How many victims of sexual abuse in childhood are competent by the age of 24 to know how damaging the abuse has been to their lives? Yet in Minnesota, child victims of sex abusers currently have to file suit in civil court to cover the costs of injuries within six years after they “knew or had reason to know” that the injury was caused by the sexual abuse, according to Minnesota Statutes, Section 541.073 Subd.2(a).
The Minnesota Supreme Court has held that a child can’t know or have reason to know that he or she has been injured by sexual abuse until the age of 18. But unless another disability is proven, the court’s decision is read to give victims six years after the age of 18 to sue for damages. In most cases, by the age of 24 the person’s right to sue is foreclosed. This statute applies not only to suits against an abuser but it also applies in Subd.3(2) to suits against a person who caused the injury by “negligently permitting sexual abuse against the victim to occur.” The employer who was negligent in hiring an abuser and placing children in harm’s way is protected by this statute, too.
The nature of injuries varies
Research shows that the experience of abuse can be so traumatic that victims repress the memory of it. In many more cases, even though they remember, they are so emotionally disabled by the abuse that they lose control of their lives and thus their ability to make decisions in their own best interests. The injury from sexual abuse in childhood can include failure in school, juvenile delinquency, addiction to alcohol or drugs, attempted suicide, failure to make and keep intimate relationships, failure in jobs, failure in marriage, domestic abuse, a lifelong loss of a sense of self and a need for psychotherapy. Our legal system translates these losses into money, “damages,” awarded in civil lawsuits. But unless they had the good fortune to be reached by competent adults, few suffering young people under 24 would foresee these costs and know they should sue the abuser and the employer who gave the abuser access to them.
A bill that could remedy this situation in the 2008 session, HF 1239, sits in the House Public Safety and Civil Justice Committee, buried by the committee chair, Rep. Joe Mullery, DFL-Minneapolis. Rep. Steve Simon, DFL-St Louis Park, chief author of the bill, believes he has the votes to pass the measure if Mullery were to schedule it for a vote in committee.
The Senate bill, SF 1096, authored by Sen. Gary Kubly, DFL-Granite Falls, is in the Senate Judiciary Committee chaired by Sen. Mee Moua, DFL-St. Paul. Sen. Moua scheduled a hearing, but canceled it on Feb. 21. Julie Perrus, policy director of the National Association to Prevent Sex Abuse of Children (NAPSAC), said her organization hopes Moua will reschedule the hearing.
The clock would start differently
The bills provide the same six-year bar, but the clock will not start to run until a “victim fully comprehends the causal connection between the sexual abuse and the injury resulting from the abuse.” A jury would determine from medical or psychological testimony when a victim had full comprehension. The bills provide a retroactive right to sue to persons barred by the Minnesota Supreme Court’s previous interpretations of the statute. It would apply to all Minnesota children and all individuals and organizations responsible for putting children knowingly in harm’s way.
Who wins if the Legislature kills these bills? Employers who negligently hire predators stand to win. The statute requires that there be a finding of negligence on the part of the employer in placing a predator with children under its care. An employer who could avoid that finding with diligent hiring practices but fails to do wins if the statute is not amended.
Who wants to kill the bills? The Minnesota Religious Council is a strong lobby against clarifying the statute. Its members, as of December 2007, include the Archdiocese of St. Paul and Minneapolis, the Minnesota Catholic Conference, the Episcopal Diocese of Minnesota, the United Methodist Church, the St. Paul Synod of the ELCA, and the Minnesota South District of the Lutheran Church-Missouri Synod. The Minnesota School Boards Association has also lobbied against the bills. All these employers will avoid liability for past negligence if the statute continues to be interpreted as it is now, and they will avoid liability for present negligence if most victims are unable to sue before the age of 24.
Who loses if Moua and Mullery kill the bills? Victims of past sexual abuse in childhood who want to heal and become survivors stand to lose, of course. They will be deprived of resources they need to move from victims to survivors. But the citizens of Minnesota are also at risk. We are in the moral position of not only abandoning the victims of past abuse, but also of neglecting our duty to protect children from future abuse.
The intent of holding employers liable is to prevent future abuse of children by making it too costly for employers to hire known predators. Liability may motivate employers to develop effective procedures for screening and hiring employees. It may motivate their insurers to require deep background checks.
Criminal-record checks are not enough. Yvonne Cournoyer, program director of Stop it Now! Minnesota, one of numerous abuse-prevention organizations in Minnesota, says that in a telephone survey in 2003 and 2007 her organization called 500 randomly selected adults in the seven-county metro area. Of the 500 called, 110 adults reported having been sexually abused as children. Only 32 had told anyone, and only 7 had reported the abuse to law enforcement. Only a fraction of abusers end up with criminal records.
As a matter of public policy, we should provide an incentive to employers to conclude a cost/benefit analysis in favor of rigorously screening employees, including child-care workers, counselors, coaches and clergy. Right now, carelessness in hiring costs an employer nothing if the victim is too emotionally disabled to sue before the age of 24. The odds are in the employers’ favor if they slide by with criminal-record checks only. The employers fighting this legislation may believe it is their duty to cut costs, but the state’s duty is to provide legal redress to those who were abused as children.
Paula Ruddy is a founding member of the Progressive Catholic Voice, a forum for the exchange of ideas within the Catholic community.
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