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.


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Books Read in 2008

This is the list of books I read in 2008, in the order that I read them. For an explanation of my rating system, see here.

The Green Man by Kingsley Amis (out of print; 3/5)

The Historian by Elizabeth Kostova (4/5)

The 39 Steps by John Buchan (3/5)

Anne Frank’s Diary by Anne Frank (3/5)

Stiff Upper Lip, Jeeves by P.G. Wodehouse (3.5/5)

Pillars of the Earth by Ken Follett (4/5)

Dreamers of the Day by Mary Russell (reviewed
here; 2/5)

The First Salute by Barbara Tuckman (3/5)

The Human Factor by Graham Greene (3.5/5)

Scavenger Reef by Lawrence Shames (reviewed
here; 3.5/5)

Silas Marner by George Elliott (3/5)

Ex Libris by Ross King (3/5)

On Chesil Beach by Ian McEwan (reviewed
here; 4.5/5)

Foreigners by Caryl Phillips (reviewed
here; 2.5/5)

A Fountain Filled with Blood by Julia Spencer-Fleming (3.5/5)

Black Jews, Jews, and Other Heroes by Howard Lenhoff (reviewed
here; 3/5)

Fascination by William Boyd (3/5)

The Shack by William Young (notes
here; 4/5)

Best Interests by George Mead (unpublished manuscript)

The World to Come by Dara Horn (3.5/5)

Naked by David Sedaris (3/5)

Kiss Kiss by Roald Dahl (3.5/5)

Power to the People by Laura Ingraham (3/5)

Switch Bitch by Roald Dahl (3/5)

Jeeves in the Morning by P.G. Wodehouse (a.k.a. Joy in the Morning; 3.5/5)

The Bone People by Keri Hume (reviewed
here; winner of the Booker Prize; 3.5/5)

A Fairly Honourable Defeat by Iris Murdoch (notes
here; 4/5)

The Motive by
John Lescroart (3.5/5)

Worst Case Scenario by Joshua Piven (2/5)

Returning to Earth by
Jim Harrison (3.5/5)

The Stories of John Cheever by John Cheever (reviewed
here; winner of the Pulitzer Prize and the National Book Critics Circle Award; 3.5/5)

How to Find Morels by Milan Pelouch (reviewed
here; 4/5)

Cocktail Time by P.G. Wodehouse (3/5)

The Confession by Olen Steinhauer (3.5/5)

Look Great, Feel Great by Joyce Meyer (reviewed
here; 3/5)

The Inimitable Jeeves by P.G. Wodehouse (3.5/5)

Hard Times by Charles Dickens (reviewed
here; 3.5/5)

Bad Luck and Trouble by
Lee Child (3/5)

The Right Stuff by Tom Wolfe (reviewed
here; on the Modern Library Top 100 list for nonfiction; 3/5)

Whitethorn Woods by Maeve Binchy (reviewed
here; 3/5)

Crescent City by Belva Plain (reviewed
here; 2.5/5)

The Big Oyster by Mark Kudansky (3/5)

The Spirit Catches You and You Fall Down by Anne Fadiman (4/5)

The History of Love by Nicoli Krauss (4/5)

How Far Can You Go? by David Lodge (reviewed
here; on the Anthony Burgess list; 4/5)

Beethoven was One-Sixteenth Black by Nadine Gordimer (reviewed
here; 3/5)

Jeeves and the Old School Chum by P.G. Wodehouse (3/5)

The Suspect by
John Lescroart (3.5/5)

Thank You Jeeves by P.G. Wodehouse (3.5/5)

Franklin and Lucy by Joseph Pescipo (reviewed
here and here; 3.5/5)

Dear Zoe by Philip Beard (3/5)

The Sound and the Fury by William Faulkner (reviewed
here; 4/5)

The Size of the World by Joyce Silber (reviewed
here; 2.5/5)

Boomsday by Christopher Buckley (3/5)

Off to the Side by
Jim Harrison (4/5)

Sick as a Parrot by Liz Evans (3/5)

Farewell, My Lovely by Raymond Chandler (4.5/5)

The Code of the Woosters by P.G. Wodehouse (3.5/5)

The Year of Pleasures by Elizabeth Berg (3/5)

Hallam’s War by Elizabeth Payne Rosen (reviewed
here; 2/5)

Water for Elephants by Sara Gruen (4/5)

The Trial by Franz Kafka (2/5)

O, How the Wheel Becomes It by Anthony Powell (3.5/5)

All the Pretty Horses by Cormac McCarthy (reviewed
here; 3/5)

Bridge of Sighs by Olen Steinhauer (3.5/5)

The Cossacks by Leo Tolstoy (3/5)

Resistance Fighter by Jorgen Keiler (reviewed
here; 3.5/5)

Errors and Omissions by Paul Goldstein (3/5)

Eat, Pray, Love by Elizabeth Gilbert (3/5)

The Fracture Zone by Simon Winchester (3/5)

Decorating Journal by Nina Campbell (3/5)

The House of Mondavi by Julia Flynn Siler (reviewed
here; 3.5/5)

The Seven Dials Mystery by Agatha Christie (3/5)

America, America by Ethan Cannin (reviewed
here; 3.5/5)

John Paul the Great by Peggy Noonan (4/5)

Night by Elie Wiesel (4/5)

Neon Rain by James Lee Burke (3.5/5)

Protect and Defend by Vince Flynn (2.5/5)

Siddartha by Herman Hesse (reviewed
here; 2/5)

Terrorist by John Updike (3.5/5)

Under the Banner of Heaven by Jon Krakauer (4/5)

The Wonder Spot by Melissa Banks (3/5)

7 Wheelchairs by Gary Presley (reviewed
here and here; 3/5)

Candide by Voltaire (2.5/5)

Country Living 500 Quick & Easy Decorating Projects & Ideas by Dominique DeVito (3/5)

House Beautiful 500 Sensational Ways to Create Your Ideal Home by Kate Sloan (3/5)

John Stuart Mill: Victorian Firebrand by Richard Reeves (reviewed
here and
here; 3/5)

The Accidental Tourist by Anne Tyler (3.5/5)

Cut to the Chase by Stuart Levine (3/5)

The Spirit of the Place by Samuel Shem (reviewed
here; 2.5/5)

Everyman by Philip Roth (3/5)

Prodigal Summer by Barbara Kingsolver (3.5/5)

Moby Dick by Herman Melville (reviewed
here; 4/5)

The English Major by
Jim Harrison (reviewed here and here; 3.5/5)

Red Badge of Courage by Stephen Crane (2.5/5)

Kane and Able by Jeffery Archer (3/5)

The Glass Lake by Maeve Binchy (3/5)

A Drink Before the War by Dennis Lehane (3/5)

Absolute Zero
by Chuck Logan (3/5)

To the Hilt by Dick Francis (3/5)

Dinner at the Homesick Restaurant by Anne Tyler (3/5)

Three Men in a Boat (To Say Nothing of the Dog) by Jerome Jerome (3/5)

Heaven’s Prisoners by James Lee Burke (3.5/5)

Abbeville by John Fowler (reviewed
here; 3/5)

Tree of Smoke by Denis Johnson (winner of the
National Book Award; 4/5)

Station Wagon in Spain by Frances Parkington Keyes (3/5)

Loving Frank by Nancy Horan (3/5)

The Islands of Divine Music by John Addiego (reviewed
here and here; 3.5/5)

West with the Night by Beryl Markham (on the Modern Library Top 100 nonfiction list; 3.5/5)

Creating a Class by Mitchell Stevens (4/5)

When You Are Engulfed in Flames by David Sedaris (3/5)

Living in the Arts and Crafts Style by Charlotte Kelley (3/5)

In Hovering Flight by Joyce Hinnefeld (reviewed
here; 2.5/5)

The Yiddish Policemen’s Union by Michael Chabon (5/5)

Christmas Stories by Charles Dickens (2.5/5)

Scratch Beginnings by Adam Shepard (reviewed
here and here; 3.5/5)

The Emperor’s Children by Claire Messud (notes here; 3/5)

Murder Alfresco by Nadine Gordon (3/5)

So Many Books, So Little Time by Sara Nelson (reviewed
here; 3.5/5)

The Lambs of London by Dan Ackroyd (3/5)

Justice Denied by Marci Hamilton (reviewed here; 3.5/5))

The Facts by Philip Roth (3.5/5)

Villages by John Updike (3/5)

The Amish Cook at Home by Lovina Eicher (3/5)

Nothing to Lose by
Lee Child (3/5)

The Remains of the Day by Kazuo Ishiguro (winner of the
Booker Prize; 4.5/5)

Tomorrow by Graham Swift (3/5)


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