Lawmakers pause sex abuse bill as critics cast doubt on constitutionality

Colorado Politics [Denver CO]

May 26, 2021

By Michael Karlik

The House Judiciary Committee postponed a vote on legislation that would give victims of past sexual abuse access to the justice system, after its sponsors requested more time to negotiate amendments in response to concerns about liability for the government and the difficulty of defending against decades-old misconduct.

Both proponents and critics of Senate Bill 88 conceded during a nearly three-hour hearing on Tuesday that the landmark victim rights measure would ultimately end up before the Colorado Supreme Court.

“Colorado has a legitimate right and interest in empowering its people to hold wrongdoers and institutions accountable for this criminal conduct,” said Rep. Matt Soper, R-Delta, one of the SB88’s sponsors. “In my view, this bill is constitutional. It implements legitimate public policy.”

Supporters of SB88 have touted it as a unique solution to a problem that has gradually risen in the public’s consciousness: whether to allow victims of childhood sexual abuse to sue their perpetrators and the organizations that covered up misconduct, even though the statute of limitations for such claims may have long since expired.

In Colorado, people generally have six years after they turn 18 to file a civil lawsuit against an abuser, and two years to sue an institution. A companion bill that the governor signed into law this year abolished the statute of limitations for future victims, with SB88 designed to provide a remedy for current survivors.

Although actions of the legislature are presumed to be constitutional and courts have a high threshold to find a law unconstitutional, the Office of Legislative Legal Services last year opined that any attempt to suspend the statute of limitations for past abuse would likely run afoul of the state constitution.

Other states have opened such “lookback” or “revival” windows for people to file claims, but the office concluded that based on the state Supreme Court’s precedent, the right to use the statute of limitations as a defense “cannot be taken away or impaired by subsequent legislation.”

Enter SB88, which, according to proponents, would circumvent that prohibition by creating a new claim for existing victims, rather than revive a past claim. Not everyone was convinced, however, including at least one Judiciary Committee member.

“I’m really struggling to understand why saying it in a different way makes it a new claim,” said Rep. Adrienne Benavidez, D-Adams County, a skeptic of past efforts to remove the statute of limitations entirely.

Those opposing or seeking amendments to the bill included the Colorado Catholic Conference — which represents the Archdiocese of Denver and the dioceses of Colorado Springs and Pueblo — as well as school district leaders, cities and counties, and the insurance industry.

“We empathize with the real harms that many have suffered because of childhood sexual abuse,” testified Kelly Campbell, speaking for the American Property Casualty Insurers Association. However, she then argued that perpetrators and institutions would only seek to pass the costs onto their insurance policies if the bill were to pass.

Cary Silverman of the American Tort Reform Association told the committee that lawsuits based on decades-old conduct are problematic because employees are gone, management has changed and records are discarded.

Representing the Colorado Association of School Executives as well as his own school district, Colorado Springs District 11, Glenn Gustafson said the district had itself been a “victim” of a school resource officer and volunteer coach who was convicted of molesting 18 middle school boys. He predicted school districts’ insurance premiums would escalate significantly as a result of the bill.

“A lot of our rural school districts, and we have over 120 of them, do not carry sufficient amounts of insurance for these types of matters,” Gustafson said.

But to survivors of childhood sex abuse in the room and their advocates, many of whom had testified repeatedly before lawmakers over the years, the shields provided by the statute of limitations and governmental immunity were no justification for permanently barring victims for trying to expose wrongdoing.

“You could rape a child and I can’t bring a state law claim against a school. That’s how crazy it is right now,” attorney Michael Nimmo said.

Kenneth Power, a victim of abuse in the Boy Scouts of America, said he still has a desire to hold the organization accountable.

“I would like my day in court. I deserve to present my case to the court and let the court decide whether the BSA is responsible for the harm I endured,” he said.

Under the proposal, organizations that operate youth programs would only be liable if they knew or should have known about a risk to children and did nothing to mitigate the potential harm. Because childhood victims of sexual abuse often do not disclose until much later in life for a variety of cultural, intellectual and gender-based reasons, 20 states and territories have opened lookback windows to varying degrees for civil claims. 

The last major attempt to open a litigation window in Colorado for people whose statute of limitations had expired was in 2006, after The Denver Post reported on several victims of clergy abuse within the Catholic Church. Unlike today, the question of constitutionality did not feature nearly as prominently.

Marci Hamilton, the founder of the advocacy group ChildUSA, said she recalled the arguments that doomed the attempt 15 years ago.

“It was shut down by misrepresentations made to honest and good parishioners,” she said. “They were told that this would destroy the Catholic Church.”

At the time, then-Archbishop of Denver Charles J. Chaput waged a near-weekly campaign in the pages of the Archdiocese’s newspaper, slamming the legislation as biased against Catholics.

“Across the country, Catholic parishes, dioceses and organizations are now the targets of predatory civil lawsuits and community-crippling settlements,” Chaput wrote in May 2006. “The people who pay for these damaging lawsuits are always the same. They’re average, innocent Catholic families who had nothing to do with the evil actions of some bad or mentally ill abusers 25, 35 or 45 years ago.”

As for the current effort, attorney Michael D. Plachy told the Judiciary Committee that the Catholic Church in Colorado supports a cutoff on the age of claims that could be brought forward. The church has further concerns about whether a national organization operating in Colorado could be considered “on notice” for the misconduct of an employee in a different state.

Despite those objections, Raana Simmons, the director of public affairs for the Colorado Coalition Against Sexual Assault, forcefully rejected the notion of diluting SB88.

“If we continue to give concessions to the very institutions that are the reason for this policy in the first place, there will be nothing left of the bill,” she said.