6/7/2007
Amend Senate Bill 29 to ensure fairness, accountability and court access for all

The current two year civil statute of limitations for childhood sexual abuse is unacceptable and needs to be changed.  Senate Bill 29 is an effort to do just that.  The bill creates a two year window for past cases of sexual abuse to be brought into court and before a jury for consideration.  The alleged abuser and the institution the individual worked for could be held liable for damages.  The bill also completely eliminates the statute of limitations for future cases of abuse against children.  Again, the alleged abuser and the institution the individual works for could be held liable for damages.

This is a strong bill to address a very serious issue.  Understandably, few things shock us more than the sexual abuse of a child.  The ability of a victim to face his or her abuser in court is important.  To hold institutions accountable for their actions, or failed actions, past, present and future, is also important.  For the institution, the possibility of being found liable in such a case should be more than enough to institute policies and procedures to ensure that corrective actions are taken immediately at the first hint that such an offense could be taking place.

Shut your eyes for a moment and then open them.  Imagine that before you stand two victims of childhood sexual abuse who are seeking access to the courts.  Their stories of abuse at the hands of individuals are the same.  The institutions charged with each child’s care have also failed to adequately protect them and end the abuse.  You would assume that they would both have equal access to the courts to tell their stories and state their facts.  The accused would have an opportunity to defend themselves as would the institutions who may not have acted adequately to stop or prevent the abuse.

You are wrong. 

As it stands today, agencies of the State of Delaware and public schools “enjoy” a defense called sovereign and limited immunity that no other institutions in Delaware can utilize.  Essentially, a victim cannot sue the State of Delaware for its failure to properly protect them from abuse.  Public schools have defenses available to them that other institutions do not have making it more difficult for a victim to prevail. 

I believe that this is wrong today and it will be just as wrong tomorrow.  We should not have two classes of victims based upon who employs their abuser.  We should not limit access to courts and hold the State of Delaware to a lower standard of care than we would be requiring of every other institution that cares for children in our state.

House Amendment 2 to SB 29 explicitly and without question ensures that Delaware is held to the same level of accountability and responsibility for the care and protection of our children that SB 29 demands of other organizations by waiving the State’s sovereign and limited immunity for past and future abuses.  That way lawyers will not be in a position to argue with the “intent” of the law at some point in the future.  The will and intent of the General Assembly will be clear and unmistakable - we expect the State to rise to the same level of accountability that we are demanding of every other institution that takes care of our children.  Expecting anything less would be unreasonable.

In the past year alone, four public school employees have been arrested for the rape and sexual assault of children in their care.  One of these children was a special needs student who was assaulted by a sixty year old white male.  Statistical evidence on pedophiles would indicate this was not an isolated assault by the alleged abuser.  Another assault involved the multiple rapes of a middle school student.  While we would prefer that this did not happen at the hands of State employees or others, it has, it does and it will.

House Amendment 2 does not kill SB 29 as some might argue.  It makes it stronger.  It ensures access to the courts for all – not for some.  It demonstrates beyond any doubt that we will not tolerate sexual abuse of our children by individuals, and we will not turn a blind eye toward any institution involved in that abuse, including the one the General Assembly should be most responsible for overseeing, the State of Delaware.

We should not be fooled by the argument that the State’s immunity issue should be dealt with in the future or in a separate bill.  We should not be misled that the State has this immunity “privilege” with other torts and should therefore be able to preserve it when abetting the sexual abuse of children.  We should set the standard for this issue and apply it equally to all, including the State.  Demanding anything less would be unreasonable.

Imagine those two victims again.  The private school student would have complete access to the courts if SB 29 were to be enacted today without amending the bill.  Only with HA 2 would the public school student have that same access to court to face their abuser and the institution that may have failed to protect them.

Amending SB 29 with HA 2 is the right thing to do.  It is the only thing to do.  Anything less would create a double standard and two classes of victims with the public school student not only victimized by their abuser but also by being denied access to the courts.  The General Assembly should be sure that this does not happen and that every victim is treated equally and fairly.

Gregory F. Lavelle
State Representative
11th District

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