After significant revisions and agonized speeches from representatives, a bill that would allow childhood sex abuse survivors to sue for the trauma they endured years or decades in the past cleared the House Judiciary Committee on Thursday by a vote of 6-5.
Rep. Mike Lynch of Wellington was the only Republican member to support the measure, while Democratic Reps. Kerry Tipper of Lakewood and Adrienne Benavidez of Adams County voted against it.
"I feel the rights of victims should always be put first," Lynch told Colorado Politics afterward. "This is one of the very rare bills I have seen this session making victim rights paramount."
Tipper, on the other hand, said she did not believe Senate Bill 88 to be constitutional, "despite my wholehearted desire that it be so."
SB 88 would allow people who suffered sexual abuse as children to file a civil lawsuit against their perpetrator or the organization that was responsible for the perpetrator, such as a church or school. Currently, the statute of limitations to sue an individual is generally six years after the victim turns 18, and the victim has only two years to sue an organization. However, Gov. Jared Polis in April signed a companion bill abolishing the legal deadline for future victims, effective Jan. 1, 2022.
For victims whose molestation or rape occurred decades in the past, SB 88 would open a "lookback window" running from 2022 to 2025 in which they could file claims. Originally an open-ended opportunity, an amendment in the Judiciary Committee instituted the three-year window for claims of abuse dating to 1960 or later.
The move to allow victims to take institutions that facilitated child abuse to court produced a dilemma for lawmakers. Although 20 states and two territories have opened lookback windows, there is concern that Colorado's constitution bars the revival of expired legal claims. Proponents insisted that SB 88 creates a new claim as a workaround to that prohibition, and that courts presume the actions of the General Assembly are constitutional. But not all lawmakers were convinced.
Benavidez advocated for a constitutional amendment to make it explicitly legal for the legislature to enact new laws for past conduct.
"The only way to assure that is through a ballot initiative to make this clear. Because this is gonna be the main fight in many of these cases," she said.
Rep. Jennifer Bacon, D-Denver, indicated she did not know how she would vote until the roll was called, saying it was not appropriate to characterize a "no" vote as not caring about victims.
"We have a responsibility to the oath that we’ve taken and we have a responsibility to our communities, and quite frankly they’re just at odds here,” she explained.
One of the most impassioned defenses of SB 88 came from the committee's chair, Rep. Mike Weissman, D-Aurora. He indicated he did not view the question of the bill's constitutionality as a particularly close call, but even if it was, "a close call goes to the survivors of childhood sexual abuse and institutional coverup.”
“As an attorney and as a member of this body, I asked myself, as a lawyer, as an officer of the court, could I go to court, including that building across the street [the Supreme Court] — could I in good faith make the argument for the legality, for the constitutionality?" he asked. "I’ve thought about this. I’ve talked to lawyers. I’ve heard from both sides. And the answer is: yes, I could and I would.”
Advocates for lookback windows argue that the average age for someone to disclose their childhood abuse is 52, far beyond the civil statute of limitations. Childhood sex abuse puts survivors at risk for mental, physical and behavioral health disorders, and researchers in 2018 estimated the costs of abuse in the United States are $9.3 billion annually.
By filing suit against organizations that harbored child abusers, the litigation might possibly reveal "hidden predators" who may still be interreacting with minors.
Those who oppose the litigation of years-old claims point to the difficulty of defending against lawsuits with the passage of time, after witnesses may have died or records may have gone missing.
SB 88 comes one year after the Senate sponsor of a related victims' rights bill asked to kill that measure because it did not address incidents of past abuse. Before that, the last major effort to extend or eliminate the statute of limitations came in 2006, after The Denver Post published articles about the survivors of Catholic clergy abuse in Colorado.
At the time, constitutionality was not the primary concern about the lookback window. The Archbishop of Denver, Charles J. Chaput, hammered lawmakers for treating private institutions differently from public entities, and insisted that the General Assembly open up public schools to equal liability. The statute of limitations bill that year died in the last days of the legislative session after the House and Senate failed to agree on the final version.
Although the Senate amended SB 88 to equalize the damages someone may recover from both public and private entities, the House sponsors pushed the Judiciary Committee to cap damages at $387,000 for government entities and $450,000 for all other entities.
“If you have two victims and one was victimized by a public school teacher and one was victimized by a private school teacher, would they be eligible under this amendment to receive the same amount of damages?” Rep. Stephanie Luck, R-Penrose, asked the sponsors at the time the committee approved the change.
No, responded Rep. Matt Soper, R-Delta, elaborating that the Colorado Governmental Immunity Act is the reason for the unequal treatment. For private organizations, a victim would be able to recover in excess of $450,000 if they could demonstrate to a jury that the organization knew or should have known about a perpetrator's risk to children and did nothing about it, or else the jury determines that more compensation is warranted.
As passed in the Senate, legislative analysts estimated SB 88 would cost the state $14 million in fiscal year 2022-23, anticipating an "initial wave of cases." The analysis assumes there will be 25 cases per year for the first five years filed against governmental entities, and five cases per year afterward. The bill now heads to the House Appropriations Committee.
Rep. Dafna Michaelson Jenet, D-Commerce City, the bill's other sponsor, declined to speculate whether she and Soper had the votes to pass SB 88 in the House of Representatives.