One of the country’s leading church and state scholars is challenging state Rep. Ron Marsico’s claims that suspending the statute of limitation in order to allow victims of child sex abuse to file charges against their predators is unconstitutional.
Marci A. Hamilton, a 20-year professor at the Benjamin N. Cardozo School of Law, Yeshiva University, argues that two amendments pertaining to the statutes of limitations and attached to House Bill 342 are constitutional and sound public policy.
In a report to the General Assembly, Hamilton argues that: “In reality, while the United States Supreme Court has closed the door on retroactive criminal legislation, it has found retroactive civil legislation to be constitutionally permissible.”
Under the U.S. Constitution, Hamilton argues, retroactive civil legislation is constitutional if the legislative intent is clear and the change is procedural.
Hamilton said efforts over the past eight years to reform the law have been fueled by false and outdated arguments.
House Bill 342, sponsored by Rep. Marguerite Quinn, R-Bucks, would protect the identities of child sexual abuse victims from public disclosure.
The bill contains two amendments that have largely been the sticking point over the past eight years to efforts to reform current statutes.
One amendment, authored by state Rep. Mike McGeehan (D-Philadelphia), would open a two-year window for adult victims who have aged out of their opportunity to seek justice to file civil charges against abusers.
McGeehan’s amendment also would suspend the sovereign immunity clause, which protects public school teachers and government officials from prosecution in these cases.
The other amendment, sponsored by Rep. Mark Rozzi (D-Berks), acts as a safety net in case McGeehan’s amendments fail: His proposal would offer just the two-year window clause, not the sovereign immunity.
Earlier this week, Marsico, a Republican from Dauphin County and chairman of the House Judiciary Committee, indicated he will not support the proposed legislation.
Victims advocates have long pointed towards Marsico as being one of the main obstacles to reforming the statutes of limitation.
Rep. Ron Marsico, (R-Dauphin)
In a written statement earlier this week, Marsico said: “While it might feel satisfying to pass a bill that includes a window, any such provision would simply give false hopes to a victim whose civil claim has been barred by the existing statute-of-limitations because it would later be declared unconstitutional by the court.”
It is not clear who the intended recipients of the statement were. PennLive made repeated attempts to speak with Marsico; calls were not returned.
Hamilton, a Bucks County native who is regarded as a leading expert in legislation pertaining to child sexual abuse and statutes of limitations, has challenged Marsico to produce legal precedence supporting his claim that the proposed legislation is unconstitutional.
“I am appalled that Mr. Marsico has chosen to misrepresent the constitutional law of Pennsylvania.” – Marci A. Hamilton, Yeshiva University
“I am appalled that Mr. Marsico has chosen to misrepresent the constitutional law of Pennsylvania, and then say it is his ‘sworn duty’ to do so,” Hamilton wrote in an e-mail to Marsico’s office this week. Hamilton shared the email with PennLive.
“There are no cases that support Mr. Marsico’s position, as I am sure he knows, given that he has never mentioned a case that supports his misrepresentations,” she said. “As a Pennsylvania citizen, I demand that Mr. Marsico publicly disclose the Pennsylvania Supreme Court cases that support his statements about the constitutionality of the window.”
Hamilton, who represented scores of victims in the Philadelphia Archdiocese clergy sex abuse case and has authored leading books on statutes of limitations, said McGeehan’s and Rozzi’s amendments satisfy federal law requiring the intent of retroactive civil legislation to be clear and the change procedural.
In addition, she argues that the window component of McGeehan’s amendment is constitutional under Pennsylvania case law.
The Pennsylvania Supreme Court has allowed for retroactive application of merely procedural aspects of civil statutes.
“Pennsylvania follows the same reasoning as the United States Supreme Court and has permitted the retroactive application of statutes,” she argues.
Hamilton further refutes claims by Marsico and others that a window provision in the statutes of limitations would generate false claims.
Hamilton argues that victims of child sex abuse rarely make false claims. She points to Delaware and California, where windows have already opened and closed. California saw approximately five total false claims out of the 850 against the Catholic Church, Hamilton said.
Marsico has pledged to offer a bill removing the statute of limitations on criminal prosecutions of all future child sexual abuse cases. Victims advocates point out that Marsico, in 2011, opposed similar legislation introduced by Rep. Louise Williams Bishop (D-Philadelphia).
Bishop’s legislation – House Bill 878 – would have eliminated the statute of limitation in sexual abuse cases involving minors. That bill, along with an earlier attempt by McGeehan to introduce a window component, were shut down.
The Legislature, which was scheduled to take up House Bill 342 this week, has yet to do so.