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Constitution bars prosecution of long-ago child abusers.

Judicial review is crucial when legislatures enact extremely popular laws; in such situations, the political process alone cannot ensure compliance with the Constitution.

In Stogner v. California, the Supreme Court declared unconstitutional a California law that had overwhelming support in the legislature and, undoubtedly, among the vast majority of the state's residents. The law retroactively extended the statute of limitations for criminal prosecution of sexual molestation of children, allowing cases to proceed that otherwise would have been time-barred. The Court, in a 5-4 decision, with Justice Stephen Breyer writing for the majority, held that the legislation was an impermissible ex post facto law. (1)

The Stogner decision is important because it clearly establishes that the government may not ever retroactively extend the statute of limitations for criminal prosecutions, even though the Court's decision should have no effect on laws pertaining to civil liability.

Extending the statute

The law at issue in Stogner was enacted by the California legislature in 1993. It provided that a defendant accused of sex-related child-abuse crimes could be prosecuted--even though the statute of limitations had expired--if the victim reported an allegation to the police, there was independent evidence to corroborate the victim's allegations, and the prosecution began within one year of the victim's report. (2)

In 1996, the legislature enacted a second statute, clarifying that a prosecution satisfying these three requirements "shall revive any cause of action barred by [prior statutes of limitations.]" (3) In other words, the purpose and effect of the law was to allow criminal prosecutions for child molestation after the statute of limitations otherwise would have expired.

That is exactly what occurred in the case before the Supreme Court. In 1998, Marion Stogner was indicted for child sexual abuse that he allegedly committed between 1955 and 1973. The three-year statute of limitations on his alleged crimes obviously had expired many years earlier. Stogner challenged the constitutionality of the state law that allowed his prosecution.

Reversing the California Court of Appeal, the U.S. Supreme Court held that the state's extension of the statute of limitations was an ex post facto law prohibited by Article I, [subsection] 9 and 10, of the Constitution. The framers considered ex post facto laws profoundly unfair and a violation of a fundamental individual right. Indeed, although the original Constitution--before the addition of the Bill of Rights--enumerated few rights, it expressly prohibited ex post facto laws.

Some of the earliest Supreme Court cases dealt with the Ex Post Facto Clause and explained the importance of the provision. In Calder v. Bull, the Court described how the clause protects liberty by preventing governments from enacting retroactive criminal liability that is "manifestly unjust and oppressive." (4) In Fletcher v. Peck, the Court spoke of the Ex Post Facto Clause as an essential protection against "violent acts which might grow out of the feelings of the moment." (5)

Thus, it has long been clear that the government violates the Constitution if it criminally punishes conduct that was lawful when it was done or if it increases the punishment for a crime after it was committed. That is exactly what California's law did by extending the statute of limitations.

Before the law was enacted, Stogner was not criminally liable for what he had done, but the new law subjected him to prosecution. When Stogner allegedly molested the children, he could have been punished within three years of the crimes; the 1993 law subjected him to possible punishment by allowing prosecution at any time in the future, as long as it was within one year of the victim's reporting the abuse.

Breyer clearly explained why the measure should be regarded as an impermissible ex post facto law:
 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. (6)


Critics of the decision argue that sex offenders who were not prosecuted at the time of their crimes will now escape punishment. However, the prosecutions are not barred because of an arbitrary decision of the Supreme Court; they are barred because California long ago set a three-year statute of limitations for sex crimes against children and did not enact a provision to extend it until 1993.

In essence, the Court said that a statute of limitations has no meaning if the legislature can extend it retroactively long after it has run out. As Breyer explained,
 California's law subjects an individual such
 as Stogner to prosecution long after the
 state has, in effect, granted an amnesty....
 It retroactively withdraws a complete defense
 to prosecution after it has already
 attached, and it does so in a manner that
 allows the state to withdraw this defense at
 will and with respect to individuals already
 identified. 'Unfair' seems to us a fair
 characterization. (7)


Retroactive civil liability

It is important to emphasize that Stogner has absolutely no application in the civil context. For example, in response to revelations of child sexual abuse within the Catholic Church, the California legislature last year enacted a law retroactively extending the statute of limitations for civil claims of sexual molestation of children. (8) In this case, the legislature was on firm constitutional ground.

The Supreme Court explained in a 1990 case that it "has consistently adhered to the view" that the Ex Post Facto Clause "applies only to penal statutes." (9) In many cases, it has held that retroactive civil liability, including extending the statute of limitations, can be challenged only under the Due Process Clause.

The Supreme Court and lower courts are unanimous in holding that retroactive civil liability is allowed as long as it meets a rational-basis test. (10) The Court explained that the shelter afforded by statutes of limitations "has never been regarded as what is now called a 'fundamental' right or what used to be called a 'natural' right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation show them to be good only by legislative grace and to be subject to a relatively large degree of legislative control." (11)

California courts, like those in many other states, have found retroactive extensions of civil statutes of limitations to be constitutional as long as they are reasonable. Liebig v. Superior Court is a good example. (12) In 1986, the California legislature retroactively extended the statute of limitations for lawsuits brought under [section]340.1 seeking damages for molestation of a child under 14 by a household or family member. The one-year-post-majority limitation period was extended to allow abuse victims to bring claims up to three years after reaching adulthood. In Liebig, a woman sued her grandfather for sexual abuse that had occurred many years earlier; the suit would have been time-barred if not for the new law.

The appeals court explicitly rejected the argument that the retroactive extension violated due process. The court explained that the "legislature has the power to expressly revive time-barred civil common-law causes of action" because "there is a 'strong public policy that litigation be disposed of on the merits wherever possible.'" (13)

Likewise, in Lent v. Doe, the appeals court allowed a civil suit for sexual molestation under the same retroactive extension. (14) Michael Lent alleged that his uncle had sexually abused him for three years beginning when he was 12 years old. Lent filed his complaint in January 1994, at the age of 31. The California Court of Appeal held that the state legislature had the power to amend the statute of limitations applicable to civil actions for childhood sexual abuse so as to retroactively revive claims that were formerly time-barred.

California law is consistent with Supreme Court decisions and cases nationwide in which retroactive extensions of civil statutes of limitations may be challenged only under the Due Process Clause and are to be upheld as long as they are reasonable. (15) In the case of civil liability for sexual abuse of children, the retroactive extension clearly is reasonable and thus constitutional.

However, everyone wants to see child molesters punished criminally as well. It is in this situation--with socially unpopular defendants and highly desired legislation--that courts must enforce the Constitution. That is exactly what the Supreme Court rightly did in Stogner by holding that a state cannot extend the statute of limitations for a crime after it was committed.

Notes

(1.) 123 S. Ct. 2446 (2003).

(2.) CAL. PENAL CODE [section] 803 (g) (West 2003-2004), amended by 2003 Cal. Legis. Serv. 73 (West).

(3.) Id. [section] 803(g) (3) (A).

(4.) 3 U.S. (3 Dall.) 386,391 (1798).

(5.) 10 U.S. (6 Cranch) 87, 138 (1810).

(6.) 123 S. Ct. 2446, 2451.

(7.) Id. at 2461.

(8.) CAL. CIV. PROC. [subsection] 340.1 (b)(2) & (c) (West 2003-2004).

(9.) Collins v. Youngblood, 497 U.S. 37, 41 n.2 (1990).

(10.) See, e.g., United States v. Sperry Corp., 493 U.S. 52 (1989); Grayv. First Winthrop Corp., 989 E2d 1564, 1573 (9th Cir. 1993).

(11.) Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945).

(12.) 257 Cal. Rptr. 574 (Ct. App. 1989).

(13.) Id. at 578 (citations omitted).

(14.) 47 Cal. Rptr. 2d 389 (Ct. App. 1995).

(15.) See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17-18 (1976).

ERWIN CHEMERINSKY is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California in Los Angeles.
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Date:Jan 1, 2004
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