Professor Marci A. Hamilton: “More sickness in SD. Open courthouses to these victims!”
Are Pedophiles Getting Free Pass in South Dakota?
A bill in the South Dakota legislature that appears intended to give several dozen Native American childhood-sexual-abuse plaintiffs their day in court may do just the opposite. According to several legislators, Senate Bill 130 is supposed to fix problems caused by a 2010 law that retroactively blocked the Native lawsuits against the Catholic Church, which ran the boarding schools where the abuse allegedly took place.
However, others claim the new proposal makes matters worse by reinstating the statute of limitations in effect “on the date the abuse occurred,” according to the bill’s language. For the plaintiffs in question, that was the mid-20th century, when the statute of limitations for childhood sexual abuse shut the courthouse door three years after the abuse, or one year after the victim turned 18—a birthday that’s long past for them.
SB 130’s final sentence slams the door and locks it, according to attorney Michael Shubeck, of the Law Offices of Gregory Yates, in Rapid City; he and Yates have Native clients whose cases were terminated under the 2010 law. Shubeck noted that in a kind of circular logic, this part of the bill says that if a legislative action (like the 2010 law) killed valid cases, SB 130 would revive them.
But, said Shubeck, the short mid-20th-century statute of limitations that SB 130 puts into play means the lawsuits can never be valid. End of story.
Dr. Barbara Charbonneau-Dahlen read SB 130’s draft language and was also concerned. Charbonneau-Dahlen is Chippewa and filed a suit alleging abuse at St. Paul’s Indian Mission School, in Marty, South Dakota. She e-mailed the South Dakota Legislative Research Council, which had written the bill, saying, “If SB 130 stays as is, we would go back to the 1960 rule, and we would again be denied our day in court.”
Charbonneau-Dahlen contends the bill should be rewritten to make the applicable statute of limitations the one in effect when a lawsuit was filed. For her and other Native plaintiffs, that would be the longer time span South Dakota legislated in 1996, since all their suits were filed after that date. A nursing PhD and scholar, Charbonneau-Dahlen called the 1960s understanding of the psychology of childhood sexual abuse, and the shorter time frame that accompanied it, “antiquated.”
A state official who was close to the situation but authorized to speak only on background, insisted that the draft version of SB 130 did not reinstate the restrictive 1960s statute of limitations, though he said the bill could have been better written. He added that it might be kinder to advise the plaintiffs to forget about their lawsuits.
Here’s the background: In the early 2000s, Charbonneau-Dahlen and scores of other Native Americans, many of them Lakota or Dakota, began filing lawsuits against the Catholic Church and its priests, nuns and other employees under the existing 1996 statute of limitations. The plaintiffs charged they’d been raped, sodomized and otherwise sexually assaulted—often brutally, repeatedly and at very young ages—in South Dakota Church-run boarding schools during the 1960s, 70s and 80s.
In 2010, the legislature passed a law preventing childhood-sexual-abuse plaintiffs over age 40 from collecting damages from an entity such as a school, church or religious order; plaintiffs could only sue individual perpetrators. Almost all the Native Americans suing the Church were over 40.
Until that moment, the Native lawsuits had followed a typical path—briefs, motions and documents were filed with the courts, and alleged perpetrators were deposed, testifying under oath during the discovery, or initial, phases of the lawsuits. Letters between Church officials discussing the abuse were entered into evidence (several are seen herein connection with a recent South Dakota Public Radio story; please be forewarned that they include graphic descriptions of sexual crimes against children). One example from among many was a letter from convicted sodomite Brother Matthew Miles to a former student at St. Joseph’s Indian School, in Chamberlain, South Dakota, apologizing for abusing him.
At that time, attorney Steven Smith, of Chamberlain, was defending the religious order that ran St. Joseph’s—the Congregation of the Priests of the Sacred Heart—against about a dozen childhood-sexual-abuse suits. Some had been quietly settled out of court. In 2010, Smith wrote and presented to the legislature House Bill 1104—the measure that would get his client off the hook for the remaining claims. A transcript of the session in which Smith advocated for his bill records a legislative supporter commenting that it “gets Mr. Smith where he wants to be.” Smith explained toThe Huffington Postthat the plaintiffs were “trying to grab the brass ring” and “thinking that’s your ticket out of squalor.”
In March of the following year, a South Dakota circuit court judge relied on the new law to dismiss 18 of the Native American cases, tellingThe Huffington Postthat he felt the law could be applied retroactively, in other words, to lawsuits filed before its existence. More cases were dismissed during 2011.
“Our case was six days from trial when…the court retroactively applied HB 1104,” recalled Dahlen. She and her sisters, who’d sued along with her, appealed to South Dakota’s supreme court, which again denied them the right to be heard, she said.
Not fair, many from in and outside the state have said. “Right now, the point is not for the legislature to litigate these cases,” said state representative Troy Heinert, Rosebud Sioux. “The point is to pass a bill that will give people their day in court.” The abuse phenomenon is not confined to South Dakota, Heinert noted, but part of a worldwide phenomenon facing the Church.
A “travesty” was how Yates described SB 130. “We now know because of science that it takes most people many years to come to terms with childhood sexual abuse. The statute of limitations proposed in SB 130 gives them only a couple of years to do so and grants church entities immunity in the care of all of our children. If this bill is passed, South Dakota will make it more difficult to protect all its children.”
At press time, SB 130 was slated to have its first public airing on February 18, during aSouth Dakota senate judiciary committee meeting.
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