“My feeling is that this body clearly is not qualified to determine whether the courts will find the revival portion of the bill, as it’s called, unconstitutional, so their best course is to decide whether they support the proposed changes as a matter of policy, and vote accordingly. The murky constitutional issue is a matter for the state Supreme Court, not a bunch of politicians.”
6/14/16 | Bill White | The Morning Call
My column yesterday on Monday’s state Senate Judiciary Committee hearing on a child sex abuse statute of limitations reform bill focused mostly on Attorney General Kathleen Kane and her solicitor general, Bruce Castor.
But there was lots more going on, so I’ll tell you about that today.
The day began with a group of more than 50 victims of child sex abuse and their advocates on the step of the Capitol for an early morning rally.
When I arrived shortly after 8 a.m., a martial arts expert was breaking boards, using all parts of his hands, in a symbolic assault on child sex abuse. David Shapiro, CEO of Jewish Community Watch, was scheduled to break more than 150 boards, although I wasn’t counting.
He said in a press release I got the night before, “I will break 17 boards for 17-year-olds, 16 boards for 16-year-olds, and so on,” Shapiro said, “to represent all of the ages when children become victims of sexual abuse.” He told me after that he would be repeating the demonstration today in Albany, where New York’s Child Victims Act is under a similar assault from the Catholic Church and other opponents.
Shapiro, who told me he was abused at age 7, said, “What I wanted to show is that a little pain for me can potentially help stop pain for a lot of others.”
Several speakers, led by constitutional lawyer and statute of limitations advocates Marci Hamilton, commented on the importance of the hearing on HB 1947, which easily passed the House in April and would eliminate the statute of limitations for criminal cases of child sexual abuse and extend the statute for civil cases until the victim reaches age 50, retroactively, from the present age 30.
John Salveson, an abuse survivor who is president of the Foundation to Abolish Child Sex Abuse, blasted the Catholic Church for cranking out misinformation about the bill. “They are shameless, cowardly, delusional people who think they can convince their parishioners that they are the true victims, that they are being unfairly singled out and that they shouldn’t be held accountable for their decades of criminal, calculated, immoral behavior,” he said.
“We will soon learn if our Senate leaders have the courage to stand up for children and the judgment to see through the insulting, misleading, manipulative campaign being undertaken by those who oppose HB 1947. We are watching them and hoping with all of our hearts that they choose victims over predators, the truth over lies and integrity over fear.”
Then they all headed into the Capitol, where they put their posters up on the walls leading into the hearing room where the Judiciary Committee was scheduled to hear testimony about the bill’s constitutionality. They ended up filling the place.
There was impressive testimony by legal scholars on each side of the constitutionality question, focused almost exclusively on the provision that would offer retroactive access to the courts for people between 30 and 50 when the bill becomes law. The key to these legal assessments is what is known as the remedies clause in the Pennsylvania Constitution.
Those who argued that the bill would be struck down as unconstitutional insisted that there are several legal precedents in state court decisions that make it clear that retroactively changing the statute of limitations is not permitted because of this remedies clause. Hamilton, the only advocate for the bill’s constitutionality in the noticeably lopsided lineup arranged by committee Chairman Stewart Greenleaf, R-Montgomery, insisted that the remedies clause applies only to retroactive substantive changes in the law, not procedural changes such as this one.
She argued that the remedies clause was meant to protect people and institutions from harm, not to give legal cover to those who inflict the harm.
I’ll have more to say about Greenleaf — who has a conflict of interest that would be ridiculously obvious anywhere but in Harrisburg — in a future column or blog post.
One suggestion, from Kane and others, was that legislators amend the Constitution to eliminate the remedies clause. Setting aside the question of whether that really would clear the way for retroactive changes in the law, amending the Constitution would be a several-years-long process in which the amendment would have to be approved by two sessions of the Legislature and then submitted to a referendum.
This approach might appeal to those who want to feign support for change while at the same time making it unlikely, but it would have very little appeal to people who have been waiting so long already for access to justice.
I thought most advocates for both points of view on constitutionality offered convincing arguments, but I’m not a lawyer, and the committee members aren’t judges. It also was striking to me that some members either didn’t attend at all or left after hearing only a portion of the testimony, all of which at that point was from people who believe it’s unconstitutional. One of those who left very early was Sen. Lisa Boscola, D-Northampton, but not before she posed some goofy questions that made it clear she has done no research whatsoever on the subject and had little grasp of what she was hearing.
My feeling is that this body clearly is not qualified to determine whether the courts will find the revival portion of the bill, as it’s called, unconstitutional, so their best course is to decide whether they support the proposed changes as a matter of policy, and vote accordingly. The murky constitutional issue is a matter for the state Supreme Court, not a bunch of politicians.
Hamilton equated the dilemma with the one faced by Congress when it was presented with the Civil Rights Act in the 1960s. There also were claims at that time that it was unconstitutional, and the U.S. Supreme Court ultimately upheld it.
“This is a civil rights movement for children,” she said. “If this body wanted to help victims, it could. It’s very simple. It’s very very simple.”
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