Cusick, Lanza Are Voices of Reason on Childhood Sex Abuse (commentary)
By Daniel Leddy
As the current legislative session in Albany winds down, efforts are intensifying to pass legislation that would either extend or eliminate the statute of limitations for both civil and criminal cases involving the sexual abuse of children. The issues are complex, however, and not resolvable according to whether legislators are "with the kids or with the predators," as a Manhattan tabloid has been screaming virtually every day. Few would dispute that those sexually abused as children deserve to be compensated for having endured such ordeals, some so horrific that they entail catastrophic, lifelong consequences. At the same time, charges of sexual abuse are easily made and sometimes false, particularly when traceable to the machinations of warring parents engaged in custody and visitation disputes. This, and the ever-present possibility of false accusations generally, underscores the need to provide accused individuals with a fair chance to defend themselves against allegations so heinous that they ruin reputations, decimate finances, and put people behind bars. Their right to fundamental fairness, which succinctly defines "due process of law," is seriously jeopardized when the charges they face are based on conduct alleged to have occurred long ago. The reason is obvious. Memories fade, evidence is lost, and witnesses disappear. LANZA-CUSICK BILL The challenge for responsible lawmakers -- as opposed to the demagogues -- is to strike an appropriate balance between these two valid, but competing interests. Veteran Staten Island legislators Michael Cusick and Andrew Lanza, a Democrat and Republican respectively, have teamed up to do precisely that. The bill they've drafted is clearly the soundest legislative proposal for expanding protections for sexually-abused children while safeguarding the due process rights of the accused. Introduced by Cusick in the Assembly and Lanza in the Senate, the bill recognizes that those who are sexually abused as children often keep the incidents to themselves for long after they occur. Their reasons vary, and include a profound sense of guilt and shame, concern that nobody will believe them, and fear that disclosure may result in even greater abuse. Since this unwillingness to reveal the abuse tends to dissipate with age, the Lanza-Cusick bill would allow victims to initiate civil actions for damages up to the time they reach 28 years of age. The legislation would do away with the statute of limitations entirely for the criminal prosecution of sexual offenses against children. CIVIL VS. CRIMINAL PROCEEDINGS While childhood sex-abuse victims should be given enhanced access to legal remedies, it's not unreasonable to require that they act by age 28 if they wish to pursue a civil suit for monetary damages. Even at that, the people they cite as perpetrators would be forced to defend themselves against allegations that could be decades old. This, in proceedings where these plaintiffs need only prove their claims by a preponderance of the evidence, the law's most lenient standard. It is not surprising, therefore, that claims that are tenuous, if not flat-out false, are much more likely to be presented in civil lawsuits than in criminal proceedings. In addition, the latter accord defendants a panoply of legal and constitutional rights, including the requirement that the charges be proven beyond a reasonable doubt. These realities support the decision by Cusick and Lanza to eliminate the statute of limitations in criminal proceedings involving sex offenses against children. The Staten Island legislators have also proposed that members of the clergy be added to the list of so-called "mandated reporters" -- individuals required to report instances of suspected child abuse to authorities. They've crafted a sensible exception, however, for information obtained through legally protected confidences such as the confessional. DEEPLY FLAWED ALTERNATIVE The Lanza-Cusick bill is drawing strong support from legislators because it strikes a responsible balance between those valid but competing interests discussed above. The major alternative to it, introduced by Assemblywoman Margaret Markey and state Sen. Brad Holyman, is deeply flawed despite being gaudily trumpeted by that Manhattan tabloid. Striving mightily to prove that they're "with the kids, and not the predators," the two Democrats would accord plaintiffs in these types of cases a one-year window within which to file lawsuits that are currently time-barred by the statute of limitations. If enacted, a 75-year-old man, now claiming to have been abused by a school teacher back in 1948, could sue the school district or relevant municipal authority for huge money damages. To prove his case, he'd merely take the witness stand and testify that he was abused. There would be nobody to prove otherwise, of course, and so, with the burden of proof being a mere preponderance of the evidence, the guy would win on his testimony alone. Then, he'd be off to the bank. So would his attorney, which is why personal injury lawyers are lining up squarely behind the Holyman-Markey bill. Those without vested interests, however, should recognize the legislation's potential to bankrupt public and private entities at the expense of people who are long dead and unable to defend themselves. That's not just unfair; that's disgraceful. Cusick and Lanza are the voices of reason here, joining together once again to resolve complex legal issues in a manner that's fair to all concerned. The bill they've devised is clearly the one legislators should pass.
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