A Terrible Crime, A Very Bad Solution

Late last night in the Court of Justice Civil Laws Subcommittee, we reviewed SB 1145, which extends the statute of limitations for sexual abuse against a minor to twenty-five (25) years.

It was late and our Subcommittee had been whittled down to three members, who were pretty much numb from four hours of continuous hearings.  The proponents of the bill had several adult witnesses that described horrific instances of abuse.  In each case, these incidents occurred 15-30 years ago.  The current statute of limitations (which runs for two years from the time a victim turns 18 or two years the victim had “recovered” his memory of the incident) had long since passed, which means that these victims can no longer bring a civil action.

Almost no one spoke against the bill.  Not too many questions were asked.  I mean who defends child abusers?  Who wants to risk a campaign piece accusing them of that?

The Subcommittee passed the bill for consideration by the full Committee.

Regardless, I voted “no” in Subcommittee on this bill, which — if it becomes law — will put a target on the back of anyone that works with children.  Make no mistake about that.

My wife and I love our kids.  Time spent with them is the highlight of my life.  In addition, we’ve tried to be active in sports and church activities which involve youth.  (Sharon coaches girls’ field hockey.  I help lead a teenage youth group at our church).  I’ve done this because I was lucky that adults spent time with me as a young man, and it made a difference. 

Anyone who commits the crime of sexual abuse against a child is a despicable person.  They deserve the punishment they get, in this world and the next.  Having said that, let me offer the following observations as someone who has represented victims, including abuse victims, for 17 years:

1.  Not every abuse claim has merit.  There is a human tendency to take every claim at face value.  But our legal system presumes innocence for each defendant.  There are plaintiffs who fabricate claims or fabricate evidence.  That will always be the case. 

2.  Memories change as years go by.  Speaking as a trial attorney, I can tell you that the best memory is that which is recorded or recollected near the time of the event.  I don’t trust memories that are 20-30 years old, especially without corroborating evidence. 

3.  The passage of time robs defendants of the opportunity for defense.  When a claim is made, a defendant has the chance to find witnesses and gather evidence to defend himself.  With the passage of time, that ability goes away.  Soon, it becomes “he said/he said” and the jury is left with an arbitrary decision on who is telling the truth.

4. Civil claims are about money.  There is no statute of limiations on a criminal felony in Virginia.  These claims can always be brought at the discretion of the Commonwealth’s Attorney.  But civil claims — which seek monetary damages — are limited.  That’s because victims (i.e. plaintiffs) have every incentive to give a narrative that leads to their own financial benefit.  That’s human nature.  For that reason, we limit the window for civil claims which seek dollar damages.

What’s the meaning of all this?

People that work with children — coaches, Boy Scout leaders, youth pastors — are (and should be) screened for past misconduct.  They should be above the reasonable suspicion of any misconduct.  In return, they should know that they won’t spend the rest of their life under a legal cloud, just because they worked with kids (and thus placed themselves in a vulnerable legal position).

There will be always be civil claims for abuse.  No amount of screening can completely remove that possibility.  But the system cannot keep people (or churches or nonprofits) in a state of continuous legal vulnerability, just because they work with kids. 

I’ll close this long post with the story of a Fairfax County teacher, Sean Lanigan, that was accused last year of molesting a high school student.  Because the incident had just happened, Lanigan’s attorney was able to interview witnesses who revealed that the plaintiff “hated Lanigan” and had boasted of making money from the incident.  Lanigan was able to testify on his own behalf.  The case was tried before a jury, who acquitted Lanigan in ten minutes.  (That’s about as fast a verdict as humanly possible).

The system worked.  Would it work the same if the plaintiff could wait 25 years?  Hell no.

SB 1145 would put a shadow over the Sean Lanigans and anyone else that works with kids.  There are much better ways to get at abusers. 

Let’s hope the Assembly has the common sense and guts to ask some tough questions on this bill.

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