Last month California Governor Jerry Brown taught the nation a lesson about fairness. By vetoing California Senate Bill 131, which would have revived sexual abuse claims that have long been time-barred under California’s statute of limitations, Brown refused to allow the law to be twisted into a crude tool of vengeance.
The goal of law is justice, but perfect justice is never possible. Statutes of limitations are a time-honored way of striking a balance, based on fairness, between plaintiffs’ opportunity to seek justice and defendants’ ability adequately to defend themselves.
Fairness and equality must be the grounding principles for our laws. One of the goals of the law is to protect the common good by providing justice and security for the maximum number of citizens. Statutes of limitations reflect the good judgment that remedies for legal wrongs must be fair.
A mark of bad law is the amount of collateral damage it does to innocent individuals, to vital institutions, and to society at large in seeking to remedy an injustice. The damage is often done under the guise of well-meaning intentions to remedy an injustice or identified problem. But the damage is nonetheless real.
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The sexual abuse of children is a grave crime that demands serious penalties for perpetrators and those who shelter them. Victims and their families suffer terribly. They deserve sustained medical and emotional support, and adequate help in rebuilding their lives.
Nonetheless, for justice to be “justice,” it needs to apply with equal consequences to everyone. It also needs to consider the rights of all parties involved: the victims first, but also every other person and community affected by a proposed remedy. Governor Brown correctly judged that Senate Bill 131 violated the standard of basic fairness that every law must uphold.
In his veto message, Brown wrote:
There comes a time when an individual or organization should be secure in the reasonable expectation that past acts are indeed in the past and not subject to further lawsuits. With the passage of time, evidence may be lost or disposed of, memories fade and witnesses move away or die.
Statutes of limitations are grounded in prudence. Originating in Roman law, they have survived through the centuries in English common law to our own time because they embody good sense and basic fairness. No person or institution can adequately defend against revived claims from several decades ago.
Brown also noted that over the years, California’s laws governing time limits to bring suit for childhood sexual abuse cases—along with similar laws of many other states—have been amended to favor the needs of victims several times. “The changes have affected not only how long a person has to make a claim, but also who may be sued for the sexual abuse,” which is a category that includes employers, Brown pointed out. Yet “the issue of who is subject to liability is an important distinction, as the law in this area has always and rightfully imposed longer periods of liability for an actual perpetrator of sexual abuse than for an organization that employed the perpetrator.”
Brown’s veto was rooted in the recent experience of his state. In 2002, California lawmakers passed legislation amending the statute of limitations for abuse claims against third-party defendants, such as employing institutions. These defendants would no longer have the protection of a cutoff age of twenty-six for abuse claims (eight years after reaching the age of majority). It also opened a controversial and retroactive one-year window, where by lapsed civil abuse claims from the past could be revived. More than 1,000 such claims were promptly filed against the Catholic Church alone, some reaching back seventy years. They resulted in more than $1.2 billion in settlements paid out by the Church. Other private and nonprofit institutions also were affected.
Due to a later state court ruling, however, the 2002 law did not cover public institutions, including public schools. Public institutions escaped any accountability and any damaging penalties. This, despite ample evidence that sexual abuse in schools is common to both public and private institutions, as are patterns of cover-up and inadequate supervision of offending teachers and administrators.
In 2008, the California legislature attempted to remedy this inequity. But it did so only prospectively—there was no “one-year revival” of lapsed claims for any victim of past abuse in public institutions—for good reason, given the potentially crippling effect of liability for already-strapped state and local governments. California legislators knew such a law would cause grave collateral damage to vital institutions and the public at large, so it chose not to impose liability on public institutions—they chose not to be fair and not to treat all employers equally.
Yet, as Governor Brown wrote, “it would be unreasonable, if not shocking, for the legislature to intentionally discriminate against one set of victims, e.g., those whose abusers happened to be employed by a public instead of a private entity.” He voiced his disbelief that “the legislature [in the past] decided that victims of abuse by a public entity are somehow less deserving than those who suffered abuse by a private entity.”
In the end, Governor Brown vetoed Senate Bill 131 for various good reasons. Among them was the fact that, despite the gravity of sexual abuse of minors no matter where it occurs, Senate Bill 131 would have continued the “significant inequity that exists between public and private entities” in accountability for claims from the past.
What’s the moral of this story?
First, that statutes of limitations exist for sound reasons, and changing them retroactively is never wise. After a reasonable period of time, innocent individuals, administrators, and communities today should not be held accountable for evil acts in the past in which they had no hand.
But if we really believe that sexual abuse is so egregious as to warrant the extraordinary cost, disruption, and controversy that flows from “window” legislation or even the wholesale abolition of civil statutes of limitations, then justice requires that we do enact such measures with an even hand. It is a basic principle of law that like cases must be treated alike. Changes to the law should apply equally to all institutions and individuals, public and private alike, in the same way and with the same penalties. Anything less is unjust. Anything less is bad law.