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	No Need to Alter Sex-Abuse Laws By Richard J. Bartlett Times Union December 30, 2007 http://www.timesunion.com/AspStories/story.asp?storyID=651162&category=OPINION&newsdate=12/30/2007 A recent Times Union Perspective article by Marge Markey, a member of the state Assembly, and Marci A. Hamilton, a professor at Cardozo Law School, requires response. The article supported Assemblywoman Markey's bill to loosen the limitations of time, both criminal and civil, applicable to cases alleging sexual abuse of minors. The proposal would amend the Criminal Procedure Law by extending for an additional five years the current law that a minor who alleges that he or she was abused has until the minor reaches age 23 to come forward with the charge that the abuse took place and the alleged abuser is prosecuted. That means a prosecution may be brought 10 or more years after the event allegedly took place, an unreasonable extension of time. No mention is made in the article of the 2006 amendment to Section 30.10 of the Criminal Procedure Law, by which the crimes of first-degree rape, first-degree criminal sexual act, first-degree aggravated sexual abuse and first-degree sexual conduct against a child were exempted all together from the limitations of time for prosecution. These significant changes are a more than sufficient response to the demand for relaxation of the limitations of time with respect to serious sexual abuse of minor cases. Professor Peter Preiser, in his Criminal Procedure Law commentaries in McKinney's Consolidated Laws, reminds us that there are sound policy considerations upon which limitations of time for criminal prosecution are based: 1. the difficulty in defending against a charge when "basic facts may have become obscured by the passage of time"; 2. amelioration of the fear of punishment for "acts in the far distant past"; and 3. encouragement of prompt investigation of suspected criminal activity. The Markey bill also would make drastic changes in the statute of limitations applicable to civil suits based on sexual abuse of minors. First, it would create a one-year "window" during which a civil action may be brought for sexual abuse of a minor, no matter how old or stale the claim. We are urged to follow the example of California, which adopted such legislation in 2002, and it is claimed that more than 300 cases were brought in the one-year period. We are not told what happened to the cases commenced during the "window" year, but the writers proclaim with obvious satisfaction that a number of alleged predators were identified. New York should not look to California for inspiration or guidance with respect to our jurisprudence. California is also the state with 660 condemned prisoners now on death row. Whatever one's position may be on the capital punishment issue, that shocking number points to a dysfunctional justice system. The bill sponsored by Ms. Markey and supported by Professor Hamilton also would add five years to the statute of limitations for civil suits based on claims of sexual abuse of a minor, again allowing such actions to be brought 10 or more years after the event is alleged to have taken place. This too is an unreasonable extension of a long-standing rule that now gives a minor an additional three years after attaining his or her majority to bring such an action. It is argued that sexual abuse cases deserve different treatment from other causes of action brought by minors because of the difficulty victims sometimes have in coming to terms with their abuse. If this argument has merit, it should not warrant an across-the-board five-year extension applicable to all alleged child sexual abuse cases. It might support a provision that would allow claimed victims of sexual abuse who have not brought civil actions within the present statute of limitations to petition state Supreme Court for leave to commence an action. The court could then evaluate the nexus between the minority of the alleged victim and the delay in commencing suit, and weigh other factors that should be considered, including whether a psychological block has prevented the minor from talking about the abuse claimed. This would roughly parallel the current law dealing with late service of notice under Section 50-c of the General Municipal Law, applicable to suits against school districts. This is much preferable to the requirement in the Markey bill that a mental health practitioner provide a "certificate of merit" in which the practitioner concludes that the plaintiff has been subject to sexual abuse. That is a fact-finding role that should be performed by a judge or jury, not by a health care provider hired by the plaintiff. The Senate is right in declining to pass this bill and should continue to do so. Richard J. Bartlett of Glens Falls is a former member of the Assembly, former chairman of the Penal Law Revision Commission, a former state chief administrative judge and a former dean and professor at Albany Law School. He served on a panel named by the Albany Roman Catholic Diocese in 2002 to re-examine its policies governing sexual abuse of minors by priests.
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