"One Step at a Time': the Path to a New Sex Abuse Bill

By Michael Karlik
Colorado Politics
February 27, 2020

https://www.coloradopolitics.com/legislature/one-step-at-a-time-the-path-to-a-new/article_9ea1db54-54e0-11ea-b7d9-2bf9f01e27c2.html

For the first time in 14 years, both chambers of the Colorado General Assembly will consider eliminating the civil statute of limitations for victims of childhood sexual abuse — and, for that matter, a range of sexual misconduct against children and adults.

House Bill 1296 comes in the wake of an October 2019 report from the attorney general’s office detailing the extent of childhood abuse from Catholic clergy in Colorado and follows other scandals involving the Boy Scouts of America, USA Gymnastics and perpetrators outed through the #MeToo movement. The proposal would allow unlimited time for victims of sexual assault, sex abuse and unlawful sexual contact to sue their perpetrators or the institutions that harbored them, but only for future cases.

Currently, survivors generally have six years to sue their abuser after they turn 18, and two years to sue an institution.

Colorado Politics spoke to half a dozen people involved in creating the bill, whose final form was kept closely guarded until its introduction on Feb. 12. Many participants were aware of a similar proposal’s high-profile defeat in the 2006 legislative session.

At the time, the Catholic Church and other affected institutions railed against the bills as unfair, and against the sponsors as being, in the words of then-Archbishop Charles J. Chaput, “angry, disaffected Catholics.”

#MeToo slowed effort in 2016

Anne Marie Woodward said she had no idea of that history when she began researching the statute of limitations elimination in the spring of 2016.

“I’m an OBGYN and I’ve had a lot of patients who have been raped,” she recalled. “I also got the idea because my home church had a sexual predator for a pastor and they kept him there, despite me talking to him.”

Woodward turned to advocacy groups for sex assault survivors, including the Colorado Coalition Against Sexual Assault and The Blue Bench. They advised her that it would be difficult to introduce a bill in time for the 2016 session, and recommended she engage additional parties. She said she began to hold meetings every one to four months on the subject. Around 2018, Woodward approached a legislator about sponsoring a bill.

At the time, the General Assembly was grappling with its own sexual misconduct problem. The House expelled Rep. Steve Lebsock, D-Thornton, over sexual harassment accusations, and Senate Democrats attempted to expel then-Sen. Randy Baumgardner, R-Hot Sulphur Springs, over his own sexual harassment complaints.

“The timing wasn’t good,” the legislator told Woodward about her proposal.

In 2019, there was a breakthrough. The spotlight was on the prevalence of sexual misconduct, including from USA Gymnastics doctor Larry Nassar, multiple television personalities, politicians and celebrities. CCASA, which in past years had focused its advocacy on other victim-centered measures, would now get involved.

“We decided this is the year to bring it forward,” Woodward said. “And there was enough time between all the accusations within the Colorado legislature that had time to die down. We hate to bring in a bill when it’s an emotional time.”

In early summer, CCASA polled its membership, asking which policies they wanted the organization to back in the 2020 legislative session. Elimination of the civil statute of limitations for behaviors to now be defined as sexual misconduct made the cut. Quickly, the organization had found three willing sponsors: Reps. Dafna Michaelson Jenet, D-Commerce City, and Matt Soper, R-Delta; and Sen. Julie Gonzales, D-Denver.

“The lobbyists who know the statehouse better than any of us provided guidance,” said Jeb Barrett of the Survivors Network of those Abused by Priests and a childhood sex assault survivor himself. “We finally determined that Michaelson Jenet would be a very good person because she’s very enthusiastic and people listen to her.”

Raana Simmons, the director of policy for CCASA, approached Soper, who was inclined toward the bill from personal experience. In 2017, Soper attended a talk at New York University’s building in Washington, D.C. Cindy McCain, who would soon become an ambassador-at-large for the Trump Administration, and then-U.S. Sen. Heidi Heitkamp, D-N.D., took questions about global sex trafficking.

“At that point in time, it really became apparent to me just how, by the time the victim is able to tell their story of being sexually assaulted, they’re usually in their 40s and 50s, even if they were assaulted as teens or in their 20s,” Soper recalled. “And by that amount of time, the statute of limitations had run. So that was already in the back of my head.”

Monthly meetings

Into the summer, the group of coalition members met roughly once per month, with Simmons meeting more frequently with individual contributors. Approximately eight different victim advocacy groups were represented. Calls were made to CHILD USA, a Philadelphia-based nonprofit that chronicles efforts to reform sex abuse statutes of limitations.

When the attorney general’s report on clergy abuse came out in October, the group speculated whether it would affect their work, making it seem that the bill was, like its 2006 counterpart, aimed at the Catholic Church.

“The victims’ groups were more of the perspective that this [report] is the right step forward. It highlighted in the news and in the public eye that now is the time to push forward,” Soper said.

Simmons said that the group did not engage with potential bill opponents, nor was she aware of any. In December, Colorado Politics published a report that one out of five current state legislators supported extending the civil statute of limitations for child sex abuse in principle. The article identified Soper as a sponsor of the forthcoming bill, which prompted groups concerned about the bill's implications to request meetings with him.

Soper heard a range of reactions from them: kill the bill. Complete elimination of the statute is unbearable. Go back and study why statutes of limitations exist. Evidence gets stale the longer victims wait to sue.

He mentioned the church, the Boy Scouts and the U.S. Olympic & Paralympic Committee as three groups he met with individually. The Boy Scouts issued a statement, not mentioning HB1296 specifically, explaining that "we support legislation that will strengthen mandatory reporting requirements for organizations and other trusted adults that serve youth." The Colorado Catholic Conference, which represents the state's three dioceses, has come out in opposition to the bill.

Briefly, there was discussion of whether to open up public institutions to lawsuits by waiving governmental immunity — a major provision of the 2006 bills that was a demand of the Catholic Church. That idea was abandoned, said Pamela Maass, a plaintiff’s attorney involved with drafting the bill. She added that the goal was to create the ability for civil suits specifically for sexual assault, something that Colorado law makes difficult now.

“Say I have a client who was sexually abused by her doctor. There’s not a [civil] statute that says, okay, that’s sexual assault,” she said. “I’m either bringing it under negligence, premises liability or medical negligence.”

Into the New Year, Simmons secured the final bill sponsor: Sen. Don Coram, R-Montrose. His district included Pagosa Springs, the headquarters of Rise Above Violence, another CCASA member. Unlike in 2006, when three statute of limitations bills were sponsored solely by Democratic legislators, there would be one Democrat and one Republican in each chamber leading the bill. That, said everyone interviewed, was purposeful.

“We wanted to do everything we can to get the bill across the finish line and passed and signed by the governor,” said Soper. “We had several objectives. The bill had to be bipartisan in both chambers. That was number one. Number two, the sponsors ... all agreed to commit to each other that we were all going to be working hard to get this bill passed.”

A debate over 'lookback'

On Jan. 16, Michaelson Jenet and Soper met with approximately 15 of the individuals involved — whom Barrett termed the “SoL Coalition.” Maass had been researching one of the highly controversial provisions from the 2006 legislation: a “lookback” window waiving the statute of limitations and allowing anyone whose time had expired to file a lawsuit. California first adopted such a provision in 2003, and other states have since opened their own windows.

Maass found a 1980 case where the Colorado Supreme Court ruled that a statute of limitations provides a “vested right which cannot be taken away or impaired by subsequent legislation.” She talked to other lawyers, asking if the lookback was constitutional.

“I didn’t find anyone who said that we could get around the vested right,” Maass said. She went so far as to draft a version of the bill which attempted to work around the vested rights doctrine by creating a “public interest” exemption for new claims, rather than reviving time-barred claims. She based her work on a Colorado Court of Appeals case that appeared to permit such a maneuver.

“The overwhelming feeling amongst the stakeholders is that the different pieces of legislation that they have tried to move forward over the years did not get through because of this desire to do this lookback window,” said Michaelson Jenet. She mentioned in the meeting that the progress had to be incremental, and that the path was clearer by omitting the lookback window.

“Is this going to be the be-all, end-all for all victims? Unfortunately no. And we have to keep moving forward one step at a time," she said.

Two days later, Woodward sent an email to the group. "One component of the policy that we continue to explore is the constitutionality of the revival window," she wrote.

Barrett responded with a warning. "I cannot and will not support any bill that ignores justice for child victims of the past," he said. The lookback window was SNAP’s principal goal in order to expose priests with allegations against them who might still be working around children.

Around Feb. 3, the decision was final: there would be no lookback provision. Simmons and the legislators kept the final version of the bill under wraps, such that some group participants saw its ultimate form only upon its introduction.

By now, Barrett had reflected on what Michaelson Jenet said about incremental progress. He changed his mind and told Woodward that he was back on board.

The day of the bill's introduction, Simmons emailed the group.

“Despite our strong advocacy, however, the bill does not contain a revival window provision,” she informed them. “Many factors contributed to this result and ultimately, the decision was made to carry a meaningful policy forward this year while alternative options, outside the scope of the legislature, continue to be explored.”

She added, “I am disappointed that the bill does not contain the revival provision but truly believe that what is in the bill will have a significant impact on survivors in our state.”

The House Judiciary Committee will consider the bill at a March 5 hearing.