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Marci A. Hamilton Paul R.

Verkuil Chair in Public Law

PHONE: 215-353-8984 FAX: 215-493-1094 E-MAIL: hamilton.marci@gmail.com

TO: RE:

The Members of the Pennsylvania Legislature Legislation for Child Sex Abuse Victims HB 878, HB 832 November 14, 2011

DATE:

Rep. Ron Marsico (R., Dauphin), Judiciary Committee Chair, has expressed opposition to important pending legislation necessary to protect the children of Pennsylvania, citing constitutional concerns. As an expert in this arena—who has researched, written, and testified1 regarding the inadequacy of the current statutes of limitations to deal with child sex abuse in the United States, and abroad—I feel compelled to write an explanation as to why amending and extending the statutes of limitations for child sex abuse is the only path to protecting our children. I write specifically to explain why I believe Pennsylvania House Bills 878 and 832, relating to childhood sexual abuse statutes of limitations, are constitutional. By way of introduction, my name is Marci A. Hamilton, a Bucks County, Pennsylvania resident since 1984, and one of the leading church/state scholars in the United States. For the past twenty years, I have been a full-time faculty member at Benjamin N. Cardozo School of Law, Yeshiva University, New York, NY, where I currently hold the title of Paul R. Verkuil Chair in Public Law. My book, Justice Denied: What America Must Do to Protect Its Children (Cambridge University Press 2008), and website, www.sol-reform.com are resources in the field of legislation to protect child sex abuse victims. Prior to teaching, I received two Masters‟ degrees from Pennsylvania State University (English, 1984; Philosophy, 1982), and a law degree from the University of Pennsylvania (1988), were I served as Editor-in-Chief of the Law Review. I then clerked for Judge Edward R. Becker, at the United States Court of Appeals for the Third Circuit, and Justice Sandra Day O‟Connor, at the United States Supreme Court. As to the substance of the two bills at issue:   House Bill 832: Eliminates the statute of limitations for a number of enumerated criminal offenses involving child sexual abuse; Eliminates the statute of limitations in civil cases where the sexual abuse was the result of compulsion or threats made by the adult defendant to the child victim.

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Professor Hamilton has been requested to testify and/or submitted testimonies regarding statutes of limitation reform before the State Legislatures of Connecticut, New York, New Jersey, Wisconsin, Delaware, Arizona, Hawaii and Guam.
JACOB BURNS INSTITUTE FOR ADVANCED LEGAL STUDIES

BROOKDALE CENTER • 55 FIFTH AVENUE • NEW YORK, NY 10003-4391

 

House Bill 878: Extends the statute of limitations in all civil cases not encompassed by House Bill 832 by allowing claims to be brought in court up to 32 years after the victim turns 18; Establishes a most important civil “window” which allows any suit that was previously barred from court solely on statute of limitations grounds to commence within the two year period of the “window.” (A suit previously brought and dismissed as being untimely could be revived upon petition and showing of newly discovered evidence, excusable neglect or other “extraordinary circumstances”).

House Bills 878 and 832 are not only constitutionally sound, but also will contribute to a legal environment much more protective of children than the status quo. I have outlined the difference between what is alleged by Rep. Marsico, and the reality of United States‟ and Pennsylvania‟s constitutional jurisprudence as relates to statute of limitations reform, below: o Because of the “window” component of House Bill 878, Rep. Marsico believes – incorrectly – that the bill would be unconstitutional. In reality, while the United States Supreme Court has closed the door for legislators to enact retroactive criminal legislation, it has found retroactive civil legislation to be constitutionally permissible. Compare Landgraf v. USI Film Prods., 511 U.S. 244, 267 (1994), with Stogner v. California, 539 U.S. 607, 610 (2003). Under the federal Constitution, retroactive civil legislation is constitutional if the legislative intent is clear and the change is procedural. The Supreme Court in Landgraf explained the duty of judicial deference to legislative choice in these matters as follows: “legislation has come to supply the dominant means of legal ordering, and circumspection has given way to greater deference to legislative judgments.” Landgraf, 511 U.S. at 272. The Court went on to observe that “the constitutional impediments to retroactive civil legislation are now modest. . . . Requiring clear intent [of retroactive application] assures that [the legislature] itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.” Id. at 272-73.2 Under the federal Constitution, retroactive civil legislation is constitutional if the legislative intent is clear and the change is procedural. o Rep. Marsico claims--without citing any precedent--that Pennsylvania courts have forbidden the
extension of a statute of limitations for either civil or criminal claims that were time-barred under the then-existing laws. In fact, the Pennsylvania Supreme Court has held the opposite—allowing

for retroactive application of merely procedural aspects of civil statutes. Bible v. Dep‟t of Labor and Indus., 696 A.2d 1149, 1156 (Pa. 1997) (finding retroactive amendment to the Workers‟ Compensation Act constitutional). As under federal law, where the retroactive intent is plain, and the statute concerns a civil, procedural matter rather than criminal, a retroactive statute passes constitutional muster.

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To be sure, there is an “antiretroactivity presumption” but this presumption can be readily overcome by express legislative language. See Republic of Austria v. Altmann, 541 U.S. 677, 692-93 (2004); see also Landgraf, 511 U.S. at 26768; Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 311-12 (1945).

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o Rep. Marsico claims limitations must provide finality to old claims that could have been asserted over significant periods of time. Yet, Pennsylvania follows the same reasoning as the Supreme Court and has permitted the retroactive application of statutes. It has observed the distinction drawn by the federal courts between procedural and substantive retroactive changes in the law, and prescribed deference with respect to procedural rules. The retroactive application of lengthened statutes of limitations simply has not been found to disturb vested rights under Pennsylvania law. McDonald v. Redevelopment Auth., 952 A.2d 713, 718 (Pa. Commw. Ct. 2008) (“[N]o one has a vested right in a statute of limitations or other procedural matters, and the legislature may at any time alter, amend or repeal such provision without offending constitutional restraints.”). Pennsylvania is in the majority of states, which has NOT found a vested right in the running of procedural statutes of limitations.3 o Rep. Marsico claims that public policy concerns caution against retroactive application, even where there is clear evidence of legislative intent. However, the United States Supreme Court has treated statutes of limitations as procedural and instructed courts to give legislatures ample room to alter limitations periods to serve the public good. Notwithstanding the constitutional and legal issues, window legislation is good public policy. There are three compelling public purposes served by window legislation:    (1) the identification of previously unknown child predators to the public so children will not be abused in the future; (2) giving child sex abuse survivors a day in court; and (3) leveling the playing field between individual and institutional entities that cause abuse and the victims.

Without the window, the perpetrators win at the expense of their victims and at the expense of every child. Under this reasoning, any policy concerns are balanced in favor of opening court access to victims of child sex abuse, and the proposed Pennsylvania window embodied in House Bill 878 is constitutional.4 o Rep. Marsico claims that limitations not only provide finality to old claims that could have been asserted
over significant periods of time, they serve an important role in protecting the rights of innocent persons.

Creating a window for victims to go to court does not change the burdens of proof. No plaintiff can succeed in a claim brought through civil legislation without having the evidence to establish a prima facie case. In addition, victims of child sex abuse rarely
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Other states include: Alaska, Arizona (currently prohibited by state statue), California, Colorado, Connecticut, Delaware, District of Columbia, Georgia, Hawaii, Idaho, Indiana, Kansas, Massachusetts, Michigan, Minnesota, Montana , Nevada, New Mexico, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Washington, West Virginia, Wisconsin, Wyoming. 4 Chase Sec. Corp., 325 U.S. at 314 (“Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a „fundamental‟ right or what used to be called a „natural‟ right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.”) (internal citations omitted).

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make false claims, as we learned in California and Delaware, which have already passed window legislation. The balance of equities weighs in favor of creating a window for survivors of child sex abuse:  First, there is an extensive and persuasive body of scientific evidence establishing that child sex abuse victims are harmed in a way that makes it extremely difficult to come forward and, therefore, victims typically need decades to do so.5 Importantly, civil tort claims are often the only way victims may obtain justice. In the context of clergy abuse for example, Professor Timothy Lytton has shown that civil tort claims have been the only means by which survivors have been able to obtain any justice. Timothy
Lytton, Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Sexual Abuse (Harvard University Press, 2008).

Second, the success of the California and Delaware window legislation in protecting children from child predators was remarkable. Under the California window, over 300 previously unidentified perpetrators were disclosed to the public. Delaware‟s window also uncovered dozens of previously undiscovered perpetrators. As perpetrators typically have multiple victims and do not stop abusing children as they get older,6 public identification of even aged perpetrators becomes a public safety interest of the first order. Third, there is a burgeoning awareness that institutions sometimes followed procedures to cover up abuse and abusers’ identities, making legal reform necessary. Accordingly, the California and Delaware window cases have included victims from a variety of arenas, including the home, the Explorer Scouts, the Boy Scouts, public schools, private schools, and religious denominations. The same is necessary in Pennsylvania, as is apparent from the Penn State scandal. 7 It is reasonable to believe that other organizations may have also suppressed or failed to report child abusers, and window legislation is the most effective way to bring perpetrators into the light and prevent future abuse.

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Ramona Alaggia MSW, PhD, RSW, An Ecological Analysis of Child Sexual Abuse Disclosure: Considerations for Child and Adolescent Mental Health, 19 J. CAN. ACAD. CHILD ADOLESC. PSYCH. 32, 32 (2010); Richard L. Sjoberg & Frank Lindblad, M.D., Ph.D., Limited Disclosure of Sexual Abuse in Children Whose Experiences Were Documented by Video Tape, 159 AM. J. PSYCH. 312, 312-13 (2002); Guy R. Holmes, See No Evil, Hear No Evil, Speak No Evil: Why Do Relatively Few Male Victims of Childhood Sexual Abuse Receive Help for Abuse-Related Issues in Adulthood?, 17(1) CLINICAL PSYCHOL. REV. 69, 69-88 (1997); David Lisak, The Psychological Impact of Sexual Abuse: Content Analysis of Interviews with Male Survivors, 7(4) J. OF TRAUM. STRESS 525, 525-526, 544 (1994); Mic Hunter, Abused Boys, 59 (1991). 6 Kenneth V. Lanning, Child Molesters: A Behavioral Analysis 37 (4th ed. 2001) available at http://www.cybertipline.com/en_US/publications/NC70.pdf. (“Although a variety of individuals sexually abuse children, preferential-type sex offenders, and especially pedophiles, are the primary acquaintance sexual exploiters of children. A preferential-acquaintance child molester might molest 10, 50, hundreds, or even thousands of children in a lifetime, depending on the offender and how broadly or narrowly child molestation is defined. Although pedophiles vary greatly, their sexual behavior is repetitive and highly predictable.”). 7 Doe v. Evans, 202 F.R.D. 173, 175-176 (E.D.Pa. 2001) (“[T]he public has an interest in protecting the identities of sexual assault victims so that other victims will feel more comfortable suing to vindicate their rights, especially where law enforcement officers are involved.”)

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There is an epidemic of child sex abuse in the United States and around the world. About one in three girls and one in six boys will be sexually abused during their youth.8 Sadly, almost 90% never go to the authorities and the vast majority of claims expire before the victims are capable of getting to court.9 Most victims are abused by family or family acquaintances and virtually all need decades before they are ready to come forward. Statute of limitations reform, and specifically, window legislation, is the one tried and true means that will identify the many hidden child predators, who are grooming new child victims right now. House Bills 878 and 832 would protect the children of Pennsylvania by making it possible for victims to come forward and identify their perpetrators in a court of law. It would also bring delayed, but still welcome, justice to these victims. This is a sunshine law for children. Every Pennsylvanian needs to understand there are few who are opposed to helping sex abuse victims get to court. Sadly, the Catholic Bishops are sinking millions of their parishioners' donations into lobbying tactics designed to keep victims out of court. Rep. Marsico has apparently accepted verbatim the substance of the Catholic Bishops‟ playbook designed to shield them from liability, and has now repeated these stock arguments on the record as his own. In truth, there are no legal or constitutional impediments to their adoption, and they will go far toward providing long overdue justice for past victims, and preventing the victimization of other children in the future. If Pennsylvanians want to know who the perpetrators are in this state, these bills are the answer. I encourage the Pennsylvania Legislature to fulfill its duty to the children of Pennsylvania and pass both House Bills 878 and 832.

Sincerely,

Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law

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Mary Gail Frawley-O‟Dea, Perversion of Power: Sexual Abuse in the Catholic Church 6-7 (Vanderbilt University Press 2007); What Do U.S. Adults Think About Child Sexual Abuse? Measures of Knowledge and Attitudes Among Six States, Stop It Now!, 7 (2010), www.StopItNow.org/rdd_survey_report (“Nearly 30% of women and 14% of men reported on the survey that they had been sexually abused as children.”); J. Briere and D.M. Eliot, Prevalence and Psychological Sequence of Self-Reported Childhood Physical and Sexual Abuse in General Population, 27 (10) CHILD ABUSE & NEGLECT, 1205-1222 (2003) (finding that as many as one in three girls and one in seven boys will be sexually abused at some point in their childhood). 9 R. F. Hanson, et al., Factors Related to the Reporting of Childhood Sexual Assault, 23 CHILD ABUSE & NEGLECT 559-569 (1999) (noting that in the U.S. only 12% of child sexual abuse is reported to authorities); Dale Robert Reinert, Sexual Abuse and Incest 34-35 (1997) (noting that children may be told by the abuser to keep the abuse a secret); Mary L. Paine & David J. Hansen, Factors Influencing Children to Self-Disclose Sexual Abuse, 22 CLINICAL PSYCHOL. REV. 271, 271-75 (2002) (discussing that victims often feel shame and embarrassment about the abuse, making the victim feel they are to blame for the abuse).

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