When abuse claims collide with today's needs

Children deserve our love and protection. They are some of society's most vulnerable members. They need our help.

While disagreements abound, this is one issue on which all can agree. Nearly all of the world's leaders, for example, have signed onto the UN's treaty known as the Convention on the Rights of the Child, which proposes that all countries treat their children with dignity and respect. The world's major religions too, such as Christians, Jews, and Muslims, for example, believe that "children are a heritage from the Lord" (Psalm 127:3), meaning children are a heavenly gift, an inheritance, and much more than just the earthly creations of their parents.

If all agree on the basic premise, how then do we protect adults who were sexually abused as children decades ago, while simultaneously protecting today's children, who desperately need a public and private safety net around them? Protecting both groups is costly. Striking the right balance between them is challenging, to say the least.

On the one hand, adult survivors deserve justice against their perpetrators. Sometimes, the public and private institutions that sheltered those perpetrators deserve some blame as well. In 2019, in recognition of that interest, California legislators passed AB 218, which opened a "revival" window for adult survivors to assert claims that were time barred and drastically expanded the statute of limitations going forward.

But AB 218 came at a cost most legislators did not anticipate. Even the author of AB 218 has been publicly quoted as admitting the intended benefits of the 2019 law have led to a "feeding frenzy" of unintended consequences in the six years since its passage.

Opening a revival window without any guardrails resulted in a flood of claims arising from abuse that occurred decades ago. With no meaningful way to defend themselves -- because witnesses died and documents no longer exist -- public and private institutions have had little choice but to pay out substantial amounts, even in many cases where they did nothing wrong.

In April, Los Angeles County approved a $4 billion settlement with 6,800 people who claimed they were abused in county juvenile facilities. This was not a class action, so the settlement resolved some, but not all, such claims. The county does not have $4 billion on hand. The payout is like a lottery, stretching 25 years into the future.

One response has been to suggest that public entities, but not private institutions, be exempted from older abuse claims. But if supporting all adult survivors is the goal, this is not the solution.

Recovery should not depend on the happenstance of who abused you.

Another problem is there is no protection for institutional defendants who face false claims. Public and private institutions alike find it difficult if not impossible to defend against older claims because the evidence no longer exists. It's the victim's word against no one. The facts of abuse may be clear enough from the victim's perspective, but the surrounding facts potentially creating derivative institutional liability are almost always disputed.

Juries predictably judge these old cases by today's standards. Many of the post-AB 218 cases reach back to a time when society did not appreciate the breadth of abuse and how dangerous repeat offenders could be. Sex offender registries and mandatory reporting are relatively recent phenomena. Protections that are now routine, such as having at least two adults present when working with children, were seldom practiced years ago. And it was only a few years ago that California passed a law requiring youth organizations to conduct background checks and do abuse training.

One group benefits massively from this system -- plaintiffs' attorneys. They often pocket 40% of settlement amounts, on top of their costs, even in cases where they did little more than make a demand.

On the other hand, one group clearly suffers from the current system -- today's children. Massive sums paid to settle decades-old abuse claims means public and private youth organizations, including schools, have less to spend on protecting and serving today's children.

Los Angeles County's chief executive recently testified in Sacramento about the county's $4 billion settlement, which can only be covered by digging into reserves, issuing bonds, and making budget cuts that will harm children today and into the future, at least until 2050. In an interview, she perfectly capsulated the challenge: "Victims have a right to have their voices heard. I think it's important as a society to recognize those historical wrongs. At the same time, we have to be able to provide the social safety net."

Legislators should look for ways to accomplish two goals: Provide a path toward meaningful compensation to all victims, no matter who employed the abuser, while protecting public and private youth organizations from false claims and crippling liability that harms today's children.

There are ways to do this. It's been done in other states. Here are three suggestions that would accomplish these goals. One, cap damages at a high enough amount to provide meaningful recovery. Maryland, for example, revived time-barred claims but capped damages at $1.5 million. Two, cap attorneys' fees. Capping attorneys' fees at 20-25% would allow victims to keep a larger percentage of the settlement, thus offsetting some of the possible decrease in recovery caused by imposing a damages cap. Three, provide protection against fraudulent claims by imposing some kind of corroborating-evidence requirement for claims that arose decades ago.