus on forward-looking ways to strengthen protections for children in the District of Columbia, including by adopting model legislation based on the archdiocese’s own best-practice youth-protection policy.”

The Archdiocese of Washington has a “zero tolerance” Child Protection Policy, Fiorentino noted.

The archdiocese’s Child Protection Policy has been in effect for more than 30 years. When the archdiocese instituted that policy in 1986, it was one of the first dioceses in the United States to do so.

The policy mandates the reporting of abuse allegations to civil authorities, assisting those who have been harmed, and extensive education and training on how to prevent and identify mistreatment of children and youth. It also requires a thorough background check for all employees and volunteers who have substantial contact with children. The policy requires two forms of background checks – electronic background checks and fingerprinting – on employees, clergy, volunteers and anyone else who works with young people.

The archdiocese also has a Child Protection Advisory Board consisting of experts in related fields who report directly to Cardinal Donald Wuerl.

Councilman Charles Allen, chairman of the committee, said that his committee would accept written statements for and against the proposals and that they would be made part of the official record.




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