Matthew T. Mangino

Pennsylvania Attorney General Josh Shapiro's bombshell grand jury report on sex abuse of children by priests in six Pennsylvania dioceses has been met with universal derision and unrelenting criticism of  the Catholic Church.

As the furor toward the church continued the attorney general told “CBS This Morning,” “Because of the sophisticated cover-up, because of the efforts that went through the bishops stretching all the way up to the Vatican, they shielded these predator priests from the arm of the law.”

The shield has been provided by the statute of limitations. The public, advocates for victims of predatory sexual crimes and victims themselves are incensed that an accepted legal tenant can keep prosecutors and plaintiffs from holding 299 out of 301 priests named in the grand jury report from being held accountable.

Concern over a statute that can bar a claimant from raising a viable claim for recompense is not new. Over a century ago, Justice Oliver Wendell Holmes Jr. asked in a Harvard Law Review article, “What is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time?”

Pennsylvania has grappled with the statute of limitations and child sex abuse. Last term, H.B. 1947 proposed eliminating the statute of limitations for criminal prosecutions and expanding the civil statute of limitation for a victim abused as a child to age 50. The sticking point has been creating a retroactive window to all victims to look back and seek damages for abuse committed beyond the current statute of limitation.

The current statute provides for criminal prosecutions until the victim's 50th birthday and within 12 years of turning 18 years of age to pursue a civil claim. The statute of limitations can also be extended if DNA evidence becomes available and is used to “identify an otherwise unidentified individual as the perpetrator,” 42 Pa. C.S.A. Section 5552 (c) (3).

Some senators and the hierarchy of the Catholic Church suggest that the Pennsylvania Constitution, Article I, Section 11, known as the Remedies Clause, prohibits the General Assembly from eliminating certain fixed rights, including the right to assert an established defense.

At a public hearing in 2016, Bruce Castor, at the time Pennsylvania's solicitor general, testified, “House Bill 1947, if enacted into law in its current form and without amendment will, in our opinion, violate the remedies clause of the Pennsylvania Constitution.” Castor continued, “Potential defendants, who have had the statute of limitations pass without their being subjected to suit, will rightly claim a vested right in the applicable statute of limitations.”

Castor and others were concerned that a retroactive statute of limitations would infringe on a vested right already afforded individuals accused of harming a child. Those accused individuals can rely on the protections of the statute of limitations and to take that right away would violate Pennsylvania's Constitution.

Is creating a window to seek compensation for damages for a specific group of victims the important question here?

The sexual abuse of children is a reprehensible and cowardly act—a heinous crime whose perpetrators deserve no mercy. State Rep. Mark Rozzi, D-Berks, a tireless advocate for child victims and the sponsor of legislation to expand and eliminate the statute of limitation posted on his legislative website, “One in four girls and one is six boys in your district have been sexually abused before the age of 18. Only one in 10 will ever tell. You probably interact with survivors every day … I too, am a victim of child sexual abuse.”

There is a purpose behind the statute of limitations. The statute, or some version of it, has been around since antiquity. There has long been a concern that individuals should not be forced to defend themselves years and years after an event that allegedly caused harm to another person.

As time passes memories fade, potential witnesses disappear or die and evidence spoils. An individual that is accused of a specific act that occurred on May 1, 1988, may have recalled his whereabouts in 1990 or even remembered where he was and who he was with 10 years later. But, what is the likelihood he can remember that specific day 30 years later?

Certainly fairness to an alleged victim is extremely important—but is it not the only factor?

Before we throw out the statute of limitations, let us look at the reasons that it has been around for so long.

Santa Clara University professor Tyler T. Ochoa and Judge Andrew Wistrich in “The Puzzling Purposes of Statutes of Limitation,” suggest that the statute of limitation reduces uncertainty. A person accused of a crime should be able to rely on the law and make decisions based on the law as it currently exists. If the legislature wants to abolish the statute of limitation for the crime of sexually abusing a child, then all people know, or should, know the law.

Ochoa and Wistrich contend that the statute of limitations prevents fraud. “The deterioration of evidence may make it more difficult to decide claims correctly, limiting the time within which actions can be filed may help to check the temptation to resort to fraud in filing or litigating,” 28 Pac. L. J. 453 (1997).

The authors continue, “This purpose rests on the premise that the longer the gap in time between the events at issue and trial on the merits, the more vulnerable the defendant is to spurious claims. It has two aspects: first, to prevent fraudulent claims from succeeding; and second, to prevent the use of fraudulent evidence in support of nonfraudulent claims.” Another words avoiding the dangerous idiom, “the end justifies the means.”

The statute of limitations also preserves the integrity of the legal system. “Courts do not want to be perceived to be haphazard guessers about facts. Not only would this be demeaning to the legal system, but it would breed disrespect for the political system as well,” 28 Pac. L. J. 453 (1997).

There will be a battle in the General Assembly.

Senate Bill 261, approved by the Senate 48-0, would eliminate the statute of limitations for child sex crimes and gives victims until the age 50 to file civil actions against their alleged abuser.

House Bill 612 would eliminate the criminal and civil statutes of limitations for child sex abuse and would allow for a two-year window to pursue a civil case were the statute has already expired.

Attorney General Shapiro recently told PennLive.com that he favors the creation of a retroactive window for sex abuse victims to bring civil claims. He said, “It's the reforms as a whole—including the civil window, ending any age-based deadline for bringing criminal prosecutions of child sexual abuse, and clarifying state law on the duty to report child abuse—are needed to prevent these types of widespread abuse and cover-up from ever happening again.”

The rage over the grand jury report and the Catholic Church is palpable. There was also rage over Bill Cosby and the Penn State/Jerry Sandusky scandal—yet the debate continues.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner's Toll, 2010″ was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.