Marci A Hamilton
There is good news and bad news for victims of child sex abuse who seek to enter the justice system in 2015. As a general matter across the United States, we are on the right track and headed in the right direction. But there is a great deal of work left to do.
The most remarkable leap forward: Georgia. Before May 5, 2015, the date when Georgia Gov. Nathan Deal signed into law the Hidden Predator Act (HPA), Georgia was among the five worst states in the country for child sex abuse victims’ access to justice. The statutes of limitations (“SOLs”) in the civil context shut down all claims by age 23 and on the criminal side, only opened the door for crimes after July 1, 2012. That meant civil suits and prosecutions for child sex abuse have been rare occurrences in Georgia.
That changes on July 1, 2015, when the HPA goes into effect. The HPA moves Georgia into one of the better states in the country. It creates a two-year window (during which defendants do not have the benefit of the statute of limitation as a defense) for the victim to sue the perpetrator. It also institutes a new discovery rule, which permits victims to sue perpetrators and/or institutions for abuse and cover ups. Victims will have two years from the date they understand that their current problems were caused by the childhood sexual abuse to go to court. While there are better SOL laws in the country, and most specifically, Delaware and Minnesota, which have eliminated civil and criminal SOLs for all defendants, and given victims a window, it still catapults Georgia ahead of the other four deplorable states on this issue, New York, Michigan, Alabama, and Mississippi.
A more predictable result: Utah. Utah also made some progress, though it is all against the perpetrator. As of March 2015, for all abuse into the future, civil claims will not be subject to an SOL against the perpetrator. The bill started out as one against perpetrator and institution. Yet, as expected, the Church of Jesus Christ of Latter-day Saints ensured that the same civil extension could not be applied to institutions that employ pedophiles or that cover up for them. The same age 22 limit that was in place before remains, making Utah one of the most restrictive regimes for bringing institutions that harbor abusers to justice.
The stalling continues: New York and Pennsylvania. As I mention above, New York is one of the four worst states in the country for child sex abuse victims. None of the paths that other states have traveled to increase justice for victims has worked in New York. Neither the courts nor the legislature has lifted a finger to help these victims obtain meaningful civil justice. Reform bills have been introduced year in and year out, with the Assembly passing the Child Victims Act numerous times, but an SOL revival bill has never gotten a fair hearing in the Senate, let alone a vote on the floor. Gov. Cuomo has shown less leadership on this issue than seems humanly possible. Who is pulling the strings in Albany? On this issue, it would be the Catholic bishops and primarily Cardinal Timothy Dolan of New York City. Given his tattered reputation after he tried to hide $55 million from the victims in his previous location, Milwaukee, one wonders why members defer to him on this issue. Suffice it to say that New York is a national disgrace on these issues.
Pennsylvania did extend its civil SOL in recent years to age 30, but it did not revive expired claims, which left the vast majority of victims locked out of court. Again, the reason Pennsylvania is stuck is that legislators slavishly defer to the Catholic bishops and ignore the cries of the victims.
Michigan, Alabama, and Mississippi have made either futile or doomed efforts to increase access, which means there is every reason to expect that the four worst in the country will stay right there for the immediate future. What is lacking is leadership in the interest of the children in each state. This can change.
As we saw in Georgia this spring, with Rep. Jason Spencer, Sen. Renee Unterman, and Gov. Nathan Deal leading the way, there is no need to stay at the bottom of the heap when it comes to child protection.
Marci A. HamiltonMarci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com. Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is firstname.lastname@example.org.