"EXTENDING THE STATUTE OF LIMITATIONS
IN CHILD MOLESTATION CASES DOES NOT VIOLATE THE
EX POST FACTO CLAUSE OF STOGNER"
Judge Joan Comparet-Cassani
1.
INTRODUCTION
A.
The Problem
Even
though California
law provides for the prosecution of those who sexually abuse
children, some individuals have escaped prosecution.
For a variety of reasons, young children often fail
to report such crimes until they are adults.If one waited
until adulthood to report such abuse, by that time, the
statute of limitations would have run barring prosecution
of any charges.In order to rectify
this problem, in 1993, the California Legislature added subdivision
(g) to section 803 of the Penal Code, which permits prosecution of certain
crimes within one year of report by the victim to law enforcement,
regardless of when the abuse occurred.
That
law was used in the prosecution of Marion Reynolds Stogner,
who was accused of committing two acts of child molestation
between 1955 and 1973. The criminal complaint was originally filed
in 1998. After the
Court of Appeals allowed the prosecution to proceed, the
case was eventually heard by the United States Supreme Court.
In Stogner v. California, the United States Supreme Court held
a law that “created a new criminal limitations period that
extends the time in which the prosecution is allowed,” and
which authorizes “criminal prosecution that the passage
of time had previously barred,” and “was enacted after
(the) prior limitations period . . . has expired . . . . is an ex post facto law.” The Court thus concluded that 803(g), as applied
to Stogner, was an ex post facto law because it
extended the time in which prosecution was allowed, it was
applied to revive a time-barred prosecution, and because
the law, 803(g), was enacted after the expiration of the previously
applicable limitations period.
However,
the Stogner Court
also acknowledges that statutes which merely extended unexpired statutes of limitation do not violate the Ex Post Facto
Clause, and states may in fact enact laws which extend time
limits for “prosecutions not yet time-barred.”
It
would appear, based on the above-quoted passages from Stogner,
that 803(g) is constitutional when applied to prosecutions
where the original limitations period has not expired prior
to the date of the law’s enactment, since its application
in those cases would merely be an extension of an unexpired
limitations period. Since
extensions of unexpired limitations periods do not violate
the Ex Post Facto Clause, 803(g) thus applied would be constitutional. The problem is that 803(g), by its own terms,
mandates that the original limitations period must have
expired as a condition precedent to its applications.
Four
California Courts of Appeal have addressed the issue of
whether 803(g) is an ex post facto law—because it revives
a previously expired limitations period — or is a constitutional
extension statute, since the decision in Stogner. Each of these Courts has found that the statute
is not an ex post facto law.
A detailed analysis of the reasons presented will
be discussed later, but, for now, it is sufficient to state
that the Courts accepted the explanation provided in Frazer— that the requirement of expiration ensures
that the one-year period of extension does not shorten the
original limitations period.
As
will be shown, this explanation is inadequate for several
reasons, and it does not address the issue of whether 803(g)
applied prospectively is constitutional.
This Article will present an analysis of the Courts
of Appeal’s opinion, show why their answer is insufficient,
and provide an analysis of 803(g) which will satisfy constitutional
concerns.
In
order to fully address this issue, it will be necessary
first to explore the following: the Stogner opinion in full; the nature of
ex post facto laws; the nature of statutes of limitations,
including public policy, equitable considerations, and statistical
information about child molestations; and, of course, the
legislative intent of 803(g).
B.
Section 803(g) Requires
Compliance With Certain Conditions Before the Limitations
Period May be Extended
Effective
January 1, 1994, 803(g) extends the statute of limitations
for the prosecution of certain sex offenses committed against children, as long as
certain conditions are satisfied. The statute mandates compliance with all of
the following conditions:
that an individual, of any age, personally reports
to a law enforcement agency that he or she was a victim
of one of the enumerated sex offenses; that the offense was committed while
the individual was under the age of 18; that the crime involved substantial sexual
conduct; that there is evidence, independent of
the report, that clearly and convincingly corroborates the
allegations; that the corroborating evidence qualifies as
legally admissible trial evidence; and, that the original limitations period
has expired.
As
originally drafted, the statute did not contain explicit
language that it applied to cases where the original limitations
period had expired. However, in 1996, after several Courts of Appeal
declined to apply 803(g) retroactively, such language was
added. Through an amendment that became effective January
1, 1997, the Legislature added a section which
provides that 803(g) “applies to a cause of action arising
before, on, or after” the effective date of the act, and
that “it shall revive any cause of action barred by” the
original statute of limitations. The Legislative Counsel’s Digest explained that
the amendment was intended to make the one-year limitations
extension “apply to a cause of action arising before, on,
or after the effective date,” thereby reviving and extending
already expired statute of limitations periods.
Thus,
if an individual personally reports to a law enforcement
agency that he or she, while under the age of eighteen,
was a victim of one of the enumerated crimes, where the
original limitations period has expired, and the crime involves
substantial sexual conduct, and there is independent clear
and convincing corroborating evidence, then a criminal complaint
may be filed within one year of the date of the report. The
Stogner decision,
as will be discussed, found that retroactive application
of the statute violates the ex post facto law. But, the Stogner Court
did not consider nor preclude the application of 803(g)
prospectively to those cases where the crime was committed
prior to the enactment of 803(g). Furthermore, the original limitations period
had not expired as of the date of the law’s enactment. However, 803(g) also requires that it applies
only if the original limitations period has expired. Whether
this requirement can be reconciled with the dictates of
Stogner is the issue that will be addressed.
C.
The Enactment of
803(g) Was Intended to Provide a Remedy for Late-Reported
Child Molestations
A
nationwide awareness that child victims did not timely report
sexual abuse prompted the enactment of 803(g).
Because of the delayed reports, certain offenders
escaped punishment:
Beginning
in the late 1980’s, lawmakers across the country became
increasingly aware that young victims often delay reporting
sexual abuse because they are easily manipulated by offenders
in positions of authority and trust, and because children
have difficulty remembering the crimes or facing the trauma
it can cause. Hence, states which traditionally limited the
time for prosecuting child molestation in a manner similar
to section 800 and 801 have started to substantially increase
the time in which criminal charges can be filed after the
assault occurred. Although
they operate in a variety of ways, these new statutes generally
apply to crimes committed both before and after their enactment.
The new longer statutes of limitation are based
on the apparent premise that both past and future sex crimes
against children would otherwise go largely unpunished.
. . .
The
California Legislature took similar steps when it added
subdivision (g) to § 803.
Child
molestation cases are difficult to prosecute, because young
victims of sexual abuse often have difficulty remembering
the dates and times of the violations, the number of acts
involved, and the nature of the acts. They also have difficulty reporting the abuse
immediately thereafter, even to their own parents. They
may have been dissuaded from reporting the abuse either
because of shame, fear that they themselves did something
wrong, or because of intimidation by the perpetrator. Individuals who have a predilection to commit
such offenses may, in fact, select younger children because
of
their
immaturity--taking advantage of that fact and their inability
to remember, articulate and adequately describe events.
Indeed,
the Frazer Court
opined that the enactment of 803(g) was “based on the assumption
that past and future sex crimes against children . . . would
otherwise go unpunished given the difficulty young victims
experience remembering and reporting such events, and their
emotional vulnerability at the hands of adult perpetrators,
including those in positions of trust.” Other Courts as well have recognized the vulnerability
of children to sexual exploitation and the obligation of
the state to punish those responsible for such crimes.
Thus,
the legislative purpose behind 803(g) was to prevent sex
offenders from reaping the benefits of their victims’ immaturity,
fear or shame.
By creating an exception
to the statute of limitation date, late reporting of sexual
abuse could result in a criminal filing.
According
to the author of the bill, “[s]ex crimes committed against
children are the most heinous of offenses.
Unfortunately, many do not bring the crime to the
attention of law enforcement until many years later, when
the statute of limitations has already expired. Children become double victims – first victimized
by the perpetrator and again by the judicial system. This measure will guarantee them their day in court.” In this way, not only will the law permit “law
enforcement to seek justice (for child molesters who go
unpunished),” but it also will “ensure other children do
not become victims in the future.”
II.
THE STOGNER DECISION
AND THE EX POST FACTO CLAUSE
A.
The Nature of Ex
Post Facto Laws
The
Ex Post Facto Clauses were created by the architects of our
Constitution for two reasons: to restrain Federal and State
Legislatures from enacting arbitrary or vindictive
legislation
and to ensure that legislative enactments provide fair warning
of their effect thus permitting individuals to rely on their
meaning until explicitly changed. Two
critical elements must be present for a law to be classified
as ex post facto: first, it must be retrospective in that
it applies to events which occurred prior to its enactment;
and, second, it must disadvantage the individual affected
by it.
The
categorical description of ex post facto laws was set forth
by Justice Chase over two hundred years ago:
1.
Every law that makes an action done before the passing of
the law, and which was innocent when done, criminal; and
punishes such action.
2.
Every law that aggravates a crime, or makes it greater than
it was, when committed.
3.
Every law that changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when committed.
4.
Every law that alters the legal rule of evidence, and receives
less, or different testimony, than the law required at the
time of the commission of the offense, in order to convict
the offender.
The
Ex Post Facto Clause was designed to promote justice since
it disallows laws which are unjust, oppressive and unfair. They are unjust and unfair because an ex post
facto law reflects the government’s refusal, “after the
fact, to play by its own rules, [by] altering them in such
a way that it is disadvantageous only to the State to facilitate
an easier conviction.”
For
example, if a law reduces the amount of evidence necessary
to convict a defendant, eliminates an element of an offense,
increases the punishment for an existing offense, or lowers
the burden of proof, in each of these instances, the government
subverts the presumption of innocence and also makes it
easier to obtain a conviction. Thereby,
the government “refuses, after the fact, to play by its
own rules” which violates our concepts of fundamental fairness.
There
is plainly a fundamental fairness inherent, even apart from
any claim of reliance or notice, in having the government
abide by the rules of law it establishes to govern the circumstances
under which it can deprive a person of his or her liberty
or life.
The
determination of whether a statute’s application in a particular
situation is prospective or retroactive depends upon whether
the conduct that allegedly triggers the statute’s application
occurs before or after the law’s effective date. Thus,
any law which punishes as a crime an act that was innocent
when previously committed, which makes more burdensome the
punishment for a crime after its commission, or which deprives
one charged with a crime of any defense available according
to the law at the time when the act was committed, is prohibited
as an ex post facto law. Even a procedural change in the law may constitute
an ex post facto violation if it affects matters of substance
by depriving a defendant of substantial protections with
which the existing law surrounds the person accused of a
crime.
As
for criminal acts which are continuous in nature or refer
to crimes which constitute a continuous course of conduct,
“the critical question is whether the law changes the legal
consequences of acts completed
before its effective date,” i.e.,
“whether the last act or event necessary to trigger application
of the statute occurred before or after the statute’s effective
date.” “A
new law is not retroactive merely because some of the facts
or conditions upon which its application depends came into
existence prior to its enactment.” Rather, when the crime alleged covers a course
of conduct performed over a number of calendar days, an
individual may be charged with the offense so long as the
course of conduct constituting the offense was completed
after the new law became effective. Because
a continuous-course-of-conduct offense cannot logically
be completed until the last requisite act is performed,
it is reasonable that when the conduct continues after the
statute’s effective date, even though some of the acts may
have occurred prior to that enactment, the new law may be applied without violating
the Ex Post Facto Clause.
In
the same vein, Federal Courts of Appeal have held that application
of straddle offenses (i.e., a crime that begins before and
continues after the law’s effective date) does not violate
the constitutional prohibition. With these concepts in mind, it is time to turn
to Stogner’s case
as it progressed from state to federal court.
B.
Stogner: The State Court Decision
In
1998, Marion Stogner was charged with two counts of a lewd
act upon two different children allegedly committed between 1955 and
1973. The
statute of limitations at the time the crimes were allegedly
committed was three years, and it
had expired more than two decades before the charges were
filed.
However,
in 1993, the California Legislature enacted section 803(g),
which permitted prosecution for “a cause of action arising
before, on, or after” the effective
date of the statute, provided that, inter alia, the complaint
was filed within one year of the victim’s report to law
enforcement.
The
Court of Appeal refused to dismiss the charges because
of the California Supreme Court decision in Frazer, which
found 803(g) constitutional.
According to the Frazer
Court, the statute had gone through
several amendments, and the latest version expressed the
California Legislature’s intent that 803(g) be applied retrospectively.
Frazer held that
803(g) did not violate the Ex Post Facto Clause based on
the Court’s interpretation of Collins.
Frazer
found that only two categories of criminal laws violate
the clause: those that redefine criminal conduct, and those
which increase punishment. Since
803(g) did not come within either of these categories, but
was only “a statutory change in the legal effect of the
post crime passage of time,” the Court concluded the statute did not
violate the Clause.
Therefore,
the California Court of Appeal denied Stogner’s
petition for writ of mandate and allowed the prosecution
to proceed. After the California Supreme Court denied Stogner’s petition for review, the United
States Supreme Court granted Stogner’s
writ of certiorari.
C.
Stogner: The United States Supreme Court Decision
Without
any legal equivocation, the United States Supreme Court
rejected Frazer’s analysis of the Clause and found that
803(g) as applied to Stogner,
for acts completed before its enactment, was an ex post
facto law. The
Court returned to the categorical description of ex post
facto laws crafted by Justice Chase in Calder
v. Bull for the definitive characterization of the Clause.
Justice
Breyer, writing for the Court, found that 803(g) “created
a new criminal limitations period that extends the time
in which prosecution is allowed”; authorized “criminal prosecutions
that the passage of time had previously barred; and, . .
. was enacted after the prior limitations period for Stogner’s alleged offenses had expired.” These
three features, taken together, according to the Court,
created the kind of retroactivity that the Constitution
forbids.
The
Court found that 803(g), as applied to Stogner,
literally comes within Justice Chase’s second category
of ex post facto laws; it aggravated a crime, or made it
greater than it was when committed, because charging Stogner
with a criminal violation inflicted the possibility that
he would suffer punishment that he was not subject to at
the time he was accused. As the Court stated:
After
(but not before) the original statute of limitations had
expired,
a
party such as Stogner was not “liable to any punishment.”
California’s
new statute therefore “aggravated” Stogner’s alleged
crime,
or made it “greater than it was when committed in the sense
that,
and to the extent that, it “inflicted punishment” for past
criminal
conduct
that (when the new law was enacted) did not trigger any
such
liability.”
Additionally,
the Stogner Court
stated that 803(g) could conceivably come within the fourth
category, a law that alters the legal rules of evidence,
but concluded that a full analysis of this issue was unnecessary
since 803(g) clearly came within the second category. This finding was supported by the fact that
803(g) threatens the type of harm condemned as unjust, oppressive,
unfair, and dishonest since it extends the time within which
to prosecute an individual after the state has assured that
person he has become safe from prosecution. In
that situation as well, government has refused to play by
its own rules and has deprived the individual of fair warning
that he may be subject to criminal charges which might have
led one to preserve exculpatory evidence.
So
complete was the Court’s rejection of Frazer’s
analysis of the Clause, the United States Supreme Court
did not discuss it, nor did the Court discuss Frazer’s
analysis of Collins.
Instead, the Court referred to the Frazer
opinion as an anomaly, out of step with numerous legislators,
commentators, other State Supreme Courts and legal scholars.
However,
the United States Supreme Court in Stogner
did not hold or state that 803(g), as drafted, was an ex
post facto law in any and all circumstances.
The Court limited its holding to those prosecutions
where 803(g) was enacted after the prior limitations period
had expired. It was the combination of all these factors
– the application of the law to a case where the prosecution
was time-barred, and which extended the statue of limitations
for prosecution when the law was enacted after
the prior limitations period expired – which violated
the Clause. Moreover, the Court clarified more than once
that the decision did not apply to a law that extended unexpired
limitations period.
Indeed,
the clear import of the words, “[e]ven where courts have
upheld extensions of unexpired statutes of limitations (extensions
that our holding today does not affect),” limits the Court’s decision to a narrow
class of laws that reach back in time to resurrect a cause
of action for which the original limitations period expired
before the new law was enacted.
And, in support thereof, the Court cited to a number
of cases and stated that “in any case where a right to acquittal
has not been absolutely
acquired by the completion of the period of limitation,
that period is subject to enlargement or repeal without
being obnoxious to the constitutional prohibition against
ex post facto laws.”
Nevertheless,
as stated earlier, 803(g) requires as one of its conditions
precedent for its application that the prior limitations
period must have expired. At first blush, it would appear that condition
conflicts with a characterization of 803(g) as one which
extends unexpired statutes of limitation, the type of law
unaffected by Stogner.
But, as will be shown, it is impossible to reconcile
that requirement with Stogner
and with other parts of the Act which will be discussed
later. For now, those
cases which have arisen since Stogner, and have addressed this issue, must be discussed.
D.
Post-Stogner Decisions
Clearly,
803(g) may not be used to prosecute crimes time-barred as
of the statute’s effective date. It is also clear that laws which extend unexpired
statutes of limitations do not violate ex post facto concerns. However, 803(g), by its literal terms, requires
that the prior statute of limitations must have expired
before it can be applied. Therefore, the question arises whether 803(g)
is an ex post facto law when used to prosecute causes of
action where a prior limitations period expires on or after
the effective date of 803(g). In other words, is 803(g) an ex post facto law
because it revives and extends expires statutes of limitations? This question has been addressed in four recent
decisions of the California Court of Appeal.
In
Robertson, the defendant
was convicted on several counts, including one of lewd and
lascivious acts on a child which occurred between
January 1, 1990 and November 30, 1991. Because
the maximum sentence for this crime is eight years, the
original statute of limitations is six years, which means
the original statute would have expired on November
30, 1997. The
Court of Appeal upheld the conviction based on the fact
that 803(g) was enacted before the original statutory period
had run and Stogner permitted extensions of unexpired
statutes of limitations. The Court of Appeal did not address the problem
that 803(g) itself required expiration of the previous limitation
period as a condition to its application.
One
month later, in Renderos, a similar factual scenario occurred. The defendant was convicted of sex offenses
for which the statute of limitations expired after the enactment
of 803(g). In
this case, the defendant raised the issue that 803(g) requires,
by its own language, the original limitations period to
expire before it can be applied. Therefore, he concluded, since there must be
an interim period in which the prosecution is timed-barred,
803(g) cannot be interpreted as a statute which extends
an unexpired statute of limitations as approved in Stogner. Rather,
803(g), defendant continued, is a revival statute expressly
disapproved in Stogner.
In
response, the First District Court of Appeal returned to
a statement in Frazer
where the California Supreme Court discussed the language
under consideration, viz.,
that “a felony prosecution commenced within one year of
a qualifying report is timely under the literal terms of
803(g)(2)(A) even, indeed, only if the limitations period
. . . . has expired.”
The
explanation offered in Frazer, and adopted in Renderos, is as follows:
The
quoted phrase obviously ensures that the one year period
in
section
803(g)(1) does not override or otherwise conflict with
sections
800 and 803 when the victim reports the crime to a
qualifying
law enforcement agency before the three or six year
period
set fourth in the latter provisions has expired.
In this way,
the
limitations period in section 803(g) – like other “tolling”
and
“extension”
provisions in the same statute – serves to prolong,
rather
than shorten, the time in which a felony child molestation
prosecution
may be commenced.
This
reasoning was subsequently adopted in two later cases. However, this explanation does not answer the
constitutional issue for the following reasons.
Prior
to the United States Supreme Court decision in Stogner,
Frazer had interpreted 803(g) such that it could be
used retrospectively to prosecute crimes which occurred
prior to its enactment.
It is now clear that this is no longer permissible. Now, 803(g) may only be applied to prosecute
crimes where the prior statute of limitations did not expire
prior to the date the statute took effect. In other words, any crime whose original statute
of limitations was in effect as of the date of January 1, 1994, the date 803(g) took effect as a
law in this state, may be prosecuted.
Therefore, it is obvious the explanation provided
in Frazer does not resolve the issue for a
number of reasons.
First,
since the original statute of limitations will have been
in effect at the time 803(g) was enacted, it is not the
case that the one year extension of time from the date of
victim report will run prior to that time; thus, the application
of 803(g) cannot shorten the original limitations period.
Second,
the answer given is an historical statement which only explains
why the Legislature drafted the law with the expiration
language, but it does not address whether the law
is constitutional. Opinions
are not authority for propositions not considered.
hird,
the answer implicitly and necessarily admits that the statute
is a revival statute because the answer concedes that in
order to avoid shortening the limitation period, 803(g)
requires that the prior limitations period must have expired
before the one-year-from-report extension goes into effect.
And
last, rules of statutory construction mandate that statutes
be interpreted to give meaning to each word and phrase to
avoid an interpretation which renders part of a
statute
surplusage. It
is also assumed that the Legislature knew what it was saying
and meant what it said. Not only did the Legislature clearly state that
as a mandatory condition prior to its application, 803(g)
requires that the prior limitation must have expired,
the same act also provides, in pari
materia, that once the act applies to a cause of action,
it “revives any cause of action barred by section
800 or 801.” Taken together, these two sections are mirror
images of one another. One
subdivision literally requires that the “limitation period
in section 800 or 801” must have expired, and the other
section requires that the expired limitations period is
revived when the specified requirements are met.
Therefore, the explanation given in the above referenced
cases ignore this language and the meaning of these terms,
and thus, fail to address this issue.
Since this issue is not pending, and without doubt,
will continue to be raised in other districts, this paper
will provide a response.
In order to fully address this issue, it will be
necessary to discuss the nature of statutes of limitation,
including public policy and equitable considerations involved
in the enactment of child molestation statutes. With this in mind, the nature of statutes of
limitation will be discussed.
III.
PUBLIC POLICY AND
EQUITY WEIGH IN FAVOR OF PROSPECTIVE APPLICATION OF THE
LIMITATIONS PERIOD
A.
Statutes of Limitation
Are Based on Public Policy Considerations
Statutes
of limitation are based on public policy considerations;
they are neither grounded in the Federal Constitution nor
compelled by our Constitution,
but they exist as an act of grace by government surrendering
its right to prosecute. Their length, nature, and conditions are creations
of the legislative branch of government and subject to the
discretion of that authority.
The
underlying rationale for such statutes is to encourage those
with valid legal claims to come forward promptly so that
the parties involved do not suffer the loss of evidence.
Courts,
as well, benefit, since they will be spared litigation of
stale claims.
As
in the criminal law area, such statutes represent a legislative
judgment about the balance of equities in a situation involving
the tardy assertion of otherwise valid rights: The theory is that even if one has a just claim,
it is unjust not to put the adversary on notice to defend
within the period of limitation and that the right to be
free of stale claims in time comes to prevail over the right
to persecute them.
Because
the passage of time may impair memories, cause evidence
to be lost, deprive a defendant of witnesses, and otherwise
interfere with his ability to defend himself, statutes of
limitations promote justice by assuring fairness to defendants. “Thus
the purpose of a criminal statute of limitations is to limit
exposure to criminal prosecution to a certain fixed, period
of time,” and
that after a specified time “the right to be free to stale
claims comes to prevail over the right to prosecute them.”
Another
salutary purpose is to encourage law enforcement to promptly
investigate criminal complaints, thus minimizing the danger
of lost evidence. Prompt investigation will not only help protect
a defendant’s ability to mount a defense, but it will also
assist the court with cases in which the search for the
truth might be impaired by the loss of evidence. In this way, statutes of limitation cut off
the rights of the prosecution to resort to the courts for
enforcement of the law. They
are a procedural bar to litigation, a remedy, but as such,
the bar may be lifted, the remedy enforced, and the litigation
may proceed.
Since
statutes of limitation do not spring from any constitutional
guarantees, no constitutionality protected interest is acquired
by virtue of the limitations period, and any protection
afforded to one affected by the statute may be withdrawn
without violating due process. It follows that whatever grievance a criminal
defendant may have at the extension of a statutory period
of limitations to his disadvantage, he has not acquired
a right to be free from prosecution that rises to the level
of a constitutional right. Thus, statutes of limitations represent a legislative
balancing of the interests of the state as well as the individual
in administering and receiving justice. In this sense, statute of limitations is an
equitable doctrine which exists based on the public policy
considerations with which the legislation is concerned.
However,
in the area of late-reported child molestation, none of
these public policies are relevant.
Late-reporting of child molestation crimes may not
occur because an individual has slept on his or her rights
or refused to promptly report criminal activity. As stated earlier, courts have become aware that child
victims of sexual abuse do not come forward because of a
myriad of reasons that include the perpetrator’s threats
of harm, the victim’s feelings of guilt, and the victim’s
naiveté, fear, and youth.
Late reporting is due to a host of complex reasons
other than voluntary delay.
Rather, the reasons for late reporting will necessarily
include the immaturity and youth of the victims, and they
may also include the relationship with, or fear of, the
perpetrator. Therefore,
statutes of limitations will not promote early reporting,
nor prompt timely investigation, since late reporting is
due to a voluntary refusal to timely assert one’s rights.
Late reporting is due to the fact that the victim
was a child when the criminal offenses occurred.
Thus, the scales of equity shift to favor the prospective
extension of the limitations period since it is the molester
who created the situation resulting in the late report of
sexual abuse. Moreover,
any public policy argument that the statute should not be
prospectively applied is not persuasive since the laudatory
reasons for implementation of the limitations period simply
do not apply in these types of cases.
B.
Equitable Concerns
and Criminal Statistics Support the Necessity of Legislation
Designed to Redress Late Reporting of Child Molestation
1.
Statistics Reveal the Alarming Rate at which Children Are
Subject to Sexual Abuse.
Statistical
information about child victims of sexual assaults may be
greatly understated for a number of reasons.
First, it must be remembered that the statistical
information obtained by law enforcement about sexual assaults
is limited to those crimes that are actually reported. Crimes that are kept as “family secrets” are
not included, nor are crimes where the victim does not report
the crime until he or she reaches adult status, or those
crimes, for whatever reason, are simply never reported.
Second,
statistics based on self-reports are from child molesters
who are incarcerated in state prison and convicted of sexual
offenses. Many offenders
convicted of some crimes involving children receive probation
and are never sent to state prison. Therefore,
those convictions are not reflected in the statistics. Moreover, many offenders engage in plea bargains,
which result in a charged sex offense being dismissed in
return for a plea to a non-sexual offense such as battery
or simple assault. All of these aspects of the criminal justice
system, therefore, affect the validity of any statistics
as an accurate reflection of the incidence of child victimization
that actually occurs.
Until
recently, there was no statistical information available
about sexual assaults of young children. The
National Crime Victimization Survey (NCVS), formed in 1972,
is maintained by the Department of Justice.
The NCVS collects data nationally from a random sample
of United States’
citizens about sexual assaults, but does not include information
about victims under the age of twelve.
In
addition to the NCVS, the Department of Justice obtains
data on selected crimes reported to law enforcement authorities
under the Uniform Crime Reports (UCR) program of the Federal
Bureau of Investigation (FBI). This statistical report was started in 1929,
but it does not gather information about statutory rape
and other sex offenses. Recently,
the UCR instituted a National Incident Based Reporting System
(NIBRS). This system
collects data on sexual assaults and includes victims younger
than twelve years of age.
The
first NIBRS report was conducted in 1991, and three states
participated in providing data for that program. These statistics revealed that victims under
the age of twelve accounted for fifteen percent of those
raped. For
almost ninety percent of the youngest victims of rape, those
under twelve, the offender was someone known to them. Over sixty percent of rapes took place in a
residence.
Statistics
for the year 1994 revealed that sex offenders accounted
for about one in five violent offenders housed in state
prisons. The largest category of sex offenders was composed
of those serving time for molestation, fondling, or other
related kinds of sexual assault involving child victims.
Violent
sex offenders of a single victim reported that two-thirds
of their victims had been under the age of eighteen. About
four out of ten rapists reported that their victims had
been a child, and eight out of ten sexual assaulters said
their victim had been under eighteen years of age.
The
median age of the victims of imprisoned sexual assaulters
was less than thirteen years of age. Sexual
assaulters were about three times as likely as all violent
offenders and twice as likely as rapists to report that
the victim had been a member of their family. For one out of four imprisoned sexual assaulters,
the victim had been their own child or stepchild.
The
most recent NIBRS report was issued in 2000 and was based
on files from law enforcement agencies in twelve states
collected from 1991 through 1996. The following statistics are based on that information,
which included 60,991 victims and 57,762 offenders.
That
information disclosed that in sixty-seven percent of all
reported incidents of sexual assault, the victims were under
the age of eighteen, and thirty-four percent were under
age twelve. Most
disturbing is the fact that one of every seven victims of
sexual assault, or fourteen percent of all victims, were
under the age of six. In
each category of sexual assault, except forcible rape, children
below the age of twelve were approximately half all victims;
these cases included forcible sodomy, sexual assault with
an object, and forcible fondling.
The
age distribution of sexual assault victims discloses that
age fourteen was the age with the greatest proportion of
sexual assault; and for victims under age twelve, four year
olds were at greatest risk of being a victim.
Young
victims of sexual assault were more likely to have been
assaulted by a family member than older victims. In fact, forty-nine percent of offenders of victims
under the age six were family members. Based on NIBRS data, it is estimated that victims
under six years of age are most likely assaulted in a residence
by a juvenile acquaintance or a family member. Offenders of victims ages twelve through seventeen
were five times more likely to be adult family members where
the crime was committed in a residence.
One
disturbing statistic is that cases which involve sexual
assaults against the youngest victims were the least likely
to result in an arrest.
For children under the age of six, an offender was
arrested in just nineteen percent of the reported cases,
compared to thirty-three percent of victims ages six through
eleven, and thirty-two percent of victims ages twelve through
seventeen.
The
same study concluded that sexual assaults of children are
the majority of reported sexual assaults investigated by
law enforcement, constituting sixty-seven percent. It
also concluded that the NCVS study, by not compiling data
on victims under the age of twelve, was missing a third
of all sexual assaults that occur in the United
States annually. And, finally, the study concluded that offenders
of young victims were rarely strangers.
The
National Child Protection Act 1993 required that a study
be conducted of child molesters; the study was based on
data from a 1991 Bureau of Justice Survey of State Prison
Inmates and the FBI’s 1994 Supplementary Homicide Reports,
and the report was published in 1996.
According
to self-reports of state prison inmates, twenty percent
of violent offenders serving time had victimized a child,
and more than half of the violent crimes involves children
twelve years of age or younger. Seven of ten offenders with child victims were
in prison for a rape or sexual assault. Three of the child victimizers reported that
they had committed their crimes against multiple victims. The
majority of them had victimized a child they knew or their
own child. About
forty percent reported that the child had been a relative,
and about seventy-five percent of those reported that the
victim was their own child or stepchild. Seventy-five percent of the crimes occurred
in either the victim’s home or the offender’s home. Those
offenders who had as their victims children under the age
of twelve accounted for almost ninety percent of state prisoners
serving time for child abuse. Fifty percen
