Sex Crimes and the SOL

If you are like the rest of America, you might be binge-watching the fairly addicted docu-series on Netflix called The Keepers. It chronicles a cold case murder of a nun, and (SPOILER ALERT) ends up turning into an exploration of the rampant sex abuse and subsequent cover up within the Catholic church in the Baltimore area over the last few decades. It occurred well before the film Spotlight came out, which was a story about the reporters who uncovered similar abuse in the Catholic system in Boston. One of the major issues that keeps coming up is that of the statute of limitations.

A statute of limitations limits the amount of time someone has to bring a case. It’s essentially used to protect evidence, at least in the criminal world. Some crimes do not have a statute of limitations, such as murder. That’s why shows like Cold Case work – it doesn’t matter when the state brings a charge of murder because there is no statute of limitations. But with the cases covered in The Keepers and Spotlight, the statute of limitations is strict. It varies from state to state, but most child sex abuse crimes have a statute of limitations anywhere from 1 year up until 10 years after the child reaches the age of majority. The policy considerations for this are important: the sooner a case is brought, the better chance that physical evidence will be present and preserved; witnesses will be more easily found and their memories will be fresher; and it simply makes a case more straightforward. However, when it comes to child sex abuse, there are complications to the statute of limitations.

First, just like the woman in The Keepers, sometimes the memories of the child sex abuse victims are repressed. They psychologically cannot handle what happened to them, so they bury it deep down, not even realizing that they were subject to a crime. By the time the memories start revealing themselves, not only has the statute of limitations expired, but sometimes the perpetrator has died. Some states have recognized this phenomenon and have applied the oft-used civil principle called the ‘discovery’ rule to extend the statute of limitations for these victims. The discovery rule means that the statute of limitations begins by the time the victim has discovered the sexual abuse, or should have discovered the sexual abuse through the use of reasonable diligence. Alaska is one of the states that has this fairly progressive element, although there is also no statute of limitations on felony sex abuse in that jurisdiction either. It’s important to note as well that there is a difference between criminal and civil statutes of limitations on these crimes, and sometimes when a victim cannot get justice in criminal court, they might turn to civil courts if the statute of limitations is longer.

While the reaction of state legislatures to the Catholic church scandal has been largely positive in that they are removing the statutes of limitations on child sex abuse crimes, there is still a major problem in the system: legislation which has removed the limit cannot change the statute of limitations in effect when the abuse actually happened. The Supreme Court made this clear in the Strogner v. California case, stating that it would violate the Constitution’s ex post facto clause. Essentially, the argument there is that it would criminalize something in the past that was not previously a crime (or that had stopped being able to be prosecuted). What that means is that there is now a class of victims who were abused in the past and cannot bring any charges or civil action against their abusers – even if they now know who they are.

Many states have still yet to amend their statute of limitations on these kinds of crimes to allow victims a chance to have justice. Most psychologists agree that child sex abuse victims are unable to deal with the abuse even ten years after the fact, much less subject themselves to a full blown trial and investigation. There is a public policy interest in extending the statute to allow these victims a chance at justice, even if there might be a slightly heavier burden on the state. Furthermore, by amending the statutes, it will be an active way to stop child sex offenders currently abusing, who might have been abusing their victims for decades with impunity. The Catholic scandal woke up a lot of legislatures to this issue; however, there is still a long way to go across the country in this regard.

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