| Former Rep. Marge Markey of New York passed away recently. She was a force, and she recognized early on the value of ending the statute of limitations for child sex abuse victims. We first met in 2003, not long after the Boston Globe’s Spotlight series that introduced the public to the paradigm of powerful adults covering up the horrific sexual abuse of children. Markey was deeply motivated by personal experience—a priest abused her son, Charles— and in true “mom” fashion, never gave up, despite tremendous opposition. Early on, it was hard to get even a hearing on the issue. The subject—child sex abuse—was taboo; many Catholics were insulted by the dark light it was casting on their church, and the public understanding of such a cover-up was in its infancy. The media wasn’t willingly covering the topic until the Globe bravely detailed the truth that so many couldn’t abide at first: holy men in the Catholic Church were responsible for endangering their own parishioners’ children to protect their image and finances. There had been a drip-drip of stories about such abuse earlier, with the brilliant Jason Berry spearheading high-quality reporting when many papers refused to cover the issue. The leading archive of the Church’s clergy sex abuse, bishopaccountability.org, dates the crisis back to the 19th century. It took the Globe’s reporting, though, to switch the focus from bad apples in the Church to an organized, systemwide cover-up, which eventually turned out to be a global phenomenon. | | In New York, we fought on with the heartrending stories of so many victims from different contexts and a partnership of organizations. It took 16 years to get the Child Victims Act enacted into law. In the meantime, other states like California, Delaware, Hawaii, and Minnesota led the way for SOL reform. | | The first effective “window” opened in California in 2003 for one year. A “window” is a period of time during which the state lifts the statute of limitations (SOL) so that the victims can go to court. For the vast majority of victims, the SOLs were extremely short and had expired by the time they were ready to come forward. For many, they faced an SOL that expired two years after the sexual assault. It was such an arbitrary and unfair deadline that I was motivated to write Justice Denied: What America Must Do to Protect Its Children to argue for eliminating child sex abuse SOLs permanently. It seemed like such an obvious mistake in the law. I mean, who would want to keep these victims silent and lobby for pedophiles and organizations that ignore children’s suffering? Naively, I thought this was a no-brainer public policy. | | As soon as I published it, I learned differently! The first opponents out of the door were the Catholic bishops, who went on a personal attack immediately. Soon to follow, though they operated behind the scenes, were the insurance companies that had collected premiums and rarely had had to pay. Following a similar under-the-radar approach have been the teachers’ and now county and state unions defending their own, even if they committed crimes and destroyed children’s lives. | | Once the genie was out of the bottle in 2002, there was no slowing down the increasing stories of abuse across the country. The #MeToo movement initiated by Tarana Burke began in 2006. In 2011, Penn State pushed the bishops out of the headlines for a while with the disgusting revelations about football coach Jerry Sandusky using a charity he created for underprivileged boys, the youth football program at Penn State, and his home to abuse dozens of children. Joe Paterno publicly regretted he didn’t do more to stop it. Like many Catholics did with the Church, Penn Staters initially treated the allegations as a personal attack but eventually shifted and settled the cases. President Graham Spanier was sent to prison for his part in the cover-up. At the same time, there was a relentless flow of stories from prestigious boarding schools, other religions like the Jehovah’s Witnesses, the Boy Scouts of America, and many more. | | I started tracking the SOL laws in 2003 with the help of my Cardozo Law students, and did so until 2016 when I joined the faculty at the University of Pennsylvania and started CHILD USA to create an organization to push for SOL reform in the United States and eventually the world through the Global SOL Reform Task Force in partnership with the Brave Movement. | | The banner year for SOL windows was 2018, but we have made steady progress every year, with over 400 laws passed to extend, eliminate, and/or revive SOLs since 2002. These laws identify hidden child predators, shift the cost of the abuse from the victim to the ones who caused it, and educate the public. While the focus is undoubtedly on these brave survivors coming forward, these laws have also been the reason we know what we do now about systemic, pervasive child sex abuse. Without them, parents and children would be in total darkness about the dangers around them. Among other triumphs, the courthouse doors were opened for Jeffrey Epstein’s victims, who are now a powerful force demanding the truth. We took the model and expanded it in New Jersey and New York, drafting and arguing for an Adult Survivors Act, which then opened the door for E. Jean Carroll to bring Donald Trump to account. They fundamentally level the playing field. SOL reform, thus, serves a much broader public purpose than simply compensating victims, which in itself is a major public win given that the average cost over the lifetime of a victim is around $250,000, though some estimates are as high as $800,000. It is completely unfair to burden them with the cost when our tort system can shift that cost to the bad actors who made it happen. That’s the American way. | | The Early Arguments Against Child Sex Abuse Victims’ Access to Justice: False Claims | | The public opponents of child sex abuse victims have been led by the bishops and the American Tort Reform Association, which, from the beginning, has argued that there will be mountains of false claims. This is an organization that fights “lawsuit abuse,” or in other words, mass tort attorneys, and seeks to reduce personal injury lawsuits generally. They have a lot on their plate and are ambitiously pushing reforms against mass tort firms in many jurisdictions, including Congress, where Republican majorities are creating a positive environment for them. I’ve always wondered why they chose to focus on shutting down the victims of heinous crimes. Why invest in making children unsafe? | | The bishops and ATRA have spent a lot of effort arguing that opening the SOLs leads inevitably to large numbers of false claims. That just was not true (until recently, as I will discuss below). The best science tells us that child victims rarely fabricate abuse; in fact, they are much more likely to recant. Moreover, short SOLs are particularly unfair for these victims, because the trauma, physical and emotional impact, shame, and humiliation silence them typically for decades. CHILD USA surveyed Boy Scout victims, and over half came forward after age 50. Only a third come forward during childhood, and most of them do not report to anyone who would pursue a legal claim. | | We saw very few false claims until recently. The reason was that the many experienced and humane child sex abuse lawyers typically vet their potential clients and naturally did not want to invest in cases with weak or nonexistent evidence. This is not an easy forum within which to represent clients, who face many challenges, and many of these attorneys work extremely hard and passionately for justice for them. They have dedicated their careers to holding child-endangering institutions to account. Many of the best even hand out their cell numbers to their clients. So when ATRA prattled on about false claims, we would demand the cases be thrown out for being false. They didn’t have the evidence because it was not a common occurrence. | | Enter the unscrupulous mass tort firms. | | The False Claims Factories That Are Now Threatening the SOL Movement | | The bishops, ATRA, and the insurance industry also complained that there would be an avalanche of cases. This was deeply ironic, given that no one would have known more than the bishops and the insurance folks that there would be so many cases! How dare they complain about the number, given their role in silencing so many victims? In reality, we have seen a modest number of cases compared to the population of victims, as you can see here. Child sex abuse victims constitute up to 20% of the population, so even the largest number of cases arising from window legislation to date—10,857 in New York—has been a drop in the bucket. | | In any event, the increased number of cases has gotten the attention of some mass tort firms. Let me make this clear—there are mass tort firms that are taking the care they should with these cases just as many trial attorneys do, which means careful vetting, attentive oversight, and humane treatment through the process. Then there was the Los Angeles-based DTLA firm in the recent $4 billion settlement against Los Angeles County. According to allegations in a bracing LA Times investigative report by Rebecca Ellis, they not only failed to vet clients but also paid people to sue the County with their representation. This was the largest child sex abuse settlement in history, which is now tainted by such behavior. First and foremost, I am beside myself that anyone would introduce clients to compete with those who suffered horrible treatment as a child. For what? Money, obviously. ATRA and I may, for the first time in history, be in alignment here! There are calls for investigations and more power to them. Let’s hope they were the only ones. Whether they were or not, this is a crossroads for the child sex abuse movement. | | As part of such an investigation, someone needs to ask the following: What happened to the procedure that was part of the California window, which required attorneys to file “certificates of merit” for each client? Was it enforced? It is a two-fold requirement: (1) an affidavit from a non-treating mental health professional stating that they found the person’s story credible and (2) an affidavit from the attorney saying the same. It is an annoying bureaucratic requirement and expense for the hardworking law firms that are already laboring to tell the truth, but it is worth it if it works. In this instance, it was a measure that should have kept unvetted and false claims out of court. Shockingly, it does not appear that the County’s attorneys challenged those filings that did not have an accompanying certificate of merit. You would have thought that if they were to agree to a $4 billion settlement they would have combed through the files. Neither side looks virtuous here, to put it mildly. The huge settlement with the stink of false claims helps no one. | | At one point, our highest barrier in the SOL movement was ignorance. Lawmakers, judges, and juries didn’t understand that child sex abuse victims really do need decades to come forward, and the public didn’t yet understand the public good these cases serve. Now we have some overzealous mass tort attorneys poisoning the well for short-term profit. This has to be stopped now. | | This is what needs to happen: First, there needs to be an official investigation into the facts reported by the LA Times with a public report. | | Second, the California state legislature needs to include a certificate of merit requirement for future cases plus sanctions for failure to file the certificate for each case. For those firms planning to file hundreds and thousands of cases, there needs to be an incentive to treat each one individually. Sex abuse and assault cases aren’t natural cases to gather together in the first place, because the facts are so specific to each victim, and the trauma affects each individual differently at the time and over the course of their lives. They are not remotely like the drug cases where thousands of individuals took the same drug and had the same reaction. They don’t easily fit into the class action model for these reasons. | | The other reality here is that there are businesses that “aggregate” cases for personal injury law firms. The reputable ones screen potential clients with trauma-informed practices and are dedicated to handling these cases with respect and humanity. Others simply sign up names they are willing to sell to firms. The former cost more than the latter for obvious reasons. Before the SOL movement, there weren’t enough sex abuse cases to justify such a service, but now that we have been able to add many more cases to the pipeline through SOL reform, these practices are getting more prevalent. In reality, a certificate of merit procedure with sanctions should incentivize the lawyers to check all of their cases, regardless of where they got them. At the same time, if they are looking to hire aggregators, choosing ethical aggregators is essential. | | Third, let’s not forget who truly matters here: the victims and their families. For those who were abused in the LA County system, that was a horror, and it should have been detected and prevented. It wasn’t. At the same time, when lawyers introduce false sex abuse claims into the system, they hurt the victims who filed honestly, the ones who may need a chance to file in the future because they just weren’t ready, and the ones who are terrified that no one will believe them. They also hurt the vast majority of lawyers in the field, who are working assiduously to do everything they humanly can to help their legitimate clients and hold institutions to account. ATRA rails against trial attorneys generally, but the up-and-up firms representing child sex abuse victims are performing a vital public service. | | Finally, hats off to Rebecca Ellis and the LA Times. I believe in the power of the truth to keep the SOL movement and its vitally needed public service on track. This debacle justifies investigation and whatever comes from it, but it does not shut down these cases through draconian laws regulating them. The sad truth is that adults instinctively prefer to protect themselves, leaving children and suffering victims to help themselves. Predictably, the county unions negotiating under the shadow of this settlement were no fans of it, to put it mildly. In the wake of the settlement, they and others have been lobbying along with those like ATRA against future cases. They want damages caps and crippling attorneys’ fees caps, and on and on. Everyone needs to take a deep breath here. | | The SOL reform movement has channeled the adult-centered instinct to an extraordinary realignment in our culture that meaningfully protects children from the worst impulses of abusers and administrators. The bedrock here is that way too many kids have been sexually abused in LA County and everywhere else in this country. These SOL windows allow us to catch up and make amends for the cruelty. They also teach us dark realities we need to understand if our children will ever be safe. Tamping down cases doesn’t contribute to child safety. As I said above, these cases are the educational materials we need to protect kids. | | At the same time, moving forward, we need first-rate, science-based prevention programming in every youth-serving organization, whether it is being run by a church, university, school, county, or state, among others. The endgame of the child sex abuse movement is not just to get every survivor justice and a settlement. It is to create a world that is safer for our children. Opening access to justice—fairly pursued—is the first major step toward that righteous goal. |
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