The quest for justice by adult survivors of childhood sexual abuse moved forward incrementally in 2015. While there were some disappointments, to be sure, there were significant victories, both in the legislatures and the courts, to provide grounds for hope going forward. And, perhaps as important, the urgent need to hold child predators legally accountable is being reported more frequently in the media, which is turn, increases public awareness of the issue. Moreover, advocacy groups have a renewed commitment to join together in the fight to advance survivors’ legal rights.
On the legislative front, 7 states and the District of Columbia considered bills to eliminate or extend civil and/or criminal statutes of limitations (“SOL’s”) relating to the filing of child sex abuse legal claims. Unfortunately, in some of those states – New York being the most prominent example – efforts to change antiquated SOL’s that favor perpetrators and institutions that protect them failed and those jurisdictions remain mired down in the repugnant past. But on the other side of the ledger, significant gains were made: Florida eliminated its criminal SOL for victims age 16-18; Georgia created a 2-year window to file otherwise-lapsed civil claims; Indiana extended its criminal SOL to age 31; North Dakota extended its civil SOL by 10 years and its criminal SOL by up to 10 years (the law includes specific provisions relating to whether and when the crimes were reported and whether DNA evidence was collected); and Utah eliminated its civil SOL.
Notwithstanding the somewhat mixed legislative results, the fact that there is so much activity bodes well. As more and more lawmakers find the intestinal fortitude to overcome the lobbying efforts of institutions that have historically protected pedophiles, outmoded and unduly restrictive SOL’s will continue to fall. Indeed, on December 10, 2015, a bill was introduced in the U.S. Senate that would incentivize states to eliminate or at least extend their child sex abuse SOL’s. S.2397 is a bill to amend the Child Abuse Prevention and Treatment Act to authorize the Secretary of Health and Human Services to make grants to states that extend or eliminate unexpired child sex abuse SOL’s. The federal government’s intervention would undoubtedly expedite the elimination or extension of SOL’s and could provide much-needed uniformity among the states on this key issue.
Adult survivors prevailed in a number of court cases decided in 2015. Three cases are particularly noteworthy because of their broad application to other cases and/or the novelty of the legal issues adjudicated. On December 9, 2015, the Supreme Judicial Court of Massachusetts held in Sliney v. Previte, et al., that a law extending the civil SOL from 3 years to 35 years applied to the case of an adult survivor whose SOL had expired otherwise, where the law was enacted while the survivor’s case was pending appeal and therefore not yet final. The court also upheld the constitutionality of the retroactive application of that law. While that decision binds lower courts in that state only, the legal analysis and reasoning should be instructive to other state and federal courts that will be called upon to interpret amended SOL’s that are to be applied retroactively.
In a case out of Minnesota, Weis v. Diocese of Duluth, a jury found on November 4, 2015, in favor of a 52-year-old survivor who had been sexually abused at age 15 by a religious order priest. While evidence was presented that the religious order had notice of the priest’s abusive history, the case against the Diocese proceeded on a negligent supervision theory, that is, that although the Diocese lacked specific notice of the crimes being committed by this particular priest, the Diocese knew generally of the risk of priest sexual abuse and failed to properly supervise the priest. The jury found both the Diocese (60%) and the religious order (40%) negligent and awarded over $8 million compensatory damages to the survivor. The case is particularly notable because it is the first verdict allocating responsibility between a religious order and a diocese for sexual abuse committed by a priest.
Finally, a judge in Idaho held in Morgan v. Morgan, that a lawsuit filed by an adult survivor who had been sexually abused by his uncle some 30 years previously was barred by the child abuse SOL but could proceed as a fraud claim based upon the uncle’s dishonesty in grooming his nephew for sexual abuse. On December 2, 2015, a jury returned a judgment in the amount of $395,000 in favor of the survivor. The case is on appeal to the Idaho Supreme Court and if the fraud theory is upheld on appeal, this legal tactic may be adopted in other cases in which claims cannot be brought otherwise because applicable child sex abuse SOL’s have expired.
As in the legislative arena, not all the news out of the judicial system was entirely favorable this year. For example, in a case in federal court in New Jersey, an adult survivor filed a civil lawsuit against his perpetrator, who then countersued the survivor and his family for defamation. After 4 years of court filings, depositions, and various delays, the case was finally scheduled for trial. However, just days before the trial was scheduled to commence, the judge essentially strong-armed the parties to drop their respective claims. Having been worn down by the process and by the judge’s ominous threats that a jury could find against the survivor’s family members on the perpetrator’s defamation claims, the survivor begrudgingly dismissed his case without the opportunity to confront his abuser in court and tell his truth. To make matters worse, the judge ruled that the parties’ unwritten “agreement” prohibited them from discussing any aspect of their case in public. I have personal knowledge of this case and I can report that Justice was nowhere to be found on that bleak day in New Jersey. I fear that too many other survivors share a similar fate in courthouses around the country.
But on a much brighter note, I have saved the most positive developments of the year for last. On November 2, 2015, the University of Georgia School of Law announced that it will operate the first in the nation legal clinic devoted exclusively to addressing the legal needs of victims of child sex abuse. The Wilbanks Child Endangerment and Sexual Exploitation Clinic will provide legal assistance to survivors and their families, who otherwise would not be able to obtain legal representation. It is expected that many of the first clients of the clinic, which is scheduled to begin operations in January 2016, will be adult survivors who became eligible to file civil lawsuits against their abusers under Georgia’s recently-enacted SOL window legislation, referenced above. Hopefully, other law schools will follow this lead so that the next generation of lawyers will be trained to advocate vigorously on behalf of survivors.
Thereafter, on November 16, 2015, members of the Coalition for a National Commission on Child Sex Abuse – a diverse group of advocacy organizations (including our foundation) -- held a press conference across from the White House to urge the creation of a National Commission to address the epidemic of child sex abuse in this country. (Each group’s statements and a video of the conference are available at www.SOL-reform.com and can be accessed through the National Commission button on the homepage.) A federal commission to research and study the many different aspects of child sexual abuse and to recommend legal reforms that will restore balance to the scales of justice by providing survivors with a fair chance to obtain legal redress against their abusers, is an essential first step in making the protection of children from sexual abuse a national priority. Lobbying efforts will gain momentum in the year ahead.
Finally, I end on a personal note. During the past year, I have been working on our foundation’s second film project. Like our first documentary, Pursuit of Truth: Adult Survivors of Child Sexual Abuse Seeking Justice, our next film also will feature the stories of survivors who reported their abuse and sought to hold their abusers accountable under the law. In particular, the film will shine a bright light on the legal system’s unfair practices and procedures that occur outside the record, that is, out of the courtroom, not on the case docket, and away from the public eye.
In the process of working on the film, I had the good fortune of meeting and getting to know three survivors – Tami Maro, Sherri Callahan, and Jaime Prater – who had the courage to come forward and speak their truths on camera. I am in awe of their personal strength and integrity. Each of them took legal action against their perpetrator not only to rectify in some way their own abuse, but also to protect others from being abused. In a similar vein, they agreed to publicly discuss their journeys through the legal system to help other survivors and to educate the public in general about the need for fundamental legal reform.
Tami, Sherri, and Jaime are heroes. As are all the other survivors, known and unknown to me, who are willing to break the silence and make their voices be heard. In the end, it is their resilience and commitment that should give all of us hope that we will build on the successes of the past year and reverse any setbacks suffered. The movement toward justice for survivors is growing stronger and more influential. We must continue to demand – ever louder -- that survivors be given the fundamental right to tell their truths and to confront their abusers in a court of law.
The journey of survivors to obtain justice is long and arduous. Their struggle continues and inspires us to action. May we all push forward, together, in the year ahead. Their journey is our journey.
Neil Jaffee, Legal Counsel, Vertigo Charitable Foundation, LLC
Co-Producer, Pursuit of Truth: Adult Survivors of Child Sexual Abuse Seeking Justice (www.pursuitoftruthfilm.com)