mark hillman
On February 7, a Colorado Senate committee heard heartbreaking testimony from people who suffered sexual abuse at the hands of trusted adults as minors. These witnesses called on lawmakers to pass SCR 1, which proposes to voters an amendment to the Colorado Constitution that would allow for retroactive litigation.
Simply put, it allows the government to change the rules years after the fact, allowing them to sue abusers rather than jail them, but not the actual abusers. This is almost never the case.
Anyone who hears of the harrowing experiences of these victims feels a very human desire to punish those responsible. But we must first recognize the difference between prosecuting actual looters and filing a civil lawsuit.
The ultimate form of accountability is to put predators in prison where they cannot prey on other children. There are currently no restrictions on criminal prosecution for sex crimes against children that occurred before 1996. Therefore, people born after 1981 (currently under the age of 42) still have the ability to bring charges against child predators. Such charges can be daunting years after the facts have been meted out “beyond a reasonable doubt” (the standard for conviction).
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The standard in civil litigation is much lower: a “preponderance of the evidence,” or a 50% or higher probability of truth. While this shifts the legal burden in favor of victims, it raises real questions of fairness for accused defendants.
However, defendants in civil lawsuits are rarely the perpetrators of sexual abuse. This is because the perpetrator, even if not incarcerated or dead, typically has little “proof of judgment,” i.e., income or assets. Plaintiffs’ lawyers rarely bring lawsuits against child predators who are unable to pay.
Instead, a civil lawsuit is brought against the agency that employs or supervises the perpetrator and has sufficient funds to pay any monetary damages that a jury may award. Civil defendants are likely to be schools, local governments that provide youth activities, organizations such as the Boy Scouts of America, and churches. In some cases, these institutions were actually negligent.
In 2021, Congress completely eliminated the deadline for filing child sexual abuse cases after January 1, 2022. The bill also eliminated the statute of limitations for existing claims. Currently, child sexual abuse claims by victims born after January 1, 1998 are not eligible for child sexual abuse claims, because state law allows these lawsuits to be filed six years after the victim reaches 18 years of age. There is no statute of limitations.
But just as it is difficult to prove a criminal case from 20 years ago, it is virtually impossible for a defendant’s employer to find records showing how the defendant was supervised 20 years ago. be.
“I’ve been working on arguments since the 1940s,” one defense attorney told a Senate committee. The witness is dead and all documents and evidence are long gone. The person in charge at that time is no longer alive.
Public schools were often targeted after lawmakers passed a 2021 bill that would allow abuse lawsuits dating back to 1960. But even if administrators, teachers, and coaches were at fault back then, today they are no longer there. Even if the lawsuits for the heinous acts of 1960, or even 1980, were successful, there would be no punishment for those who committed the crimes. In exchange, the school was ordered to pay, for example, $10 million in damages, but since insurance cannot cover claims made 40 years ago, the money must be collected from the classrooms currently accepting students. There will only be nothing left.
Is that really justice?
That’s why last year, the Colorado Supreme Court unanimously ruled that the Colorado Constitution prohibits retroactive laws that create new liability for past actions. The court’s role as a “truth seeker” requires each adversary to present its best evidence to prove its case. But if the allegations are so old that one party has no evidence to defend themselves, the truth will never be found.
SCR 1 may also fail two other constitutional tests (due process and interrogation). Lawmakers should recognize these weaknesses and no longer make political promises that will not hold up in court.
The bill’s sponsors want to protect children. In fact, current law protects children today by allowing unlimited criminal and civil litigation going back more than a decade.
SCR 1 seeks to right the wrongs of the past, but it does so through selective litigation, not targeting sexual offenders but instead targeting those who no longer suffer the consequences. They are targeting schools and facilities for their mistakes.
Mark Hillman served as Senate Majority Leader and State Treasurer. He is a member of the Colorado Civil Justice Alliance (www.ccjl.org).