The fate of legislation to create a retroactive window that would revive out-of-date civil claims stemming from childhood sexual abuse may come down to a little-known, little-understood aspect of law known as a statute of repose.
Members of Maryland’s Senate Judicial Proceedings Committee received a detailed briefing Thursday on the current state of Maryland’s statute of limitations law, which could be amended this legislative session to remove any time limits on when child sexual abuse survivors can sue.
Eliminating the statute of limitations for these civil claims is popular among lawmakers. But the tougher issue that took up much of Thursday’s briefing was whether lawmakers will be able to pass a “lookback window” that would open a period in which claims that have already expired can still be brought to court.
The issue digs into several obscure areas of law.
In 2017, lawmakers passed a bill that extended the statute of limitations for child sexual abuse claims to 20 years after the survivor reaches the age of majority. Language slipped into the bill, however, added a “statute of repose” that created a hard cutoff blocking future lawsuits based on claims that were already out of date when the 2017 bill went into effect.
Statutes of repose are rare and are typically used in construction to give builders and property owners some certainty regarding their long-term liability. Unlike statutes of limitations, statutes of repose transform freedom from liability into a property right after a certain amount of time has passed.
Delegate C.T. Wilson, a Charles County Democrat and child sexual abuse survivor who advocates for statute of limitations reform, has said that he did not know the statute of repose language was added to the 2017 bill. Other lawmakers have also said they did not intend to create civil immunity for institutions like the Catholic church that have shielded sexual abusers.
But the church’s advocates have said the statute of repose means a retroactive lookback window is unconstitutional. Even the Maryland Attorney General’s Office said in a 2019 advice letter that a lookback window would likely be found unconstitutional.
At Thursday’s briefing, which took place before a full audience of survivors, advocates for statute of limitations reform asked lawmakers to take a chance and pass a lookback window so that the courts can make that decision.
It is not even clear whether the 2017 law actually created a statute of repose based on the small amount of existing caselaw, said Kathleen Hoke, a professor at the University of Maryland Francis King Carey School of Law.
“It’s going to take the Maryland Supreme Court to decide,” Hoke said. “There is genuine legal debate over this question and it is earnest.”
Hoke said the only existing statute of repose in Maryland law, which protects the construction industry, reflects a public interest in economic growth. Without a statute of repose, property owners might hesitate to make building improvements because of the long-term risk of litigation.
“What could possibly be the benefit to the public of providing this extraordinary, possibly constitutionally protected interest to every organization that negligently failed to protect children from the type of sexual abuse that you heard about?” Hoke asked lawmakers.
Opponents of a lookback window say it is impossible for institutions to defend themselves against decades-old lawsuits claiming they negligently failed to protect children from sexual abuse.
“When you don’t have the records and the witnesses available, that’s going to be a hard defense to make,” said Cary Silverman, a D.C. lawyer who spoke on behalf of the American Tort Reform Association.
Silverman said he believes a retroactive window would likely be found unconstitutional even if the statute of repose weren’t an issue. State supreme courts have repeatedly found against reviving civil claims when the statute of limitations has already ended, he said.
“I think you need to be prepared for the likelihood that the law is going to lead to unnecessary litigation and provide false hope to survivors,” Silverman told lawmakers. “The Supreme Court of Maryland is more likely than not going to find this provision unconstitutional.”
Supporters counter that the legislation would help unmask long-hidden abusers and give survivors, who often don’t come forward with abuse claims until they are in their 50s, a chance to hold institutions accountable in court and demand discovery materials.
Bills to create a lookback window have repeatedly passed the house but failed in the Senate’s Judicial Proceedings Committee. This year may be different, though.
Committee Chair William C. Smith Jr., a Montgomery County Democrat, is supporting the legislation this time around, in a change from previous years. And some senators who vehemently opposed a lookback window are no longer on the committee.
Advocates are hopeful that the anticipated release of the Maryland Attorney General’s Office’s 450-page investigation of sexual abuse in the Archdiocese of Baltimore means that this time a bill will pass the full General Assembly.
The Attorney General’s Office has asked to publish its investigation into the Archdiocese, which according to court records found more than 600 victims of sexual abuse and identified 158 priests accused of abuse over 80 years. (The report relies on records received as part of a grand jury investigation, so a judge must approve its release.)
In a brief interview Thursday, Attorney General Anthony G. Brown, who inherited the Catholic church investigation from his predecessor, Brian Frosh, said he is continuing to push for the report’s release in court.
In his time as a lawmaker, Brown supported expanding the statute of limitations for child sexual abuse claims. The question of reopening out-of-date claims is trickier, he said.
“I think that’s probably the biggest challenge that is presented by this bill,” Brown said. “The thorny, difficult question is whether or not it can be retroactively applied.”