Open Courts Doctrine, Not Applicable to Victims of Sexual Assault

By Gordon Howie
Freedom and Guns
February 2, 2012

http://freedomandguns.com/?p=2067

I met Robert Brancato a few weeks ago. I soon discovered that we have something in common… We both believe the State Legislature made a serious error when they passed HB1104. It stripped victims of sexual assault of their rights. It was bad legislation. This year, Robert is working with some Legislators to repeal this law. That would be a very good thing. Thanks to him for all his efforts, and for this article.

By Robert Brancato, Rapid City SD.

In South Dakota we live and respect both the Federal and State Constitutions. We have a Bill of Rights. We have a State Legislature that is made of elected official’s; both Republican and Democratic Parties are represented.

South Dakota’s Constitution clearly states in Article VI, Line 20: “All courts shall be open, and every man for an injury done him in his property, person, or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.”


In January 2010 HB 1104 was passed into law. This bill, in short; limited the statue of limitations in civil cases for victims of sexual assault to three years from when the act was committed, or the injured “reasonably” knew that damage was done to him/her due to the act. As well, it clearly states that no person has claim after the age of forty. It should be noted, this bill was brought forward by an Attorney who was defending an organization, in pending litigation, in claims brought forward by over seventy victims.

The law is unconstitutional , because it violates the constitutional and civil rights of many victims, and had the sole purpose of foreclosing liability for the Roman Catholic Church-an obvious violation of the Establishment Clause of the First Amendment.

Over the past four months I have been working with Representative Steve Hickey (R-09) on the rescinding of HB 1104. On Monday February 06 I will testify in front of the House Judiciary Committee. HB 1218 shall be heard.

[http://legis.state.sd.us/sessions/2012/QuickFind.aspx]

At 10:00 AM, I a survivor of criminal sexual assault as a minor will share my history. How I was raped as a twelve year old boy by both my Catholic School Principal and Priest, over a period of two years, will become once again public. How age has not made the demons flee. The Post Traumatic Stress Disorder (PTSD) I live with, while controlled; does not take a holiday. The monsters are still free and living in Illinois, heck the former Principal still has a teacher’s license. Imagine that!

Here is a list of twelve issues victims face on a daily basis:

1. Lifetime effects – The effects of abuse follows the victim for their entire life, why shouldn’t it follow a corporation or offender the same way? There isn’t a statute of limitations for pain.

2. Vulnerable populations – the psychological literature details the process of “grooming” whereby abusers seek the easiest targets. Where the victim is not a family member, it leads to vulnerable populations that do not have ready access to health care, law enforcement, education, etc.

3. Lack of historic understanding of the long term effects of childhood sexual abuse – the effects have only recently begun to be understood. I learn every day.

4. Societal stigma of disclosing – assumption that victims will become abusers.

5. Self blame – again, the psychological literature indicates that perpetrators blame the child in order to explain their behavior to themselves. The child is then instilled with self blame.

6. Group most equipped with alleviating/ bearing risk – the victim, as a child, could not possibly have avoided the risk. Therefore, it is the most fair to allocate the consequences of abuse to an entity that voluntarily undertook the duty to protect the child.

7. Procuring silence – in some cases the involved institutions have procured silence by moving perpetrators, by not complying with mandatory reporting laws, by not warning individuals, by not disclosing allegations, by requiring silence in settlements and at times, directly telling children to not disclose their abuse.

8. Faith in South Dakotan’s to exercise the duties of a democracy – we trust South Dakotan’s with the death penalty and elections of state legislators but we don’t trust them with the truth? Further, the judiciary is tasked with the initial filtering process and is empowered to dismiss cases where there is no issue of fact.

9. Deterrence – this should never happen again and if an entity has this type of responsibility, they have real incentive to prevent it.

10. Accountability – we are talking about accountability of perpetual corporations. Do we really want to forgive a corporation for allowing the harm of children?

11. Missing evidence argument – the decay of evidence hinders the victim with the burden of proof the most.

12. Dead perpetrators argument – the perpetrator will be older than the child by definition of childhood sexual abuse.

Today as I write this piece, I hear of compromise yet again.

A bill was brought to the Senate Judiciary Committee

[SB 68] that would have eliminated a statue of limitations for rape of a child in the criminal code. It would have brought the assailants to face justice for crimes against our kids, no matter how long they hid the crime, moved from state to state or convinced the victim(s) it was their secret.

The compromise came as the “law makers” discussed the issue with Defense Attorneys, thus reducing who, at what age, can make a claim against an offender.

AM I MISSING SOMETHING HERE???

Why do we allow compromise when it comes to protecting our children?

Just recently we heard of the resignation of US House Representative Gabrielle Gifford’s (D-AZ 08) who has bravely survived an assassination attempt on her life. When asked “what” she remembered concerning this tragic day, she could not recall the event. This is exactly what the trauma of rape and sexual assault can do. The human mind does protect us.

Imagine, if you can, the most violent act that you have seen or been a victim of.

Too many police reports today are filled with such statements, “It was all a blur”, “How did I get injured?”

Does this mean the act of violence did not happen? No.

It is in our best interest as citizens, voters, parents, grandparents, aunts and uncles, brothers and sisters. Protect the children of God. Do not allow “Law Makers” to determine what is best when it comes to the most innocent.

Ironically Matthew wrote in his chapter, “If any of you put a stumbling block before one of these little ones who believe in me, it would be better for you if a great millstone were fastened around your neck and you were drowned in the depth of the sea”.

Call, write or carrier pigeon your message to Pierre; enough is enough!