DENVER (CO)
Colorado Sun [Denver CO]
June 26, 2023
By Jesse Paul and Elliott Wenzler
The Colorado Supreme Court last week struck down the part of Senate Bill 88, a law passed in 2021, giving victims of child sex abuse dating back to the 1960s a three-year window to file lawsuits
When a group of Colorado lawmakers in 2020 sought to end the state’s statute of limitations for lawsuits in child sex assault cases, some victims and victims’ advocates wanted them to try to go even further.
Their request was that Colorado give victims of abuse for whom the statute of limitations had expired a window to sue not only their abusers, but also organizations that shielded the perpetrators or negligently allowed the abuse to continue.
The nonpartisan Office of Legislative Legal Services, which offers state lawmakers legal advice, said such a window would violate the state’s constitution, which prohibits the General Assembly from reviving a claim for which the statute of limitations has run out. It turns out that opinion held merit.
The Colorado Supreme Court last week struck down the part of Senate Bill 88, a law passed by the legislature in 2021, giving victims of child sex abuse dating back to the 1960s a three-year window starting on Jan. 1, 2022, to file lawsuits against their abusers and the institutions or organizations that failed to stop the abuse. The high court’s decision was unanimous.
There were many concerns about the constitutionality of Senate Bill 88 as it was debated in the legislature, but the measure’s sponsors took the rare step of proceeding anyway, saying the severity of the crime demanded it. Dozens of pending or soon-to-be-filed cases were unraveled by the Supreme Court’s ruling.
“We knew that there would be a challenge to this law because the opponents of the measure made it clear they intended to sue,” said Sen. Jessie Danielson, a Wheat Ridge Democrat and prime sponsor of the bill. “We still had the obligation to do the right thing and try to stand up for the people who were abused as children.”
The opponents included public schools and the Catholic Church, who warned that Senate Bill 88 posed a major financial burden because of the legal costs stemming from how many lawsuits they would have to defend against. They also argued the measure was plainly unconstitutional.
Rep. Dafna Michaelson Jenet, a Commerce City Democrat and another lead sponsor of Senate Bill 88, said there were always concerns a court would toss out the policy. “It’s disappointing that it came out this way. However, clearly the way the vote went — 7-0 — they absolutely feel it is unconstitutional.”
Several other states, including New York, New Jersey, North Carolina and California, have passed laws giving victims of child sex assault from decades past a window to sue. The measures were inspired by the worldwide Catholic Church abuse scandal and the fact that survivors often wait decades before they reveal their victimization, including a man profiled by The Colorado Sun in 2020 who waited more than three decades to tell his family that he had been abused as a child by a priest who was a constant figure in their lives.
The push to create a so-called look-back window in Colorado was so fierce that it led to the demise in 2020 of a measure that would have ended Colorado’s statute of limitations for lawsuits solely in future child sexual assault cases or in cases where the statute of limitations hadn’t already run out. The sponsor of that legislation, Sen. Julie Gonzales, D-Denver, killed the measure in a dramatic committee hearing because she said it didn’t do enough to help victims of child sex abuse in decades past.
“I’m not willing to pass a bill that lets perpetrators off the hook,” Gonzales said at the time. “I will not settle for watered-down justice. I believe we have to do better. All victims of sexual assault deserve to see their abusers held accountable.”
Proponents split the two proposals into two measures in 2021, and Senate Bill 73, eliminating the statute of limitations, passed and was signed into law. (The statute of limitations gave child sex abuse survivors six years after they turned 18 to file a legal action.)
Senate Bill 88 tried to get around the constitutional prohibition on reviving a claim for which the statute of limitations has run out by creating an entirely new civil cause of action.
The Colorado Supreme Court said that despite the careful legal maneuvering, the law was still deemed unconstitutional.
“For the same reason that the legislature cannot revive time-barred claims, it cannot create a new cause of action that covers the same conduct and apply it retroactively,” the court’s ruling said. “We certainly understand the General Assembly’s desire to right the wrongs of past decades by permitting such victims to hold abusers and their enablers accountable. But the General Assembly may accomplish its ends only through constitutional means.”
The Supreme Court’s decision came in a case filed by a woman who sued Aurora Public Schools. She said she was sexually abused by a coach at Rangeview High School in the early 2000s, alleging that the coach made her perform oral sex on him over 100 times during her four years at the school, starting when she was 14. She said it wasn’t until 2007 that she began to fully understand what had happened to her, but when she reported the abuse to police, authorities told her the statute of limitations had run out.
The case was tossed out by a lower court on grounds that Senate BIll 88 was unconstitutional, which prompted the woman to file an appeal with the state’s highest court.
The court’s 40-page ruling may have policy implications far beyond Senate Bill 88.
“This is probably a bill that will go down in history as one that Colorado law students will study,” said Rep. Matt Soper, a Delta Republican and attorney who also was a lead sponsor of Senate Bill 88.
The Colorado Coalition Against Sexual Assault, one of the main proponents of Senate Bill 88, said more than half of child sex abuse survivors don’t disclose what happened to them until after they turn 50 years old.
“While the Supreme Court’s decision … takes away their opportunity for justice and accountability in Colorado, it does not invalidate the harm they experienced nor their strength in telling their story,” Brie Franklin, executive director of the nonprofit, said in a written statement. “CCASA remains committed to changing laws and systems to promote safety, justice and healing for all survivors. Regardless of when the sexual abuse happened, survivors can still get help and support from community-based programs and through healing services.”
Michaelson Jenet, Danielson and Soper said they will work to find another avenue to give victims of historic child sex abuse their day in court, but admitted their options appear both unclear and limited.
“I’m not willing to let it drop,” Michaelson Jenet said. “I do still believe that victims deserve their day in court. I want to figure out a way to make that happen.”
Michael Nimmo, a Colorado attorney representing clients who were sexually abused as kids, said he’s interested in amending the Colorado Constitution to remove the language barring retrospective laws, though he acknowledges that’s a tall — and pricey — task that would require voter approval.
He said the U.S. Constitution doesn’t have such language, and thus it doesn’t appear in most state constitutions either. That’s why other state’s have been able to open windows of opportunity for survivors of historic child sex abuse to sue.
“In my opinion, the Colorado Constitution should mimic the U.S. Constitution,” he said. “I think if it’s OK for the U.S. Constitution, why is it not OK for Colorado’s?”
Nimmo said he has roughly 35 clients who had already filed cases under Senate Bill 88 or were hoping to. It’s not clear how many lawsuits had been filed under Senate Bill 88 when the Supreme Court issued its ruling, but it’s likely well into the dozens.
Nimmo, said one silver lining is that the Colorado Supreme Court didn’t strike down all of Senate Bill 88. The measure still allows recent and future child sex abuse survivors to overcome the government’s protections from financial consequences in lawsuits, a right they didn’t have before.
He said while he felt the legal arguments for why Senate Bill 88 was constitutional were strong, he always knew there was a chance a court would disagree. He said lawyers frequently take a chance with their legal interpretations.
“I never once thought 100% this law was constitutional,” he said. “We thought we had a way to make this complicit with our constitution. We were wrong.”