Discussions concerning how to investigate, litigate and compensate child-abuse victims, now in adulthood, are again at the front of legislative debate. These talks raise important questions concerning the need to revisit the statute of limitations for sex crimes, and within which to sue for money damages. State Sen. Jeff Klein has clearly done yeoman’s work in trying to strike a compromise to balance the need for reform with the rights of the accused.
Absent, however, from the discussion is any indication of the likely costs attendant to the passage of this proposed legislation, and the difficulties with which government and employers would be confronted—both in conducting investigations and mounting defenses in court—long after potential witnesses are no longer available, memories have faded, and employment records have been destroyed or long ago discarded.
New York law has long held that statutes of limitation are to be liberally construed in favor of the accused. The current proposed legislation singlemindedly (and understandably) focuses on the alleged victims, and scrupulously ignores the impact of these proposed changes upon the alleged accused.
Striking an appropriate balance is easier said than done. In criminal cases, experienced prosecutors and their law-enforcement colleagues may scrupulously weigh whether criminal charges with a reasonable-doubt burden of proof can be successfully initiated.
By contrast, in the case of civil damage, the burden of proof is the lower “preponderance of evidence” standard. Many institutional employers, not-for-profits and charitable organizations may face financial ruin, and so opt to settle rather than confront the risk of financial annihilation. The impact upon liability-insurance coverage is also problematical.
The issue of justice for those asserting victimhood is one of serious public concern. The New York Archdiocese’s creation of a committee to evaluate time-barred cases and award appropriate compensatory damages marks a commendable act of atonement for decades of institutional stonewalling. It is unclear how some of the prestigious private schools that have been the subject of similar disclosures are confronting their responsibilities.
As discussions proceed, perhaps the prudent path is to continue to broaden the scope of inquiry and to address it at a special legislative session this autumn, if not fully addressed before the end of this spring’s session, after a full public hearing by the Legislature.
Roger Bennet Adler is a practicing attorney in New York City, and previously served as counsel to various state Senate committees.