State panel due to vote on child sex abuse bill today

James Cohen in Newsday, March 17, 2009

A state Assembly committee is expected to vote today on a child sex abuse bill amid a legal debate about whether it discriminates against private institutions, including the Catholic Church.

The bill proposed by Assemb. Margaret M. Markey (D- Maspeth) would suspend for one year the statute of limitations on child sex abuse cases. Victims could file lawsuits against alleged perpetrators for abuse dating back decades.

Religious groups contend the bill discriminates against them partly because of the state's existing 90-day "notice of claim" requirement. Under that process, anyone suing a public agency - but not those suing private defendants - must file the claim within 90 days of the alleged incident. If the claim involves a child, the 90-day clock starts when he or she turns 18.

The 90-day rule in effect exempts employees of public entities from the Markey bill, the church contends. "You have an automatically unfair bill," said Sean Dolan, a spokesman for the Diocese of Rockville Centre. "You're singling out one group - the private institutions."

The church's opposition goes even deeper: Even if the 90-day requirement were eliminated for those suing public-sector employees, the diocese would oppose any lifting of the statute of limitations.

Markey spokesman Michael Armstrong insisted the proposed law would apply equally to both private and public-sector employees. He said that in the case of a public employee, alleged victims could ask a judge for a "late notice of claim" and proceed with a lawsuit.

The bill "does not include or exclude anyone," he said. It would provide "an open window on all claims."

Legal experts were divided. James Cohen, a professor at Fordham Law School, said that while alleged victims might have to obtain a "late notice of claim" approval to proceed, he sees it as a "small possible obstacle" because most judges would grant the permission.

He said the main issue judges consider is why the claim was filed late, and that child sex abuse victims have a good reason - they were children when they were abused.

But Andrew Shepard, a law professor at Hofstra Law School, said the issue was not clear and might ultimately have to be decided by the state's Court of Appeals. He said that laws similar to Markey's enacted in other states have not resulted in large numbers of lawsuits against public-sector workers.

The Assembly's Codes Committee is expected to vote today on whether to move the Markey bill out of committee and on to the full Assembly floor for a vote in coming weeks. Supporters say the bill, already approved in the last three sessions in the Assembly, has its best chance in years of becoming law because Democrats now also control the Senate, 32-30.

SEX ABUSE SUITS

Under current law, the process for suing in cases of alleged child sex abuse varies depending on whether the defendant is a private or public employee. The legal landscape would change further with a new bill proposed by Assemb. Margaret M. Markey (D-Maspeth).

UNDER CURRENT LAW

SUING A PUBLIC SECTOR EMPLOYEE

If someone contends that as a child he or she was sexually abused by a public sector employee such as a teacher, he or she must file a lawsuit within 90 days after he or she turns 18 years old. This is because of a 90-day "notice of claim" requirement that applies to lawsuits in general against public entities.

SUING A PRIVATE EMPLOYEE

An alleged child sex abuse victim must file a lawsuit within five years after turning 18 years old. The 90-day notice of claim requirement does not apply to the private sector.

UNDER THE MARKEY BILL

SUING A PUBLIC SECTOR EMPLOYEE

Although her bill does not explicitly state it, Markey contends her bill would apply to the public sector as well as the private sector. A one-year suspension of the statute of limitations would be imposed, allowing victims to come forward with old cases.

Private institutions, including the Catholic Church, contend the Markey bill is discriminatory because it would not apply to public institutions due to the 90-day "notice of claim" requirement.

Legal experts are divided. Some say judges would grant permission for "late notice of claim" because the alleged victims have a good excuse - they were children at the time of the abuse. Other experts say the situation is not clear, and could end up in the New York State Court of Appeals.

Markey's bill would also increase the statute of limitations in future cases from five years to 10 years.

SUING A PRIVATE EMPLOYEE

The statute of limitations on child sex abuse cases would be lifted for a year and victims could file lawsuits against their offenders no matter how far back the cases went.

The Diocese of Rockville Centre opposes this because it says it is unfair and unconstitutional to lift statute of limitations laws.

ANOTHER APPROACH: THE LOPEZ BILL

A bill proposed by Assemb. Vito J. Lopez (D-Brooklyn) does not include the one-year window lifting the statute of limitations. It would increase the statute of limitations on future cases from five years to seven years, although it is unclear how the 90-day notice of claim requirement would affect public-sector cases.