Superior Court Upholds Child Abuse Law, by Beth Miller, News Journal, April 17, 2008

Superior Court Upholds Child Abuse Law

By Beth Miller
News Journal
April 17, 2008

http://www.delawareonline.com/apps/pbcs.dll/article?AID=/20080417/NEWS02/804170360

Delaware's Child Victims Act, which eliminated the civil statute of limitations for child sexual abuse and allowed a two-year window during which previously barred suits could be filed, has survived its first court challenge.

In an 18-page ruling released Wednesday, Superior Court Judge Robert B. Young ruled the 2007 legislation does not violate the Constitution.

Kenneth J. Whitwell has accused a former Archmere faculty member of abusing him hundreds of times in the 1980s.

The constitutionality of the act had been challenged by defense attorneys in a case brought by U.S. Navy Commander Kenneth J. Whitwell against Archmere Academy in Claymont, one of the school's former faculty members -- the Rev. Edward Smith, and his religious order, the Norbertine fathers. Whitwell alleged hundreds of incidents of sexual abuse by Smith while Whitwell was a student at Archmere in the 1980s. A jury last year awarded a $41 million verdict in Whitwell's federal case against Smith, and the Diocese of Wilmington settled with Whitwell for $450,000 in January.

Statutes of limitation are designed to protect a defendant's right to a fair trial by prescribing a time frame during which records, witnesses and memories can be found and relied upon. Defense attorneys argued the new law violated due process protections by reviving time-barred cases.

While acknowledging that courts in other states have found such laws unconstitutional, Young found federal courts already have set a precedent for upholding similar laws.

"This statute ... merely creates a demarcated opportunity to remedy a past wrong," he wrote. "The available precedent demonstrates to this Court that a finding of constitutionality is proper."

Thomas Neuberger, whose firm has represented abuse victims, called Wednesdays ruling a "victory."

It is new territory in Delaware law, and the same challenges were raised by defendants in a federal case filed in July by former Delaware resident Robert Quill, who alleged years of abuse in the 1960s and 1970s by the Rev. Francis G. DeLuca, a Wilmington diocesan priest who retired to Syracuse, N.Y., in 1993. That case -- the first filed under the provisions of the 2007 law -- was settled for an undisclosed sum earlier this year, removing the question from the federal docket.

DeLuca's 2006 arrest and subsequent conviction on similar charges in Syracuse prompted Bishop Michael Saltarelli to release the names of 20 diocesan priests -- half of them already dead -- against whom the Diocese of Wilmington had credible allegations of child sexual abuse.

Pope Benedict XVI, who is visiting the United States this week, has said he was "deeply ashamed" of the clergy abuse scandal, which emerged nationally in 2002, calling it a "great suffering" and promising to do everything possible to prevent more abuse.

The scandal was only part of the reason the General Assembly passed the Child Victim's Act, sponsored by state Sen. Karen E. Peterson, D-Stanton. Lawmakers heard hours of testimony from those alleging abuse by clergy, but also heard from those whose abuse came at the hands of family, friends and other trusted adults.

"The constitutionality of the bill was questioned several times during the debate," Peterson said. "I was assured repeatedly by those who understand constitutional law that it was constitutional and would withstand judicial scrutiny. They were right, and it has. The law has done what it was intended to do. I think it's working very well."

"Today is a victory lap for the General Assembly," said Thomas Neuberger, whose Neuberger Firm in Wilmington has represented all of the clergy abuse victims who have filed suit in Delaware so far. "The judge said, 'I'm not second-guessing the General Assembly.' The need for this is a policy decision and we don't have an activist court in Delaware. The judge properly deferred to the General Assembly. It is a big victory for all the victims."

Bill Kelleher, who represents the Norbertines of Delaware, declined to say whether Young's ruling would be appealed. But, he said, it is significant that the judge acknowledged the "majority rule" of other courts and that his ruling, while aligned with federal precedent, was a minority decision.

"That shows we did have a lot to go on here," Kelleher said. "It wasn't like we were making an argument without support. The ramifications of this kind of ruling could extend to all kinds of cases. It is a significant decision, the first Delaware decision that deals with a revival of lapsed civil actions."

This year, state Rep. Gregory F. Lavelle, R-Sharpley, introduced further legislation that would allow victims of child sexual abuse to sue the state, its political subdivisions and public schools in some cases. The bill, H.B. 335, passed the House this week.

Neuberger said he has "an inventory" of about 40 cases that may go forward under the Child Victim's Act.

"There is a year and about four months to go [in the two-year window], and I think people still are waiting on the sidelines," he said. "It's very hard for people to come forward."

In the same ruling Wednesday, Young rejected motions from Archmere and the Norbertines to dismiss the Whitwell case, which is scheduled for trial next January.

Contact Beth Miller at 324-2784 or bmiller@delawareonline.com