AG willing to defend ‘lookback window’ for expired childhood sexual abuse claims in court

In a new advice letter, Maryland Attorney General Anthony Brown found that a bill to create a retroactive window for out-of-date childhood sexual abuse lawsuits is “not clearly unconstitutional” and that he would be comfortable defending the proposal in court.

The letter acknowledges that it is not clear how the Maryland Supreme Court would rule on such a bill if it passes through the legislature this year, but still represents a victory for advocates who say that childhood sexual abuse survivors should have the chance to sue even when their claims are expired under the existing statute of limitations.

“While it is possible that (the bill)’s retrospective reach to time barred actions would be found to be unconstitutional, it is not a given that would be the outcome,” Brown wrote in the letter. “It is an open question.”

The letter reverses course from the previous attorney general’s administration, which concluded in a 2019 letter that a retroactive window would “most likely be found unconstitutional.”

The constitutional question is a central one as lawmakers consider whether to pass a “lookback window” that would allow for a slew of new lawsuits against institutions accused of shielding sexual abusers, such as the Catholic Church.

The bill, SB 686, has more momentum than in years past, when it failed to pass out of the Senate’s Judicial Proceedings Committee. The committee met Thursday to weigh the proposal, which would also eliminate the statute of limitations for all future claims related to childhood sexual abuse.

Advocates for the bill say that the changes are necessary because abuse survivors often don’t come forward with claims until they are in their 50s, making it difficult to hold abusers and the institutions that protect them legally accountable.

But recent legislative history has made passing a lookback window particularly difficult.

In 2017, legislators passed a law that extended the statute of limitations for civil child sexual abuse claims to 20 years after the victim reaches the age of majority, or 18 years old. The statute also added a “statute of repose,” as opposed to a statute of limitations, that created a hard cutoff blocking future lawsuits based on claims that were already out of date when the 2017 bill went into effect.

Opponents to a lookback window, including the Catholic Church, argue that by passing a statute of repose, lawmakers created a “vested right” that protected institutions from out-of-date lawsuits.

Del. C.T. Wilson, a Charles County Democrat and a child sexual abuse survivor who advocates for statute of limitations reform, has said 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.

Statutes of repose are rare and are typically used in construction to give builders and property owners some certainty regarding their long-term liability.

In a 2019 advice letter sent under former Maryland Attorney General Brian Frosh, the office concluded that a lookback window “would most likely be found unconstitutional” because of the statute of repose. The letter has become a key talking point for opponents of a lookback window.

The new letter, dated Wednesday, is clear that the bill would likely face serious legal challenges and might be overturned in court. But it reaches a different conclusion than the 2019 letter:

“It is our view that Senate Bill 686 is not clearly unconstitutional,” Brown wrote. “If the General Assembly chooses to provide victims of child sexual abuse an expanded chance for justice, I can in good faith defend the legislation should it be challenged in court.”

The letter also refers back to a 1991 bill that amended a statute of repose to add exceptions for asbestos-related claims. At the time, the Attorney General’s Office concluded that the original statute of repose did not create any vested rights that would be violated by retroactive changes to the law.

Since then, however, Maryland caselaw has changed, the new letter notes. The Maryland Supreme Court has said that the state constitution “ordinarily precludes” lawmakers from “retroactively creating a cause of action, or reviving a barred cause of action.”

Courts in other states, though, have upheld retroactive windows based on the public interest in reviving old claims, Brown wrote in the letter.

Committee Chair William C. Smith Jr., a Montgomery County Democrat, is sponsoring the Senate bill. He read portions of the new letter to his fellow lawmakers Thursday and acknowledged that the bill’s chance of success in the courts is unclear.

“What do you want to do?” Smith asked. “Do you want to afford survivors an opportunity to seek civil access to justice? I believe it’s within the interest of justice that we provide this opportunity for survivors of childhood sex abuse.”

The bill would cap damages in revived claims against private institutions at $1.5 million and against public institutions at $850,000, a new addition that would place some limits on the liability faced by organizations across the state. A similar bill in the House is expected to be amended to include those caps, Smith said Thursday.

In written testimony, the Maryland Catholic Conference again argued that a retroactive window would be unconstitutional.

“While there is clearly no financial compensation that can ever rectify the harm done to a survivor of sexual abuse, the devastating impact that the retroactive window provision will potentially have by exposing public and private institutions — and the communities they serve — to unsubstantiated claims of abuse, cannot be ignored,” the conference wrote.

The group also criticized the bill for capping damages at a higher amount for private institutions than for public ones.

Supporters of the bill are hopeful that the possible release of the Maryland Attorney General’s Office’s 450-page investigation of sexual abuse in the Archdiocese of Baltimore will spur the General Assembly to pass statute of limitations reform this year.

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.)