August 4, 2023
by John Kaempf

How to possibly get an unjust lawsuit based on decades-old alleged child sex abuse dismissed, even if your state repealed or extended the statute of limitations.

Many churches, religious schools, and other religious entities continue to be sued for child sex abuse allegedly committed by employees and volunteers.

The good news is that sustained efforts by churches and religious schools in recent years to prevent children from being sexually abused—including implementation of a “two deep” policy—never allowing one child to be alone with just one adult—have been very effective in preventing abuse. But lawsuits involving alleged events decades ago continue to be filed.

And once an alleged abuser is publicly identified, there are typically multiple other alleged victims who come forward and also then bring additional lawsuits.

And child sex abuse lawsuits also keep increasing in part because some states recently abolished or greatly extended the statute of limitations. And many more states are in the process of possibly doing that. They include Pennsylvania, Michigan, Maryland, Maine, Massachusetts, Rhode Island, Vermont, and Washington State.

So, the stakes are very high, and these cases are not going away.

With the statute of limitations removed, religious entities are now faced with child sex abuse lawsuits often involving alleged events that occurred decades ago, sometimes even as long as 40 to 50 years ago. This is very unfair to a religious entity defendant. That is because often the alleged abuser died, and thus cannot defend himself, or his former employer. And often, other key witnesses died or cannot be found; memories fade or are lost; and other important evidence, such as documents, is forever lost.

But religious entities can still assert successful defenses to child sex abuse lawsuits. That is because legal defenses to these claims still exist. And they can result in these cases being dismissed before a trial, thereby keeping your church or religious school financially afloat.

If your organization is faced with a child sex abuse lawsuit because of a repealed or extended statute of limitations, it is important to remember state constitutional defenses to such decades-old claims.

These defenses include the clause in many state constitutions prohibiting such “retrospective” or “retroactive” laws. And such laws may also violate your state Constitution’s “due process” clause.

As one example, this year, the Colorado Supreme Court, in a case called Aurora Public Schools v. A. S., dismissed a child sex abuse lawsuit brought by a former high school student. She claimed sexual abuse by a teacher from 2001 to 2005. She sued in early 2022 based on a new Colorado statute. It allows all such claims to be filed during a 3-year “lookback window,” regardless of when the alleged abuse occurred.

The Colorado Constitution (like many other states) prohibits its General Assembly from passing any law “retrospective in its operation.” The Colorado Supreme Court held that the new child sex abuse “lookback window” statute is an “unconstitutional retrospective” law. So, it dismissed the case. That is because the Colorado statute “creates a new cause of action for conduct that predates the enactment of the new law, and for which any previously available claims were time-barred before the law was enacted.” The court also stated: “Our constitutional form of government has inherent costs; namely, the limitations it places on the General Assembly’s ability to act in ways it deems to be in the public interest. But the people of this state determined that such constitutional limitations on the legislature’s power were necessary to prevent the legislature from encroaching on certain rights they considered to be crucial to a flourishing society.” The Colorado Constitution’s “prohibition on retrospective legislation ensures that people have notice of the consequences of their actions before they act—a foundational component of due process.”

The Colorado Supreme Court further noted that “without question, sexual abuse causes severe physical, psychological, and economic harm both to the victims and their loved ones, and its destructive impact can last long after the abuse has ended.” And this may “prevent many victims of sexual abuse, especially those who were children when the abuse occurred, from acknowledging the abuse they suffered or the harm it caused them until much later in life. We certainly understand the General Assembly’s desire to right the wrongs of past decades by permitting such victims to hold abusers and their enablers accountable. But the General Assembly may accomplish its ends only through constitutional means.” Thus, the Colorado Supreme Court held the new child sex abuse statute of limitations “unconstitutional as applied to the plaintiff’s claim in this case.”

Therefore, it affirmed the trial court’s dismissal of the case before trial as untimely.

Also, many state appellate courts recognize that lawsuits filed based on a new law that abolishes or extends the prior statute of limitations after a claim became time-barred under the prior statute are improper. That is because a defendant has a common law “vested right” in a lawsuit being forever barred by a prior statute of limitations that a new one can never take away.

As one example, in 2020, the Utah Supreme Court, in Mitchell v. Roberts, applied the “vested right” doctrine to a civil case where the female plaintiff, when she was 16 years old, was sexually abused by the defendant in 1981. Plaintiff “concedes that each of her claims against Roberts had expired under the original statute of limitations.”

Instead, she relied on a new statute that, among other things, allows a child sex abuse victim to sue until they are 53 years old. The court held that, under the Utah Constitution, the plaintiff was not allowed to rely on the new and extended statute of limitations. And that made her lawsuit untimely. It held that the “legislature lacks the power to retroactively vitiate a ripened statute of limitations defense under the Utah Constitution.”

Like the Colorado Supreme Court, the Utah Supreme Court stated that it appreciates “the moral impulse and substantial policy justifications for the legislature’s decision to revive previously time-barred claims of victims of child sex abuse. Child sex abuse is a massive national problem whose devastating effects often span a lifetime.” But “the question presented to us, however, is not a matter of policy. We are asked to give voice to the limitations on our government established in the Utah Constitution.” And “we have long articulated it as a hard limitation on the legislative power —a clear prohibition on legislative attempts to vitiate vested rights.” And “for well over a century, we have specifically held that a defendant acquires a vested right in the statute of limitations defense once the limitations period [under the prior statute] has run.”

So, while a state abolishing or greatly extending the child sex abuse statute of limitations may lead to many new lawsuits—and religious entities are a big target—these lawsuits can possibly be dismissed before a trial for the legal reasons summarized above.