Limits on sex abuse suits set for debate

Delaware House to consider proposal on Tuesday


  Sen. Karen Peterson,
is the lead
  sponsor of Senate Bill 29.

By BETH MILLER, The News Journal

Posted Monday, June 18, 2007

The debate about how long -- and under what circumstances -- a victim of child sexual abuse can sue in Delaware returns to Legislative Hall this week.

Senate Bill 29 would eliminate the civil statute of limitations and open a two-year window during which cases previously barred by the state could be filed.

The bill is scheduled to go before the full state House on Tuesday afternoon with several amendments pending.

On one side of the debate are those eager to give victims of child sexual abuse barred by the current statute of limitations their day in court. Some mental health experts have said victims can bury the abuse memories to survive, a theory that has opened a legal door to the possibility that abuse may not be reported until years after the statute of limitations has expired.

On the other side are those who worry lawsuits involving decades-old allegations could financially ruin churches, youth groups and other child care agencies. They are jarred by the scope of the scandal that has emerged in the Catholic Church since 2002 and, closer to home, by a recent $41 million federal jury verdict against a priest accused of sexually abusing an Archmere Academy student.

A sharp dispute remains between the two lawmakers who have sponsored bills to change the statute of limitations. State Sen. Karen Peterson, D-Stanton, the lead sponsor of S.B. 29, and state Rep. Greg Lavelle, R-Sharpley, the lead sponsor of last year's bill, which died at the end of the legislative session, disagree on whether the state's "sovereign immunity" should protect state agencies from sexual abuse lawsuits.

But everyone seems to agree about one thing: Delaware's two-year civil statute of limitations must change in cases in which minors have been sexually abused.

Diocese worries about impact

This month, the Catholic Diocese of Wilmington backed away from its previous opposition to eliminating the statute of limitations. A statement in the June 7 edition of the diocese's newspaper, The Dialog, says diocesan officials want S.B. 29 amended to remove sovereign immunity coverage for state institutions, and they want the scope of old cases allowed during the two-year window limited, perhaps to the abuser only.

Diocese attorney Anthony G. Flynn has told lawmakers the diocese would feel the impact of S.B. 29 more than any other institution and warned that its ministries could be affected by a provision allowing old cases to be tried retroactively. The diocese has drafted an amendment to limit the bill's retroactive reach to 1987 -- the same year adopted when Delaware's criminal statute of limitations was changed several years ago.

When California changed its statute in 2002, lawmakers included a one-year "window" during which previously barred claims could be filed. More than 1,000 suits were filed, some alleging abuse that occurred more than 50 years earlier.

Flynn said the impact on ministry in other dioceses is "undisputable." Diocesan staffs have been cut to settle claims, he said, and programs have been cut back.

The Spokane (Wash.) Diocese, for example, recently filed Chapter 11 bankruptcy as part of its plan to pay $48 million in old claims of sexual abuse. Of that total, Flynn said, $20 million would come from insurance, $11 million from the diocese selling property, $6.5 mil- lion from affiliated organizations and $10 million from parishes. Settlements to 176 claimants would average $270,000, he said, ranging from $15,000 to $1.5 million.

"Would that happen here? It's impossible to predict," Flynn said. "It depends how many cases there are. But I think we'll get quite a few. ... The church owes its victims and has an obligation to dedicate resources to compensate them appropriately. But it is undeniable the legislation will affect the ability of the diocese to provide ministry at current levels."

The Rev. Thomas Doyle, a Dominican priest, attorney and author, has worked with hundreds of victims and with accused priests. He spoke in support of S.B. 29 to the Delaware Senate in April, and is expected to speak before the state House this week.

"There have been no negative effects on church parishes, ministries or charitable activities as a result of any sexual abuse cases anywhere," Doyle told state senators. "The true reason for the bankruptcy filings has not been for fear of impending financial disaster. It has been to temporarily stop the trial and discovery processes, which would have resulted in the revelation of very embarrassing and incriminating information."

Flynn said the diocese has acknowledged about 55 victims of sexual abuse by its priests, and said that no matter what happens with S.B. 29, the diocese will continue to pay for medical treatment and counseling for those victims who seek it.

State's liability at issue

The dispute between Lavelle and Peterson over sovereign immunity relates to the state's exposure to lawsuits in the future.

As drafted, S.B. 29 requires plaintiffs to prove "gross negligence" to be able to sue private or public institutions during the two-year window for old cases. Going forward, though, Peterson's bill would allow the state to maintain the protection of sovereign immunity, preventing it from being sued in most situations.

Lavelle and diocesan officials want the bill amended to remove the state's sovereign immunity, so in the future public schools and juvenile facilities are treated the same as churches and other private and nonprofit facilities. Sovereign immunity does not prevent suits against people who work for the state.

Peterson says any changes to the state's sovereign immunity should be done in some other legislation.

Attaching that issue to this bill could derail it and postpone an urgently needed statute change, she said.

Lavelle said state agencies have oversight of thousands of children on a regular basis, and there is no reason to delay a change in the law to allow them to sue the state if they are abused by a public employee, such as a teacher.

"If you're going to have a significant change in law to protect children and force institutions to do the right thing, to immediately disclose improprieties and make sure criminal background checks take place, why would you exempt the state?" Lavelle said. "We're talking about sexual abuse, access to the courts, discovery. With all these things we talk about, why it wouldn't be applied evenly still eludes me."

Rumors that such a bill could cost the state $18 million caused lawmakers to balk last year. This year, the fiscal note attached to the bill and Lavelle's amendment was a maximum of $200,000.

Doyle, the priest and attorney, said changing the statute of limitations is essential to real change in both the private and public arenas.

"The experience with the Catholic Church has proven this denomination and other denominations as well as other private and public institutions will only change when forced to do so by a power greater than themselves -- and that power has been the media, public opinion and especially the U.S. legal system," he said.

Contact Beth Miller at 324-2784 or