The Limitations of Limitations

Copyright 2002 The Baltimore Sun Company

All Rights Reserved

The Baltimore Sun

May 26, 2002 Sunday FINAL Edition

SECTION: TELEGRAPH, Pg. 1A

LENGTH: 1431 words

HEADLINE: State restricts lawsuits of sexual abuse victims; Civil claims must be filed before accuser turns 21

BYLINE: Scott Shane

SOURCE: SUN STAFF

BODY:

Victims of sexual child abuse in Maryland face one of the most restrictive laws in the nation on civil lawsuits, one that prevents most adults who were molested as children from having their claims heard in court.

State law and appeals court decisions require that lawsuits be filed before the victim's 21st birthday, when many victims are still too traumatized by the abuse and its consequences to go public with an accusation. The clock starts ticking on the three-year statute of limitations as soon as the victim turns 18.

Legal experts say Maryland is among a dwindling minority of states that have not created exceptions in the civil statute of limitations for people who were abused as minors.

"Maryland's a backwater in that regard," said Douglas E. Beloof, director of the National Crime Victim Law Institute and a professor at Lewis and Clark Law School in Portland, Ore. "The unfairness of the statute of limitations in sexual child abuse cases has led most states to pass special provisions."

Advocates say civil suits are important not only to provide fair compensation for victims but to force reforms in institutions such as the Roman Catholic Church, which they say has failed to move quickly to stop abusive priests and teachers. But the lawsuits that are driving church reforms were filed in states such as Massachusetts, one of 39 that have changed laws to make it easier for adults to sue for abuse suffered as children.

Massachusetts, the epicenter of the current priest abuse scandal, permits filing suit within three years of the discovery that "an emotional or psychological injury" was caused by the abuse. Connecticut just raised the age limit to file a child abuse suit from 35 to 48, or 30 years after the victim turns 18. Virginia allows lawsuits during a one-year window after the conclusion of a criminal prosecution for sexual child abuse - no matter how long ago the abuse occurred. New Jersey, Alaska and Maine have no limit.

To victims, said David G. Clohessy, national director of Survivors Network for Those Abused by Priests, Maryland's statute of limitations feels "arbitrary and capricious. ... It's hard to imagine Jesus saying, 'I'd love to help you, but you're just too late.' It's contrary to everything the church stands for." The victims' network has called on the church to endorse extending the time to file suit in Maryland and other states with similar laws. Clohessy, a school administrator in Missouri and an abuse victim, says that changing the law to permit people older than 21 to sue would actually protect children.

"It's not just a question of retribution or compensation," he said. "It's a question of prevention. If there's a good statute, people can say to the church, 'You can leave (the priest) in the parish, but maybe you'd better not. Look at some of these civil judgments from around the country.'"

That view is shared by Maryland abuse victims who have been prevented from suing or whose lawsuits have been thrown out because of state law.

Elizabeth A. Murphy was raped repeatedly starting at age 11 by John J. Merzbacher, a teacher at her South Baltimore Catholic school. Pointing a gun at her, he threatened to kill her and her family if she ever told anyone. She was 34 when she found the courage to go public and file suit.

That was 13 years too late, the state's highest court ruled in 1997, upholding the dismissal of claims against Merzbacher and the archdiocese filed by Murphy and 13 other victims. Two judges dissented, with one calling the majority opinion "unconscionable," saying that it "allows Merzbacher to profit from the threats, violence and intimidation" he inflicted.

"The crueler and more intimidating the abuser is, the easier it is for the church to hide the abuse," Murphy said. "When you're 11 and someone holds a gun to your head, you believe their threat."

By contrast with civil law, Maryland criminal law has no statute of limitations for felonies. Merzbacher was convicted of raping Murphy and sentenced in 1995 to four concurrent life terms. But the prosecution occurred only after Murphy and others went to a lawyer to begin a lawsuit, and the dismissal of the lawsuits protected the Baltimore Archdiocese, also a defendant in the cases, from a potentially huge judgment.

Church officials say that even when victims are precluded from filing suit, the archdiocese in recent years has agreed to pay for their therapy. Murphy acknowledges that the archdiocese has paid about $25,000 in therapy bills for her.

"People are best served by being healed by counseling assistance and pastoral assistance and not so much by monetary judgments," said David W. Kinkopf, an attorney for the Baltimore Archdiocese. "Our focus has always been on the healing process."

In addition, says the Rev. J. Bruce Jarboe, director of clergy personnel for the archdiocese, officials can move to prevent future abuse whether or not lawsuits are possible.

"If the statute of limitations has run its course, the church is free to remove the offending person from access to minors," Jarboe said.

Threat of bankruptcy

But victims and their supporters insist that only the threat of bankrupting lawsuits has moved the church to reform.

"The reason the church is now talking about zero tolerance (for priests who abuse) is the fear of civil litigation," said Jeff Dion, deputy director of the National Crime Victim Bar Association, a group of lawyers representing victims of all crimes. "It wasn't a criminal prosecution that blew this issue up. It was the civil cases."

It is not known how much the Baltimore Archdiocese has paid to victims in settlements or voluntary payments over the years. But it is believed to be far less than the $40 million that The Boston Globe estimates has been paid by the Boston Archdiocese, which is far more vulnerable under Massachusetts law. Estimates of the U.S. church's potential liability range as high as $1 billion. Beloof, the law professor, says civil statutes of limitations are designed to prevent people and institutions from having to live indefinitely under the threat of litigation. In addition, he said, "Trials are about truth. The more time that goes by, the more memories fade, evidence disappears and the truth becomes harder to determine."

Nonetheless, over the past two decades, as the public has learned about the devastating emotional damage caused by child sexual abuse, legislators in most states have decided the crime should be exempted from the rigid time limits applied to most suits, Beloof says.

In Maryland, because the law has not changed, attorneys for abuse victims have tried unsuccessfully to find detours around the statute of limitations. Two women who sued the archdiocese and the Rev. A. Joseph Maskell, alleging that Maskell abused them when they were students at Archbishop Keough High School, said they had repressed the memory of the abuse until they were adults. They also said that the abuse caused a sort of "mental incompetence" that justified extending the filing deadline.

The Maryland Court of Appeals, the state's highest court, rejected those arguments in 1996 and upheld the dismissal of the cases against Maskell, who had been stripped of his priestly powers by Cardinal William H. Keeler. A half-dozen more sexual abuse lawsuits were dropped as a result of the Maskell decision.

The next year, the court rejected two more claims: the argument of Merzbacher's victims that the "duress" of the death threats prevented them from filing timely lawsuits; and the assertion of a former altar boy from Lanham who said the church had "fraudulently concealed" the crimes of the priest who he said abused him. Repeatedly, the court has said the law must be changed if such lawsuits are to succeed. "If the General Assembly should wish to rewrite the law, that is its prerogative and responsibility," the court wrote in the Maskell case. But no bills have proposed changing the law in recent years, according to the Department of Legislative Services.

Gloria Goldfaden, executive director of Prevent Child Abuse Maryland, says advocates have been "discouraged" by the court rulings. But she says her group will seek to change the statute of limitations next year.

"I do think we need a remedy for these cases," she said. "Our organization feels filing a civil suit is a form of prevention. ... It's a very strong message to the perpetrator that this will affect every part of your life."

Sun staff writer John Rivera and researcher Sarah E. Gehring contributed to this article.

GRAPHIC: Photo(s), A law shielded John J. Merzbacher from civil lawsuits.; FILE PHOTO

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