Friday, January 2, 2009

Review: Justice Denied



In Justice Denied: What America Must Do to Protect Its Children, law professor Marci Hamilton makes the case for abolishing statutes of limitations in cases involving childhood sexual abuse. She explains what statutes of limitations are, why they do not make sense in childhood sexual abuse cases, why abolishing them would advance society’s interests in protecting children, what changes need to be made in existing laws, and who is lining up to oppose the reforms she champions.

Statutes of limitations are legislatively created deadlines for filing either a criminal or civil lawsuit. These deadlines vary from state to state, and are different for different types of crimes or civil claims. A typical example of a statute of limitations is that someone injured by a drunk driver may have two years to file a lawsuit and the state may have a similar period in which to bring criminal charges.

Hamilton explains why relatively short limitations periods for crimes or claims arising out of childhood sexual abuse do not work as intended. Many people, maybe most, who are sexually molested as children do not come forward for years or even decades, due to feelings of guilt, denial, and fear and other psychological factors shared by most victims. The problem is easiest to understand when considering, for example, a statute of limitation that sets a two-year deadline for bringing a civil case that would require a seven-year-old child to file a lawsuit against her abuser before she is nine. It is completely unlikely that a nine-year-old would understand the damage that has been done or have the wherewithal to file a civil lawsuit; and most likely that the child is still living with or otherwise in contact with the abuser.

But similar practical restrictions exist for many now-adult victims of childhood abuse who only realize the connection between their adult problems and earlier abuse when they are much older. For example, a victim may only realize at age 45 that his alcoholism, or anxiety disorder, or other problem is a result of being sexually abused as a child. To bar that person’s lawsuit because he did not file it years earlier is to deny his access to civil justice before he even knew he was injured. Because most victims of childhood sexual abuse do not come forward for years or even decades, by the time they come forward, the statutes of limitations for both criminal and civil cases has passed. Without the ability to bring criminal charges or a civil lawsuit, the abusers are never identified publicly and are left free to abuse other victims.

Hamilton likens the problem of sex abuse lawsuits to murder cases, for which there is no statute of limitations. The same policy reasons that justify having no limitation on when a murder case can be filed apply in cases of childhood sexual abuse: The damage caused by the crime is serious, the victim is unable to assist in the prosecution, and society has a strong interest in identifying the perpetrators in order to protect other potential victims.

Abolishing the statutes of limitations for childhood sex abuse cases would serve society’s interests primarily by identifying sexual abusers. Recent popular reforms, including sex offender registries, longer criminal sentences, and “pedophile-free zones” are worthwhile, but extremely limited in their effectiveness because they only apply to abusers who have been identified through criminal lawsuits. Because of short statutes of limitation, most abusers are never officially identified as sexual offenders by conviction of a crime, and so are not included on registries, do not serve any criminal sentences, and are otherwise untouched by reforms that can only apply to identified perpetrators. Only by abolishing the statutes of limitations will greater numbers of pedophiles be identified and other victims protected.

Hamilton suggests a multi-step process for changing the limitations periods in sex abuse cases. First, she argues for abolishing all statutes of limitations going forward. Second, while Constitutional concerns make it impossible to retroactively impose longer criminal statutes of limitations, she wants all states to enact “window” legislation that allows victims of past child sexual abuse a period of time – one or two years or more – to bring civil claims regardless of whether the existing statute of limitations period has already expired. California did this in 2003 and 1,000 victims filed civil lawsuits, resulting in the identification of 300 previously unidentified sex abusers. Finally, Hamilton would reform laws imposing various limitations on lawsuits against public agencies such as schools.

One of the most interesting sections of the book explains the various groups opposing the reforms Hamilton proposes. This is an odd mix of insurance companies, the Catholic church, teachers’ unions, and the American Civil Liberties Union. Hamilton examines the arguments these groups raise in opposition to changing the statute s of limitations and does a good job of explaining how the arguments miss the mark or are shortsighted.

All in all, Hamilton makes a compelling case for abolishing statutes of limitations in child abuse cases. Her arguments are well-researched – 26 pages of notes support 114 pages of text – and persuasive, without bogging down in legal jargon. While aimed at advocates, policy makers, and legislators, anyone interested in promoting meaningful reforms to help children should read Justice Denied.

NOTES

Some states, including Oregon, have tried to alleviate the problems by enacting statutes of limitations that are tolled until a person reaches the age of majority and/or begin to run from “discovery” of an adult injury. For instance, Oregon’s statute, found in Oregon Revised Statutes 12.117, addresses both situations. First, the statute allows a victim who realizes his or her injury when still a minor to bring a claim prior to the person’s 40th birthday. Second, the statute allows a person to bring a claim within five years of discovering an adult injury, stating that a civil lawsuit must be filed “not more than five years from the date the injured person discovers or in the exercise of reasonable care should have discovered the injury or the causal connection between the child abuse and the injury.” In this case, “injury” does not mean the abuse itself, but later, adult problems.

Also posted on my law firm's blog.

8 comments :

Amol said...

I agree with Hamilton. Current statute of limitations laws do nothing but attempt to protect reputations of potential predators. With SOL laws as they are, there is no room for accountability, on which justice is supposed to thrive.

Anonymous said...

I disagree with Hamilton and with Dumas. Maybe the laws should be written differently, but the person being accused of the "abuse" also deserves justice!
Adults don't lie? I think they do. For many different reasons. I am not saying that everyone lies, but all should be protected, including those being accused of such a crime!
Our courts and laws no doubt also need to consider such public policy issues as the need to balance the rights of abuse victims to seek legal redress with the rights of citizens to be protected from false criminal charges.

Rose City Reader said...

I thought about deleting that last comment, because anonymous posts don't hold much weight with me. But I decided to make a couple of points, because the comment raises common arguments.

First, eliminating the statutes of limitation does not deny anyone justice -- all it does is stop doling out "get out of jail free" cards to child molesters who usually avoid being accused until long after statutes of limitation have run. For all the reasons discussed in detail in Hamilton's book, eliminating the arbitrary cut off date that current statutes of limitation provide abusers makes sense in the same way it makes sense to not have statutes of limitation for murder.

Second, it is a common misperception that adults make up claims of child abuse in order to cash in on a big settlement or settle a grudge against someone they do not like. But in practice this has not proved to be the case. For most adults, finally getting to the point where they are able or compelled to admit that they were abused and to seek justice is incredibly traumatizing. I only had to work with about half a dozen adult victims of childhood sex abuse to know that they were telling the truth. Sure, there are a very few cases of outright fraud, usually in divorce/custody cases, but they get weeded out just like any other type of fraudulent claim. To say that the potential for fraudulent claims outweighs the policy and practical reasons for eliminating the statutes of limitation is a red herring.

Which leads to my final point: The passage of time before a sex abuse claim is made is equally detrimental to the victim trying to prove the claim as it is to someone accused of the abuse. I often hear, "Oh, it is so unfair to have to defend against claims based on conduct 20 or 30 years ago." Well, it is just as hard to prove a claim after so much time has passed. The lack of witnesses, poor memories, and other impediments created by the years cuts both ways. Again, that is no reason to allow child abusers to go free -- especially given that most serial pedophiles abuse children well into old age.

Anonymous said...
This comment has been removed by a blog administrator.
Rose City Reader said...

One anonymous post I'm ok with, but two is abusing guest privileges. Especially when I think our anonymous visitor did not actually read the book and simply has an ax to grind.

Anonymous said...
This comment has been removed by a blog administrator.
Rose City Reader said...

Again, anonymous non sequiturs do not belong here.

We're not talking about increasing punishments for child molesters (although that is not a bad thought). We were talking about eliminating the statutes of limitation that set arbitratry time deadlines for bringing criminal or civil claims against child abusers. The later merely gives the victims of abuse access to justice instead of closing the courthouse doors after an unreasonablely short period of time. The punihment remains the same -- the abuser simply does not dodge punishment because the victim cannot come forward fast enough.

Anonymous said...

Thank you for reading my comments.

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