The Pennsylvania Catholic Church report highlights the cruelty of statute of limitations laws

By Daniel Hemel
Vox
August 21, 2018

https://www.vox.com/first-person/2018/8/21/17763992/catholic-church-pennsylvania-priest-abuse

The release of a Pennsylvania grand jury report documenting the sexual abuse of more than 1,000 child victims by hundreds of Catholic priests has revived a long-running debate about statutes of limitations.

These statutes — which create time limits after which criminal prosecutions and civil lawsuits can no longer be initiated — prevent many of the Pennsylvania accusers from bringing their alleged abusers to court. It’s the same type of law that helped make it so hard for Bill Cosby’s accusers to take him to court when allegations of rape resurfaced a few years ago.

Statutes of limitations are common but controversial features of federal and state law. More than 40 states still have statutes of limitations that apply to some or all child sexual abuse crimes, and most states also apply limitations statutes to civil lawsuits.

Proponents of these laws argue that litigating a case based on events from the distant past runs the risk of lost evidence and faulty memories. Critics respond that these concerns can be adequately addressed without drawing arbitrary lines that shut victims out of court.

Pennsylvania law currently allows criminal prosecutions for child sexual abuse until the victim turns 50. Victims themselves can bring civil lawsuits (in which victims ask for compensation rather than for the perpetrator to be put in prison) until they turn 30. Calls for Pennsylvania and other states to reform these statutes have grown louder in the days since the grand jury report.

The Pennsylvania state Senate unanimously passed legislation last year that would eliminate the criminal statute of limitations in child sexual abuse cases altogether as well as raise the age cap for civil claims from 30 to 50.

That measure has so far stalled in the state house, where lawmakers have sought to add a controversial amendment that would allow a two-year “window of opportunity,” starting now, in which any victim of child sexual abuse could bring a civil claim regardless of the victim’s age. Republicans in the state Senate have opposed that amendment.

The Catholic Church revelations should spur Pennsylvania legislators to break this logjam. It should also prompt lawmakers across the country to take a closer look at the rationale for their limitations statutes more broadly.

When they do, they should recognize that the justifications for these statutes are shaky, especially as applied to serious offenses such as sexual abuse. Time bars on civil claims rest on more solid ground, but there too, the arguments for reform — if not repeal — are strong.

Criminal statutes of limitations are widespread but far from universal. Some other common law countries, including England and Australia, have no criminal statutes of limitations. No US state imposes a statute of limitations for murder, and South Carolina and Wyoming have no statute of limitations for any criminal prosecution. Elsewhere, they vary dramatically from offense to offense and from jurisdiction to jurisdiction.

Probably the most common justification for criminal statutes of limitations is evidentiary. As time passes, memories fade, alibi witnesses die or move away, and potentially exculpatory evidence is lost. Thus, the passage of time raises the risk of convicting the innocent.

Critics of limitations statutes acknowledge these evidentiary concerns but argue that categorical time bars are an inadequate response. Why should we allow criminal prosecutions of child sexual abuse when the victim is 49 — as Pennsylvania now does — but close the window abruptly when the victim turns 50?

To be sure, any bright-line rule leads to arbitrary outcomes at the margins. But here, the law should be able to do much better. For example, when a defendant stands accused of a long-ago crime, the judge in the case could instruct jurors that they may consider prosecutorial delay as a factor in deciding whether a person is guilty “beyond a reasonable doubt.” Delay in prosecution might be one reason for doubt, but it might not be reason enough to acquit if other evidence of guilt is overwhelming.

A second justification for criminal statutes of limitations is that as time passes, people change. Individuals who committed heinous crimes 50 years ago might have reformed themselves in the intervening half-century. If they have been law-abiding citizens in the decades since, they are probably no danger to society today. Why lock them up now?

Critics of limitations statutes have an answer to this too. A defendant’s self-reformation between the crime and the prosecution may be a factor that a judge should take into account when setting a sentence, but time does not expiate all sins.

Consider, for example, the priest who allegedly forced a 9-year-old boy to perform oral sex on him in the early 1980s and then washed the boy’s mouth out with holy water. The priest — now 73 years old and living in Boca Raton, Florida — does not appear to have apologized or endured any consequences in the years since. Trying and potentially punishing the priest today would send a strong signal to future abusers and their abettors that they will not enjoy impunity if they prey on society’s most vulnerable.

State lawmakers have broad leeway to lengthen limitations periods, but their power is not absolute. In a 2003 case, the Supreme Court held that the Constitution prevents any state from reviving a criminal prosecution that is already time-barred. Thus, if Pennsylvania successfully eliminates its statute of limitations for child sexual abuse crimes today, the state could not bring charges against a defendant whose victim is now 51, because the limitations period for that charge has already run out.

If childhood victims now older than 50 ever have their day in court, it will likely be in the civil context because the constitutional prohibition on reviving time-barred prosecutions does not apply to civil suits.

The debate over civil statutes of limitations is similar, but not identical, to the dispute over criminal time bars. In civil cases, the penalty is typically monetary, and so the concern about sending an innocent person to prison does not apply.

That might make the case for making civil statutes of limitations weaker than in the criminal context. On the other hand, in civil cases it’s the victim and not a prosecutor who controls when claims are filed, and so arguably it’s the victims who are at fault if they fail to bring the case quickly.

One of the key takeaways from the church sex abuse scandals and the #MeToo movement is that the social and emotional pressure for victims of sexual misconduct to stay silent about their experiences can begin to lift once other victims raise their voices. Age-based thresholds like those in Pennsylvania ignore that powerful lesson. Becoming the first person to publicly accuse a particular defendant of sexual abuse, assault, or harassment requires enormous courage for middle-age adults as well as younger victims.

One possible approach is to follow the grand jury’s suggestion for an additional two-year window on civil claims but to start the clock once the defendant has been publicly accused of sexual misconduct by another person.

Pennsylvania could apply this two-year rule not only in cases of child sexual abuse but also to civil claims of sexual misconduct involving adult victims. While the grand jury’s proposal for a new two-year window would be a one-time fix, this alternative approach could apply going forward to all civil claims involving sexual misconduct.

A more radical approach would be to eliminate the civil statute of limitations altogether in cases of child sexual abuse — and perhaps for claims of serious sexual misconduct involving adult victims as well.

For some, such a proposal may raise concerns about potential plaintiffs sitting on their claims for years and then springing lawsuits on defendants once exculpatory evidence has deteriorated or been discarded.

A possible compromise would be to reduce the amount that victims can recover if they are slow to bring their claims, but not to bar them from recovering anything. In that case, plaintiffs still would have an incentive to file their actions sooner, but victims who struggle to overcome the social and psychological barriers to speaking out would not lose their day in court.

While the sexual abuse revelations in last week’s grand jury report highlight some of the major flaws with existing statutes of limitations, these flaws extend beyond the present case. The report should prompt lawmakers, lawyers, and lay people to reflect on the statutes that stand in the way of victims seeking justice.

These statutes do serve evidentiary and diligence-promoting functions, but those functions could likely be fulfilled through alternative means. Reforms that are specific to child sexual abuse are sensible first steps, but they should not be the end of the road.