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EXTENDING
THE STATUTE OF LIMITATIONS
IN CHILD MOLESTATION CASES DOES NOT VIOLATE THE
EX POST FACTO CLAUSE OF STOGNER
Judge Joan Comparet-Cassani
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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.[1] If
one waited until adulthood to report such abuse, by that time, the
statute of limitations would have run barring prosecution of any charges.[2] In order to rectify this problem, in 1993,[3] the California Legislature added subdivision (g) to
section 803 of the Penal Code,[4] which permits
prosecution of certain crimes within one year of report by the victim to
law enforcement, regardless of when the abuse occurred.[5]
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.[6] 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,[7]
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.”[8] 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.[9]
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.”[10]
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.[11]
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.[12] 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[13] — that the requirement
of expiration ensures that the one-year period of extension does not
shorten the original limitations period.[14]
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[15] 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;[16] that the offense was
committed while the individual was under the age of 18;[17]
that the crime involved substantial sexual conduct;[18]
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;[19]
and, that the original limitations period has expired.[20]
As
originally drafted, the statute did not contain explicit language that it
applied to cases where the original limitations period had expired.[21] 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,[22]
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.[23]
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.[24]
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.25
The Stogner decision, as will be discussed, found that retroactive
application of the statute violates the ex post facto law.26 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.27
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.28
. .
.
The
California Legislature took similar steps when it added subdivision (g)
to § 803.29
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.30 They also have difficulty reporting the abuse
immediately thereafter, even to their own parents.31
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.32 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.33
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.”34 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.35
Thus,
the legislative purpose behind 803(g) was to prevent sex offenders from
reaping the benefits of their victims’ immaturity, fear or shame.36 By creating an exception to the statute of
limitation date, late reporting of sexual abuse could result in a
criminal filing.37
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.”38 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.”39
II.
THE STOGNER DECISION AND THE EX POST FACTO CLAUSE
A.
The Nature of Ex Post Facto Laws
The
Ex Post Facto Clauses40 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.41 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.42
The
categorical description of ex post facto laws was set forth by Justice
Chase over two hundred years ago:43
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.44
The
Ex Post Facto Clause was designed to promote justice since it disallows
laws which are unjust, oppressive and unfair.45
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.”46
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.47 Thereby,
the government “refuses, after the fact, to play by its own
rules” which violates our concepts of fundamental fairness.48
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.49
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.50 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.51 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.52
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,”53 i.e.,
“whether the last act or event necessary to trigger application of
the statute occurred before or after the statute’s effective
date.”54 “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.”55 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.56 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,57 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.58 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 children59 allegedly committed between
1955 and 1973.60 The statute of limitations at the
time the crimes were allegedly committed was three years,61
and it had expired more than two decades before the charges were filed.62
However,
in 1993, the California Legislature enacted section 803(g),63 which permitted prosecution for “a cause of
action arising before, on, or after”64 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.65
The
Court of Appeal refused to dismiss the charges66
because of the California Supreme Court decision in Frazer,67 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.68 Frazer held that 803(g) did not
violate the Ex Post Facto Clause based on the Court’s
interpretation of Collins.69
Frazer
found that only two categories of criminal laws violate the clause: those
that redefine criminal conduct, and those which increase punishment.70 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,”71 the Court
concluded the statute did not violate the Clause.72
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.73
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.74 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.75
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.”76 These three features, taken together, according to
the Court, created the kind of retroactivity that the Constitution
forbids.77
The
Court found that 803(g), as applied to Stogner, literally comes within
Justice Chase’s second category78 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.79 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.”80
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.81 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.82 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.83
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.84
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.85 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.86 Moreover, the
Court clarified more than once that the decision did not apply to a law
that extended unexpired limitations period.87
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),”88 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.”89
Nevertheless,
as stated earlier, 803(g) requires as one of its conditions precedent for
its application that the prior limitations period must have expired.90 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.91
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,92 the defendant was convicted on several
counts, including one of lewd and lascivious acts on a child93 which occurred between January 1, 1990 and November
30, 1991.94 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, 1997.95 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.96 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.97 The defendant was convicted of sex offenses for
which the statute of limitations expired after the enactment of 803(g).98 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.99 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.100 Rather, 803(g), defendant continued, is a revival
statute expressly disapproved in Stogner.101
In
response, the First District Court of Appeal returned to a statement in
Frazer where the California Supreme Court discussed the language under
consideration,102 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.”103
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.104
This
reasoning was subsequently adopted in two later cases.105
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.106 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.107
Third,
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.108 It is also assumed that the
Legislature knew what it was saying and meant what it said.109 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,110 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.”111 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.112 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,113 but they exist as an act of grace by government
surrendering its right to prosecute.114 Their
length, nature, and conditions are creations of the legislative branch of
government and subject to the discretion of that authority.115
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.116
Courts,
as well, benefit, since they will be spared litigation of stale claims.117
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.118
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.119 “Thus
the purpose of a criminal statute of limitations is to limit exposure to
criminal prosecution to a certain fixed, period of time,”120 and that after a specified time “the right
to be free to stale claims comes to prevail over the right to prosecute
them.”121
Another
salutary purpose is to encourage law enforcement to promptly investigate
criminal complaints, thus minimizing the danger of lost evidence.122 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.123 In this way, statutes of
limitation cut off the rights of the prosecution to resort to the courts
for enforcement of the law.124 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.125
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.126
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.127 Thus, statutes
of limitations represent a legislative balancing of the interests of the
state as well as the individual in administering and receiving justice.128 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,129
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.130 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.131 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.132
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).133 This statistical report was started in 1929, but
it does not gather information about statutory rape and other sex
offenses.134 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.135
The
first NIBRS report was conducted in 1991, and three states participated
in providing data for that program.136 These
statistics revealed that victims under the age of twelve accounted for
fifteen percent of those raped.137 For almost
ninety percent of the youngest victims of rape, those under twelve, the
offender was someone known to them.138 Over sixty
percent of rapes took place in a residence.139
Statistics
for the year 1994 revealed that sex offenders accounted for about one in
five violent offenders housed in state prisons.140
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.141
Violent
sex offenders of a single victim reported that two-thirds of their
victims had been under the age of eighteen.142
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.143
The
median age of the victims of imprisoned sexual assaulters was less than
thirteen years of age.144 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.145 For one out of four imprisoned sexual assaulters,
the victim had been their own child or stepchild.146
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
1996.147 The following statistics are based on
that information, which included 60,991 victims and 57,762 offenders.148
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.149
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.150 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.151
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.152
Young
victims of sexual assault were more likely to have been assaulted by a
family member than older victims.153 In fact,
forty-nine percent of offenders of victims under the age six were family
members.154 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.155
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.156
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.157
The
same study concluded that sexual assaults of children are the majority of
reported sexual assaults investigated by law enforcement, constituting
sixty-seven percent.158 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.159
And, finally, the study concluded that offenders of young victims were
rarely strangers.160
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 1996.161
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.162 Seven of ten offenders with child victims were in
prison for a rape or sexual assault.163 Three of
the child victimizers reported that they had committed their crimes
against multiple victims.164 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.165
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.166 Fifty percent of those were
convicted of forcible sodomy and seventeen percent had been convicted of
forcible rape and other non-sexual crimes.167 More
than half of the inmates with child victims reported that their victims
had been age twelve or younger.168
Three
of ten child victimizers reported that they had mooted their crimes
against multiple victims.169 About seven percent
reported having had four or more child victims.170
Based on the estimated number of victims reported by state inmates in
1991, the more than 60,000 violent offenders who had child victims may
have had as many as 95,000 victims.171 Crimes
involving rape and sexual assault accounted for 81 percent of those
serving time for crimes against children.172
The
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