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Where Does Reform Currently Stand on Sexual Assault Statute of Limitations?

bio pic of abbie troneStatute of limitations dictate the maximum amount of time after an incident for an individual to bring forth legal proceedings.  As lawyers, we are trained day-in and day-out to be cognizant of that specific date, whether it comes in one year, two years, four years, and so on.  But, another group of Pennsylvanians are also intimately familiar with those three words, and how final they can be – survivors of sexual assault.

While the statute of limitations for sexual assault in Pennsylvania has been of major concern for years to survivors and their advocates, it did not draw public attention until the release of the two-year (2016-2018) grand jury investigation into widespread sexual abuse of children within six dioceses of the Catholic Church.  In 2018, at the time of the release of the grand jury report, if sexual abuse had occurred below age 18, the victim would have until the age of 30 to bring a claim.  Adult sexual abuse, that is if the assault occurred when the victim was 18 years old or older, the victim had 2-years from the date of the assault to file a claim.  You might ask why this is not enough time?  Why do these victims need more time to bring claims than say, your client that was injured in a motor vehicle crash?

The answer is really two-fold.  First, the science is clear that it takes years, even decades, for victims of childhood sexual abuse to come forward and report the crimes. Studies show that the average age when victims disclose their abuse is 52-years old. According to the Pennsylvania Coalition Against Rape (PCAR), 12.3% of female victims of rape were first assaulted when they were 10 years old or younger, and that percentage rose to 27% for male victims.  Often, the perpetrator is in a position of power over the minor, or the minor is dependent on them.  In fact, 37% of abusers are biological parents, and 23% are non-biological parents or parents’ partners.  Also, minor victims are often incapable of fully processing the trauma for years after it occurs.  In fact, less than one victim in 12 will eventually ever disclose their abuse. The second reason is for the benefit of the public. Permitting additional time for cases to be brought against the perpetrator could potentially shift the costs of the victim’s treatment from the public or victim, to the wrongdoer, and prevent additional assaults by exposing the perpetrator earlier. 

Following the grand jury report, a new wave of momentum pushed Governor Wolf to sign into law a package of four bills on November 26, 2019.  Those bills were HB 962, HB 963, HB 1051, and HB 1171.  HB 1051 provides that if a person willfully fails to report a child abuse suspect, they can be charged with a third-degree felony instead of a misdemeanor.  HB 1171 prohibits non-disclosure agreements that prevent victims from reporting to law enforcement.  HB 962 extends the civil statute of limitations for child victims (under the age 18) to age 55 and removes the sovereign and governmental immunity protections.  Those who were victimized between the ages of 18-23 now have until the age of 30-years old to file a civil claim.  The caveat to this being that the claim must have been viable on the effective date (November 26, 2019) to get the benefit of the new statute of limitations.  That means there is no “look back” window for claims that had already expired.  It also abolishes the criminal statute of limitations for children only. 

HB 963 included a proposal for a constitutional amendment.  The amendment would open an additional 2-year retroactive window of opportunity for child victims that were previously time-barred.  For the constitution to be amended, the bill would need to be approved by both chambers for two consecutive legislative sessions.  The 2-year window was first passed in the 2019-2020 session and was again passed in the 2020-2021 session.  The goal was to get this to the voters in May 2021; however, before a question can appear on a ballot, the Pennsylvania Department of State is required to publicly advertise the proposed change with advertisements in two newspapers in each one of Pennsylvania’s 67 counties. 

What happened next will likely never be forgiven by sexual assault survivors, nor forgotten by Pennsylvania voters.  Due to an administrative error, the Department of State failed to advertise the proposed amendment, therefore disqualifying it from the May 2021 primary vote.  This error led swiftly to the resignation of the department’s chief, Kathy Boockvar, and an apology from Governor Wolf for a mistake that he deemed a “human error.” 

After this error, leaders in both chambers moved for an emergency constitutional amendment.  An emergency constitutional amendment only has to pass in one legislative session, as compared to the two required sessions for a traditional amendment.  It can then appear on the ballot so long as it had obtained two-thirds majority support in both the House and the Senate.  Senate Majority Leader Kim Ward later released a statement that her caucus did not believe the matter rose to the level of an emergency.  Emergency constitutional amendments are only used when something is about to threaten or is currently threatening the safety and welfare of the commonwealth.

This leaves two paths for sexual assault victims: (1) restart the clock on the constitutional amendment, or (2) try and get the 2-year window approved through regular legislation. The latter option was explored in 2018 and died when the legislative session ended in 2018 when GOP Senators argued that making a retroactive change to state law would violate the remedies clause of the Pennsylvania Constitution.  When the legislature returned in 2019, a compromise was negotiated:  pass the 2-year window as a constitutional amendment. Currently, the most certain path to achieving the 2-year window for survivors is to wait for the constitutional amendment to make its appearance on the ballot, which won’t be possible now until 2023.

It is important as attorneys that we know how to educate victims on where reform of the statute of limitations currently stands, and where it might go in the future, even if you don’t specialize in that specific area of law.  Every attorney in the Commonwealth should be paying attention to where the next two years takes this reform, so they may appropriate refer, advise, and advocate for these victims.

Reprinted with permission from the September 30 2021, issue of The Legal Intelligencer. © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.