A Bad Idea Made Worse
February 27, 2023
The House of Representatives last week met in special session to consider opening a "two-year window" setting aside legal norms to allow victims of childhood sexual abuse to file civil lawsuits. The House approved two bills to accomplish this objective. One is a constitutional amendment while the other is a statutory change.
I voted against both measures, as I have consistently done over the years whenever this topic has come up for consideration. I have zero sympathy for child abusers and my heart breaks for their victims, but the proposed two-year window is a bad idea for the Commonwealth which has now been made even worse.
Statutes of Limitations
A statute of limitations (SoL) defines the maximum amount of time after an event when legal proceedings may be initiated. The reason SoLs exist is because with the passage of time, evidence gets stale, memories fade and blur, and witness detail can be lost.
The duration of any given SoL depends on the severity of the event and on whether it's being applied to a civil or criminal matter. On the low end, if you want to file a personal injury lawsuit, the SoL expires two years after the event. On the high end, there is no SoL for the criminal charge of first degree murder.
Extending SoLs
Prior to 1984, the SoL for a civil case in Pennsylvania regarding childhood sexual abuse was only two years after the event. Recognizing the severity of childhood sexual abuse and the reality of repressed memories, the General Assembly has acted three times - via Act 67 of 1984, Act 86 of 2002, and Act 87 of 2019 - to extend SoLs related to these offenses.
Those Acts were all statutory changes, as opposed to constitutional changes. Under Act 87 of 2019, the criminal SoL for childhood sexual abuse was eliminated entirely and the civil SoL was set to age 55 of the victim.
The Two-Year Window
The two-year window proposal is an effort to allow victims of childhood sexual abuse, where the SoL in their individual circumstance has already expired, to file civil suits for damages.
This idea was first raised as a statutory change, but ran into problems conforming with Pennsylvania's constitution for reasons too esoteric and detailed to enumerate here. I opposed all those statutory efforts, offered over several legislative sessions, for constitutional reasons.
Advocates for the two-year window switched gears to amend our constitution to avoid this conflict of law. A constitutional amendment was successfully approved by the General Assembly in the requisite two successive legislative sessions, culminating in the passage of HB 963 in 2020.
The amendment was set to appear on the ballot during the Primary Election of 2021, alongside amendments the voters eventually approved to limit a Governor's powers during a disaster emergency. Curiously, the Wolf Administration failed to properly advertise the SoL amendment, although it successfully adhered to the advertising requirements for the other constitutional amendments on the docket for that same election.
Restarting the Clock
As a result of the Wolf Administration's failure, advocates for a two-year window were forced to restart the lengthy constitutional amendment process. HB14 was immediately introduced and approved by the General Assembly on March 24, 2021.
Upon final approval however, HB14 was not the same language as the previously approved HB963. In addition to providing a two-year window to set aside SoLs in civil suits for childhood sexual abuse, it also set aside caps on damages as well as sovereign, governmental, and official immunity.
The two-year window on SOLs, which I consider a bad idea to begin with, was thus made worse by the addition of other legal waivers.
A Bad Idea at Face Value
The two-year window defies the logical reasons for SoLs. The staleness of evidence, faded or blurred memories, and the loss of witness detail will not magically disappear simply because a constitution is rewritten – no matter how much we wish it to be possible.
A two-year SoL window will also be unfair to some Pennsylvanians in the future. A 56 year-old victim whose delayed civil claim can be revived due to a two-year window will benefit, but once that window closes no similarly situated 56 year-old victim will be able to revive a claim, no matter how compelling their reason for delay.
The difference between criminal and civil SoLs is important to note here as well. While the General Assembly has eliminated SoLs entirely regarding childhood sexual abuse in the criminal realm, a successful criminal prosecution is dependent upon a unanimous jury verdict based on evidence proving guilt beyond a reasonable doubt. That is a much higher standard than required in civil cases, where a divided jury can award massive damages based on a mere preponderance of the evidence.
Making a Bad Idea Worse
After the Wolf Administration's failure to advertise the original SoL constitutional amendment, the addition of waivers for damage caps and standard legal immunities makes the two-year window proposal unfair to even more Pennsylvanians.
These waivers will expose every Pennsylvania taxpayer to potential financial liability for heinous acts they had nothing to do with. Your school district or county government could be on the hook if named as a defendant in a lawsuit filed under this expanded two-year window.
In addition to suits filed by victims over the age of 55 to take advantage of the temporary SoL waiver, younger victims may file civil claims to take advantage of the damage cap and immunity waivers. Affirmative verdicts will result in cash damages and payouts, but there will be no practical penalties for any culpable government entity.
No school district will be forced to cut spending, nor will any county government be ordered to eliminate a youth services agency which is found liable for damages in any verdict. The burden of paying these damages will be passed along to average Pennsylvanians via tax increases.
In short, future Pennsylvania taxpayers will be forced to underwrite damage awards for acts committed by individuals and within institutions, occurring as long as two generations ago, and indirectly bankrolled by tax dollars they had no choice but to pay upon threat of losing their home.
The potential impact to taxpayers could be devastating, to the tune of 5 to 32.5 billion dollars. To put that in perspective, school property taxes generate roughly 16 billion dollars annually in Pennsylvania.
The Extraordinary and Special Session
Former Governor Tom Wolf called an extraordinary and special session of the General Assembly to complete the task of passing this revised and expanded constitutional amendment a few short weeks before leaving office. Some opine that he did so to mitigate the stain of his administration's advertising failure on his permanent legacy.
While special sessions have been called before, the only extraordinary aspect of this session was in how it subverted the normal process of sending constitutional amendments to the voters.
Constitutional amendments require passage by the General Assembly in two successive legislative sessions before being sent to the ballot for voter approval. The premise here is that changing our foundational governing document carries so much weight that it warrants being approved once by the General Assembly and widely advertised, surviving an intervening legislative election, and being passed and advertised again a second time with the exact same wording.
The Letter of the Law, But Not the Spirit
Technically, the two-year window proposal has now cleared most of its legislative hurdles in Harrisburg. But in the House of Representatives, the operating rules put in place by the new Democrat majority went against the spirit of the traditional two-session requirement.
The intervening election of 2022 saw 52 new members elected to the House. With over a quarter of its membership replaced, the current House compliment deserved the same deliberative and legislative process its predecessor enjoyed to fully consider this proposal. It did not get that opportunity.
The rules adopted for the special session in the House included an undemocratic two-thirds majority requirement to approve any amendment to a bill, a supercommittee of only five members appointed to comply with the constitutional requirements for bill passage, and the fifth member and potential deciding vote on that supercommittee being hand-picked by Speaker Mark Rozzi, who has led the charge for a two-year window in Harrisburg for as long as I can remember.
This was not the rigorous, two-session, deliberative, and democratic process contemplated for Pennsylvania's constitutional amendment process, but a shortcut to rubber stamp the actions of a previous General Assembly.
The Senate vs. the House
The Senate has also passed this constitutional amendment for the second time, but it is part of a bill (SB1) which includes separate constitutional amendments to provide for voter ID and to provide more balance to Pennsylvania's regulatory process.
Senate leadership is currently insisting that the House pass their bill. Speaker Rozzi is insisting that the Senate pass the House bill and that the two-year window constitutional amendment appear on the ballot alone, alongside no other constitutional amendments. Only time will tell which version, if any, will make it to the ballot. Or if it will be properly advertised.
Still a Bad Idea
Regardless of whether either of these bills makes its way to the ballot, the two-year window proposal is still a bad idea. If it does come up for approval at some future election, I will most certainly be voting against it.
Despite anyone's desires, the effects of the persistent march of time that provide the rational basis for civil SoLs will not be legislated away, even to temporarily legitimize awards by divided juries based on the mere preponderance of evidence. I especially take exception to the new damage cap and immunity waivers, which will place the burden of civil awards not on culpable institutions or individuals, but on the backs of the future taxpayers forced to fund them.
The sexual abuse of a child is a heinous act. I'm outraged and sickened at the thought of anyone abusing a child in any way, much less any child suffering the most hideous and damaging abuse of a sexual nature. I support the strongest criminal penalties, and no statute of limitations barring criminal prosecutions for those who sexually abuse children.
Emotion vs. Logic & Reason
The law should not be based on emotion, but on logic and reason promulgated by a deliberative and democratic process. This has already been accomplished over the years with Pennsylvania's existing civil SoLs and the absence of criminal SoLs for cases of childhood sexual abuse.
Despite my deep empathy for victims, the two-year window proposal is a bad legal idea, now made worse, which should be rejected by the voters if it ever appears on the ballot.
