Written by Marci Hamilton, Esq. February 16, 2023, Prof. Marci Hamilton, Founder and CEO of CHILD USA, is a national expert on child sex abuse statutes of limitations that make it difficult for victims to pursue justice.
E. Jean Carroll, after a victorious $5 million sex abuse and defamation verdict against her sexual perpetrator, Donald Trump, is back in court demanding damages for his post-verdict, relentless defamation of her. Buried in the headlines about E. Jean Carroll’s victory was the reason she was in court in the first place. It may sound surprising, but there would have been no victorious verdict for E. Jean Carroll but for the child sex abuse statute of limitations (“SOL”) movement. An SOL is the deadline for pressing charges or filing a lawsuit. That movement has been escalating since 2002 when the Boston Globe’s Spotlight investigative reporters revealed to the world the paradigm of seriatim child sex abuse: children were sexually abused and raped while the bad actors covered it up to suit their own purposes. Then we saw the model repeat itself in one diocese after another, followed by Penn State, and USA Gymnastics, and so many others.
“Justice and accountability” became a rallying cry. Then a pattern across the United States became visible. Statutes of limitation were short for child sex abuse and assault victims–in a number of states, a child would have to report to the authorities within two years from the date of the act–but in fact victims need decades to come forward. So the vast majority of cases were barred from the courts while the perpetrators and enabling institutions enjoyed the ongoing secrecy of their cruel behaviors. The same has been true for adult victims.
The Trial Lawyers Had Seen Prior Unjust Examples of SOLs Expiring Before Victims Could Come Forward
The trial lawyers had seen this situation before in the asbestos and Agent Orange cases. Exposure to asbestos or Agent Orange leads to severe diseases decades later, but personal injury SOLs were typically 1-2 years from injury. That meant the victims had no path to justice and they, along with insurance coverage and Medicaid, if needed, had to pay for their medical care and pain and suffering while the bad actors enjoyed life with impunity. It just wasn’t fair, so the SOLs for asbestos cases were extended through various mechanisms so that these unfairly blocked claims could be brought. One means was to move the deadline for filing to several years after they discovered the harm caused by the exposure while another was to revive expired claims.
Child victims of sex abuse and assault need, on average, decades to come forward. That fact justified applying the same approach to child sex abuse cases as was applied to the asbestos and Agent Orange cases.
The year after the Spotlight series, California revived expired civil and criminal claims for child sex abuse victims. The vast majority of victims in the state had no power to make their abusers or the institutions that enabled them accountable until the first “window” was opened. It was a one-year window, which was open during the calendar year 2003. The pressure for justice built in every state as one diocese was exposed after another. In just 2002, according, to the online archive of the Catholic clergy sex abuse cases, bishopaccountability.org, survivors came forward in California, Connecticut, Illinois, Kansas, Kentucky, Massachusetts, Maryland, TTUN, Minnesota, North Dakota, Nebraska, New York, Ohio, Oregon, Rhode Island, and Texas. The Survivors Network of those Abused by Priests (“SNAP”), I, and many survivors demanded SOL reform in one state after another. The early victories were few and far between. After California, Delaware opened a window in 2005, and then Minnesota in 2013. 2019 was a banner year. The more stories that were told with media coverage showing no justice, the faster the pace of SOL reform.
The next organization identified was Penn State, along with prestigious boarding schools, the Olympics, the Boy Scouts, Jeffrey Epstein, and many more. The victims had no leverage to obtain the truth about the abuse or be compensated for the harm done to them unless the SOLs were open. Opening the SOLs changes the world: it validates and empowers the victims and feeds the facts to the public. In the states that have revived expired civil SOLs, the public has been educated about the methods and truth of child endangerment in powerful institutions. Of course, all of this movement was about children.
The Lessons on SOLs for Children Translate to Adult Sex Abuse and Rape Victims
Then came the New Jersey window, which opened in 2019. It was not just a child sex abuse SOL window; it also included adult victims of sexual violence. Why? Just like the child sex abuse SOLs, the adult SOL once again was typically too short to permit most victims to sue. Like child sex abuse victims, adult victims suffer from trauma, shame, humiliation, and intimidation from their abusers, which translate into delay.
Only about 15% of adult survivors disclose to formal sources such as law enforcement or counseling services (Sabina & Ho, 2016). Women who are assaulted by acquaintances are less likely to disclose to these formal supports as compared to those abused by strangers (Ullman & Filipas, 2001). Here we can see two similarities to child disclosures: (1) low rates of disclosure to those in positions of authority and (2) evidence that the relationship to the perpetrator is strongly linked with disclosure patterns. A key difference, however, is that ASA survivors are much more likely to be able to understand and articulate the abuse compared to a child lacking knowledge about sexual norms. Still, ASA survivors are likely to delay disclosure because of the overwhelming impacts of trauma and concerns about the social consequences of coming forward (i.e., retaliation, stigma, victim-blaming (Orchowski & Gidycz, 2012).
Typically, adults had only 2 years after the assault under the state’s general personal injury SOL to sue. For the first time, child and adult sex abuse and rape victims would not be blocked by an arbitrarily short deadline. One of Bill Cosby’s victims, actress Lili Bernard, sued in New Jersey. New York, which had passed the Child Victims Act earlier in 2019, noticed and passed a stand-alone Adult Survivor Act. That is the law that opened the door for E. Jean Carroll.
Until New York passed the Adult Survivors Act, the courthouse was closed to Carroll. She had a public microphone, but no means of bringing her abuser to account. SOL reform is what transformed her #metoo moment from a public she-said, he-said debate in the public square into an adversarial battle on a level playing field in a courthouse. Without the SOL changes in New York, Carroll was facing a daunting challenge to prove her case to the public amidst widespread misinformation, bots, and a former President who lies, repeatedly. The #metoo movement encouraged her to speak, but the SOL changes brought her to the promised land.
Instead of having to engage in an expensive public relations warfare with a former President who thinks it’s been a man’s right for a “million years” to touch women without their permission, she had a judge, a jury, a victory, and now a weapon to stop her perpetrator’s ongoing gaslighting and attacks. SOL reform is transformational cultural change. And no case proves the point more clearly than Carroll v. Trump.