A bill that would clear the way for victims of sexual abuse when they were children to bring civil lawsuits against organizations that cover up such abuse is working its way through the Colorado Legislature, but its future remains uncertain.
The measure, Senate Bill 88, has raised questions by some opponents about provisions in it that allow such suits to be filed in abuse cases that date back as far as 1960.
Their concerns are whether it’s constitutional to make such a law retroactive.
One of its chief sponsors, Rep. Matt Soper, R-Delta, says there are enough guardrails in the bill to prevent abuse of a new right to file civil claims for incidents that occurred years ago, including placing limits on what damages a victim could receive. Soper said the bill only applies to groups that went out of their way to not only cover up sexual abuse of a child, but also intentionally protected those people who did so.
“What we’re doing here is we’re holding the organization, or the managing entity, liable for the managing entity’s own conduct, and that would be the coverup of the rape of a child,” Soper said.
“When an organization refuses to even take remedial steps when that organization knows or should have known that they had a predator, a child rapist, a child molester under their watch, and they knew about it or they should have known about it ... it’s the coverup that makes the organization complacent and effectively a co-conspirator in the rape and molestation of that child,” Soper added. “It defeats the entire purpose of the statute of limitations if you conceal the key evidence, the smoking gun, and you ensure that it never gets out.”
The measure is a companion to Senate Bill 73, which was approved by the Legislature earlier this year and signed into law by Gov. Jared Polis in April. That measure, partly introduced by Soper and Sen. Don Coram, R-Montrose, removed the six-year statute of limitations on filing civil claims by abused children, but it primarily applies to incidents that occur after Jan. 1, 2022, when that law goes into effect.
Because SB88 opens up claims that could date back 61 years, some questioned whether it’s constitutional to do so. The bill provides a short three-year window to file civil claims on incidents that go back that far, and then it only applies to new cases.
“I do believe that this is a retroactive law and is unconstitutional, but I also believe that reasonable people, particularly reasonable attorneys, can not agree,” Rep. Adrienne Benavidez, D-Commerce City, said moments before the House Judiciary Committee approved it on a 6-5 vote Thursday. “The only way to get to a bright line is to change the Constitution. The better way in my mind is to make it constitutional to make this law retroactive, and the only way to assure that is through a ballot initiative.”
Rep. Terri Carver, R-Colorado Springs, agreed that the bill creates a new cause of action that is barred by the Colorado Constitution, saying one can’t apply current legal theories to past behavior.
“I believe that the oath we take to the U.S. and state constitutions does include, based on our own analysis, what laws we think are permissible, or at least in a gray area,” Carver said. “Many times the law is not settled. It is always in a state of flux. I have tried to find a route that I thought, in good faith, would be open (to the bill), and I simply cannot find it.”
Benavidez added that while it will be hard to prove such cases, particularly older ones where evidence is lost and witnesses or perpetrators are no long living, the bigger legal question in any such lawsuit will be constitutionality of the law.
Rep. Mike Weissman, D-Aurora, and chairman of the committee, said it’s the role of the Legislature to make laws, and the role of the courts to interpret them. He said the Colorado Supreme Court has repeatedly ruled that some laws can be made retroactive if there is a great need to do so.
“There’s always been a duty to not harbor predators, there’s always been a duty to take reasonable measures to keep children out of harm’s way. That goes back decades,” Weissman said. “We’re not creating a new duty here. There is a powerful public interest in this in providing a remedy. I could, and I would, argue that this is a permissible, constitutional, remedial measure to address the horrors that we’ve heard about.”
The bill, which also is sponsored by Rep. Dafna Michaelson Jenet, D-Commerce City, still needs to clear the House Appropriations Committee before it can head to the full House. It is estimated to cost about $1.2 million in its first year, ballooning to more than $14 million by 2023.
The bill, which cleared the Colorado Senate on a 31-4 vote last month, was initially introduced by Sen. Rhonda Field, D-Aurora, and Jessie Danielson, D-Wheat Ridge. With the Legislature expected to end the 2021 session by midweek, Soper and those sponsors don’t have much time left to get it to the governor’s desk.
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