Problem #1: children abused by clergy decades ago are demanding recognition from the civil justice system; it’s not about the money they say, but justice.
Problem #2: simply reviving 35-year-old tort claims that are otherwise barred by the statute of limitations, aside from the basic unfairness and loss of legal certainty to others, encourages fraud on and error by the judicial system.
Solution, in Ohio S.B. 17, passed in May 2006:
Since it’s not about the money, “create a cause of action for a declaratory judgment in cases in which a victim of childhood sexual abuse is barred from bringing an ordinary civil action by the expiration of the limitations period.” The statute of limitations still bars claims for damages; but if you want access to the justice system, go ahead and get a judicial declaration that you were abused, and perhaps the Church will decide on its own to do the right thing.
Everyone’s happy–except the trial lawyers. (h/t A.K. (not the judge))
6 Comments
“create a cause of action for a declaratory judgment in cases in which a victim of childhood sexual abuse is barred from bringing an ordinary civil action by the expiration of the limitations period.”
I’m sorry to be dense, but can you explain what this means for a non-lawyer? If there is already a statute of limitations, why would there be a need for a further law to bar such suits so long after the offense? And does this wording in fact bar such suits?
I’ve updated the post for further explanation. In previous Overlawyered posts (and in the linked article), I discuss how trial lawyers are lobbying to retroactively repeal the statute of limitations that bars decades-old suits against clergy. The Ohio bill permits suits to go forward, but not for damages. — TF
The point is you’d remove the statute of limitations, but for the declaratory action only. So, to answer your question, commenter #1, there wouldn’t really need to be a new law saying that the statute of limitations applied, because indeed it already does.
Excellent! So sensible.
I’ve long been sceptical that the damages from these purported abuses were anything significant. What those cases were all about was getting a jury angry enough to give away the store, as opposed to convincing a jury that the plaitniff was actually harmed to any significant degree.
I’ve long thought that it would be wonderful for the legal system to hold people to their word, when they say that something is about truth and justice, not money, but that’s just my sense of humour.
I’m glad to see that some of our politicians are equally as willing to take these protestations at their face value and ignore the incredibly obvious duplicity.
As Ted suggests, statues of limitation to a large extent simply conform procedure to the reality that evidence dissipates with time. Removing time limitations cannot advance justice because accusations by themselves are unreliable and real confirming evidence just isn’t there.
Having a procedure that only shames an institution doesn’t overcome the defect in its reliability.
One advantageous difference is that there is no longer a financial incentive to manufacture fictional claims. That doesn’t preclude someone from expending time and money to bring false claims for non-financial reasons (one sees self-destructive litigation behavior in divorces quite frequently), but one suspects that this is a small fraction of fraudulent claims.
That might not be enough to tilt the balance for permitting such claims to go forward, but it’s a world of difference from what trial lawyers were proposing, and it’s clearly a closer question. Politics is often the art of compromise.
I think this is clever, but wouldn’t you want to include an attorneys’ fees provision? No lodestars or other windfalls, but if you make your case and establish liability, fee shifting seems reasonable, doesn’t it?