California Makes a Bad New/Old Law

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I’ve voted two times against giving people who rape children the death penalty.

I authored a bill to put them in prison for life without parole.

That pretty much sums up my attitude toward people who sexually abuse children. I don’t want to kill them, but to say I have no use for them is an understatement.

I’ve also written several times about the clergy sex abuse scandal in the Catholic Church.

I point to all these things now in hopes of forestalling what I am guessing will be a hailstorm of negative reaction and wild accusations because of what I’m about to say. I think the new California law temporarily erasing the statute of limitation on child sexual abuse is a bad law. I would have voted against it.

The new statute I am talking about passed both houses of the California legislature a few weeks ago. It is now on the governor’s desk, waiting for his signature to become law. The law is clearly aimed at the Catholic Church. It exempts public schools and and other government institutions, as well as the child abusers themselves. It also repeats something California has already done once, which is to rewind an old law and essentially erase the statute of limitations on old sexual abuse cases.

Here are the reasons why I think this is a bad law.

Rewind

1. It is a dangerous practice to make people retroactively guilty. Change the law going forward, if you want. But don’t go back and re-write laws in the past to find people guilty of things they wouldn’t be guilty of under the laws as they were at the time they committed the crime. The situation in the new California law is a shade of that practice (which is unconstitutional on its face) since what we are talking about is re-winding the statutory time in which a crime can be punished, in this case, by civil lawsuit.

Let’s say, as a for instance, that the statute of limitations on rape is 5 years. Let’s also say that it comes to light that a general in the armed forces participated in the gang rape of several enlisted personnel back when he was a lieutenant. This was decades ago, but he even though he hasn’t participated in any more rapes (that we know of) he is now turning a blind eye to other rapes in the ranks.

One way to get at this monster would be to rewind the statute of limitations (say we do it for one year to give prosecutors a window to get at him) and extend the time rapists can be brought to justice to 40 years instead of 5.

Problem solved, right?

No.

Problem created.

What we would be doing is setting a precedent of selective justice, and worse, selective law-making, to get at one man. We would be declaring open season on anyone that prosecutors and legislative bodies of the future want to take a crack at retroactively. It might not be such an undoubted monster the next time. It could be anybody, including anybody that the special interests who actually write most legislation want to get at.

We could end up with powerful businesses retroactively suing their competitors out of existence with this practice. In fact, given that most legislation is about helping businesses destroy their competition with laws they write themselves and then get their bought and paid for legislators to pass for them, you can bet it would and will happen.

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2. The California law is, as I mention above, aimed at one group of people, in this case the Catholic Church. The practice of writing laws to get at one group of people, no matter who they are, is egregious.

Here’s why.

When we’re going after a group of people most folks think of as the boogeyman, in this case, a huge Church that not only tolerated, but enabled child abuse for a long period of time, it’s easy to decide that any way we can make them suffer is a good way. However, as always happens with these intrusions of the irrational in lawmaking, what begins as a seemingly justifiable exception, soon becomes the unjustifiable norm.

If the legislature can do this once, as they already have in California, then the legislature can do it again. And as with most things, the more they do it, the less outrageous it seems and the smaller the reason required to do it again.

Pretty soon, we’ve got major corporations writing up legislation that specifically limits their competitors or uses the government to control their customers, and doing it by name.

This is actually just the next step in special interest legislation. Special interest legislation of this type takes up almost all of legislative time right now. This is a bit off the subject, but if special interest legislation was eliminated, most legislative bodies in this country could finish their work in about a quarter of the time they spend today.

Courtroom

3. There are better ways to punish long-term miscreants than retroactive laws. Legislators do have to put on their little thinking caps. But it can certainly be done. What they have to do is pass a law that begins when it is signed by the governor and goes forward and that is written for everyone.

Of course, I am guessing that California already has all the laws it needs to deal with child sexual abuse in institutional settings. Those laws just weren’t utilized at the right time. Outrage that child sexual abusers escaped punishment because the powerful abused their power is what fuels the desire to use lawsuits to punish the child abuse enablers now.

But civil lawsuits are a poor way to deal with this problem. People who sexually abuse children should go to prison. I am not talking here about Catholic priests. I am talking about all child sexual abusers. I’ve had some dealings with this in Oklahoma and I can tell you that far too many of these guys skate. There are lots of reasons, but judges who, like Dr Richard Dawkins, just can’t seem to see the harm, are among the primary causes.

I believe that sexual abuse by a priest, or any clergy, is especially egregious simply because the trust people place in their clergy puts them in a vulnerable position vis a vis the clergy. People confide things in their priests that they don’t tell anyone else in the world. This makes them deeply vulnerable to this priest. Sexual abuse, especially of a child, is a horrific betrayal of this trust.

At the same time, I am becoming concerned that we are developing a legal and social double standard about child sexual abuse. Dr Dawkins, as a for instance, engaged in grand-standing talk about arresting the Pope because of the Church’s child sexual abuse scandals. Then, he turned around and tried to take a wink-wink attitude toward child sexual abuse in other contexts.

Dr Dawkins isn’t alone in this behavior.

I agree with giving longer sentences to those in a position of trust, such as counselors, clergy and doctors, who violate that trust in this way. I think that, considering the vulnerability of their patients and parishioners to them, it is appropriate to hold them to a higher standard. However, those higher standards should be statutorily defined, not handed down willy-nilly as vengeance.

I do not agree with a wholesale two-tiered system of justice which singles out Catholic clergy for higher sentences simply because they are Catholic clergy. That is discriminatory on its face.

I think the new California statute is a bad law that sets a terrible precedent. It’s just a matter of time before that precedent ends up being used and abused in ways that none of the backers of the law foresaw or intended.

  • http://abb3w.livejournal.com/ abb3w

    While I have other reasons to consider Dr. Dawkins remarks to be (at the least) reprehensibly minimizing of child sexual abuse, it seems it should be noted that he was doing so in a particular case where he had been one of the abused.

    I agree that what look like ex post facto laws appear, as always, to be a really bad precedent – and furthermore, one from the sound of your description something previously addressed circa a decade ago by the SCOTUS in Stogner v CA. Contrariwise, your discussion misses a key nuance: this is not regarding criminal charges where life or liberty are in direct peril from the state, but rather a civil lawsuit where mere worldly chattels are at stake. As such, the most fundamental precedent would appear to be the 1798 case of Calder v Bull, where it seems to have been held (in Justice Patterson’s concurrence) that “the true construction of the prohibition extends to criminal, not to civil, cases”. I personally consider this a bad ruling; however, from what I can make out (see also ex parte Garland) it would seem that the permissibility of such extensions is solidly stare decisis as a matter of law.

    Nohow, I’m not a lawyer; I may well be mistaken on the status of the precedents.

    • EMS

      CA had already extended the statute of limitations once before and like this one, exempted public schools and similar institutions, despite the fact that there are literally thousands of children in schools who are molested NOW, not decades ago. Of course, victims in the public schools are prohibited from suing those institutions. But the Church and its supposed deep pockets are fair game seemingly forever. And when the year extension ends, I’m sure someone in the Legislature will again bring up extending the statute. Given how long the statute is and the fact that it had already been extended, and given the publicity that’s been generated by the press for many years, I for one would take a rather cynical view of anyone suing under this latest extension.

      • http://abb3w.livejournal.com/ abb3w

        I understand the reason public schools are exempt from suit in state courts is that the schools themselves are considered as part of the state, and thus protected by sovereign immunity — which I also consider a body of legal doctrine of politically dubious merit, but nonetheless clear as any judicial matter gets.

        • Fabio Paolo Barbieri

          I understand the reason public schools are exempt from suit in state courts is that the lawyers who drew up this law for their own advantage don’t think they can screw as much money out of the bankrupt State of California as out of the supposedly cash-rich Catholic Church.

          • FW Ken

            Even solvent government agencies have severe limits on their civil liabilities. That said.you are correct: follow the money.

  • FW Ken

    Long ago I gave up arguing the anti-Catholic angle, mostly because it confirms the real anti-Catholics in their hate and the script that plays out is too predictable. Anyway, I soon realized that the scandals are a blessing for us: a lot of serious housecleaning has been done, and we have been relieved of a good deal of excess money.

    Nevertheless, this law looks to be motivated by an animus to religion in general, and Catholics in particular. By exempting perpetrators but not employers, it certainly appears to go after money, a large amount of which will go to lawyers and possibly some therapies who can uncover “repressed memories”. Hatred or money, it’s a bad law which will encourage claims lacking any substantial provability. Statutes of limitations exist because evidence degrades, witnesses die, and the accused die, no longer able to exercise their own right to due process.

    There are ways to help victims without violating fundamental principles of American law. But if we embrace these cheap measures, we won’t ever use them.

  • http://ashesfromburntroses.blogspot.com/ Manny

    I think you’re right. This was aimed at Catholic priests. Is this law constitutional? Can it be challenged?


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