The Maryland Attorney General’s Office has concluded that it could defend “in good faith” a possible vote by state lawmakers to repeal provisions of a 2017 bill that granted immunity to the Catholic Church and other institutions against lawsuits over old incidents of child sexual abuse.
Lawmakers have discussed the repeal for years, only to stop short because of doubts whether the move would withstand a challenge in court. The Attorney General’s Office has held since 2019 that a repeal “would most likely be found unconstitutional” by the courts.
In a letter circulated Thursday, however, the office issued another opinion with the strongest words yet that its lawyers could defend a repeal.
“If the General Assembly chooses to provide victims of child sexual abuse justice, I can in good faith defend the legislation should it be challenged in court,” Attorney General Anthony Brown wrote.
The issue — whether a repeal could withstand legal challenge — has been the biggest obstacle in recent years to expanding opportunities for adult survivors of child sexual abuse to sue the institutions complicit in the crimes. The legislation has now become a priority for lawmakers after the attorney general’s office disclosed that it had finished a nearly four-year investigation into the history of child sexual abuse within the Archdiocese of Baltimore.
Investigators looked back 80 years and identified 158 priests, most of them already known, within the archdiocese accused of the “sexual abuse” and “physical torture” of more than 600 victims, according to the court records. They’ve asked permission of the courts to release their findings to the public.
The report has spurred efforts in Annapolis to reform civil laws that limit when survivors may sue churches, schools or other institutions for their role in the crimes.
Maryland lawmakers have sought to follow other states in establishing a “lookback window,” a designated period during which survivors may file lawsuits that would otherwise be too late under a state’s statute of limitations. In Maryland, survivors generally can’t sue past the age of 38 for abuse they suffered as children.
But past efforts to pass a “lookback window” have run into something called a “statute of repose.” That provision was quietly added to the 2017 bill — many lawmakers who voted on that bill said they were unaware of it — to grant the church and other institutions immunity to lawsuits from anyone older than 38. That has effectively blocked legislative efforts in recent years to open a “lookback window.”
There’s much at stake for survivors and institutions. Survivors say it’s not just about money, but a lawsuit would bring closure and emotional healing. Further, the discovery process of a lawsuit has helped expose abusers and their enablers in other states. Meanwhile, dioceses elsewhere have filed for bankruptcy when facing the possibility of a flood of lawsuits and judgments over abuse that happened decades ago.
The statute of repose from 2017 granted institutions a vested right to immunity from most people older than 38. The Maryland Constitution protects such rights, and the courts have found vested rights generally can’t be revoked. That’s why the attorney general’s office has previously concluded that repeal would most likely be unconstitutional.
Brown was sworn in as Maryland’s attorney general last month. His administration struck the slightly different tone in the new letter. It also comes after advocates discovered that lawmakers repealed a statute of repose in the 1990s related to asbestos lawsuits.
Lawmakers are generally reluctant to pass legislation they know to be unconstitutional. The letter now provides legal cover for those who want to repeal the statute of repose and establish a lookback window.
Sen. William C. Smith Jr., chairman of the Judicial Proceedings Committee, introduced the letter Thursday to begin a hearing on the bill. Smith has sponsored legislation to repeal the statute of repose, open a lookback window and set limits for damages. Judgments against public institutions, such as school boards, would be capped at $850,000; private and nonprofit institutions at $1.5 million, according to his proposal.
Del. C.T. Wilson, a Democrat from Charles County, sponsored similar legislation in the House. In past years, his effort has passed the House only to stall in the Senate.
Senators did not vote on Smith’s bill Thursday. During the hours-long hearing, survivors told of the abuse they suffered at the hands of clergy and their lingering trauma.
State Sen. Charles Sydnor, a Baltimore County Democrat, said he’s received a form letter from constituents asking him to oppose the bill. It’s unclear who’s circulating the letter.
The letter asks lawmakers to oppose the bill because it’s unfair to limit judgments against public institutions at $850,000, but private institutions at $1.5 million.
“In addition to this unfairness, it [leaves] open the possibility of fraud because alleged perpetrators of abuse and witnesses may well be dead and unable to confirm, deny or defense accusations made against them,” according to the letter.