For the first time in 15 years, a legislative committee has advanced a bill that would give past survivors of childhood sex abuse the ability to sue their abusers or institutions that covered it up, scrapping the restrictive window of time that has generally barred victims from accessing justice until after it is too late.
The Senate Judiciary Committee voted 4-1 to approve Senate Bill 88, which would allow survivors to bring civil suits against organizations that operate youth activities, including public entities like schools, that knew or should have known about a risk of sexual misconduct by employees or other affiliated persons.
Sen. John Cooke, R-Greeley, joined the committee’s three Democrats in support. The former sheriff of Weld County, Cooke spoke of experiences earlier in his career investigating sexual crimes against children as the reason for his support, shrugging off concerns that the legislation violates the Colorado constitution.
“That’s why God and the constitution made the Supreme Court,” he observed.
Currently, victims of childhood sex abuse in Colorado generally have six years after they turn 18 to initiate a lawsuit against their perpetrator, and two years to sue an institution. A separate bill that recently passed the Senate would remove the civil statute of limitations entirely for future violations of children.
More controversial, however, is the idea of permitting lawsuits from survivors whose statute of limitations has expired. Following the #MeToo movement, revelations of abuse within the Catholic Church and research suggesting the average person is over 50 when they disclose their childhood sex abuse, several states have opened “lookback” or “revival” windows. Such policies temporarily suspend the statute of limitations and allow for victims of any age to turn to the courts.
Among the critics of SB88 is the Colorado Catholic Conference, which represents the Archdiocese of Denver and the dioceses of Colorado Springs and Pueblo.
“This retroactive legislation seeks to remove civil statutes of limitations and has the potential to bankrupt or drain significant resources from today’s youth-serving institutions and social welfare institutions,” said Brittany Vessely, the conference’s executive director. The bill “ultimately punishes today’s teachers, today’s coaches, volunteers, parents and most importantly, today’s children.”
Her comments echoed the position of the Catholic Church in 2006, when the legislature last attempted to lift the statute of limitations and open a lookback window. The proposal at the time was a response in large part to the survivors of clergy sex abuse who came forward publicly. As such, Catholic officials argued that bill sponsors were targeting the church.
The legislation, explained the Denver Catholic Register on April 19, 2006, “creates a new class of victims by forcing innocent taxpayers, parishioners and donors today to pay crippling liability claims for the actions or negligence of an earlier generation 30, 40 or 50 years ago.”
Unlike in 2006, however, the primary concern of the committee on Thursday was not the fairness of the measure, but rather its constitutionality.
Last year, proponents of removing the civil statute of limitations for the future were wary of a lookback window because of protections within the state constitution. SB88, though it would function like a lookback window, creates a separate legal claim applying to past conduct as an attempt to legally bridge the prohibition.
While several people agreed the Colorado Supreme Court may ultimately decide whether the bill is legal, senators were willing to at least start that journey.
"To those who would raise questions about whether we should pass a bill that may end up in the courts, I respond by saying that this bill represents an opportunity for survivors to leave no stone unturned, to seek justice even perhaps with long odds," said vice chair Sen. Julie Gonzales, D-Denver.
The committee's chair, Sen. Pete Lee, D-Colorado Springs, who is himself a lawyer, worried that passage of the bill may lift the hopes of the survivor community, only to see the High Court strike down the law in the future. Reneging in that fashion would be an "extraordinary disappointment," Lee said.
Nevertheless, he reasoned that survivors have no legal recourse now, and Lee hoped the Court would uphold the legislation because it furthered a legitimate government goal.
Sen. Bob Gardner, R-Colorado Springs, who was the only no vote, called the bill problematic and said he would be "very shocked" if the Supreme Court found it legal.
Gardner also wondered whether it was appropriate for the legislature to impose a heightened level of attentiveness to child predators — the current societal standard — to organizations operating decades in the past. He observed that other types of civil claims have not benefited from anything resembling a lookback window.
Those remarks earned a rebuke from one of the bill's sponsors, Sen. Jessie Danielson, D-Wheat Ridge.
“We are talking about the rape of children and institutions that covered up that sexual abuse," she said. "This is not like a slip and fall. This is not like a car crash. This is abhorrent."
Approximately one in nine girls and one in 53 boys experiences sexual abuse by an adult before they turn 18. More than nine in 10 perpetrators are known to the victim.
Many people who spoke about the bill were familiar to lawmakers: survivors and advocates who had repeatedly told their stories in the past whenever the legislature considered victims' rights proposals.
"Sexual abuse of an adult is devastating. Sexual abuse of a child is catastrophic and it lasts a lifetime," said Paul Quinn, 80, who said he waited 51 years until he told his story of clergy abuse that occurred when he was a teenager. He sued the Catholic Church in Delaware after that state opened a lookback window in 2007.
Proponents also contended the bill would encourage reporting of sexual misconduct and shift the costs of the offense from survivors to perpetrators.
“The only institutions that can be sued are those that don’t do the right thing when they learn about sexual abuse," testified Jean McAllister.
Some survivors spoke anonymously, including one man who was the victim of a Boy Scouts leader and one woman whose young daughter confided that she was molested by a fellow student.
“I will never forget her face that afternoon. She looked ashamed, like she was confessing something she had done," the woman, who identified as Colorado Springs Anonymous Survivor, said. "It broke my heart that she had been carrying this guilt inside of her.”
Representatives for the Special District Association of Colorado hoped for amendments to the legislation to ameliorate concerns, such as the cost of insurance to parks and recreation districts that operate children's programming.
SB88 now heads to the Senate Appropriations Committee.