PHOENIX — The fate of an $11.8 billion budget could be decided Monday as lawmakers debate the question of the liability of churches, the Boy Scouts and other organizations over old charges of sexual abuse.
Key players in the debate have said there is a deal in the offering that would sharply expand the current law which says any lawsuit by a child who has been assaulted or abused must be filed within two years of turning 18. That is among the shortest statutes of limitations in the country.
Under the plan, victims will get another decade.
Potentially more significant, any deal would open a legal “window” for lawsuit by victims who already are older than 30 and whose abuse goes back even further and who would not otherwise be helped by the change.
But there’s a crucial protection for defendants in those older cases built in.
Any lawsuit filed by age 30 would keep the current legal standard that the case turns on the “preponderance of the evidence.” That means a jury has to decide whether it’s more likely than not the incident occurred and the defendant is guilty.
But anyone bringing an even older claim would be required to provide “clear and convincing evidence” of the person’s guilt.
That requires more than a simple balancing test, though it is still short of the standard for criminal cases where a prosecutors must prove guilt “beyond a reasonable doubt.”
Second, any claim against an organization would require proof not only that an employee or priest abused someone but that superiors knew of the incident and purposely covered it up.
And there’s something else: Anyone bringing one of these older cases could seek only actual damages. They could not collect punitive damages, also called “exemplary damages,” which are designed to both punish an individual or organization for outrageous acts as well as make an example of them to deter similar conduct by others.
It has been that issue of money that has been hanging up the question of victims’ rights — and the budget — until now, with Sens. Paul Boyer, R-Phoenix, and Heather Carter, R-Cave Creek, refusing to provide the necessary votes for the $11.8 billion spending plan until they got a change in the law they believe will help victims and provide a financial incentive to organizations to weed out the predators in their midst.
Once the deal is approved, Boyer and Carter are expected to provide the necessary votes for the budget.
Senate President Karen Fann, R-Prescott, said the fight has bee over a question of balance.
Fann she wants to ensure that those accused of assaulting and abusing children years ago have some chance of defending themselves.
She also said the organizations they worked for should not have to end up shelling out millions of dollars in settlements because it’s easier to do that than try to mount a defense. Fann said she fears that a wide-open door allowing those who claim they were molested decades ago could create a financial disaster.
“If somebody is looking for money — and that’s what the primary goal is, is how much money I can get — they’re going to look after the deep pockets,” she said.
For example, Fann said, someone could approach a city and claim he or she was molested 40 years ago at a community pool.
“How does that municipality possibly defend that?” she asked.
“The employees are long gone, there’s no way to prove that it ever happened,” Fann continued. “What happens is the insurance companies say ‘We’re going to settle out of court because we’re not going to spend a half a million dollars trying to defend something that we cannot prove.”
Boyer, who has been leading the charge to scrap the sue-by-age-20 law, said money is an important factor in deterring sexual abuse and getting organizations to keep better watch over those who are working with children.
“What we’ve seen with the Boy Scouts and the Catholic Church is it wasn’t until there were some financial penalties that they actually changed their policies to protect the children from sexual assault that were in their care,” he said.
But Boyer said the claim that all victims want is cash is missing the point.
“They want to make sure that no other child will be harmed,” he said. “And the only way you do that is exposing current child predators who are harming kids today.”
Boyer said there is evidence that molesters keep preying on children until they’re caught, meaning that some people who victimized children decades ago may still be in positions of responsibility today.
And there’s something else.
“They also want an admission of guilt from their perpetrator because it helps them with closure,” Boyer said.
A window to allow victims of decades’ old incidents to file their claims accomplishes both.
“This is something that we can live with,” Boyer said of the victims whose arguments he has been presenting.
The deal, if it holds, should put Arizona in the middle range of what other states now allow as a time limit for filing claims of sexual abuse.
Sen. Eddie Farnsworth, R-Gilbert, said the key is protecting against “egregious” claims by people who file lawsuits with no real evidence other than their own statements. Those are the kind of claims that Fann fears, where insurers decide it’s easier — and cheaper — to settle than fight.
Farnsworth also said that the claim that victims who turned 20 were without legal remedy is false.
He pointed out that existing law says civil suits can be filed within a year of any criminal charges being brought against a defendant. And that law does not even require that the defendant be convicted.
Boyer has sniffed at that as providing true relief, saying it depends on whether a prosecutor believes a case can be proven beyond a reasonable doubt, a far higher standard than applies to civil claims.
Farnsworth acknowledged that other states have even more liberal laws than what is being proposed.
Some allow lawsuits until victims are in their 50s. That goes along with what Boyers said is research that shows that victims, often embarrassed or even confused about what was done to them as children, don’t file complaints until their are in their 40s.
Farnsworth was unimpressed by what is happening elsewhere.
“A lot of other states have bad bills,” he said. “It’s irrelevant.”
Fann said the goal all along was to come up with “good policy,” something she said “protects the victims.”
“But we also want to make sure we protect due process,” she said, meaning the ability of defendants — and the organizations that employed them — to be able to defend themselves.