'Retroactive Punishment' Test Case
High Court Decision on Bay Area Molest Charges Could Affect Terror Law

By Bob Egelko
March 31, 2003

The U.S. Supreme Court is to hear a Bay Area child molestation case today that will determine the fate of hundreds of similar prosecutions in California -- and perhaps some future federal terrorism cases, as well.

At issue is a 1994 California law that can be used to prosecute cases that date back decades, before the law existed. The high court's ruling, due by the end of June, will determine whether the state law violates a constitutional ban on retroactive punishment.

The court's decision could also determine the constitutionality of a section of the nearly 1 1/2-year-old USA Patriot Act. That section, which apparently has yet to be used, retroactively repealed all deadlines for prosecuting a wide range of terrorist-related crimes.

The case that the court agreed to review last fall involved an elderly former Antioch resident named Marion Stogner.

Stogner, then 70, was arrested in July 1998 in Phoenix, where he was working as a security guard, and charged with molesting two of his daughters, one from 1955 to 1964, the other from 1967 to 1973.

He was taken into custody six months after one of his daughters accused him of molesting her. A son, Randy Stogner, has pleaded no contest to molesting his own stepdaughters and agreed to testify against his father in trial.

Like most crimes, molestation has a statute of limitations, or legal deadline for charges to be filed. It is intended to let cases be decided when the evidence and witnesses' memories are still fresh, and to give the government a limited time to charge individuals or leave them alone.

In 1973, the statute of limitations for molestation in California was three years. It meant Stogner was off the hook in 1976, based on the year of the last alleged molestation charged against him.

Today, California's statute of limitations for molestation is 10 years, but a state law passed in 1994 created an exception to the limitations statute. It allows prosecutors to file molestation charges within a year of the time that the alleged victim reports the incident to authorities, no matter how long ago it happened.

Based on the premise that children are often afraid or ashamed to report sexual abuse when it happens, the law applies to molestation that involves "substantial sexual conduct" -- intercourse, oral or anal sex, or masturbation -- and has independent corroboration.

California's 1994 law was a product of the victims' rights movement, which argued that traditionally rigid deadlines for filing charges were allowing molesters to get away with their crimes by keeping their victims quiet for years, even decades. The high court will determine whether California has now tipped the scales too far, a decision with both legal and psychological importance.

Arguing in support of the law, the American Psychological Association and child advocacy groups say criminals should not go free "based solely on the fact that their victims may be shamed, intimidated or otherwise prevented from reporting abuse until well into adulthood."

The case strikes a nerve with Terrie Light, who said she was raped by a priest in Hayward when she was 7 and was unable to reveal it until after he died in 1998, 39 years after the alleged crime. She is now a spokeswoman for the Survivors' Network of those Abused by Priests, or SNAP.

"He choked me and threatened me and told me that I would burn in hell if I ever told," she said. "It takes a long time to undo that. . . . This is such a horrific crime, there shouldn't be statutes (of limitations)."

But defense lawyers argue that upholding the California law sets a dangerous precedent, letting states single out particular crimes after the fact and decide that anyone could be charged with them at any time. They say it's particularly dangerous to change the rules and allow crimes in the distant past to be prosecuted, after memories have faded and helpful witnesses possibly have disappeared.

"The potential for politically motivated abuses . . . against unpopular groups is patent," state and national defense groups said in written arguments to the court.

STOGNER CASE IS KEY TO MANY Prosecutors say the 1994 law has been used to file charges against more than 500 people, including a number of priests and a successful high school basketball coach.

Similar laws in other states have been struck down as ex post facto laws -- those imposing punishment after the fact -- on the grounds that the defendant's conduct was no longer a crime once the statute of limitations expired. But the California Supreme Court upheld the 1994 law four years ago in a 4-3 ruling, saying it was only a procedural change that did not alter the crime or the punishment.

Among the cases that will be affected by the U.S. Supreme Court's decision in Stogner's are those of:

-- Donald Kimball, a defrocked Santa Rosa priest convicted of molesting a 13-year-old girl in 1981;

-- John Heaney, senior chaplain for the San Francisco Police Department, charged with molesting a boy in the 1960s;

-- Mike Phelps of Oakland, the winningest high school basketball coach in California history, also charged with molesting a boy in the 1960s;

-- Austin Peter Keegan, a former San Francisco priest arrested in Mexico this month on charges of molesting two Bay Area children in the 1960s.

No other state has a law like California's. But the federal government has a comparable law in the section of the USA Patriot Act, passed after the Sept. 11, 2001, terrorist attacks.

The section retroactively repeals all deadlines for prosecuting terrorist crimes that carry a risk of death or serious injury, including everything from chemical and biological weapons attacks to malicious property damage.

LAW IS FLAWED, SAYS DEFENSE Defense lawyers argue that such laws unconstitutionally impose punishment after the fact because the state has already lost its authority to file charges.

The law that allowed prosecutors to charge Stogner 22 years after the statute of limitations expired changes "his lawfully acquired innocence into a crime," his lawyers said in papers filed with the Supreme Court.

In a supporting brief, other defense lawyers argue that "allowing a state to revive a prosecution (that is) already dead violates our instinctive feelings of justice and fair play."

Prosecutors counter that the government is entitled to change its deadlines as long as it doesn't define a new crime retroactively or increase punishment after the fact.

A statute of limitations "does not relate to the circumstances of the crime but only relates to the passage of time," said state Deputy Attorney General Janet Gaard in defense of the California law.

Said U.S. Justice Department lawyers in papers to the court: "The new limitations period eliminates a barrier to the prosecution of conduct that was criminal when done. It does not make criminal what was innocent when done." . The case is Stogner vs. California, No. 01-1757.

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