By Justia Verdict
Marci A. Hamilton
December 1, 2011
http://verdict.justia.com/2011/12/01/a-tale-of-two-states-and-three-survivors
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As of this writing, three (maybe four) men have come forward to allege that, as boys, they were sexually abused by Syracuse associate head basketball coach Bernie Fine. At first, Fine’s boss, the legendary Jim Boeheim, stood by Fine and attacked the first two men, Bobby Davis and Mike Lang, claiming that they were just doing it for the money.
How wrong he was. Boeheim was smart to back off after a third man, Zach Tomaselli, came forward—for it is virtually certain that Davis and Lang were not doing it for the money; for those two, there appears to be little or none to be had.
New York’s Too Short Statutes of Limitations for Abuse Cases Would Likely Cut Off All Recovery of Damages by Davis and Lang
Davis, 39, and Lang, 45, cannot bring civil lawsuits in New York or pursue prosecution under New York’s state law, because New York has some of the worst statutes of limitations in the United States. They are positively barbaric.
In New York, for anything other than a first-degree felony sexual assault occurring after 2006, the statute of limitations (“SOL”) cuts off prosecution when the victim is 23, at the latest. For civil claims, too, a victim would have had to file his suit by age 23 at the very latest, and likely much earlier than that. Thus, Davis’s and Lang’s ages alone prove that they simply can’t be in this “for the money.” All appearances suggest that all they are “in it” for is justice.
Pennsylvania Law May Allow Tomaselli to File Civil Claims, and May Also Allow a Criminal Prosecution
The third alleged victim, Zach Tomaselli, is now 23, but even he likely has no recourse under New York law. His civil claims expired on his 23rd birthday. And it is unclear if his criminal case could be pursued now, either, because we don’t know exactly how severe the abuse was. A prosecution for the most severe sexual assault felonies might be possible, but if the abuse was anything lesser, the SOL has already expired.
However, Tomaselli reports that the abuse he suffered occurred in Pittsburgh, which means it is worthwhile for him to investigate Pennsylvania law, and the possible prospect of filing a complaint in the Pennsylvania courts, or convincing prosecutors to initiate a criminal case.
Until 2002, Pennsylvania was as bad as New York regarding child sexual abuse SOLs. Once you turned 20, you were shut out of court. But in August 2002, the state extended the civil SOL to the victim’s 30th birthday. Then, in 2005, it extended the criminal SOL to the victim’s 50th birthday. Neither extension, however, was retroactive, which means that if someone turned 20 before August 2002, he or she would not get the benefit of the 10-year civil extension without putting forward a legal theory alleging misrepresentation, fraud, or conspiracy. If someone turned 50 before 2005, he or she did not get the benefit of the 2005 extension, as it seems Tomaselli should.
But the Tomaselli case seems to have a problem—not a legal problem, but a possible problem with convincing prosecutors to go forward, and convincing a civil jury to grant him an award. The problem is this: Tomaselli himself is currently facing charges for committing child sexual abuse in Maine. Thus, would-be prosecutors and civil case attorneys and jurors many not find Tomaselli a sympathetic victim.
In many ways, though, it is unfair to lose all sympathy for abuse victims who go on to commit abuse themselves. Those who have been sexually abused have a higher likelihood than others to commit child sex abuse as adults. Of course, not all victims do so, but empirically, the likelihood is higher.
Tomaselli also alleged on Anderson Cooper’s show that he was abused by his father before he was abused by Fine, which is another not unusual situation. Somehow, child predators sense which children might have weaker defenses than others. Why shouldn’t someone like Tomaselli be able to file charges against, and successfully sue a child predator who ruined his life?
Our States’ Crazy Quilt of Widely Varying Child Sexual Abuse SOLs
This simple comparison of child sexual abuse SOLs in two contiguous states, New York and Pennsylvania, should give readers an idea of the confusion and complexity when we widen the lens to take in all 50 states.
I have a website, www.sol-reform.com, for which I regularly update a 50-state survey of criminal and civil SOLs for child sexual abuse. It is a Herculean task that takes a large team of students to accomplish. Not only must the law in 50 states be kept current, but updates are constantly occurring, as the law is in constant flux.
Whatever limitation is set in a particular state, eventually a case of heinous abuse is discovered that is time-barred—leading to a grave injustice. Then the state extends the SOL so the next equally heinous case will be covered. But unless the SOLs are eliminated, there will always be the next awful case.
Because of this dynamic, most states’ SOLs have been evolving and lengthening gradually. Many had initially set the SOL to begin running only 2 years past the act of abuse (Alabama has not evolved very far from that rule, nor has Tennessee). Much more encouragingly, some states, such as Delaware and Florida, now have eliminated child sexual abuse SOLs completely.
Between the state-by-state variations and the constant flux, many survivors—especially those who are not yet at the point where they feel comfortable revealing their abuse to anyone, let alone an attorney—must be confused about when (and where, if the abuse occurred in more than one state) they can or cannot bring a lawsuit or seek the initiation of a prosecution. Indeed, I’ve noticed that even reporters and legislators often don’t have a clear understanding of the SOL rules. Who can blame them?
Moreover, the patchwork of SOLs creates perverse incentives. For instance, perpetrators may seek out states where the SOLs will be most friendly to them. Last year, South Dakota made the highly unusual move of reducing its child sexual abuse SOL so as to short-circuit child-sex-abuse claims by Native American victims against Catholic priests. Sadly, I’ve heard it said that South Dakota has, as a result, now become a mecca for abusers. I don’t know how one would prove that, but it would make perfect sense.
Child predators naturally seek out the best situations for finding one child after another—vocations like priest, rabbi, and teacher, and avocations like Boy Scout troop leader and coach. Short SOLs are predator’s friends, as are institutions that value and enforce secrecy.
Many states—like Pennsylvania—have engaged in piecemeal extensions of their SOLs. The result is a crazy quilt of limitations designed, unintentionally, to flummox victims and perplex the lawyers who are trying to help them.
It’s High Time to Standardize Civil and Criminal Child Sex Abuse SOLs Nationwide, and to Create SOL Windows to Allow Civil Claims From Earlier Years to Be Brought
The impulse to set SOLs defensively and reactively is understandable, but the time has come to standardize SOLs for child sex abuse across the country in order to better protect children. Perpetrators take their victims across state lines all the time, and no state should be effectively inviting these perpetrators in, by dangling in front of them the incentive of short SOLs, with all of their welcome secrecy and anonymity.
Let’s face it, sexual predators don’t deserve the peace of mind that comes from an expired statute of limitations. Given the compulsive quality of the disorder, and the fact that abusers rarely grow out of their penchant for abuse (some even abuse in their 80s), SOLs for child sexual abuse are just plain perverse. They help no one who is deserving of help, while they directly endanger the next child who is the “right age” for the perpetrators’ sick desires.
Striking the right balance would mean eliminating childhood sexual abuse SOLs in every state, and enacting an SOL “window.” Such a window would permit those who suffered abuse but whose SOLs had already expired to bring civil claims despite the expiration (though, due to a Supreme Court constitutional-law precedent—Stogner v. California—on criminal law and retroactivity, no expired criminal SOL can be revived).
This approach may sound extreme to some readers, and it would be for most crimes, but for child sex abuse, along with murder, SOLs simply make no sense. Imagine the spoken truth that would roll through the courts if the SOLs in each state were removed and SOL windows put in place instead! Predators right now are successfully grooming our children — because none of their victims have yet made it to the courts on time. Just think of all those years that alleged perpetrators Jerry Sandusky and Bernie Fine had with children before someone blew the whistle. You can’t give those years back to the victims, but you can make sure that more recent victims have more opportunities to stop abusers than those who preceded them.
With an SOL window, these perpetrators would be exposed and the children who otherwise would have been their victims would be protected.
The Federal Government Could Do Much to Address Child Sexual Abuse By Withholding Funds From States that Do Not Suitably Address the Problem
This is not an arena, though, where the federal government can unilaterally force the states to alter their criminal and civil laws. Instead, the federal government can create incentives for the states to fix their SOLs or punish those states that refuse.
How? The way the federal government very often convinces the states to act—through the power of the federal purse. The federal government ought to condition the receipt of state funds on improvement in criminal and civil child sex abuse SOLs. Indeed, the federal government ought to threaten to take future funds away if the SOLs remain as backward as they are in, say, New York, Tennessee, South Dakota, and Alabama—to name a few of the worst.
SOL windows would help Bobby Davis and Mike Lang, and the millions of victims who are now middle-aged, and have not yet come forward. There will be many more of them, as it seems the tipping point has now been reached; we seem to be able now to put the shame where it belongs—squarely on the shoulders of the abusers. In the past, victims felt too ashamed to come forward. That seems to be less often the case now.
Our problem is not just the Roman Catholic Church’s hierarchy, or the Fundamentalist Mormon Church’s prophets, or any one big college football program. It is men in positions of power—the Masters of the Universe, to draw from Bonfire of the Vanities—who rule their domains with too few around them who are capable of challenging them. It is long past time to empower the victims to level the truth at the institutions that have benefited too long from their imposed silence. For that, SOL windows, and reforms, are the perfect tools. And if states won’t adopt these reforms, the federal government ought to attach steep costs to their unconscionable refusal.
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