Before joining the faculty at the University of Pennsylvania’s Fels Institute of Government and starting CHILD USA five years ago, I was a constitutional law professor at Cardozo School of Law with a chair in public law. Before that, I had the honor and pleasure of clerking for Judge Edward R. Becker of the United States Court of Appeals for the Third Circuit in Philadelphia and Justice Sandra Day O’Connor the United States Supreme Court. So you can trust me when I say that I do know a thing or two about the federal and state constitutions.
Since 2005, Pennsylvania has been considering whether to enact a child sex abuse “window” statute, which would permit victims to bring civil claims for a set period of time, even if their statute of limitations (SOL) had already expired. Pennsylvania is part of the global movement to bring justice for victims of child sex abuse, which is particularly strong in the United States. Since 2002, when the public learned about the coverup of child sex abuse in the Boston Archdiocese, 18 states, Washington D.C., and Guam have revived expired civil SOLs to level the playing field for victims. You can trace the history of this movement and check out what happened in each state in CHILD USA’s just-released 2020 SOL Report here.
A window is a tried and true means to serve the public’s interest in three ways. Windows
(1) identify hidden child predators;
(2) shift the cost of abuse from the victims and the taxpayers to the individuals and institutions that caused it; and
(3) educate the public about the prevalence of abuse and the ways in which children are endangered.
This is a historic moment for child sex abuse victims’ access to justice in the United States. At this point, 18 states, Washington D.C., and Guam have revived time-barred child sex abuse claims and in 2021, 10 states other than Pennsylvania already have introduced bills to revive time-barred child sex abuse claims.
When I first heard rumors two year ago that Representatives Gregory and Rozzi were re-tracking Pennsylvania’s window SOL reform from a statutory approach to a constitutional amendment, I felt queasy. For two reasons:
A Statutory Window Is Not Unconstitutional
First, my reading of the Pennsylvania Constitution does not bar a window to justice for the victims, which means a statute is a viable pathway to stop the legislative roller coaster survivors have ridden since 2005 when District Attorney Lynne Abraham first recommended it following her Office’s pathbreaking grand jury investigation of the Philadelphia Archdiocese. As a member of Abraham’s team, I advised in favor of a window and in fact vouched for its constitutionality. I and others have been making that case ever since, in Senate hearings and testimony. Attorney General Josh Shapiro has affirmed the constitutionality of a window statute, which, like Abraham, he pushed as part of the necessary recommendations following his own office’s groundbreaking grand jury investigation into six dioceses. To recap why a statutory window is constitutional in Pennsylvania:
- The argument raised against a window under the Pennsylvania Constitution rests on the Pennsylvania Remedies Clause, which protects those “injured,” not those who caused the injury. It is similar to the Remedies Clause of 39 other states. No window has been held unconstitutional under a state’s Remedies Clause.
- A window serves the compelling state interest in fundamental fairness and child safety, and those compelling interests outweigh the interests of the defendants in secrecy and immunity. Child sex abuse impacts 1 in 5 girls and 1 in 13 boys and the trauma results in age 52 as the average age of disclosure for victims of child sex abuse. [1] Yet, until recently, many states, including Pennsylvania, blocked criminal charges and civil lawsuits well before victims could come forward. That empowered the perpetrators and institutions that hid them.
- Of the states to consider the constitutional issue, 24 states and D.C. have held revival of civil claims constitutional.
- The path to drafting a constitutional statutory window is straightforward. Civil revival is constitutional under the United States and Pennsylvania constitutions where there is clear legislative intent [2], which means there must be plain language in a statute that states it is intended to be applied retroactively to expired claims. Why is reviving this technicality, the SOL deadline, acceptable? Because altering the statute of limitations is a procedural change, not a substantive one. [3] The only change that well-drafted SOL reform effects is to change the date a victim can go to court; the substantive law and burdens remain the same. [4]
- There has been no inherent unfairness to defendants posed by false claims in child sex abuse cases brought under windows, because false claims of child sex abuse are very rare. The shame, humiliation, and trauma of child sex abuse is more likely to generate retraction than false claims. Guam had 0 out of 200 claims and California anecdotally had 5 out of 1,150 claims during their revival windows, with none in court. The opponents to victims’ access to justice—the American Tort Reform Association, insurance industry, and Catholic bishops—have been talking about the supposed problem of false claims for nearly 20 years. They have yet to provide evidence of this talking point, and there is none in the case filings.
Constitutional Amendments Are Supposed to Be Difficult
The second reason I felt queasy when I heard there was a plan to track the Pennsylvania window legislation to a constitutional amendment is that constitutional amendments are supposed to be hard, if not impossible to pass. They are freighted with procedural requirements and hurdles that are intended to keep the Constitution from being a vehicle for political posturing. The Constitution is supposed to be our foundation for government. Therefore, obstacles are built into the process intentionally.
The child and victims’ protection movement in Pennsylvania has learned this lesson the hard way recently. Marsy’s Law was invalidated, because it violated the single subject rule as it applies to referenda. Most recently, the Secretary of State committed gross negligence when she halted the SOL reform window constitutional amendment by failing to timely publish it. This was such a grievous error that she immediately had to resign, but let’s be honest here: that’s just one way that a constitutional amendment is intended to trip us up.
What the public and lawmakers need to understand is that if a constitutional amendment fails to obtain ratification through a referendum, there is a 5-year moratorium on the subject matter. That’s right, if the referendum for the window were to fail, no constitutional amendment on reviving child sex abuse SOLs could be considered by the state for 5 more years. That means that if the process were re-started and the referendum failed to pass, victims would be asked to wait a total of 7 years….
Thousands have worked since 2005 to enact window legislation in Pennsylvania, now 16 years and it would be 18 if the amendment process went without a hitch if it were restarted. It took 16 years in New York and slightly less in New Jersey to obtain excellent SOL reform for survivors. Sadly, some have not survived the stress and re-traumatization that can happen when lawmakers fail to act. Pennsylvania hardly wants to be the state that sets a record for making victims and the public wait.
As this latest chapter underscores, constitutional amendments have many procedural hurdles, and if one is even slightly transgressed, the train stops, often for years. Few have focused on the many barriers posed by the referendum process, though Marsy’s Law is a clarion call to pay attention. It is no easy task to get a referendum approved, especially when a well-financed opposition opposes it, which is the reality in Pennsylvania.
A Constitutional Amendment Would Tie Lawmakers’ Hands in the Future
The other challenge posed by a constitutional amendment is that it dramatically reduces the ability of future lawmakers to reassess and revisit the issue. The amendment proposed by Representatives Gregory and Rozzi was so narrowly tailored that it only encompassed a 2-year window, period, and lacks clarity on a number of aspects implicated by windows. I understand why the opponents would welcome an amendment that meant lawmakers could never revisit the issue, but that is not in the interest of victims or the Commonwealth. It would place this evolving movement in Pennsylvania into a box from which it might never escape.
Other jurisdictions have learned that a first window may lead to disappointing results and further effort is required. In Delaware, the first window, which was open 2007-09, inadvertently let healthcare providers off the hook. When survivors of Dr. Earl Bradley, a prolific, pedophile, pediatrician began to stream into the public to obtain justice, we learned that a second window, this time encompassing healthcare providers, was needed. Delaware did the right thing, and Bradley’s victims did receive justice.
In Hawaii, a 2-year window introduced the public to the problem, but it had to be renewed two more times for the public to learn that a school for the disabled had been a horrific place for many students. Only Hawaii’s 6-year window revealed these horrors to the public. In California, the one-year window in 2003 closed before many victims could come forward, leading California to pass a new, 3-year window that opened Jan. 2020. In Guam, a 2-year window yielded not a single case, leading the government to simply eliminate the SOL altogether, which has helped hundreds of survivors and educated a trusting public about the endangerment of their children.
As I argue above, I view an amendment in Pennsylvania as unnecessary, because window legislation is constitutional, but I respect the right of others to have differing views. Regardless of this interesting legal debate, though, survivors can’t be expected to wait any longer. They were already taxed beyond their strength waiting for legislation and then the amendment that has now failed more than once. Enough.
The Arguments Against a Window in Pennsylvania Have Worn Thin
The Catholic bishops’ arguments against a window have worn thin as other states have seen positive results from window legislation. Moreover, the bishops have already settled many cases through their compensation programs, and they have had years to rearrange their resources as they see fit to protect themselves. Lawmakers simply can’t expect all of the victims in the state to continue to wait. Based on our tracking of windows in other states, we know that there are thousands of victims from other contexts in the state—think schools, families, sports, and other extracurricular activities. Those truths need to be revealed to the people of this Commonwealth now.
The insurance industry has been the 800-pound gorilla fighting the victims in the shadows, but its approach and tactics are misguided. It is actually working against its own best interests. This is a market they can lead if they pivot from cover up and nondisclosure agreements to prevention. CHILD USA has been speaking positively with insurance companies that insure youth-serving organizations for several years, and they want to prevent child sex abuse, not cover it up. The time has come for insurance companies to become part of the prevention movement rather than co-conspirators of the toxic cover ups. Lawmakers in Pennsylvania can spur them to do just that by passing the window legislation survivors and citizens need.
The Two-Track Pathway
Let’s move on from this amendment debacle and re-focus our efforts on the common good that window legislation serves. It’s time to fight for the victims of Pennsylvania and win for them what they and the citizens of this Commonwealth deserve: timely justice in a statutory window now. Of course the opponents will challenge constitutionality, but the truth will be released simultaneously as it has been in state after state. Let’s get that process started.
If some lawmakers continue to see the necessity of a constitutional amendment, that process can be on a parallel track. The public benefits of a legislative window can be reaped while that process is restarted, more carefully considered, and followed.
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[1] CHILD USA, Delayed Disclosure: A Factsheet Based on Cutting-Edge Research on Child Sex Abuse, CHILDUSA.ORG, 3 (Mar. 2020) available at https://childusa.org/wpcontent/uploads/2020/04/Delayed-Disclosure-Factsheet-2020.pdf. (citing N. Spröber et. al., Child sexual abuse in religiously affiliated and secular institutions, 14 BMC Pub. Health 282, 282 (2014)).
[2] Republic of Austria v. Altmann, 541 U.S. 677, 692-93 (2004); Landgraf, 511 U.S. 244, 267-68 (1994).
[3] Bible v. Dep’t of Labor & Indus., 548 Pa. 247, 696 A.2d 1149 (Pa. 1997); McDonald v. Redev’t Auth., 952 A.2d 713, 718 (Pa. Commw. Ct. 2008); Commonw. v. Johnson, 732 A.2d 639, 643 (Pa. Super. Ct. 1999).
[4] Landgraf, 511 U.S. at 297 (quoting Freeborn v. Smith, 69 U.S. 160 (1865)).