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As the sex abuse statute of limitations bill falters again, echoes of 2006 defeat
By Michael Karlik
History repeated itself on Friday when the legislature killed a bill to give childhood victims of sexual abuse more time to sue their perpetrators and the insitutions that harbored them — the first such measure that came close to passage since 2006. At that time, and still, victims generally had only six years after they turned 18 to file a civil suit against their abusers. The window was an even narrower two years for a lawsuit against an organization. At that time, and still, Colorado was fresh from hearing about incidents within the Catholic Church. The Denver Post in the summer of 2005 reported on a series of clergy abuse survivors that would result in lawsuits from more than two dozen victims. In October 2019, the attorney general’s office reported that 43 priests had likely abused at least 166 children in the state since 1950. At that time, and still, feelings were raw from the failure. “I hope they don’t sleep well at night,” said former House Majority Leader Alice Madden bluntly, referring to those who voted against the 2006 proposal. The context for the 2020 attempt could not have been more different from the pitched battle in 2006. The bill looked forward, rather than open past cases. It only covered private entities and did not address the difficult matter of liability for government institutions. Its sponsorship was bipartisan from the beginning. And it occurred in an era of #MeToo, when the problem of sexual misconduct is visible, better-understood and when victims’ voices are louder than ever. But while the lawmakers who killed this year’s bill encouraged sponsors to bring a more robust bill to the next session, that means, for now, survivors are no closer to civil justice than they were 14 years ago. Colorado Politics interviewed more than 50 people who had direct or indirect involvement with the three statute of limitations bills from the 2006 session and reviewed hundreds of pages of contemporary accounts. Named individuals are identified by the titles they held at the time. Some of the events, or the details thereof, are reported here for the first time. One person who was involved in lobbying against the 2006 bills remembered that they had “a feeling during the entire session that was like a pit in your stomach. Like ‘you’re in trouble’ kind of feeling. It was just so stressful.” They added, “in talking to you right now, I had that same feeling.” David Clohessy, national director of the Survivors Network of those Abused by Priests, gained familiarity with statute of limitations efforts over his 15 years working full-time for the victims’ organization. Colorado, he remembered, was different. Then-Archbishop of Denver Charles J. Chaput, Clohessy said, “may have been the first to make — I want to choose my words carefully — this brilliant, disingenuous claim that unless public institutions were included, it would be unfair.” Both sides looked to California Shortly after The Post’s 2005 series on clergy abuse survivors began, Joan Fitz-Gerald began receiving calls from victims. Fitz-Gerald, the Senate president, quickly learned of California’s experience in 2003. The state opened a one-year opportunity, called a “lookback window” for any victim whose statute of limitations had expired to file a civil suit. It generated roughly 1,000 claims, of which 850 involved the Catholic Church. The bill’s lifespan was one month and 20 days from its first committee hearing until final passage. No one voted against it. Fitz-Gerald, D-Coal Creek Canyon, assumed she would have a similar experience. She copied the language into her bill, Senate Bill 143, and lengthened the window to two years to avoid overburdening the courts. Madden, D-Boulder, was her House sponsor. Around the same time, two other House members — Gwyn Green, D-Golden, and Rosemary Marshall, D-Denver — were working separately on similar bills. Both would eliminate the civil statute of limitations for childhood sex abuse going forward, and both would eliminate the criminal statute of limitations for offenses dating to 1996 onward. Marshall maintains that her bill had nothing to do with the Catholic Church. Green, a lifelong Catholic, died in 2018. When the Colorado Catholic Conference, the advocacy group for the dioceses of Colorado Springs and Pueblo and the Archdiocese of Denver, learned of the bills, it determined that they were unacceptable. The lookback in particular was irredeemable. While searching for a strategy, the church’s lobbyists also looked to California. They found what they were searching for in an August 2006 article from National Review Online. A Catholic columnist decried the media’s focus on clergy sex abuse to the exclusion of abuse occurring in public schools. The column cited a 2004 federal study finding that 6.7% of public school students experienced contact-based sexual misconduct from teachers. Applying that to the 6.3 million students in California’s public schools, the conclusion was that 422,000 students in the state would be a victim of school-based sex abuse before graduation. That number, the column pointed out, was higher than the 143,000 total students enrolled in Catholic school in California. “This was an issue for the church which was in the past. It was in the ’60s, ’70s and ’80s,” said one person familiar with the Colorado Catholic Conference’s strategy. “And what was the situation right now with public school students? Were they being mistreated and then not being dealt with?” The church’s lawyers sent letters to roughly 20 school districts around the state asking how many complaints of sex abuse they received, whether there was an investigation, and what happened to the teacher. All of the districts refused. The one response the Catholic Conference did receive in late January, however, was from the Colorado Department of Education, which gave the church the names of 85 teachers whose licenses had been revoked or denied for alleged sexual misconduct since 1997. Although none of the bills mentioned public institutions, the Colorado Governmental Immunity Act shields public entities against civil suits under the notion that costly litigation would affect the delivery of government services. In cases where governmental immunity could be waived, damages were generally capped at $150,000 and the victim had only 180 days from the incident to file a claim. The person familiar with the church said that, armed with this information about how other entities also had a sex abuse problem, the Catholic Conference “would essentially get a much more reasonable bill.” For the remainder of the session, the church would push hard on the message of “protect all children,” which some proponents felt was a ruse to create more opposition. “Honestly, I thought: the Democrats are in the majority. You can’t have a defeat like this in an election year,” they added. “If you’re about protecting kids, you gotta protect some kids, as many as you can. And we were telling you, protect them all." Meeting with victims For the bills’ supporters, their most powerful tool was the stories of abuse victims, who were a weekly presence at the Capitol. Rep. Josh Penry remembered being summoned off of the House floor to the Senate president's office. There, waiting to meet with him, were adult victims of childhood sex abuse. Penry, R-Grand Junction, called it his “first significant interface” with Fitz-Gerald, prior to being elected to the Senate himself later that year. “It was not an ambush,” he said of the meeting. “It was a legitimate effort to say, ‘hey, there’s a problem here and the law doesn’t allow a remedy.’ “The thing I remember about that meeting was it was not a hearsay, he-said/she-said thing,” he added. “It was the victim.” Fitz-Gerald also arranged for Thomas Gumbleton, auxiliary bishop of the Archdiocese of Detroit and the first U.S. bishop to identify as a survivor of childhood sex abuse from a priest, to visit the Capitol and speak to senators. The day he arrived at Fitz-Gerald’s office, three Catholic news agency reporters asked to sit in on the meeting with Gumbleton. They pointed out that a gathering of two or more legislators speaking about policy is open to the public. Fitz-Gerald shot back, “What is this, intimidation?” She changed the plan: instead of meeting with senators as a group, they would meet privately, one-on-one. She even walked over to the House floor, where she requested that Rep. Rob Witwer, R-Jefferson County, come to her office to meet someone. Witwer remembered the encounter clearly, although he voted against HB1090 on the principle that it was unfair to bring a lawsuit against an alleged perpetrator decades after an incident. “I felt like I was maintaining a confessional booth in my office,” Fitz-Gerald recalled. She said that Gumbleton could not speak publicly because he was a Church official who was a visitor in Chaput’s Archdiocese, and Chaput did not share the same view of the bill. The fact that the Catholic press was there made Fitz-Gerald think they were spying on Gumbleton for the Church to “make sure that he stayed in line”. The teacher strategy The church debuted its argument at the House Judiciary Committee hearing for Marshall’s bill, House Bill 1088, and Green’s, House Bill 1090. The Colorado Catholic Conference flew in Charol Shakeshaft, a researcher at Hofstra University and the author of the 2004 federal study on sex abuse in schools. She testified that eliminating the civil statute of limitations was inadequate if it did not include public schools, and estimated that 54,000 to 77,000 Colorado children would be left “unprotected.” “I understood that by arguing for broader coverage, my words could be used to try and stop an extension,” Shakeshaft said when reached 14 years later. She did not follow the fate of the bills, but believes now that even if the bills had passed without adding public schools, it would have been a step forward. Another witness was Christopher Rose, the public policy director for the Catholic Conference. He gave the committee a box of files from the records request showing the teachers with license suspensions, noting that the archdiocese by contrast had established an investigatory body and its Office of Child and Youth Protection in accordance with church policies. “We always report everything to the police. Always, without exception,” Rose added. That was not so. Only in 2019 with the release of the attorney general’s report would it be revealed that the archdiocese had failed to report to law enforcement 25 of the 39 recorded allegations of child sex abuse by members of clergy since June 2002. Investigators noted that there was confusion within the archdiocese about what the law required, and there is no evidence that Rose knew his testimony was inaccurate. Still, the Archdiocese received a report of a decades-old rape allegation the day before the 2006 legislative session started, and the attorney general’s investigation would find that the church appeared to neither report it nor look into it. On Feb. 4-5, 2006, priests in several parishes within the Archdiocese of Denver’s jurisdiction in northern Colorado read a letter from Chaput. “Every one of these bills,” the archbishop wrote of the three statute of limitations measures, “focuses instead on religious and private organizations.” These bills to give victims more time to sue, he told his fellow Catholics, would be unfair and prejudicial. In fact, “some Catholic legislators seem determined to be harsh” on the Church, while “it will be families, including Catholic families, who suffer.” Fitz-Gerald, Green and Madden were Catholic. Concluding with the statement that each bill “unfairly ignores sexual abuse in public schools and institutions,” the archbishop urged parishoners to “contact your legislators and demand that they seriously amend or defeat” the bills. Reactions varied to the Chaput letter. Green was sitting in her parish when she heard the priest describe her bill. She stood up. “Thou shall not bear false witness,” she said. On the other hand, one of the bill’s opponents, speaking under condition of anonymity, remembered their parish running out of photocopies of the letter due to demand from churchgoers. “Right then and there I thought, ‘there is no way this bill passes unless it includes public school kids. There’s no way. It just isn’t going to pass’,” they said. “Catholics don’t really respond as a unit politically. But they felt like this was unfair.” The church’s line of argument disgusted some people. “The most vivid thing for me in that whole debate — and the most offensive thing for me in that whole debate,” recalled Rep. Terrance Carroll, D-Denver, “were the arguments from the church that ‘we’re not as bad as the school districts. There are far more teachers who are pedophiles, instead of owning their own behavior.” Three approaches Each of the sponsors took a different route in response to the entreaty to “protect all kids.” Marshall amended her bill on the House floor to remove the contentious civil portion entirely. “We just thought they would get more momentum if they were separate issues rather than combined in one bill,” she recalled. HB1088 now only lifted the criminal statute of limitations for cases going forward. The three Catholic bishops met and on March 1, they endorsed the bill. Chaput praised Marshall for having taken her “flawed bill and shaped it into public policy that reasonable people can support.” Alluding to Green and Fitz-Gerald, the archbishop added contemptuously that “Public service is a demanding vocation. Not everyone has the skill to handle its pressures with good will and fair judgment.” Bill Owens, the Republican governor and a Catholic, signed the bill. Proponents of the other two bills saw this as a fleeting and minor victory — something the church could point to as having supported a reasonable solution. “We thought that this gave Owens something that he could say, ‘I’ve done something on this issue. I’ve made some improvements,’” said Annmarie Jensen, the lobbyist for the Colorado Coalition Against Sexual Assault. “Giving people that ‘out,’ I think, was part of our messaging problem because it looked like they were being compromising, when the bill as Rosemary amended it didn’t really affect them.” Green, on the other hand, embraced the argument to include public institutions, and had her bill amended to waive governmental immunity. It passed 49-14 in the House. Meanwhile, Fitz-Gerald had gotten her lookback bill out of the Senate State, Veterans, & Military Affairs committee, of which she was a member. An amendment to make the lookback apply to public institutions was ruled out of order. But it never reached the Senate floor on its own. Instead, Fitz-Gerald decided in mid-April to combine her bill with Green’s to improve its chances of passage. But as the session wore on, some people quietly observed the lack of an endgame for the bill. “My take on it is that she was doing something that she really didn’t want to do but she felt that she had to do it,” recalled Sen. Bob Hagedorn, D-Aurora, referring to Fitz-Gerald. “Particularly when you have the governor who was not probably going to sign anything that Joan was okay with. And we didn’t have a veto-proof legislature. So to me at least, what the final outcome was going to be, it was pretty obvious.” One person involved with the opposition, speaking on condition of anonymity, put it more plainly. “One thing I think that [proponents] never understood: the guy sitting downstairs who had to sign this legislation is a Republican governor who, when he was a state representative in 1986, was the author and sponsor of the biggest tort reform legislation in the history of Colorado,” they said. “And you’re expecting him to sign a bill to open up the biggest exception to that tort reform ever?” In 1986 alone, over 30 state legislatures enacted changes to civil liability after widespread increases in insurance rates. Owens was the sponsor or co-sponsor for a half dozen bills in that session which limited multiple types of damages, altered the liability standards for defendants, and placed most types of civil liability claims under a two year statute of limitations. Most people interviewed believed that the governor was at best neutral or, more likely, opposed to HB1090 and SB143. No one believed he supported them. Proponents admitted in retrospect that Owens was a blind spot for them. Their focus was on pushing something through the legislature, with no immediate plan for what should happen after that. “I think we were very much of a one-step-at-a-time kind of thing,” said Clohessy, of SNAP. “There’s only one governor, so if and when we get the luxury of approaching him because the bills passed, we will want to do it carefully.” Parishes “being bled dry” Now, the combined bill had a coalition of opponents that included the Colorado Catholic Conference, but also public institutions, their lobbyists and their insurers. “It was largely Joan Fitz-Gerald versus the church,” recalled Evan Goulding, lobbyist for the Special District Association of Colorado. He remembered feeling “dragged into a fight that wasn’t really our fight.” At the time, the association’s membership included 30 to 35 parks and recreation and districts and 60 fire districts with youth programs, he estimated. Some of the member districts contacted the association and told Goulding that if public institutions were in the bill, they would have problems. While other institutions’ lobbyists worked behind the scenes, the rhetoric was harshest from the Archdiocese of Denver and its enlisted allies. “It is time to start getting angry,” wrote Greg Erlandson, a Catholic journalist, in the March 1 issue of the Denver Catholic Register. “The Catholic Church is being singled out. You are being singled out. It is your pocket that is being picked clean. It is Catholic schools, Catholic aid programs, Catholic charities, Catholic parishes that are being bled dry.” “There’s a new and peculiar kind of anti-Catholicism at work,” Chaput told the Catholic publishing company Our Sunday Visitor. He added, in what appeared to be a reference to Fitz-Gerald, Green and the victims, “Some of the worst anti-Catholics are angry, disaffected Catholics.” More blunt was the full-page advertisement in The Denver Post on Feb. 19, 2006, opposing the statute of limitations extension. “PILLAGING THE CATHOLIC CHURCH ON A MASSIVE SCALE” it read. The American Society for the Defense of Tradition, Family and Property, a Catholic organization that bills itself as “on the front lines of the Culture War,” paid for the ad that asked, “Why does the secular left hate conservative Christians?” Some legislators were inundated with opposition. “There were stacks and stacks of the postcards and the letters,” one lawmaker recalled on condition of anonymity. “I am 99% sure that that issue was what I got the most outreach on the entire session.” “It was all of the Catholic people,” said Rep. Cheri Jahn, D-Wheat Ridge. “They were the only ones contacting me, from what I remember. And they were like, ‘how dare you go after the church?’ “They were really angry,” she added. “The churches had them all riled up.” The messages to Jahn’s office were no accident. Her district overlapped with that of Sen. Maryanne “Moe” Keller. Despite reports at the time that Chaput instructed his February letter to be read in every mass within the archdiocese’s territory, a person familiar with the church’s tactics claimed that the instruction only extended to the pulpits of approximately a dozen churches. Democrats in swing districts, the person said, were the archdiocese's targets. That is why Green heard the letter in her Golden parish. “It wasn’t so much like, ‘let’s screw her,’” the person said. “It was a large parish in a suburb.” The person added that the senator was the mark in Jefferson County, not Green. Keller would end up voting no. Chaos in the final days The combined HB1090 would now cover both sides of sex abuse liability: lifting the civil statute of limitations for future victims to seek justice and creating a retroactive window for past survivors. Among the other changes, a now-one-year lookback window would limit lawsuits to instances of abuse going only as far back as 1971. Damages in that window for both public and private institutions would have a $150,000 cap. Going forward, victims could only sue until age 53. Fitz-Gerald pushed through the bill in the Senate by an 18-17 vote, losing four Democrats and gaining four Republicans. Those with concerns about the constitutionality of the lookback window were in the minority. Some members felt it was better to pass the bill and let the courts settle the constitutional question. But once the House saw the bill, it balked. A series of conference committees, which included Green and Fitz-Gerald, ended up stripping the lookback window and other Senate-added provisions. Each time, the Senate passed the compromise 18-17. But between February and late April, Green had lost her majority. “I remember they would bring up arguments — we’d be hearing them for the first time from lawmakers,” said Clohessy. “Saying, ‘I talked to my pastor and he brought up X.’ And I remember vividly thinking, ‘we’ve been doing this for weeks. Where did that notion come from?’” “It’s a tactic to kill some bills,” said Rep. Val Vigil, D-Thornton. “They’ll just pass a slight change and then other people will say, “I want 100% or nothing”....And they’ll never be on the record for voting against it. Conference committees are a tactic.” “By the end it was all very fractured,” Penry said. “Some people wanted liability limits to protect against excessive damages. Some of the plaintiff's lawyers were hoping the litigation floodgates would be thrown open as wide as possible.” The House adhered to its original version passed in February. Fitz-Gerald, the weekend before the final day of the session, said she would study it. By Monday she made the decision to not have the Senate take a vote on the bill. Fitz-Gerald did not remember why she opted against the obvious path of passing the original HB1090 through the Senate. This is perhaps the biggest mystery of the bill’s saga. She had already voted for the legislation after it removed her lookback window, and she had 17 other votes on her side. Why not take one final vote? “We don’t know what she was thinking,” said one lobbyist on the bill, who said they showed up on the final day prepared to continue opposing it. “I remember thinking, ‘yeah, she had an easy win here.’ ” One possibility, Fitz-Gerald allowed, is that the Senate never approved a version of the bill which eliminated the civil statute of limitations completely. It was Sen. Ron May, one of her four Republican votes, whose amendment capped the statute at age 53 for the victim. Eliminating the statute entirely might have jeopardized his, and potentially other senators’, votes. Part of the failure to extend the statute of limitations was the reality that the proponents had difficulty advancing a succinct answer to the church’s straightforward question: how do lawsuits for crimes in the past help protect children today? “What the supporters of the bill lacked was they didn’t have a press conference of 10 kids who had been molested in the last two years kind of thing,” said one person familiar with the church’s strategy. Even though there were dozens of survivors around the Capitol weekly, they were virtually all adults. That image enabled opponents to raise doubt about the intentions of the proponents. Instead of providing help for children, Sen. Shawn Mitchell, R-Broomfield, complained, the bills only afforded “therapeutic legal opportunities for alleged middle-aged victims.” The primary outrage for Fitz-Gerald was the secrecy the church afforded abuse allegations and the failure to adjudicate allegations properly — deficiencies the attorney general’s report would note in 2019. But at the time, and without the independent verification of those allegations, multiple parties noted that the Catholic Church seemed a fixation of hers and, in their words, “targeted.” Victims, whom she had consulted every step of the way, walked away with a different impression of her and Green. “Tears literally come to my eyes at just the mention of those two,” said Clohessy, beginning to cry. “Because I think — I thought they were and still think they are absolute heroes. Absolute heroes for standing up for kids.” Contact: michael.karlik@coloradopolitics.com
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