False Hope for Md. Childhood Sexual Assault Survivors

By Joanne Suder
Baltimore Sun
October 11, 2017

http://www.baltimoresun.com/news/opinion/oped/bs-ed-op-1012-abuse-victims-redress-20171011-story.html

At first glance, the newly enacted Maryland law that extends the statute of limitations for victims of childhood sexual abuse from age 25 to age 38 appears to offer hope to individuals who, for any number of reasons, are psychologically unable or unwilling to seek a remedy for the horrors they experienced as children until they are well into adulthood.

That’s not how it worked out, however, and at the very least this law delivers false hope. House Bill 642 instead dealt a stealthy and significant win to the Archdiocese of Baltimore — and any other employer that has allowed perpetrators under their purview to persist in terrorizing children.

Here’s why. Although the law extends the statute of limitations from age 25 to 38, it adds an onerous requirement: Victims older than 25 who sue a rapist’s employer must now meet the notoriously difficult-to-prove gross negligence standard. Before this law, a sexual-abuse victim had to demonstrate ordinary negligence by the employer. What the new law means is that older victims suing potentially culpable employers, such as the Archdiocese of Baltimore in the priest-rape cases, must prove that the employer was acting with thoughtless disregard for the consequences without the exertion of any effort to avoid them.

Therefore, schools or camps or other organizations that purport to care for children, but allow abuse under their noses, can get off the hook and avoid compensating victims because proving gross negligence is just too hard. Maryland's courts describe this standard as “an amorphous concept, resistant to precise definition.” Unfortunately, Maryland court history is riddled with cases stating that even the most egregious conduct that meets the negligence standard would not pass the gross negligence test.

Take, for example, the case in which an EMT declared a person dead and did not provide treatment, when the individual was in fact alive — and the court failed to find gross negligence (McCoy v. Hatmaker, in 2000).

In short, while it appears that sexual-abuse victims can receive compensation from a court of law, the increase in the standard of proof all but insulates the Archdiocese of Baltimore from the responsibility that it has toward the many adults it failed to protect as children from pedophiles. Even though Archbishop William Lori has pledged to stand “for the victims,” his commitment and any justice that he might support on the victims' behalf are undermined utterly by what is akin to a “Bill of Spiritual Darkness” in terms of its effect on victims.

Further exacerbating matters, the new law only applies to childhood sexual-abuse victims who reach the age of 25 after Oct. 1, 2017. That means that any victim who was age 25 or older before Oct. 1 now cannot bring suit at all because the law as written is not retroactive.

This punitive outcome from legislation that was clearly mischaracterized as rendering only a benefit to victims is unacceptable and it should be changed during the next session of the Maryland General Assembly. One way to right this wrong would be to take the high road — an approach that has worked next door in Delaware. That state lifted the statute of limitations on lawsuits for two years for victims of pediatric sexual abuse, giving them an open window to bring suit no matter how old the incidents and regardless of the reason that the victim failed to file before. Such an approach came at no cost to taxpayers, and it helped ensure that pedophiles were identified and possibly prevented from causing harm to other children.

That decent solution, in concert with reinstating ordinary negligence as the normal criteria for burden of proof, would actually help, not potentially further hurt, victims of child sexual abuse.