Reforms Making It Easier to Sue Child Abusers Are Running into Due Process Concerns

UPDATE: On June 20, 2023, the Colorado Supreme Court affirmed the district court’s ordering granting the defendants’ motion to dismiss. The court held that the individual defendant in the case had standing to challenge the Child Sexual Abuse Accountability Act (CSAAA) under the state constitution’s Retrospectivity Clause. It then held that the law violated the clause as applied to conduct that predates the passage of the act and for which previously available claims would be time-barred, because in such instances the CSAAA imposes liability for past conduct for which defendants would not otherwise be liable.

In many states, victims of child sexual abuse are barred from seeking justice against their abusers. This is despite psychological, developmental, and social science research finding that survivors of child sexual abuse are unlikely to disclose abuse during childhood, and only between 5 percent and 13 percent of victims ever report their abuse to authorities.

As part of a growing national movement to eliminate statutes of limitations that impose time limits on a survivor’s ability to expose perpetrators and seek compensation for a lifetime of harm, Colorado enacted the Child Sexual Abuse Accountability Act of 2022. The law allowed survivors to file claims not only against their abusers but also institutions that knew or should have known about their abuse and failed to take any protective action. But drawing on what has become a national playbook, defendants and tort reform groups claim these “lookback” provisions violate state constitutional due process protections.

While sympathetic to survivors, several justices of the Colorado Supreme Court voiced concern during an oral argument in April over one of two questions before the Court: whether applying a newly created cause of action to conduct that occurred prior to the creation of the cause of action violates the Colorado constitutional prohibition against laws that are retrospective in operation. The plaintiff in Aurora Public Schools v. Saupe, who alleged extensive child sexual abuse at the hands of a high school teacher and coach on school premises, filed a claim under the new law nearly 22 years after her abuse began at the age of 14.

Many states, such as Georgia, have adopted the reasoning set forth by the U.S. Supreme Court in Chase Securities Corporation v. Donaldson that retroactive statutes of limitations violate due process under the 14th Amendment only if they create “special hardships or oppressive effects” because these time limits have “never been regarded as what now is called a ‘fundamental’ right.” Other states, such as Utah, have found that their state constitutions provide greater protection by providing defendants a vested right in civil statutes of limitations.

In Colorado, whether the Child Sexual Abuse Accountability Act’s two-year period to file expired abuse claims — known as a lookback window — violates the state constitution depends on the high court’s interpretation of the Retrospective Clause. During a recent phone call, Angelica Saupe’s lawyer Robert Friedman explained that under Colorado’s Retrospective Clause, a law is unconstitutional where it is “retroactive and it unconstitutionally affects substantive rights . . . But in determining whether it impairs substantive rights in a prohibited manner, the Colorado Supreme Court will balance the extent to which affected individuals’ reliance interests are harmed with the public interest in retroactivity.”

At oral argument, Friedman emphasized that the public interest in retrospectively extending the time limit for child sexual abuse claims is greater than a defendant’s reliance on the previous statute of limitations. First, cases of child sexual abuse present unique barriers preventing the child from bringing suit, such as “fear of retaliation or ostracization.” And child sexual abuse causes extensive short- and long-term consequences well beyond physical injuries, such as depression, anxiety, post-traumatic stress disorder, substance misuse, and increased risk of suicide and early death.

Importantly, lookback windows promote the public good by exposing hidden predators, punishing bad actors, and saving states and taxpayers money by shifting the burden of the social, psychological, and economic effects of abuse from victims to those bad actors. As explained by Kathryn Robb, executive director of Child USAdvocacy, lookback windows prevent future abuse by educating the public about the prevalence of abuse — estimated at around 1 in 10 children — and by forcing institutions that knew or should have known about abuse to make meaningful changes. “When do institutions pay attention? When they get sued. When they know there’s a potential liability. That’s when they’ll change policies and procedures,” she said.

Defense and tort reform organizations counter that revival statutes unconstitutionally impair the vested rights of and create new duties for defendants. The American Tort Reform Association argued in its amicus brief filed in a case pending before the North Carolina Supreme Court that retroactive laws impermissibly “reopen the courthouse doors to stale claims in which records and witnesses are no longer available” and that such legislation “significantly undermine[s] due process,” thereby preventing organizations from “properly evaluat[ing] liability risks” by “subject[ing] entities to a risk of indefinite liability.”

If the Colorado Supreme Court finds that the Child Sexual Abuse Accountability Act impermissibly impairs the defendants’ vested rights or imposes new duties, survivors and their supporters may have to seek to amend the state constitution to provide access to justice for those whose claims were barred as of January 1, 2022 — the statute of limitations for abuse committed after the enactment of the new law was eliminated under the legislation. But, as emphasized in Saupe’s brief, “teachers have always been prohibited from sexually abusing children and school districts have always had a duty not to ignore such abuse.” And as aptly stated in Saupe’s brief, quoting case law going back to 1819, there is no such thing as a vested right to do a wrong.

Emma Hetherington is a clinical associate professor at the University of Georgia School of Law and director of the Wilbanks Child Endangerment and Sexual Exploitation Clinic.