March 26, 2021
By Alan J. Keays
Proposed legislation would eliminate the statute of limitations in Vermont for a victim of childhood physical abuse to bring a civil action against those responsible.
The bill, S.99, which was presented Friday before the Senate Judiciary Committee, follows legislation enacted two years ago that repealed the statute of limitations for victims of sexual abuse to bring civil lawsuits.
Both pieces of legislation also come in light of claims of physical and sexual abuse decades ago at the Vermont Catholic Diocese’s former St. Joseph’s Orphanage in Burlington.
A two-year investigation ended late last year with the Vermont Attorney General’s Office concluding history of child abuse at the orphanage, but no charges were filed mainly as a result of criminal statute of limitations.
In addition, an investigation last fall by VTDigger revealed allegations of decades of abuse at the New England Kurn Hattin Homes for Children, a private residential school in Westminster.
“It’s actually a fairly simple concept, which would be to the lift the statute of limitations on child abuse,” Sen. Dick Sears, D-Bennington and committee chair, said of the latest legislation at the start of Friday’s hearing held over Zoom.
He added that the current statute of limitations for filing civil claims of child physical abuse is set at three years.
“The drafting,” Sears said of S.99, “was in response to issues at the St. Joseph Orphanage and then the recently discovered child abuse at the Kurn Hattin school.”
Sen. Phil Baruth, D/P-Burlington, is one of the sponsors of the legislation. He said the bill came out of ongoing restorative justice efforts involving St. Joseph’s Orphanage.
“I’m approaching it in the same way that we did previous work on the statute of limitations on sexual abuse,” Baruth added.
The Senate Judiciary Committee heard testimony Friday from legal experts and is expected to take the bill back up next week with testimony from abuse survivors.
The legislation would be retroactive, meaning the statute of limitations would be eliminated for civil claims of past childhood physical abuse as well.
Childhood physical abuse, according to the proposed legislation, “means any act committed by the defendant against a complainant who was under 18 years of age at the time of the act and which act would have constituted a violation of a statute prohibiting aggravated assault in effect at the time the act was committed.”
On the criminal side, the statute of limitation for aggravated assault is three years.
Burlington lawyer Jerome O’Neill has filed dozens of priest sexual misconduct claims against Vermont’s Catholic Church in the past quarter-century.
He has long argued that the clock on the state’s statute of limitations for filing civil cases starts not on the date of abuse but instead the day a person discovers an offender or affiliated institution is culpable.
O’Neill testified Friday in favor of the latest legislation regarding physical childhood abuse civil claims.
O’Neil also pushed back on a concern from some committee members that it would be difficult for a person or entity to defend itself from claims of child physical abuse that occurred many years ago, or in some cases, decades ago.
He said the burden would rest with the party bringing the lawsuit against another person to prove their case by a preponderance of the evidence, or that it is more likely than not.
O’Neill said he didn’t believe that physical abuse would be an easy task to show years later, and he didn’t think lawyers would bring lawsuits haphazardly.
Still, he said, the legislation is far from insignificant.
“It really changes their lives,” he said of abuse survivors, “and I don’t mean in terms of money, but I mean it in terms of how they see the opportunity to achieve a level of justice.”
Attorney Kim Dougherty offered similar testimony Friday to O’Neill. She represents former Kurn Hattin students who say they were subjected to emotional, physical and sexual abuse when at the school.
“I don’t believe there will be lawsuits brought that are not provable,” Dougherty said.
Sarah Robinson, deputy director of the Vermont Network Against Domestic and Sexual Violence, also testified Friday in favor of the legislation.
“We believe that this builds on the important statute of limitations reform that the Legislature enacted several years ago when you all repealed the civil statute of limitations on child sexual abuse claims,” Robinson told the committee.