Wednesday, August 29, 2012

New Court Ruling about the Statute of Limitations in Child Sexual Abuse Cases


Momentum continues to build in the courts towards greater justice for sexual abuse survivors.
 
The latest court ruling about a child sexual abuse case involves Poly Prep Country Day School, an elite private school in Brooklyn, New York. According to articles on NYTimes.com http://goo.gl/1DWGq and NYDailyNews.com http://goo.gl/TSnj9, Judge Frederic Block of the Federal District Court in Brooklyn ruled that the New York State statute of limitations on filing sexual abuse charges cannot be imposed automatically, because of the possibility that the school covered up abuse by a former football coach.

 
Poly Prep Country Day School in Bay Ridge, Brooklyn.
Todd Maisel/New York Daily News


Now there has to be a hearing to determine if the actions of the school prevented the 12 plaintiffs from filing charges within the statute of limitations, which is by age 23 for survivors of child sexual abuse in New York.

Twelve alumni of Poly Prep and its summer camp claim that they were raped and molested by Philip Foglietta, the former football coach. The coach worked at the school from 1966 until his retirement in 1991, then died in 1998. The court decision stated that the first time an allegation was made against the coach was in 1966, when a student told the headmaster that Philip Foglietta had abused him multiple times. The ruling went on to state that the school told the family that the student’s allegations were not credible and that the student would face “severe consequences” if he continued to make such accusations.

The plaintiffs claim that the school revered the coach and his legacy and depended on his reputation for fundraising, despite knowing that he had sexually abused boys entrusted to his care.

The New York Times article stated that:

The case is being closely watched, as allegations of sexual abuse and the way powerful institutions manage knowledge of those allegations has exploded within the Roman Catholic Church, in the Hasidic community in Brooklyn and in high-profile schools like Horace Mann in the Bronx and Penn State University.
The world is watching... and the courts are finally starting to get it right. The statute of limitations has shielded perpetrators of child sexual abuse and the institutions and communities that covered up for them from being held accountable for their crimes. It is about time that we get our priorities straight and put the protection of children ahead of the protection of reputations.

Should the statute of limitations on child sexual abuse prosecutions be eliminated entirely? Or should it only be waived in certain situations?  What do you think?

18 comments:

  1. They should be eliminated because most never tell until later in life when their lives have suffered living with the secret that they were threatened with as well as the guilt and shame that followed.

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  2. Dear Anonymous,

    You raise a very important point about the secrecy and guilt and shame that interferes with reporting sexual abuse to the authorities.

    Thanks for sharing your view.

    Warmly,
    Andrea

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  3. Stephen Loeb is an attorney who commented on the legal basis for this ruling in cases of fraud and the problems with eliminating the statute of limitations. He gave me permission to share his comments.

    Stephen Loeb:
    Well there is a reason statute of limitations exist and if it was vacated completely it would be setting quite a precedent. Right now the only type of cases fro which there is no SOL is murder. SOLs are not simply a game of run out the clock but their intention is to more likely assure that there is a fair trial. The problem is the older a case gets the more suspect the evidence used at trial. Physical evidence gets lost or compromised not to mention the recollection and memories of witnesses. From what I see Judge Bloc was not really creating new law because where a Defendant covers up a crime so as to keep the truth hidden that is always a delay, or a toll, on the running of the statute. He merely applied the rule to this particular case.

    Andrea Goldberg:
    I understand the potential problems with evidence over time. So why is murder excluded? Because it is considered a heinous enough crime that protecting society takes precedence, right? In my view, the traumatic impact of child sexual abuse is so extreme and the risk of reofffending is so great that it should also be excluded from having a statute of limitations. Also, abusers often make threats that make victims afraid to disclose and it often takes a long time for survivors to be able to emotionally handle reporting the abuse to the authorities. The statute of limitations is the abuser's ally.

    Stephen Loeb:
    Well, yes and no. Yes, murder is considered different and yes there are different rules regarding its punishment. For example it is the crime for which its legal for a State to execute a convicted murderer. Even rape can no longer be punishable by death. So yes, it is considered heinous but that is not the only reason. The difficulties of evidence gathering with the prosecution of murder is not nearly as difficult as other crimes because by its nature it is a final act. The body, the key literal corpus of the case remains in existence forever. It is not a question and the physical evidence can be kept in a final form without change forever. It is not as necessarily reliant on witness testimony as other crimes. Sexual abuse (along with all sexual crimes) is almost exactly the opposite. Usually large on testimonial evidence and short on physical. This historically, unfortunately, has led to a greater percentage of wrongful convictions than other crimes. An unlimited SOL would become a logistical nightmare. I understand your point about emotional abuse. And that should be a consideration. A 3 year SOL may be too short, but I personally would have a real problem with a 40 year old first testifying about an event occurring 25 years before. Also I think it needs to be pointed out, that Judge Bloc did not change the law, or really create anything new. A fraud provision has always existed. He applied that exception to the SOL as a possible toll to this case. Didn't come to a definitive conclusion either. Plaintiff still has to prove the cover up but left the door open for pleading in this instance.

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    Replies
    1. I think the statute of limitations needs to be lifted not only because of the fear and shame but because some survivors only discover or remember that they have been sexually abused many years later once they are safe, so to speak, and there is no risk for them to be hurt by the abuser and/or some other triggers.

      These repressed memories may be uncovered long after the statute of limitations has expired, thereby giving the perpetrator a "home-free" card.

      In my case, for example, I have only recently discovered that I was molested (for years) and I am a wife and mother of two teens.

      This is not to say that I would like to press charges but I feel that someone in my position should have the right to do so.

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    2. Dear Dalia,

      You make an excellent point about repressed memories.

      According to lawyers.com, "the law accounts for [repressed memory] with what's called the delayed discovery rule. This rule stops the statute of limitation from running out if the victim repressed all memory of the abuse or didn't realize the abuse caused current problems. The time allowed for filing a lawsuit is counted in a different way. Usually, the clock begins to run when the victim remembers the sexual abuse." Unfortunately, I don't think the delayed discovery rule is applied consistently in child sexual abuse cases.

      I wish you well in your healing journey.

      Warmly,
      Andrea

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  4. Andrea,
    Thanks for this post. It is hopeful that the courts are beginning to acknowledge the complexity of this issue where powerful interests try to hide the truth and often intimidate the victims.
    Carolyn

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    Replies
    1. Hi Carolyn,

      I agree that it is hopeful. Thanks for your comment.

      Best regards,
      Andrea

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  5. Andrea,

    I think that the law should take into account the extreme shame and silencing that happens in cases of child abuse. And, while the statute of limitations exists for a reason, I think that there are compelling reasons that a statute of limitations for crimes such as rape and sexual abuse (for which there is often a high penalty for disclosing), should be a long one.

    Warmly,
    Ann

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    Replies
    1. Hi Ann,

      You raise important points about the shame and silencing that interferes with reporting. Thanks for commenting.

      Warm regards,
      Andrea

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  6. As many have stated, I personally believe a longer statue of limitations needs to exist for some crimes including rape and sexual abuse. However, I wonder how we keep it from becoming one person's words against another as the physical evidence may no longer exist and the burden of proof tends to fall on the victim.

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    1. Hi JoAnn,

      There often is no physical evidence in child sexual abuse cases, even when there is timely disclosure and pursuit of criminal charges. There are clinical methods for evaluating the validity of allegations, which meet the standard of proof in family court. I don't know how much success there has been in criminal court where the standard of proof is higher.

      Thanks for raising this issue.

      Warm regards,
      Andrea

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  7. What a mess. I understand why the statute of limitation exists, and Stephen, I really appreciate your perspective. In my case, I'm more likely to interact with the person who's been abused than the person who is accused of the crime, but I do believe that everyone deserves a fair outcome from the judicial system. My hope is that as society starts to see that sexual abuse is happening, the shame and silencing will lessen so that disclosures will be made sooner and justice may be served.

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    1. Dear Rachelle,

      I share your wish for societal change that decreases shame and secrecy and enables timely disclosures and swift justice.

      Thanks for sharing your view.

      Warmly,
      Andrea

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  8. This is a difficult idea to think through. After reading what Mr Loeb had to say, in particular abt the high degree of wrongful convictions & the lack of physical evidence, and the he said/she said nature of the scenarios, I think that there s/b a SOL on CSA, but I can't say for how long this s/b. I think there needs to be research on this issue. But I do think that we as a society need to take the CSA accusations seriously and act when there is an accusation, not brush it under the rug (like the school did in 1966).

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  9. after reading Mr Loebs comments, I think there s/b a SOL on CSA. But I think that the 1966 reaction to the accusations was unacceptable. There needs to be serious and timely consideration and investigation of such accusations. We need to lift the stigma and help people work through the shame, so as to get CSA out of the shadows.

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    Replies
    1. Hi Kathy,

      I like what you said about the need to lift the stigma to get child sexual abuse out of the shadows.

      Thanks for sharing your thoughts.

      Warmly,
      Andrea

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  10. My kids are in danger, thier father keeps sending them to my rapists home. Ive tried to fight it but im to old D: How canI fight this?Im in a custody battle with the father but this portion of the case has been discredited because I never stepped up and now its too late. My rapist was my father. The kids father uses my father as a babysitter. My father manipulated me to never tell then I thought there was no reason to. Now there is... I was wrong not to tell, but I was 6 when it started and it didnt end until I was 11. I want this statute of limitations gone. Its wrong. There should at least be acceptable reasons of doubt like this. What do I do? Where do I go to fight?

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  11. Dear Appie,

    Unfortunately, there are no easy answers to your difficult situation. It is not your fault that you were unable to tell anyone when you were a child so I hope you will stop judging yourself for that. I strongly recommend that you get therapy for yourself and for your children if you are not already doing so. Look for therapists who have specialized training and experience with child sexual abuse and custody issues. Be careful not to coach your children about what to say to their therapists and not to question them about what they discuss in therapy.

    I wish you all the best.

    Warmly,
    Andrea

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I welcome comments about my posts. I will publish them, as long as they are respectful, even if you disagree with me. :-)