After the General Assembly returned in late May from its coronavirus-induced hiatus, two Democratic senators spoke to Sen. Julie Gonzales about the bill she was sponsoring to give sex abuse survivors unlimited time to sue their perpetrators or the institutions that harbored them.
“I have grave concerns,” each of them said, according to Gonzales, D-Denver. They did not think they could vote for a bill that only covered survivors of future abuse and did nothing for victims from decades in the past.
“The night before the hearing, I woke up kind of in a start, and I had a dream that we were in this floor fight,” she said on Wednesday. “I woke up and I said, this isn’t right.”
On Friday, Gonzales surprised and aggravated proponents of House Bill 1296 by asking that the Senate State, Veterans & Military Affairs Committee kill her bill. Her reasoning was that the legislation did not include a “lookback window,” which could have commenced a period in which victims of abuse whose statute of limitations had expired could file lawsuits, regardless of when the offense occurred. After California opened such an opportunity in 2003, other states have followed suit, including New Jersey, New York and Arizona. California this year revived its lookback period for a new round of claims.
As it stood after passing the House of Representatives with only one no vote, HB1296 would have eliminated the civil statute of limitations for childhood sex abuse, as well as for other types of sexual misconduct, up to and including assault. Currently, victims in Colorado generally have until six years after they turn 18 to sue their abuser and two years to sue an institution, such as the abuser’s employer. According to CHILD USA, the average age for child victims to disclose their abuse is 52.
At the committee hearing, Raana Simmons, the public policy director for the Colorado Coalition Against Sexual Assault who had been working on HB1296 since the prior summer, slammed legislators for putting off the law change for another year.
“I had a survivor tell me today that I don’t have what it takes to pass this policy. And that broke my heart,” she said. “But you know what? It’s not my job to tell that survivor, ‘I’m sorry.’ It’s yours.”
Gonzales heard the message loud and clear.
“I know that people have been waiting for far too long” for justice, she said, pausing to search for the right words. “I also know that I’m now responsible for making them wait another six months. And I apologize for that and I accept responsibility for that.”
Gonzales promised to reintroduce the subject in the next legislative session to include a lookback window. She did not know if her fellow sponsors for HB1296 would join her, but one of them, Rep. Dafna Michaelson Jenet, D-Commerce City, appeared to close the door on that collaboration.
“I have heard from the stakeholders that they are devastated by this unfortunate loss, but they’d like for me to run it again. And I’ve agreed,” she said. At a House committee hearing in March, Michaelson Jenet and other advocates explained that they received legal guidance that the Colorado constitution does not allow for retroactive legislation, except for public policy reasons. They opted to try to pass a less-controversial bill that excluded a lookback provision, and she indicated she will do the same next year.
“If someone wants to run a separate bill to do a lookback window, all the power to them. We did the research,” said Michaelson Jenet.
Defining the scope
The last major attempt to give victims of childhood sex abuse more time to sue was in 2006. Ultimately, legislators could not agree on the same question that surfaced 14 years later: which victims should have access to the justice system?
“It seemed pretty benign to open up a two-year window for victims that were older and could never face what happened to them until they were in their 40s and 50s,” said former Senate President Joan Fitz-Gerald, D-Coal Creek Canyon, who looked at documents showing that the Catholic Church kept predatory priests hidden for years. Litigation, in the minds of many, would force disclosure, including of people with accusations against them who still work with children.
Fitz-Gerald introduced a bill for a two-year lookback window that the Catholic Church in Colorado deemed toxic. At the time, other dioceses around the country had gone bankrupt from sex abuse litigation. Then-Archbishop of Denver Charles J. Chaput told Catholics that the lookback window and a related bill to eliminate the statute of limitations for future abuse cases would target Catholic schools and parishes at the expense of other institutions, like public schools, where abuse also occurred.
“I mean it really, honestly had to come out of the church scandal. It didn’t come out of a soccer coach scandal. It did come out of the church scandal,” said former Rep. Paul Weissmann, D-Louisville. “So yeah, targeted was probably a fair term. They probably were.”
The 2006 bills provided the broadest possible coverage for victims of sex abuse: in addition to opening a lookback window and providing unlimited time going forward, the bills also waived governmental immunity, allowing victims to sue public institutions. In response, the lawyer for the Colorado Municipal League called the proposals “very dangerous to us.” The legislature ended up stripping the lookback window, but the bill still died, as it did in 2020, in the final days of the session.
“When you know that you're down to the last few days of the session, if there really are issues with pretty deep contentions, I think sometimes people become fairly guarded and want to be thoughtful that something doesn't move forward that they believe may have unintended consequences that there’s no more time to remedy,” said former Rep. Debbie Stafford of Aurora, who was a Republican in 2006.
One person familiar at the time with the church insisted that the Colorado Catholic Conference, which represents the Archdiocese of Denver and the dioceses of Colorado Springs and Pueblo, called on legislators to waive governmental immunity not as part of a strategy to tank the bills.
“We have a morally defensible position of including all kids and making the law fair,” said the person, who requested anonymity to speak candidly.
Former Rep. Gwyn Green, D-Golden, who was one of the sponsors of the 2006 effort, tried again on her own in 2008. Her proposal, House Bill 1011, comprised the two provisions that Gonzales wants to include in a 2021 attempt: elimination of the statute of limitations going forward and opening a lookback window for past cases.
The House Judiciary Committee killed Green’s bill right away.
“Ritter said he’d veto it,” Green scrawled on a news clipping from the time, which her husband shared with Colorado Politics. Bill Ritter, the Democratic governor that year, was Catholic. Green, a lifelong Catholic herself, died in 2018. Gonzales said she had no idea whether Gov. Jared Polis would support a lookback window next year, adding, “that’s on him.”
Half a loaf?
Gonzales believes asking for a stronger bill once again is a calculated risk based on how far the public’s understanding of sexual assault has come since 2006.
“There was still a lot of silence and a lot of taboo,” she said. “I think that that’s changed now.”
She cited the report the attorney general’s office released in October showing that at least 43 priests likely abused at least 166 children in Colorado since 1950 as evidence that sexual misconduct and the trauma it inflicts on victims can take years to be recognized.
Annmarie Jensen, the lobbyist for the Colorado Coalition Against Sexual Assault in 2006, said that even legislators at the time came out privately about their own abuse to her.
“I would sit in people’s offices and they would tell me their story of being sexually abused,” she said. “I can’t tell you how many people I lobbied who had a story of their own sexual abuse in that process. It was traumatizing for me to spend that much time with people and know how many people have experienced something like that themselves.”
Gonzales compared her decision-making to her professional experience working as a paralegal on immigration cases and seeing clients determine how far they wanted to pursue relief in the courts, despite the likelihood of failure.
“There were some times in which the attorney would say, ‘Hey, listen: based on your case and where you stand, you have a 90% chance that you’re going to lose and you have a 10% chance of being successful'," Gonzales described.
Some people, she said, would prepare to lose. Other people would say, “I have to fight. I have to leave no stone unturned.”
For a new sex abuse bill, that means “I want to fight for as broad a policy as possible,” she concluded.
Gonzales’s desire for a lookback window has support from some who were involved in crafting HB1296.
“We never want the perfect to be the enemy of the good, but the bill must first actually be good,” said Kathryn Robb, executive director of CHILD USAdvocacy. “Bills without windows or revival simply do not make kids safe, instead they conceal sexual predators. We hope legislators will begin to understand that the only way to identify hidden child sexual predators while also giving victims justice is to pass revival legislation — period.”
Robb, who backed HB1296 this year and was nonetheless disappointed to see it fail, added, “The question is simple: does Colorado want a full loaf of justice and child protection, or only a half a loaf?”
David Clohessy, national director of the Survivors Network of those Abused by Priests who has tracked states’ statute of limitations efforts, agreed. He felt a statute of limitations elimination without a lookback window “essentially protects our grandkids, not our kids, and allows current molesters years or decades of continued devastating crimes.”
Gonzales was surprised that HB1296 came to a vote in a Senate committee to begin with, given it did not pertain to the budget or coronavirus response. She said Senate leadership told her it would have been unusual not to give the bill a vote after it passed the House. Nevertheless, she believes that had the pandemic not occurred, things would be different, as her fellow legislators “were also as prepared for this battle as I was.”
She realized during the interview that the statute of limitations bill for her was similar to the repeal of the death penalty, which she sponsored in 2019 before pulling it from consideration, citing more work needing to be done. The prospect of broadening the sex abuse bill and, consequently, encouraging the same opposition campaign that took place in 2006 did not faze her, and she deemed it “a fight that I signed up for.”
Jensen, the lobbyist during the 2006 session, cautioned against underestimating the degree of resistance that such a proposal could generate, based on her experience 14 years ago.
“For a person in elected office, it doesn’t really matter that you know you're not killing the church. What matters is that people in your district think you are killing the church,” she said. “It didn’t matter that it was aimed at protecting children. If they believed it was hurting the church, I think that was the difficulty for the elected officials who were getting those letters.”
This story has been updated to reflect additional comments that Kathryn Robb made about her position on HB1296 after publication.