Window of Opportunism

So-called “window bills,” which eliminate statutes of limitations on child sexual abuse claims for periods of two or three years, have been enacted in more than seventeen states. Their primary justification—the thesis that victims of child sexual abuse are psychologically constrained from filing their claims until an average age of fifty-two—has no basis in fact. This thesis, and the legislation based on it, are promoted by a nonprofit organization whose key funders are among the largest plaintiffs’ law firms in the country. That fact should surprise no one, since the effect of window legislation is to extract payouts from deep-pocketed institutions—while leaving the vast problem of child sexual abuse almost totally unaddressed.

Window bills and the “age fifty-two” thesis are advocated by CHILD USA, the nonprofit founded by University of Pennsylvania political science professor Marci Hamilton, who describes herself as the country’s “premier expert on the history and constitutionality of SOL [statutes of limitation] reform.” Hamilton’s signature contention, retailed before one state legislature after another, is that “it is a medical fact that victims of child sex abuse often need decades to come forward.” In September 2021 she told the Michigan Legislature House Oversight Committee that “fifty-two years is the average age of disclosure of child sexual abuse.” She accordingly argues that civil statutes of limitations for sexual abuse should be retroactively extended to twenty years or more. Better yet, states should adopt “windows” during which time-barred claims will be revived, no matter how long ago the alleged abuse occurred. Many states have followed Hamilton’s counsel. California has done so twice.

Hamilton told the Vermont Senate Judiciary Committee that the “age fifty-two” claim was based on “the best science.” In fact, it is based on a myth, one that arises from a careless reading of a 2014 article in BMC Public Health. The article, authored by Nina Spröber et al., explains: “In 2010, the German government established a hotline that victims could contact anonymously to describe their experiences of sexual abuse.” The article acknowledges that those reporting were “self-selected,” and that “apart from demographic data, information was not collected in any standardized way.” The study did not ask victims for the dates of their first disclosure of abuse. The age of fifty-two, presented by Hamilton as some firm threshold for readiness to report, is merely the average age of those who called the German hotline in the year of its establishment.

Delayed reporting of child sexual abuse is real, but the average age at first disclosure is much younger than fifty-two. In the 1994 Roesler and Weissmann Wind study, the average age of disclosure of incestuous abuse to family, friends, partners, or therapists is twenty-six years. The 1994 Lamb and Edgar-Smith study found that sexual abuse disclosures occur on average by age eighteen. Most legislatures address these periods of delay by tolling statutes of limitations during the years when the claimants are minors. This means that traditional statutes of limitations do not begin to run until the victim reaches age eighteen. Thus, an eight-year statute of limitations gives a child sexual abuse claimant until age twenty-six to file suit.

Common sense belies the argument that victims of childhood sexual abuse cannot report their abuse until age fifty-two. For tens of thousands, the ability to report has less to do with the gestation of the memory or the alignment of the mental-health stars than with publicity related to particular institutions or perpetrators, attorney advertising, and opportunities for compensation.

Thus, in 2002, abuse claims against Catholic institutions soared to more than three thousand nationwide in the wake of massive reporting on the Archdiocese of Boston and the serial perpetrator Fr. John Geoghan. The U.S. Center for SafeSport, the Olympics sex-abuse watchdog, receives more than 1,250 sexual abuse complaints annually. This number has increased by 130 percent over the past two years due to a stream of public scandals that began with the exposure of Larry Nassar in 2016. Plaintiffs’ law firms understand these dynamics. That is why they publish names of perpetrators on their websites and support the public database Bishop-Accountability.org. Compensation is likewise a great motivator, as is demonstrated every time Catholic dioceses announce reparations programs, bankruptcy courts announce bar dates for filing claims, or window deadlines approach.

Claimants respond to incentives, and there is no immutable psychological law governing age of disclosure. Law firms understand all this perfectly well. That’s why they spend millions of dollars on advertising that urges victims to come forward before windows close and bankruptcy court bar dates pass. Reuters reports that “more than 5,700 ads soliciting child abuse claims against Catholic Church dioceses aired in July and August” of 2021—that is, during the six-week period before the closure of the New York window. The Wall Street Journal reports that the Boy Scouts of America filed bankruptcy while facing 1,675 claims or lawsuits. This number then swelled to 95,000 due to law-firm advertising with the help of mass tort marketing companies.

No surprise, then, that the donors to Marci Hamilton’s CHILD USA include thirty-two of the largest sexual abuse plaintiffs’ law firms in the country; that eight members of CHILD USA’s board are lawyers from such firms; that just one of those firms filed 1,002 child sexual abuse lawsuits within the New York window and far more within other states’ windows; and that the board chairman’s law firm filed 495 such lawsuits within the New York window.

Plaintiffs’ lawyers have earned more than a billion dollars pursuing claims, 80 to 90 percent of which would have been time-barred but for the window legislation promoted by CHILD USA. Claims filed during these windows have, by intent, been heavily against Catholic institutions. Thirty-two Catholic dioceses and archdioceses have filed for bankruptcy due to such claims. Twenty-six are in states where window bills had passed. Window legislation also helped drive the Boy Scouts into bankruptcy. The Boy Scouts and their chartering bodies, affiliates, and insurers are paying $2.4 billion to fund their reorganization plan; Catholic dioceses in bankruptcy are paying billions more. The communal goods these institutions provide are necessarily reduced.

For those who do not value these particular communal goods, it is useful to consider what will happen when the target shifts. A 2004 U.S. Department of Education study estimated that 4.5 million then-current K–12 public school students had experienced sexual abuse by a teacher, coach, or other school employee. These students, others who have now graduated, and subsequent cohorts are potential plaintiffs. Though plaintiffs’ attorneys are presently reluctant to sue public schools and some of those schools remain protected by sovereign immunity, these circumstances are changing quickly as evidenced by the fifty child sexual abuse lawsuits filed in the last six months of 2022 against public schools in the San Francisco Bay area, the larger average value of settlements involving public schools, and the $135 million verdict acquired recently by two former students against the Moreno Valley Unified School District. As they change, there will be political pressure for more window bills and for waiving sovereign immunity. Billions of dollars will be diverted from public school budgets to pay for claims pertaining to acts alleged to have occurred decades earlier.

Window laws are useful, then, for enriching law firms at the expense of institutions with deep pockets and insurance; they are less useful for punishing or preventing child sexual abuse. According to the most recent statistics provided by the U.S. Department of Health and Human Services, only one-tenth of one percent of perpetrators of child abuse and neglect are teachers, police, lawyers, physicians, counselors, clergy, and other professionals; more than 92 percent are the victims’ parents, relatives, guardians, or the unmarried partners thereof. Because the family-related perpetrators responsible for the vast majority of child sexual abuse do not have major assets or liability insurance, window legislation provides no benefit to the victims.

As for statutes of limitations, they are not some perverse mechanism for giving abusers and their enablers a free pass if their victims stay silent for long enough; they have been a mainstay of Western judicial systems since ancient Greece and Rome. As we consider jettisoning them, it will be prudent to consider their rationale. As one court put it, statutes of limitations

are designed to promote justice by forcing parties to pursue a case in a timely manner. Parties should act before memories dim, evidence grows stale or becomes nonexistent, or other people act in reliance on what they believe is a settled state of public affairs.

Evidence is more reliable when memories are recent, witnesses are available, and documents are extant. Moreover, prompt reporting permits prompt correction, and prompt reporting and correction are preventive. Delayed reporting—perhaps forty to sixty years after the abuse, when perpetrators and enablers are either dead or retired—is not. Statutes accordingly mandate immediate reporting to law enforcement upon even suspicion of child abuse. States, therefore, have long recognized that the sexual abuse of minors can and must be reported promptly. Yet the window legislation promoted by Hamilton and CHILD USA rewards delayed reporting, with all the bad consequences that ensue from it.

The retroactive character of window legislation disturbs due process and the separation of powers, which are fundamental to our constitutional order. Courts act retrospectively. They apply the law to evidence of past conduct. Legislatures, by contrast, act prospectively. They define standards that apply to and shape future conduct. The judiciary is meant to be the faithful agent of the legislature, which identifies and makes policy. When legislatures act retrospectively, the opportunities for mischief are great, and the role of an independent judiciary is diminished.

Window legislation is not justified by medical science. It has minimal preventive effect. It compensates only a tiny fraction of child abuse victims. It upends the constitutional order and requires us to cast aside legal policies that have, for millennia, served us well. In every state where a window bill is under consideration, it should be voted down.

L. Martin Nussbaum is an attorney who represents religious institutions.

Image by Amtec Photos licensed via Creative Commons. Image cropped.