Friday, September 21, 2007

Quasi-Libertarian Reflections on Sex, Statutes of Limitations, Evidence, Money, Malleable Memory, and Zealotry

Yesterday and today I was musing about an announcement of a forthcoming (September 25) Oprah-style and politician-studded event at my law school.

The event is styled a "call to action for state & national laws lifting the statute of limitations on sexual abuse victims' lawsuits."

Among the speakers are to be a number of "survivors" -- alleged victims of alleged sexual abuse. These survivors, it appears, are to explain to the assembled law students, lawyers, law professors, and, presumably, reporters -- why remedial legislation is necessary.

Adding their voices to this "call for action" are be two New York State legislators, who also apparently favor the "lifting" of limitations periods for "sexual victims' lawsuits."

Professor Marci Hamilton, it appears, is to be the principal speaker at the event and it appears that she is the principal organizer of the event. She is identified as a visiting professor at Princeton University (and there is also an allusion to her status as a faculty member at my law school, Benjamin N. Cardozo School of Law, Yeshiva University). The announcement also states that Prof. Hamilton serves as "legal advisor to victims of sexual abuse in several noteworthy cases around the country."

Indeed, I am given to understand that prof. Hamilton is the principal legal advisor to SNAP, the "Survivors Network of those Abused by Priests." Via brief GOOGLE-ing I discovered that SNAP holds annual conferences. A SNAP web page states that the expected benefits of the 2008 conference include a "great opportunity to network with survivors and supporters, learn, heal, and visit the sites of beautiful Chicago!" (emphasis in the original text).
Professor Hamilton, the "call to action" announcement recites, is to "talk about the growing national grassroots movement for legislation" and about her book which, the announcement recites, "identifies (the proposed legislation's) rather surprising opponents."
One assumes that Prof. Hamilton was surprised by the identity of the opponents rather than by their behavior. Which opponents were unexpected, I wonder. Civil libertarians? Did Professor Hamilton expect that only sexual predators would oppose her legislative proposals?

For aught that appears from the announcement of the "call to action" event, the sought-for remedy is abolition of all statutory limitations on the time within which civil actions for sexual abuse must be commenced -- rather than merely an expansion of the the time period within which civil actions for sexual misconduct must be commenced.

So the aim of the campaigners is to allow civil actions for wrongful conduct regardless of how much time has passed since the alleged misconduct? Do the campaigners want to allow civil actions to be brought, say, ten years after the alleged abuse? Twenty years? Three decades? Four? More? Really?

Are the campaigners indifferent to the dangers of claims based on long-distant events? Or did they consider the possible dangers and conclude only after due deliberation that the benefits of allowing lawsuits based on very old transactions are outweighed by the benefits?

As I thought along these lines, I became a bit less professorial in my thinking at this point; i.e., my mind wandered. I thought to myself: "These folks -- these campaigners -- evidently believe in a zero tolerance policy towards sexual predators and wrongdoers of like ilk. Do they therefore think that any price is worth paying and any risk, worth taking for the sake of vindicating the claims of victims of sexual abuse?" As I thought this thought, Senator Barry Goldwater's dictum came to my mind: "Extremism in the defense of liberty is no vice." Perhaps this saying should be modified to say this: "Zealotry in the pursuit of justice is no evil." (Or something like that.) So I wondered: Are the "call to action" campaigners zealots? (One important duty of a lawyer, it used to be said, is zealous representation of the client.)

The original zealots were apparently Zealots, who were a faction of Jews in the first century C.E. who waged a fierce military struggle for independence from Roman Imperial rule. This campaign ended with the sack of Jerusalem in 70 C.E. See Henry Chadwick, The Church in Ancient Society: From Galilee to Gregory the Great pp. 6-7 (Oxford University Press, 2001).
So, to summarize the point toward which I am slithering, is it possible that the real theory of the campaign for justice for survivors of sexual predation is fairly simple and straightforward: the only important thing is to nail those &%$*%% (alleged) miscreants -- and if a lot of eggs have to broken to make this omelette, so be it?

That's the way I was thinking. But then I regained self-control of my mind. I decided to do a brief internet search. Here is what popped up first: a Denver Post newspaper article reporting that the Colorado Supreme Court had rejected the attempt of the Roman Catholic Archdiocese of Denver to intervene in a civil action and terminate a lawsuit against two priests (one of them now dead) for sexual abuse -- alleged sexual abuse -- that occurred (if it did) forty (40) years ago. See Electra Draper, "Sex abuse lawsuits proceed," Denver Post p. B-2 (September 14, 2007).

I assume that the dead priest's estate became the defendant in the lawsuit against that priest. But this led me to wonder: How good is that dead priest's memory now of forty year-old events?

Prof. Hamilton reportedly said of the Colorado Supreme Court's ruling: "Gradually, more judges are realizing that children can't recognize and report sex crimes immediately. The survivors of these heinous crimes need time to understand and overcome their trauma." Id.

Well, that's an interesting thought, for at least a couple of reasons.

The first interesting thing is the notion that it takes some alleged victims forty years (sometimes more?) "to understand and overcome their trauma."

Another interesting thing is that these particular survivors managed "to understand and overcome their trauma" after forty years and not, for example, after twenty, thirty, or fifty years. In this instance this was rather convenient timing for the plaintiffs. Is it impertinent to ask what opened the minds and emboldened the hearts of these survivors at this particular time -- rather than at some other time? Is it possible that the prospect of a substantial financial recovery did so? Is it therefore possible that the supposed recovery of allegedly long-suppressed memories of many supposed victims is not a genuine recovery but is the result of invention or the formation of honestly-held but false beliefs and memories that are caused by the hope of gaining a very substantial financial benefit? (If you don't think so, I would like to sell you a well-known bridge at a very reasonable price.)

A spokesman for SNAP dismissed the Denver Archdiocese's effort to terminate these lawsuits as being belated with these words: "It's sad every time a Catholic bishop tries to exploit legal technicalities to protect himself from tough questioning in court." I thought to myself: "The gall of the Denver Archdiocese! To invoke a plausible legal defense -- a defense that if recognized might even serve, on balance, to reduce rather than increase miscarriages of justice! Let's keep such technicalities out of our courtrooms and out of our law, no?"

The Denver case reminded me of the Massachusetts case in which a Massachusetts federal trial judge allowed a female plaintiff to commence a civil action against her cousin for allegedly sexually abusing her 47 years earlier, when she was a young woman. See Shahzade v. Gregory, 930 F. Supp. 673 (D. Mass. 1996). The plaintiff was 68 years old and her cousin was even more elderly when she commenced her lawsuit. Judge Harrington denied her cousin's motion for summary judgment. He had argued that plaintiff's civil action was barred by the applicable Massachusetts statute of limitations. Judge Harrington disagreed. See "Time and Justice in Massachusetts," August 25, 2002. (Harrington's theory was, roughly, that the plaintiff's impaired or turbulent emotional state might have prevented her from adequately appreciating the abuse that she had intellectually believed for quite some time had happened.)

There is no doubt -- or very little doubt -- that memory degrades over time. And I think few reasonable people would disagree that memories often degrade severely, or even vanish, over a period of decades -- and this is true even of memories of events that are important to the person who has them. Thus, the argument in favor of generally barring litigation about very old claims is a strong one. (Exceptions might be made, I would suppose, for situations in which it could be shown that the strength of the evidence does not depend on human memory. The advisability of this sort of exception, in any event, might be worth studying.) Perhaps the main obstacle to the argument against the elimination of legal rules that bar claims dependent on decades-old memories is the fact that in most or all states there are no limitations periods for murder charges. But it's not self-evident that this fact proves, or even strongly suggests, that the elimination of limitations on the bringing of other kinds of charges or claims is the prudent and just thing to do.

I am aware that by making the comments I make here I am in some danger of being put in unsavory company; I am aware that some observers will think that Tillers sympathizes with sexual predators. In response I say this: Not so long ago -- in the mid-1980s onwards and in the early 1990s -- legions of people were criminally prosecuted for allegedly abusing large numbers of children in child care facilities. Despite the inherent implausibility of many of the events and criminal acts that were said to have transpired in such cases ("mass child-care abuse cases," they might be called), many people so accused were convicted, even when they had very good lawyers. Yet only a decade later almost all of those convictions were overturned (at least in those cases in which the defendants had insisted on trials and had refused to plead guilty), and it is now almost universally conceded that almost all of those defendants were improperly convicted and were innocent. I fear that the burning desire to obtain redress for victims of sexual abuse and to wreak vengeance on sexual predators will once again victimize many innocent defendants. The experience with the child care cases of the 1980s and 1990s suggests that my fear is not unfounded. Excessive zeal in the pursuit of a good cause is not a virtue; it is in fact dangerous.

Post a Comment