ROBERT G. CASSILLY Legislative District 34 Harford County Anmzpalir 015%? James Senate Of?ce Building 11 Bladen Street. Room 401 Annapolis, Maryland 21401 410?841-3158 - 301?858-3158 Sou?4927122 Hart. 3158 Bob.Cassilly@scnarc.srare.mdus Judicial Proceedings Committee Joint Committee on Administrative. Executive, and Legislative Review District Office Joint Committee on Federal Relations HE SENATE OF MARYLAND ANNAPOIJS, MARYLAND 21401 443-502-0533 February 10, 2020 Lowe House Office Bldg, Room- 6 Hladen Street Annapolis, MD 21401 Re: House Bill 974-Child sexual Abuse? De?nition \and Statute of Limitations Hidden Predator Act of 2020) Dear Delegate House Bill 974 proposes the unprecedented step ofcompletely removing the statute of limitations for a class of civil lawsuits. A statute of limitations sets the deadline by which a lawsuit must be ?led; it does not set a deadline by which a defendant can be criminally prosecuted. Statutes oflimitations are intended to encourage litigants to bring matters to court before the evidence is stale or lost, memories have faded, and justice has been rendered impossible. "they also encourage people to bring problems into the open before additional harm can be inflicted. It is suggested that this radical step ofeliminating the statute oflimitations is called for because the class oflawsuits at issue are claims alleging sexual abuse ofminors. While that class of lawsuits certainly merits special attention, the utter debacle of the US. Senate hearings on the appointment ot?Supreme Court Justice Kavanaugh should raise serious concerns about this bill. The 37-year?old allegations of sexual abuse in the Kavanaugh matter were subjected to very extensive investigations, far more in depth than would ever be the case in any civil lawsuit, and still the travesty ofproceeding based on such ancient allegations was readily apparent to anyone not thoroughly committed to the destruction ofJudge Kavanaugh?s nomination. Sexual abuse ofa minor is abhorrent so there might be a tendency in all ot?us to ignore the obvious ?aws in this bill. But we have to consider that there is currently no statute oflimitations on criminal prosecutions ot?scx abuse, that every other civil cause of action is subject to a statute of limitations that is normally of three years, that all civil actions by minors are already extended to three years of beyond the minor?s 18th birthday to age 21, and that in the case ot?alleged sexual abuse against a minor the General Assembly reecntl extended the limitations to 20 years after that minor?s 18 birthdaypractical level, enacting HB 974 would allow a person to file a lawsuit for civil damages based on alleged sexual abuse regardless of when that event said to have occurred 20 years ago, 37 years ago, 50 years ago, 100 years ago. As the Kavanaugh hearing showed, every day after an event occurs justice becomes less likely as it becomes increasingly more dif?cult to capture the truth. Witnesses die or move away, memories fade or are remade, and crucial physical evidence (photos. security video cameras, calendars. telephone records. clothing, stains, bruises, and DNA) are lost. Accurate recall ofdetails ofevcn the most significant event becomes very unlikely as decades pass and cases are relegated to oral recollections without any corroborating evidence. HB 974 February 10, 2020 Page:2 The potential harm this bill would cause is not limited to the alleged abuser. It also extends to institutions like schools, boy girl scout operations, churches, hospitals, municipalities, day care centers, staffing agencies, parks rec programs, and clubs. The current members of these organizations will have to pay compensation for abuse alleged to have occurred decades before the current members were even born. Already, scouts today must pay additional membership dues to offset civil judgments to be paid for the wrongdoing by long deceased scout leaders. The vast Philmont Scout Ranch in New Mexico, has already been mortgaged to pay for the growing wave of new sex?abuse lawsuits nationwide related to alleged abuse by scout leaders decades ago and could be forever lost to future generations ofchildren. This unprecedented, radical bill is nothing less than a threat to the very legitimacy of our civil justice system. That civil justice system is intended to provide just compensation for those harmed by the fault of others. Civil justice should, to a reasonable extent, protect the interests of all parties and not prejudge guilt or innocence. To more fully appreciate the impact of HB 974, it is important to understand that the civil justice system that would be impacted by HB 974 awards only money damages, losers are not subject to incarceration. By contrast, our criminal justice system has statute of limitations for criminal prosecution ofthose alleged to have sexually abused minors. A criminal prosecution can be brought at any time and the defendant can be incarcerated provided that the state is able to meet its burden of proving ?beyond a reasonable doubt? that the defendant committed the act alleged. If that criminal prosecution is successful, then, under current Maryland law, the statute of limitations in the civil case is waived and the victim can use the criminal conviction to seek a civil judgement for damages against the accused, regardless of how long ago the event occurred. In contrast to a criminal proceeding, in a civil lawsuit, where there has not been any prior criminal conviction, the plaintiff must prove their case only by a ?preponderance of the evidence.? That much lower civil burden of proof means that whichever side has the more convincing evidence wins the lawsuit. So, if the defendant cannot recall any details sufficient to offer a defense to an event said to have occurred 50 years prior and the plaintiff offers a plausible and well told story that is supported by nothing more than the plaintiff?s recollection, the case will be sent to the jury and the plaintiff might well win an immense civil judgement. The defendant will have been found liable for damages despite the fact that the evidence against the defendant was far too weak or doubtful to find him guilty beyond a reasonable doubt, as would be required of a criminal conviction. In 2017, when the current law was enacted, the various interest groups reached an agreed proposal which was adopted by both houses of the General Assembly. That law provides that a minor can file a lawsuit alleging sexual abuse within 20 years after the minor?s 18th birthday, or by age 38. This considerable extension of the usual time allowed for filing a lawsuit was granted because it is said the trauma associated with child sexual abuse can linger for many years and advocates testified that it often takes years after the age of majority (18) for an adult to come to terms with their childhood abuse to an extent where they feel sufficiently confident to inform authorities or seek compensation. This very extended limitation period obviously comes at the expense of the defendant?s interest in a fair civil trial. Some believe that the current law goes well beyond a limit that is reasonable and fair to the accused. However, due to the nature of the offense, the legislature decided that it would tip the scales and give far greater weight to the interest of compensating the victim than to protecting the accused right to a fair trial. HB 974 February 10, 2020 Page:3 The current law also allows for suit at any time after a criminal conviction. That is because the risk to the accused is diminished by the fact that the state, in a criminal conviction, must prove their case beyond a reasonable doubt and not merely by a preponderance of the evidence. A prosecutor, it was reasoned, would not likely prosecute a case unless the evidence was strong and not overly degraded by the passage of years. The current law also allows a civil lawsuit to be brought against the entity that employed the alleged abuser. If the employer is found by the jury to have been grossly negligent in enabling the perpetrator, the employer is subject to the same extended limitations period as the abuser. If the employer is found not to have been grossly negligent, the lawsuit must be ?led in court before the plaintiff is 25 years old. This reduced limitation period for the employer recognizes that extensive delay beyond seven years after the minor reaches the age of majority means that the employer, unlike the alleged perpetrator, will likely have lost all records and all evidence upon which any defense can be mounted. Clearly, the General Assembly stepped up to the plate three years ago when it extended the statute of limitations to a full 20 years after the age of 18 and eliminated the limitations period when the perpetrator is criminally convicted of child sexual abuse. That result was seen as a difficult but necessary compromise to achieve just compensation for victims while preserving a reasonable degree of the justice and fairness that are the hallmarks ofour civil justice system. As much as we universally despise child sexual abusers, we must be mindful of the adage that ?bad cases make for bad laws? and HB 974 would establish just such a bad law. Legislators must not give way to pure emotion. Instead, we should strive to maintain a credible civil justice system that does not assume guilt but instead provides reasonable justice for both the accuser and the accused. In deciding whether the current law achieves such a fair balance, keep in mind that it is the accuser who decides when to bring a lawsuit, how long to delay before filing, how much evidence to preserve, and what witness testimony to memorialize in an affidavit in the decades before suit is tiled. The accused has no such choice and an innocent defendant is never alerted to the need to preserve evidence necessary to establish innocence. It has been suggested that this law is intended to punish certain institutions. That must never be the objective of any law. The law proposed in this bill will apply to everyone, everyone?s father, grandfather, brother, sister, mother, and friends. It will apply equally to all schools, clubs, churches, non?profits, etc. The proposed bill would allow a lawsuit against your ailing 90?year-old grandfather for an abuse said to have been committed when he was 19. lfhe has already died, the proposed law would even justify a suit against his estate. Sexual abuse is a very damning allegation. The rights of the accused should not be an afterthought in this process. Wrongs committed by some sectors of our society 40 years ago do not justify a drastic curtailment in standards ofcivil justice across our state today. I urge you to Oppose House Bill 974. Thank you. R0 rt G. Cassilly