Tuesday, May 30, 2006

Abused children may get more time to sue

Bill would increase statute of limitations to six years from two

May 30, 2006 | BETH MILLER | The News Journal
Victims of child sexual abuse by an adult would have more time to sue for damages under a bill expected to reach the General Assembly today.

The bill, sponsored by Rep. Greg Lavelle, R-Sharpley, and Sen. Karen Peterson, D-Stanton, would extend the time from two years to six years after the abuse occurs or to six years after the abuse is discovered to be the cause of a victim's emotional or physical damage.

The bill also would give new life to claims of abuse that have been barred by Delaware's civil statute of limitations, granting a two-year window in which such claims could be filed.

"That would be awesome," said Valerie Marek, executive director of Survivors of Abuse in Recovery, which supports the recovery of many abuse victims. "A lot of kids are threatened into keeping their mouths closed. By the time they are strong enough to confront it, it's years later and major damage has been done."

California passed a similar law, some states revised their statute of limitations, and other states are debating the issue, which gained prominence after the scandal of child sexual abuse by priests emerged nationally in 2002.

Navy Lt. Cmdr. Kenneth Whitwell urged Delaware lawmakers to change the state's statute of limitations last fall, when he filed suit claiming he was sexually abused by a priest who taught at Archmere Academy in the mid-1980s. Some of the abuse occurred during ski trips to Vermont, Whitwell said.

Delaware's statute of limitations would have barred Whitwell's suit, so it was filed in federal court to leverage the Vermont statute of limitations, which is six years past the time of the abuse or six years after the damage caused by the abuse is recognized.

"A civil window is the single most effective step we have toward preventing future abuse," Whitwell said Friday. "It exposes the predators now and it exposes people who enable the abuse, who protect those people, who shield molesters, who destroy documents. We know there are people out there who don't want this to get out into the open."

The legislation is meant to address abuse by individuals and the institutions that employ them. It does not target the Catholic Church or any other group, said Lavelle, who is Catholic.

"It's much broader than that," he said. "This impacts anyone whose charge it is to be responsible and watch over children; Boy Scouts, Girl Scouts, the YMCA, day cares, private schools."

Split support

Tony Flynn, lawyer for the Catholic Diocese of Wilmington, which includes parishes throughout Delaware and the Eastern Shore of Maryland, said the diocese generally supports changing the civil statute.

"We think whatever clock runs against a victim of sexual abuse should not begin to run until they are an adult," Flynn said. "If you create a period of time long enough, you can deal with the valid concern that victims of sexual abuse as minors have difficulty coming to grips with the abuse and its effects."

But, he said, the diocese sees problems in the "discovery approach," in which the time limit does not begin until the victim remembers the abuse or realizes that emotional or physical difficulties were the result of the abuse. And it would "vigorously oppose" any effort to revive claims already barred by the statute of limitations.

"There are a number of ways to deal with this, so I'm not drawing a line in the sand for this particular solution," Lavelle said. "I view this as the beginning of a public discussion."

Extending the two-year civil limit has broad support, Lavelle said. Addressing old claims with a retroactive bill is likely to face tougher debate.

Retroactive problems

Delaware lawmakers removed the statute of limitations for criminal prosecution of child sexual abuse a few years ago, including a window of opportunity during which older cases could be revived and prosecuted. But shortly after that bill was signed into law, the U.S. Supreme Court ruled on a similar case, striking down the retroactive window as unconstitutional.

"But the average age of an abused child is 9 years old," Peterson said. "What child is going to hire an attorney and file suit before he or she is 11? And with a lot of older cases people from my generation didn't talk about it. If you did, you got spanked and sent to your room. It was a whole different mentality in those days. You didn't cause problems in the family."

Reviving old cases raises many problems, Flynn said.

"Somebody abused 50 years ago could file suit," he said. "The evidence is lost, the witnesses are lost, dead or unavailable, documents are difficult to find in my view that is a denial of due process. Once a claim is barred by operation of a statute, a defendant has the right to rely on that and clear the books of the claim. Insurance programs and risk management are all predicated on what the statutes of limitation are. If you buy insurance and the rules change, you're stuck."

Ed Burke, a member of St. John's-Holy Angels parish near Newark who was abused by a priest as a boy in Iowa, said the law would give children justice and additional protection. He works with the northern Delaware chapter of Voice of the Faithful, formed to support survivors of priest abuse.

"My hope is that the state legislators will take the high ground and force the spiritual leaders to offer some form of justice to the abused, who in many cases have suffered from years of neglect," he said.

Flynn doubts legislators have enough time to devote to such a significant issue before their June 30 deadline.

"There are only 16 legislative days left in June," he said. "I doubt they can have the kind of discussion and analysis that's required for a bill of such sweeping scope. It's something that deserves more reflective consideration."

And, Flynn said, the bill still doesn't address another arena of abuse.

"If the aim of the bill is to prevent abuse, which is a major priority of the church, we're leaving untouched in this legislation a place where abuse occurs the public school system," he said. "It is immune from these suits."