Statutes of limitations, child sexual assault, and asking the wrong question

Child sexual assault has become the hot topic in the sports-and-law overlap, with allegations against several college football and basketball coaches, AAU officials, and most recently, a Hall of Fame sports writer Bill Conlin of the Philadelphia Daily News. One unifying theme is that many of these cases cannot be prosecuted because the statute of limitations has run on most of these cases (for example, Conlin's alleged assaults all occurred in the 1970s). So a frequently asked question--I was asked it in a radio interview last week and Slate's Jessica Grose raises it again--is why we have statutes of limitations for child sexual assault cases.

But I think that is the wrong question to ask.

On one hand, the answer is easy. We have statutes of limitations in sexual abuse cases for the same reasons we have statutes of limitations for every other crime (except murder, more on that below): Evidence and people disappear and memories fade or change or become distorted, thus we worry about the reliability of any result based on such stale evidence. Jessica interviews my former colleague Aya Gruber (now at Colorado), who argues that this is especially true in a case such as child sexual assault (and perhaps all sexual assault), where the key--and sometimes only--evidence is the victim's testimony. We also believe in a right to repose, or "rest easy," that at some point a person should be able to no longer fear prosecution and get on with his life and his affairs.

Murder long has not been subject to statutes of limitations because society has made a value judgment--murder is the most heinous crime, the ultimate criminal wrong, and that heinousness outweighs the procedural concerns for unreliable judgments and the substantive concerns for alleged perpetrator's right to repose. A good argument can be made that child sexual assault is as or more heinous than murder,^* thus we should strike the same balance. And that is what many states have done, eliminating limitations (as some states have done) or making them extraordinarily long and/or tolling them until the child reaches majority. For example, Pennsylvania now can prosecute a case until the child victim turns 50, meaning a limitations period of anywhere from 33 to 50 years, depending on the child's age at the time of the assault. An even better argument can be made that the old limitations periods in effect in the '70s, '80s, and '90s were woefully short (Pennsylvania was 5 years for anything involving penetration and 2 years for inappropriate touching) and based on a fundamental misunderstanding of the nature of the crime and the psychology of how child victims respond.^**

But thinking about whether there should be a statute of limitations for child sexual assault, or how long it should be, is the wrong question in considering the prosecution or non-prosecution of the current cases of interest. We are stuck with the reality that there is a statute of limitations for these crimes, that at the time of most of most of these crimes that limitations period was really short, and therefore the statutes have run on these cases and prosecution is barred. In 2003, SCOTUS held in Stogner v. California that the prohibition on ex post facto laws prohibited states from applying newly lenghtened limitations periods to crimes that occurred under an older limitations and that now are time-barred under that former limitations period. The 5-4 majority placed an extended limitations period in the second category, as a law that makes a crime greater than it was at the time of its commission. Most states statutorily avoid any possible ex post facto concerns by only applying these newly extended periods prospectively. Thus, what prevents prosecution of Sandusky, Conlin, et al., is not the statute of limiattions as much as the Constitution's prohibition on ex post facto laws.

    ^* I distinctly remember a class session in Stephen Presser's American Legal History at Northwestern, in which we debated whether adult rape was more heinous than murder, with a majority of the class believing it was, because the victim lives with the effects of the crime forever. We can multiply that for child victims.

    ^** Although what is interesting about Conlin's case is that many of the victims went to their parents and some of the parents confronted Conlin, who allegedly cried when confronted. But no one, not even the adults, ever went to the police.