Two years ago, Maryland lawmakers made it easier for adults sexually abused as children to sue institutions that harbored predators.
The language was pushed by lobbyists for the Catholic Church two years ago as part of a compromise to extend Maryland’s civil statute of limitations from age 25 to 38. Because it forbids the state from raising the maximum age above 38, it effectively inoculates the church and other organizations from costly lawsuits that could reveal whether they sheltered abusers decades ago.
State lawmakers who heralded the 2017 compromise as a breakthrough for victims now say they were swindled.
“I made a deal with the devil,” said Del. C.T. Wilson (D-Charles), the sponsor of the 2017 law and a survivor of child sex abuse by his adoptive father.
“I was working with them in good faith,” Wilson, a lawyer, said of the church. “They were behind the scenes, crafting language that protects them forever.”
Sean Caine, a spokesman for the Archdiocese of Baltimore, said the church was upfront.
“If you don’t know what your bill says, that’s a problem,” Caine said.
Two different legal opinions — written by a Maryland assistant attorney general and a lawyer for the church — say the “statute of repose” provision in the 2017 law effectively grants organizations a permanent reprieve from child sex abuse allegations filed by someone older than 38.
Unlike a statute of limitations, which addresses how long parties have to sue and can be changed by lawmakers, a statute of repose grants defendants a right to be free from liability after a certain point. Such provisions are often used in product liability law to limit a company’s legal exposure decades after a product is released into the market.
Some legal experts, including the attorney general’s office, argue it is unconstitutional in Maryland to take such rights away. But state lawmakers might use the final days of the 2019 session to do it anyway.
Amid the global clergy sexual abuse scandal, a growing number of states are creating a “lookback window,” a brief period when anyone can file a lawsuit alleging childhood abuse to seek both monetary damages and records that expose whether abuse was covered up.
Lawmakers in New York and New Jersey created lookback windows this year, spurred by the Pennsylvania grand jury report that accused some 300 Catholic priests of abusing more than 1,000 children over seven decades. Five other states have done the same, including Michigan, where the window is exclusively for victims of former USA Gymnastics doctor Larry Nassar.
The windows — opposed by the church, the insurance industry and the Boy Scouts of America, among others — have ushered in hundreds of lawsuits and more than $1 billion in legal bills for institutions that sometimes must defend people long dead, or in circumstances where no records or witnesses exist. Large payouts from the litigation have prompted archdioceses in Delaware, California and Minnesota to file for bankruptcy.
“It has a debilitating effect in the church’s ministry, and it took money away from Catholics today, who had zero to do with this,” Caine said. If Maryland passes a lookback window, he said, the church would “absolutely” seek to overturn it as unconstitutional.
The Maryland lookback bill, which has passed the House and is awaiting action in the state Senate, could also affect the private Key School, which faces allegations that teachers sexually abused at least 10 students in the 1970s. The statute of limitations for civil suits for Key School victims expired when they turned 21.
Advocates for abuse survivors say lookback windows have exposed predators still operating in the community and brought justice for victims who did not confront the horrors of their childhoods until well into adulthood.
“Pedophiles don’t retire,” said Jeffrey R. Dion, chief executive of the nonprofit Zero Abuse Project. “Survivors don’t come forward until they are ready.”
Disallowing long-ago legal claims, he said, “does nothing but protect perpetrators and the people that cover up for them.”
House Majority Leader Kathleen M. Dumais (D-Montgomery), a lawyer known for advocating for victims of sexual abuse, argued in March from the floor of the House of Delegates that a lookback window would be unconstitutional.
Her voice shaking with emotion, she said it would give false hope to victims, who might undergo years of litigation only to see their cases thrown out.
The House overwhelmingly disagreed, voting 135 to 3 to approve a two-year lookback window starting Oct. 1, and eliminating all civil statutes of limitations for sexually abused children going forward.
Hours later, Assistant Attorney General Kathryn M. Rowe issued a letter of advice saying Maryland courts would find the lookback window unconstitutional. Such an opinion is often a political death knell for controversial legislation in Annapolis, but the bill’s prospects in the Maryland Senate are unclear.
Judicial Proceedings Chairman Bobby Zirkin (D-Baltimore County) said he disagrees with Rowe’s analysis, as well as one written for the Maryland Catholic Conference by Kurt J. Fischer, a partner at the prominent Venable law firm.
“I’m moving that bill,” Zirkin said, promising a committee vote.
Zirkin, a lawyer, introduced the amendments in 2017 that included the repose statute. He said “it wasn’t anyone’s intent” to grant permanent immunity.
In interviews, several other lawmakers who negotiated the compromise recalled the two church lobbyists who shopped the repose provision, saying they did not want to repeatedly revisit extending the statute of limitations. The lawmakers said they now believe they unwittingly agreed to language that could permanently prevent anyone born before the early 1980s from suing the church.
Permanent immunity “was never discussed,” said Del. Vanessa E. Atterbeary, (D-Howard), a lawyer who is vice chair of the Judiciary Committee.
“I was in meetings with the Archbishop of Baltimore,” she said. “That’s the sort of conversation I would have remembered.”
Church lobbyist John Stierhoff declined to comment on how the provision got into law. Mary Ellen Russell, the executive director of the Maryland Catholic Conference at the time, declined to comment because she no longer works for the organization.
Caine said the church was clear it did not want to annually revisit this debate.
“This was a key reason for the compromise, and it was among the reasons the church publicly supported the bill,” Caine said. “We always were and continue to be against the idea of retroactively reviving claims, just for the sheer fairness of it.”
Caine said the Archdiocese of Baltimore has spent more than $11 million over the past two decades on settlements and what Caine called “unlimited counseling” for victims, deals the church negotiates even though the civil statute of limitations has expired.
In recent months, he said, the archdiocese has cooperated with Maryland Attorney General Brian E. Frosh’s criminal investigation of church sexual abuse, turning over files of every clergy member ever accused.
Abuse victims say the civil process can provide closure that criminal investigations might not, partly because victims can initiate them without law enforcement, and partly because the cases hinge on a lower burden of proof
If the immunity is lifted, Teresa Lancaster vows to sue the church. “I have my complaint typed out and ready to go,” she said.
She and another woman sued the church in 1994, alleging their counselor at Archbishop Keough High School in Baltimore repeatedly raped them in the late 1960s. The case was dismissed because the statute of limitations had expired. Her alleged attacker, Joseph Maskell, said he was innocent. He died in 2001.
In 2010, Lancaster accepted a $40,000 settlement from the church. By 2016, the church had settled with 16 people who accused Maskell of abuse.
Last week, Lancaster lobbied to pass the lookback window. She says she wants access to Maskell’s personnel files to see what the church may have known at the time about alleged abuse.
The archdiocese has declined to release them.