[A] bill that would remove the statute of limitation for civil suits related to child sex abuse in Vermont — both in the future and retroactively — hit resistance from an unlikely witness in the Senate Judiciary Committee on Thursday: a community resource center in Bennington.
Merrill Bent, an attorney for the Sunrise Family Resource Center, said it supported efforts to hold people accountable for child sex abuse, but believed the bill as written would quickly cause the center to close its doors, punishing the hundreds of community members who rely on its services for education, housing and family support.
“What we want you to understand is that, as written, this is a zero-sum issue for Sunrise, and for many other organizations like it,” Bent told the committee via telephone, along with Denise Main, executive director of the center.
Allegations of sexual abuse were made against an employee at the center in 1988, leading the state’s Human Services Board to conduct an investigation. After holding a hearing with parents, teachers and medical professionals, the board concluded that no abuse had occurred, according to the testimony from Sunrise.
However, in the past two years, three children who were subjects of the investigation in the 1980s filed lawsuits against Sunrise over the same allegations. Bent laid out a scenario in which removing the statute of limitations would expose the center to crushing legal liabilities, leading to bankruptcy and possible closure.
“We are here to emphasize that without a statute of limitations, Sunrise will be required to defend against 30-year-old allegations without the benefit of the contemporaneous evidence that we know based on the Board’s findings would have been exculpatory,” she said in a prepared statement.
“We are not asking that members of the Legislature vote against this bill,” she added. “What we ask is that that the bill be shaped to take into consideration the competing policy interests in order to keep some important protections in place for just such a situation as Sunrise now finds itself in—which is going to be very common should this legislation be enacted as written.”
The bill, H.330, was passed by the House last month. It completely removes the statute of limitations, which is currently set at six years after a person realizes they have been impacted by abuse as a child. It has strong support from survivors of Catholic Church sexual abuse.
Sunrise suggested changing the law to extend the limit only to people who are 30 years old, giving them 12 years as an adult to come to terms with their abuse and take legal action.
How the law would impact abuse at the hands of the Catholic Church came up repeatedly in the committee Thursday morning. Burlington lawyer Jerome O’Neill, who has filed some four dozen priest misconduct claims against Vermont’s Catholic Church in the past quarter-century, told the House last month that most child abuse victims are well older than 30 when they finally bring legal action against their abusers and those who enabled them.
“The shame and the fear and the unwillingness to kind of delve into it themselves and deal with it, is such that the average age that people are really ready and able to delve in and deal with it is in their 40s,” he said on March 6.
The retroactivity of the proposed law would also impact the insurance market for institutions and entities that care for children, according to Kevin Gaffney, deputy commissioner in charge of the insurance division at Vermont’s Department of Financial Regulation, who also testified Thursday.
Gaffney said such entities would likely have their insurance plans changed to exempt child abuse from coverage, or they might be forced to look to specialty insurers or create custom insurance plans that can cover the breadth exposure to child abuse claims without legal limitations. He also said that determining which insurance companies were on the hook for incidents that occurred decades ago could be tricky.
“I unfortunately, am an insurance geek,” Gaffney said. “So I know who my insurance carrier was in 1984. But, but most people wouldn’t know.”
Depending on the insurance plans entities had at the time of the alleged abuse, and what plan it has when a lawsuit is brought, Gaffney said the legal costs could be covered by one or the other, or neither.
Sears said Sunrise’s situation left the committee with lots to think about. “Well, I don’t have any other questions,” he said at the end of their testimony, “but you certainly have muddied the water a little bit on what was a simple little House bill.”
Committee members — who appeared to be unanimous in support of the bill’s intent — said they would consider five questions as they continue testimony next week, before revising the bill and sending it to the Senate floor.
• How should “entity” be defined in the bill? Sen. Joe Benning, R-Caledonia, asked whether a two-person operation with he and a secretary would be considered an entity, according to the bill.
• Should entities that employ an alleged perpetrator be subject to a different statute of limitations than the perpetrator? Sears signaled that he wanted both to have no limitations, noting that he did not want the Catholic Church to escape accountability.
• Should entities be held to a “negligence” or “gross negligence” standard under the bill? The House bill as introduced had the higher standard of “gross negligence,” but that was changed to “negligence” by the House Judiciary Committee.
• Is retroactively removing statutes of limitations even constitutional? Sunrise suggested it was not, however legislative counsel Eric Fitzpatrick said his research on a change to the statute of limitations in the late 1980s suggested it was constitutionally OK.
• Should the law allow defendants to collect attorneys fees from the plaintiff if the case is found to have no basis in fact? Benning noted that a similar code in Delaware had such a provision, and he felt Vermont’s law should as well.
