About half of all states still impose a time limit for pressing charges and filing civil lawsuits for sex crimes. Victims have anywhere from one year (in Washington), all the way to 30 years (in Louisiana) to file a legal complaint. Here in California—fueled by a whirlwind of Bill Cosby rape allegations, #MeToo activism, and improvements to the state’s DNA database—a new law passed in September 2016 has eliminated the criminal statute of limitations for rape and child molestation.
Prior to the passage of SB 813, California placed a 10-year limit on bringing a case against sex abusers. While this may sound perfectly reasonable to defense attorneys, survivors know that there is no time limit on their suffering. Evolving cultural understandings are paving the way for longer statute of limitations. As The Washington Post explains: “In the Weinstein case, dozens of women were unwilling to come forward with their accusations of sexual misconduct at the time of the alleged incidents. Now, at least in part because cultural norms around sexual abuse are shifting, survivors are speaking up.” Similarly, it took one brave woman to come forward in the Bill Cosby case to break the silence for over a dozen more women.
There is no doubt for these cases of past abuse that SB 813 was much-needed, but there is still one big question for many survivors of sexual abuse: Is California Senate Bill 813 retroactive back to when a sex crime occurred, or does it begin on the date when the law was enacted?
When Does SB 813 Go Into Effect?
When bills are passed, they can be classified as “prospective legislation” or “retroactive legislation.” Prospective bills go into effect on a set date in time for the foreseeable future. Retroactive bills (sometimes referred to as “ex post facto laws”) essentially erase laws enforced in the past and create an entirely new law of the land that extends as far back in time as people can remember.
If you were sexually abused more than a decade ago, you may have hope that SB 813 opens the doors to speaking out about what happened to you and holding your abuser(s) accountable. However, SB 813 was passed as a prospective bill that applies to rape, forcible sodomy, and child molestation occurring on or after January 1, 2017. Any criminal trials from that point on, and going forward, will follow the new guidelines. The old laws already had a 10-year limit on filing for sexual abuse, so we won’t see the full effects of this law until January 2027.
Is SB 813 Retroactive?
Some see the new law as a major victory for victims of sex abuse, but it won’t apply to the women who say Cosby abused them, as the bill is not retroactive. If you were sexually assaulted, the laws and statute of limitations that were in place at the time the abuse occurred apply to your case.
However, it’s not a victory for the abusers either. “Governor Jerry Brown’s signature of SB 813 tells every rape and sexual assault victim in California that they matter and that, regardless of when they are ready to come forward, they will always have an opportunity to seek justice in a court of law,” said California Senator Connie Leyva. “Rapists should never be able to evade legal consequences simply because an arbitrary time limit has expired. There must never be an expiration date on justice!”
The approval of SB 813 is a testament to decades of hard work from victim advocates. Passage of new legislation helps “keep the fight alive” for those who have spoken up and gives hope to those who have yet to come forward.
Why Isn’t SB 813 Retroactive?
America has always had a strong tradition of prospective legislation and a rebuke of ex post facto law. Congress is generally prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the US Constitution. The framers of the Constitution felt it was important that citizens have fair notice of the laws that will be affecting them, so as a general rule, laws should operate prospectively to provide such notice. Thomas Jefferson once described retroactive laws as “equally unjust in civil, as in in criminal, cases.” Early statesmen warned that giving Congress the ability to make laws retroactive would give legislators too much power over individuals. According to Alexander Hamilton, the Ex Post Facto clause encourages the adoption of universally applicable laws and prevents lawmakers from punitively going after a particular person simply by passing a law.
In the 2003 case of Stogner vs. California, the U.S. Supreme Court ruled that it is unconstitutional to retroactively remove criminal statutes of limitations to make it easier to prosecute child sex abuse cases. The case was brought against Defendant Stogner in 1998 for child sex abuse committed between 1955 and 1973—for which the limitations period was three years. “The [Ex Post Facto] Clause protects liberty by preventing governments from enacting statutes with manifestly unjust and oppressive retroactive effects,” the Supreme Court contended.
One rare exception to the rule is the Adam Walsh Child Protection and Safety Act of 2006, which requires every sex offender (regardless of when the crime was committed) to register their whereabouts. In Smith vs. Doe (2003), the U.S. Supreme Court ruled that the retroactive nature of the law was constitutional because there is no real “punishment” imposed.
What If I Was Sexually Abused Before SB 813 Was Passed?
Beyond SB 813, survivors still have many different options for pursuing justice, even when their cases seemingly fall outside the deadline for filing a criminal report or civil lawsuit.The old law allowed several exceptions for sex-related crimes that may apply to you:
- Special Childhood Sex Abuse Statute of Limitations for Civil Lawsuits: California law allows for a rule of Delayed Discovery. If your abuse took place before January 1, 2015, you have until age 26 OR within 3 years of the discovery that your current psychological injury or illness is linked to the prior abuse. If your abuse took place on or after January 1, 2015, you have until age 40 OR within 3 years of discovery.
- Reporting Window for Civil Lawsuits: Perpetrators of sexual abuse and institutions that condone or turn a blind eye to sexual abuse may also be sued for damages in civil court. Civil claims have a different statute of limitations than criminal claims, and there are various exceptions that can extend the effective deadline even further depending on the facts of each particular case. The laws governing these limitations and exceptions are complex, so we advise discussing them with your lawyer in person.
What If SB 813 Can’t Help Me?
Calculating the Statute of Limitations in the wake of ever-evolving laws can be confusing and intimidating. Discouraging as it may seem, it is never too late to speak up and seek justice if you or someone you love has been abused. There is compassion built into the existing set of laws for survivors of the most heinous types of abuse.
The attorneys at Lewis & Llewellyn excel at pursuing justice in childhood sex abuse cases where the statute of limitations appears to have expired. We understand that it can take a long time to come to terms with what has happened to you and are here to help. Contact us for call +1 (415) 800-0590 for a free and confidential consultation.
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