Prof. Hamilton’s answers to the arguments raised by opponents of child sex abuse victims and SOL reform
TO: The Members of the Pennsylvania General Assembly
RE: McGeehan and Rozzi Amendments to H.B. 342
DATE: March 10, 2013
My name is Marci A. Hamilton, a Bucks County, Pennsylvania, resident since 1984, and one of
the leading church/state scholars in the United States. My husband and I are lifelong Republicans. I am
Presbyterian, and my husband and our children are Catholic. I graduated from the University of
Pennsylvania Law School in 1988; and the graduate school of Pennsylvania State University in 1982
and 1984.
For over twenty years, I have been a full-time faculty member at Benjamin N. Cardozo School of
Law, Yeshiva University, New York, NY, where I currently hold the title of Paul R. Verkuil Chair in
Public Law. My book, Justice Denied: What America Must Do to Protect Its Children (Cambridge
University Press 2008, 2012), and website, www.sol-reform.com are leading resources in the field of
legislation to protect child sex abuse victims. As an expert in this arena—who has researched, written,
and testified regarding the inadequacy of the current statutes of limitations to deal with child sex abuse
in many states, and abroad—I feel compelled to write an explanation as to why amending and extending
the Pennsylvania statutes of limitations for child sex abuse is the only path to protecting our children.
I write specifically to explain why I believe the McGeehan and Rozzi Amendments to H.B. 342,
relating to childhood sexual abuse statutes of limitations, are constitutional and sound public policy. I
will recite the untenable arguments raised against such legislation, and lay out the responses to each.
Argument 1: Some allege that the “window” component of the amendments is unconstitutional under
the Federal Constitution.
Answer 1: Simply untrue. In reality, while the United States Supreme Court has closed the door
on retroactive criminal SOL legislation, it has found retroactive civil SOL legislation to be
constitutionally permissible. Compare Landgraf v. USI Film Prods., 511 U.S. 244, 267 (1994), with
Stogner v. California, 539 U.S. 607, 610 (2003). Under the federal Constitution, retroactive civil
legislation is constitutional if the legislative intent is clear and the change is procedural. The Supreme
Court in Landgraf explained the duty of judicial deference to legislative choice in these matters as
follows: “legislation has come to supply the dominant means of legal ordering, and circumspection has
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given way to greater deference to legislative judgments.” Landgraf, 511 U.S. at 272. The Court went on
to observe that “the constitutional impediments to retroactive civil legislation are now modest. . . .
Requiring clear intent [of retroactive application] assures that [the legislature] itself has affirmatively
considered the potential unfairness of retroactive application and determined that it is an acceptable
price to pay for the countervailing benefits.” Id. at 272-73. To be sure, there is an “antiretroactivity
presumption” but this presumption can be readily overcome by express legislative intent. See Republic
of Austria v. Altmann, 541 U.S. 677, 692-93 (2004); see also Landgraf, 511 U.S. at 267-68; Chase Sec.
Corp. v. Donaldson, 325 U.S. 304, 311-12 (1945). Under the federal Constitution, retroactive civil
SOL legislation is constitutional if the legislative intent is clear and the change is procedural.
Both elements are satisfied by either the McGeehan or the Rozzi amendment.Argument 2: Some allege that the “window” component of the amendments is unconstitutional under Pennsylvania case law.
Answer 2: In fact, the Pennsylvania Supreme Court has held the opposite—allowing for retroactive application of merely procedural aspects of civil statutes. Bible v. Dep’t of Labor and Indus., 696 A.2d 1149, 1156 (Pa. 1997) (finding retroactive amendment to the Workers’ Compensation
Act constitutional). As under federal law, where the retroactive intent is plain, and the statute
involves the retroactivity of a civil, procedural matter rather than a criminal case, a retroactive
statute passes constitutional muster. Pennsylvania follows the same reasoning as the United States
Supreme Court and has permitted the retroactive application of statutes. It has observed the
distinction drawn by the federal courts between procedural and substantive retroactive changes in the
law, and prescribed deference with respect to procedural rules. The retroactive application of lengthened
statutes of limitations simply has not been found to disturb vested rights under Pennsylvania law.
McDonald v. Redevelopment Auth., 952 A.2d 713, 718 (Pa. Commw. Ct. 2008) (“[N]o one has a vested
right in a statute of limitations or other procedural matters, and the legislature may at any time alter,
amend or repeal such provision without offending constitutional restraints.”). Pennsylvania is in the
majority of states, which has NOT found a vested right in the running of procedural statutes of
limitations.
Argument 3: Some argue that the “Exceptions to Sovereign Immunities” provision in the McGeehan
Amendment is problematic.
Answer 3: Actually, the McGeehan Amendment reflects the same “gross negligence” standard for
organizations that Delaware enacted in its window in 2007. DEL.CODE ANN. 10 § 8145 (a)-(b). In a
well-reasoned case decided in 2011, the Delaware Supreme Court, sitting en banc, persuasively upheld
the two-year window. Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247 (Del. 2011). The Rozzi
Amendment does not include an exception to sovereign immunity.
Argument 4: Some have said it is unfair to impose a cap on damages in child sex abuse cases against
the state, but not against private entities. 3
Answer 4: This is a complaint about the existing damages cap in Section 8528, which applies in
all cases where there is an exception to sovereign immunity. It has nothing to do with the
McGeehan amendment, which doesn’t address the issue. The alleged “unfairness” of the cap applies
to every category currently excepted from sovereign immunity, including vehicle liability; medicalprofessional liability; care, custody, or control of personal property; Commonwealth real estate,
highways and sidewalks; potholes and other dangerous conditions; care, custody or control of animals,
and liquor store sales. Unless this body intends to address this alleged “unfairness” for all of these
categories, there is no justification for blocking this vital reform to protect children.
Argument 5: Some assert that retroactive legislation will bankrupt the Catholic Church or other private
institutions.
Answer 5: Any claim that window legislation leads to bankruptcy of institutions is irresponsible.
First, only two bankruptcies have followed window legislation, one in San Diego and the other in
Wilmington, DE. These diocesan bankruptcies were not filed because the dioceses were actually
indigent. In both cases, the bankruptcy was a voluntary bankruptcy, which was intended to protect
assets and avoid trials that would have revealed the Roman Catholic bishop’s secrets regarding their role
in endangering children. For a fact-based analysis of how American Catholic dioceses have dealt with
their finances and their wealth, see http://www.economist.com/node/21560536.
In San Diego, the bankruptcy court publicly stated that the diocese was not honest about its
actual wealth and that there was no justification for the bankruptcy filing. The Wilmington bankruptcy
settled, and the settlement includes remuneration for victims for the Diocese’s cover-up of child sex
abuse predators, and just as important, an agreement to release the identities of those priests who have
been accused of abuse and to implement better child protective policies. Bishop Malooly Issues
Statement on the Filing of the Amended Plan of Reorganization, http://www.cdowreorganization.com/
(last visited Mar. 4, 2013). The largest settlements, e.g., the Los Angeles Archdiocese’s settlement with
550 victims, did not involve bankruptcy. In all of the diocesan settlements across the country, insurance
coverage has paid for roughly half of the settlement and the sale of properties not dedicated to religious
purposes the rest.
It is also important to note that the focus by the Catholic Conference on alleged
bankruptcy is an attempt to deflect attention from the child-protective benefits of window
legislation. In California, where no diocese actually went through the bankruptcy process (because the
only one that filed—San Diego—settled before proceeding with a bankruptcy plan), the window was the
only reason that the Los Angeles released 12,000 pages of files documenting the system that victimized
so many children and protected priest predators from the law. It also led to the identification of 300
perpetrators never before identified.
Argument 6: One of Penn State’s many insurers is challenging the insurance liability coverage, so there will be no insurance coverage for the claims arising out of reform.
Answer 6: Insurance companies challenge their liability in nearly every single case arising out of
institutional abuse. This is standard operating procedure, and has not precluded insurers from having
to pay in settlements with victims. In the case of the claims arising out of the California window,
insurance paid for about half of all settlements.
Argument 7: Some are concerned about the potential for false claims.
Answer 7: Victims of child sex abuse rarely make false claims, as we learned in California and Delaware, where windows already opened and closed. In California, there were approximately 5 total false claims out of the 850 against the Catholic Church, which means false claims in the area of child sex abuse are statistically insignificant. In addition, numerous scientific studies have established that children rarely make up child sex abuse. While there were few false claims in California, the window resulted in the identification of 300 child predators previously unidentified to the public, as mentioned above. The numbers, obviously, weigh in favor of window legislation for the protection of children. It is also worth noting that when Delaware realized that its window inadvertently did not include health care professionals, Delaware enacted a second window, and that California is now considering a second window because so many survivors missed the window in 2003 due to lack of knowledge. If it is such bad public policy, neither state would pursue it twice!
Argument 8: Some have theorized that the waiver of sovereign immunity in the McGeehan bill in child
will lead to increased property taxes.
Answer 8: This is simply not accurate. First, there is a damages cap applied to each and every
claim under the sovereign immunity waiver, which is designed to prevent such an outcome in any
lawsuit against a public entity, under existing Pennsylvania law.
Second, overall, statutes of limitations reform will save the taxpayers of Pennsylvania. Currently,
Pennsylvania pays the price of abuse in several ways. It shifts the cost of abuse from the victims and
the state to those who caused the abuse. First, the state suffers from reduced productivity from victims,
because they have been disabled by the abuse. To the extent that they are not made whole, they are
producing less tax-generating income. The fact that Pennsylvania shuts off claims before victims are
ready to come forward means that many victims have no chance to achieve justice and, therefore, are
more likely to suffer serious depression and illness. Second, Pennsylvania bears the cost of divorces,
broken homes, and suffering children, which are a sadly prevalent fact in many survivors’ lives. This
creates a drag on local school districts that must provide counseling and guidance for troubled youth, the
state agencies that deal with troubled families, and local authorities. Third, the survivors’ medical bills
generated by the abuse, whether it is psychological or physical treatment, are likely to have to be
subsidized by state and federal medical programs and funds if they are not being funded by the
institutions and individuals who caused the abuse.
Argument 9: Some are concerned that without a statute of limitations, institutions and pedophiles won’t
be able to defend themselves in court against decades-old claims.5
Answer 9: This is truly a red herring. SOL reform does nothing more than remove the arbitrary
deadline for filing a claim. The plaintiff still bears the initial burden of proof, and if the plaintiff does
not have corroborating evidence, the case is over. The defendant need not defend cases where the
plaintiff lacks evidence, and simply need file a motion to dismiss. Indeed, right now, for the majority of
cases in Pennsylvania, institutions and pedophiles simply file motions to dismiss on SOL grounds. They
fear that the cases will move to the merits rather than this arbitrary deadline.
In fact, there are very few who are opposed to helping sex abuse victims get to court. Most citizens are
devoted first and foremost to the protection of children, and expect their elected representatives to do
their utmost to protect children.
Sadly, the Catholic Bishops are sinking millions of their parishioners’ donations into lobbying tactics and
public relations designed to keep victims out of court. Some members of this legislature have
apparently accepted verbatim the substance of the Catholic Bishops’ playbook designed to shield them
from liability. In truth, there are no legal or constitutional impediments to the adoption of a
window, and it will go far toward providing long overdue justice for past victims, and preventing
the victimization of other children in the future by identifying the child predators amongst us who
are currently operating under the protection of SOLs that were unfairly short for far too long.
I encourage the Assembly to fulfill its duty to our children in Pennsylvania and pass H.B. 342 with the
McGeehan or Rozzi Amendment attached.
H.B. 342, itself, is a positive step for Pennsylvania, because it would protect the names of child victims
of sexual or physical abuse from disclosure to the public. Doe v. Evans, 202 F.R.D. 173, 175-176
(E.D.Pa. 2001) (“[T]he public has an interest in protecting the identities of sexual assault victims so that
other victims will feel more comfortable suing to vindicate their rights”). But if we really want to
protect children, we will not only protect the identities of survivors as they bravely come forward, but
also pass laws that identify the hidden predators in our schools, universities, churches, synagogues,
temples, youth groups, scouts, and camps. For true justice, the McGeehan and Rozzi Amendments are
the best possible choice.
Sincerely,
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law