The Colorado Supreme Court on Tuesday stared down two possibilities: If it deems a 2021 law designed to help survivors of childhood sex abuse unconstitutional, many victims will have no avenue to hold their abusers or the institutions that harbored them legally liable.
On the other hand, if the court upholds the law, then schools, churches and other organizations that sponsor youth programming may face financial ruin in order to defend against allegations from decades in the past.
During oral arguments, some justices acknowledged the discomfort of potentially slamming shut the three-year window the General Assembly recently opened for victims of abuse, who may sue regardless of any time bar on their claims.
"I think what’s so challenging, obviously, about this context is that but for this reopening of a window, many victims here would not otherwise have an opportunity to seek justice for the harms that they have suffered," observed Justice Monica M. Márquez. "Help me feel better about that."
Two years ago, the legislature enacted Senate Bill 88 with wide bipartisan support. Following the lead of several other states, SB 88 created a "lookback window" — a three-year period starting in 2022 in which survivors of childhood sex abuse dating to 1960 could sue a person or an institution that was complicit in their abuse.
Until recently, child victims generally had six years after turning 18 to file a civil lawsuit against their perpetrator and two years to sue an organization. Lawmakers, in enacting SB 88, recognized a "high percentage" of survivors do not disclose their abuse until well into adulthood, and circumventing the statute of limitations furthered a legitimate policy goal of holding "abusers and enablers accountable."
However, opponents at the time — and still — argued a lookback window is invalid because of four words in the state constitution: a law may not be "retrospective in its operation."
"Basically you’re saying the legislature can decide, with great respect to my friends across the street, that 'I think the public interest justifies this, the constitution be darned'," said Justice Richard L. Gabriel to the attorney arguing in defense of SB 88. "They can do whatever they want and we have no retrospectivity clause anymore."
The lawsuit before the Supreme Court originated in Arapahoe County. Angelica Saupe, formerly Angelica Synovic, alleged Rangeview High School coach and administrator David James O'Neill sexually assaulted her when she was a teenager. O'Neill reportedly took her to the coach's office and other private spaces and "compelled" her to have sex with him over four school years. After graduating, Saupe allegedly filed a police report in Aurora in 2007, but law enforcement erroneously told her the statute of limitations had expired.
When the lookback window opened in 2022, Saupe, now in her 30s, sued O'Neill and Aurora Public Schools, alleging O'Neill abused her with the "full knowledge and consent" of the school district. Last August, District Court Judge Elizabeth Beebe Volz dismissed the lawsuit, finding it "constitutes retrospective action which is unconstitutional."
The Supreme Court then agreed to hear the case directly.
"We don’t show disrespect to the survivors of child sexual assault by recognizing the constitution places limits on what the General Assembly can do," W. Stuart Stuller, an attorney for APS, argued to the court. "What it can’t do is take the legislative priorities of 2022 and transport them back in time onto conduct that occurred during the final year of the Eisenhower administration."
Many outside organizations submitted briefs to the Supreme Court to argue for or against striking down the lookback window. Six legislators who voted on SB 88 — Sens. Jessie Danielson and Chris Kolker and Reps. Cathy Kipp, Marc Snyder, Matt Soper and Mike Weissman — defended the General Assembly's use of its authority to shift the costs of sexual abuse away from the state and victims and onto predators. The advocacy group CHILD USA also argued it is not unusual for child victims to disclose their abuse between the ages of 50 and 70, long after statutes of limitations typically expire.
On the other hand, organizations that operate youth programs claimed it is unfair to impose legal liability on those who were not around decades ago when a child was abused. The Archdiocese of Denver argued the Catholic Church in Colorado has already created its own reparations program following an inquiry into clergy abuse. Another group that included the Colorado Chamber of Commerce and the insurance industry pointed out that organizations facing sex abuse allegations may declare bankruptcy or feel pressured to settle rather than defend against past misconduct.
"While a single claim may not cripple the organization, all of the funds that are used to hire lawyers and settle claims are funds that are not utilized to serve kids," wrote the lawyers for various education groups in support of APS. They added that New York's lookback window generated 11,000 claims in two years.
The parties appearing before the Supreme Court disputed the extent to which compelling public policy reasons could justify a retrospective law. The court's own precedent suggests such a possibility — specifically, a 2002 decision indicates laws that appear unconstitutionally retrospective "may be balanced against public health and safety concerns."
Otherwise, the dispute focused on whether SB 88 was retrospective, meaning it affects a "vested" right or creates a new liability. The victim's attorneys maintained child sex assault has long been illegal, and so the law imposed nothing new on perpetrators or organizations that cater to children. As recently as June 2021, the Georgia Supreme Court, whose constitutional prohibition on retrospective laws is almost identical to Colorado's, agreed a lookback window was legal.
However, in contrast to Georgia, the defendants pointed out that Colorado's Supreme Court, 144 years ago, decided a statute of limitations is a vested, or unconditional, right.
"What do we do with the fact that since 1879, we’ve said the bar of the statute of limitations is a vested right in Colorado?" Gabriel asked.
Robert D. Friedman, an attorney for Saupe, waved aside the notion that the retrospective prohibition even applies to school districts.
The state's bill of rights, he argued, is "there to protect the rights of the people against the government. It’s not to protect the government against the people."
Still, the justices recognized their interpretation of SB 88 will either uphold the legislature's determination that child victims deserve a path to seek justice, or else find the legislature unfairly opened the floodgates against institutions that are unprepared to defend against 60-year-old acts of abuse.
"The balancing of these very compelling public interests in both directions becomes so fraught that it’s very difficult, particularly for this body, to engage in that," said Justice William W. Hood III.
The case is Aurora Public Schools et al. v. A.S. et al.
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