Gov. Jerry Brown’s Recent Veto of Child Abuse Legislation and What It Tells US about the Civil Rights Movement for Children

By Marci A. Hamilton
The Verdict
October 17, 2013

http://verdict.justia.com/2013/10/17/gov-jerry-browns-recent-veto-child-abuse-legislation-tells-us-civil-rights-movement-children

No civil rights movement worth pursuing happens overnight or easily, because it is always a fight against the entrenched powers that resist and detest change. The ups and downs are sometimes steep, with the oppressed facing devastating losses and heady triumphs along the way. In the civil rights movement for children, which is transforming children from property into persons in the United States, a critical element is giving child sex abuse (CSA) victims meaningful access to justice.

Until relatively recently, most child sex abuse victims in the vast majority of states did not have access to justice, because the statutes of limitations (“SOLs”) cut off their claims before they could make it to the courthouse. A confluence of ignorance meant that these victims were cut off from simple justice: Americans (1) had underestimated the amount of child sex abuse that actually occurs; (2) were unaware that child sex abusers typically tend to be the “nice guy” or gal that adults trust with their children and, therefore, had no idea that so many are hidden amongst us; and (3) did not know that most CSA victims need decades before they are capable of coming forward. The result has been that the legal system has unintentionally favored perpetrators, rather than victims. The perpetrator’s best friends have been short SOLs and public and private institutions that act to protect their image, wallets, and adults’ reputations rather than the welfare of children.

We now know, based on hundreds of scientific studies and experience in many states, that a CSA victim needs a great deal of time to enter the judicial system. In addition, the delay in filing charges or filing a lawsuit does not mean that the perpetrator has stopped harming children. Perpetrators will molest children into their elderly years. Letting a survivor have access to justice at any time dramatically increases the odds of identifying hidden perpetrators among us. Thus, survivors’ access to justice dovetails with the rights of children right now.

Opening the SOLs does not guarantee victims that their perpetrators will be convicted, or that they will win civil lawsuits for damages and other remedies. The SOLs only create access to justice, but access is what marks a rights-holder.

For children to no longer be treated as property, and instead, like persons, we must treat the crimes they suffer as real, and quite publicly hold those responsible accountable. Children, like adults, have a right to bodily integrity, and when state laws aid perpetrators and their institutional abettors to disable the victims, that basic right of children is violated. SOL reform is not about helping prosecutors or trial lawyers, but rather about vindicating the rights of victims to obtain redress for the harm they have suffered, and to grant them the power, through the criminal justice system, to see their perpetrators and those who conspired against them go to jail.

We have seen this movement make tremendous strides in recent years, led by the likes of Delaware, which eliminated its civil and criminal SOLs prospectively and enacted a window to revive claims for the many shut out of the system. Many states have dramatically increased or eliminated civil and criminal SOLs. California, Delaware, Hawaii, Minnesota, and Guam have enacted windows and many states are now considering it. These are signal achievements that are historical markers of this civil rights movement.

But there have also been setbacks as the enemies of victims’ access to justice, largely fueled by the Catholic bishops, obtained a veto of the first Hawaii window, and blocked legislation in many other states, particularly those in which the bishops exercise extraordinary power over willing state legislators. These legislators remind me of George Wallace, who had no shame in taking a very public position against the civil rights movement for African Americans of the 60s. They are eager to shore up the status quo and can’t see the history writ large in front of them.

The Most Recent Battle for Children’s Civil Rights Lost in California

Last weekend, child sex abuse victims in California received a cruel blow when Gov. Jerry Brown vetoed SB131, which would have opened a window to sue private organizations that had made the victims’ abuse possible. Both houses of the California legislature had passed the bill, and all that was needed was for Gov. Brown to sign it. Waiting until the last minute, he refused to do so, and disseminated a “veto message.”

Brown’s Veto Message Is Filled With False Statements of History and Fact

Brown’s message appears to have been written by the lobbyists who have opposed to giving victims enhanced access to justice as it is filled with false statements of fact and specious reasoning. For those who have not been following these issues closely, the opponents of such legislation are the religious organizations, primarily the Roman Catholic bishops, and the insurance industry, which resists paying out on policies collected on years ago.

Brown starts with the nauseating statement that SOLs were hallowed in Roman law. Under Roman law, adults also owned slaves, and had the right to have sex with their young slaves. It was common practice. Thus, this is not the culture I would look to for guidance on how to deal with the laws surrounding child sex abuse.

Brown then justifies limits on child sex abuse SOLs, saying: “[A]ll jurisdictions have seen fit to bar actions after a lapse of years.” Not true. Many states have eliminated SOLs and a number of those passed the “window” Brown vetoed. As Brown himself notes, California passed an SOL window in 2003. This deeply flawed summary of state SOLs makes it apparent that Brown (or his aides) didn’t study the issue themselves, but rather took the lies handed to them at face value.

Brown Misses the Mark on “Fairness”

Then Brown trots out “Fairness.” Let’s talk some real fairness. As I discussed above, victims need decades to come forward. It is patently unfair to keep them out of court when the vast majority can’t come forward before the SOL expires. That is the definition of justice denied. In addition, it is also unfair to our parents and children today to keep a muzzle on victims who know the identities of perpetrators, and know which institutions have harbored those perpetrators, but can’t speak out for fear of being sued for defamation if they speak without having a live legal claim. Let’s also pause for a moment to think carefully about Brown’s call for “fairness” for the institutions that knowingly empowered perpetrators to sexually assault child after child. This is the mark of someone who is so ignorant on these issues, he can’t find his moral compass.

Then, borrowing the Catholic bishops’ signature move, Brown charges that the new SOL window is aimed at the Catholic Church and the Boy Scouts. This is an outright fabrication, as the law has no such limitation. It is one thing for these organizations, whose behavior is already beyond despicable, to reach for the victim card, but it is quite another for a long-time politician like Democrat Brown to fall for it. Shame on Brown.

In fact, SB 131 was not perfect, because it did not cover public entities as well. But Brown is making the perfect the enemy of the good. If he (and the lobbyists who apparently drafted his statement) were sincere about access to justice for victims, he would have signed SB 131 with a strong message to California legislators to introduce legislation that would cover the victims that SB131 did not cover. Let’s be clear here, the bishops and the Boy Scouts have no interest in affording access to justice for the victims of public entities. Their only concern is to ensure that they are not in the crosshairs of the legal consequences of their evil and illegal policies that endangered children.

Brown Miscalculates Who Has Paid More for Child Sex Abuse

Finally, Brown says the Church has paid enough already, so basically, let’s leave it alone. The 2003 SOL California window was defective, though, because it lasted only one year and many survivors never heard about the law, or understood that their SOL window was closing. There was no public educational push; there were no PSAs that would have informed victims that they needed to act fast. A year is a very short time. The new window would have been highly publicly visible and would thus have accorded more victims access to justice.. Brown, instead, chose privilege for the Church and the Boy Scouts, and every other private institution that enabled abusers, as opposed to the needs of the California victims, whose hearts are now broken. There are thousands of victims who have paid the price for their victimization their entire lives, but Brown chose to insulate those who are responsible from their claims.

The Rev. Martin Luther King, Jr., Put It Best

Three years before the Rev. Martin Luther King, Jr. delivered his iconic “I Have a Dream” speech, he laid the foundation for his profound vision of true freedom. During a speech to the National Association for the Advancement of Colored People, he pointed to the distance between the American dream and the reality for African Americans at the time. He blamed white supremacists for violating that dream, but did not stop there. He further charged that “our federal government has also scarred the dream through its apathy and hypocrisy, its betrayal of the cause of justice.” That describes you, Gov. Brown.

But survivors need to understand that this is just one step in the journey of this civil rights movement. Let’s dream and fight on to find justice for child sex abuse victims in the states where legislators and governors will honor the spirit of Martin Luther King, Jr., and refuse to be co-opted by those who enslaved our children, deprived them of bodily integrity, and then sunk millions to block their paths to justice.