LANSING (MI)
Detroit News [Detroit MI]
July 10, 2024
By Beth LeBlanc
The lawyers for a man whose sexual abuse claims were blocked by a Michigan Supreme Court decision Wednesday called on the Legislature to change state law to allow for his claim and others like his to move forward in state courts.
The Michigan Supreme Court ruled Wednesday that the Legislature’s recent allowances for late disclosures of sexual abuse do not apply to victims who were abused prior to the passage of the law in 2018, including Brian McLain, who alleged he’d been abused a Catholic priest in 1999.
“A very easy way to fix this would be to go back to amend that statute to simply add in one sentence saying that it applies retroactively. That would clean up all of this,” said Christopher Desmond, a chief appellate attorney at Ven Johnson Law who represented McLain.
The 2018 law, which the Legislature adopted after the sentencing of serial sexual molester Larry Nassar, expanded a three-year statute of limitations post-assault to include childhood claims discovered up to an individual’s 28th birthday or three years after making a connection between the assault and a resulting injury or trauma. It also included a carveout that allowed only Nassar victims to revive their decades-old claims against the former Michigan State University sports medicine physician.
McLain, who alleged he was abused by a priest when he was 16 in 1999, had argued the 2018 law applied retroactively to his claims as well and that he should be allowed to file a civil lawsuit within three years of discovering mental health conditions related to the assault.
If McLain’s claim had succeeded, it would have opened the door for a variety of old sexual abuse claims against Michigan’s seven Catholic dioceses and other institutions — such as universities, schools or the Boy Scouts of America — where sexual abuse is alleged to have occurred but where claims were filed too late after the alleged action.
But the majority opinion written Wednesday by Justice Megan Cavanagh disagreed with McLain’s interpretation, arguing the 2018 law — absent the carveout for Nassar victims — applied only to claims of criminal sexual conduct occurring after the law’s effective date. McLain, by that math, must abide by the law in place in 1999, which allowed three years only for disclosure of sexual abuse.
“…we hold that it does not apply retroactively to resuscitate lapsed claims premised on past acts of criminal sexual conduct,” Cavanagh wrote of the 2018 law. “Because plaintiff’s complaint alleges damages caused by sexual abuse that occurred nearly 30 years ago, it is untimely.”
The seven-member high court all agreed that the law extending the age of disclosure to 28 does not apply retroactively to claims like McLain’s, but the bench’s three Republican-nominated justices differed on some other conclusions reached by the majority. They argued the majority opinion blended accrual rules and exceptions to the statute of limitations, when they are distinct concepts in law.
The Diocese of Lansing, a defendant in the case, did not return messages seeking comment.
The 2018 statute change extending the deadline for the filing a civil sexual abuse claim was meant to recognize the frequency with which individuals delay disclosure of their abuse because of repressed memories of the event or a fear of not being believed.
Opponents to extending the statute of limitations in sexual abuse cases have argued the deadline is there for a reason, to prevent against flimsy decades-old cases where evidence is scarce and witnesses are either dead or unable to recall much of the incident.
Separate from McLain’s lawsuit, legislation has been introduced repeatedly in Michigan to expand the disclosure age further and create a two-year “revival window” that would allow for old claims like McLain’s to be revived. The original legislation in 2018 included more permissive changes to child sexual abuse statute of limitations, but the legislation was narrowed significantly before passage.
Legislation proposing a revival window has failed to advance under either Republican or Democratic majorities.
In June, the Michigan House approved three bills that would expand the window for filing criminal charges to 15 years after the alleged offense is committed or by the victim’s 42nd birthday (up from an individual’s 28th birthday). The legislation also would remove governmental immunity from public universities, colleges or schools or their employees for criminal sexual conduct, if the institution “knew or should have known” that the perpetrator had committed a prior similar act and the institution failed to respond adequately to it.
The legislation moves to the Senate next.
eleblanc@detroitnews.com