When is Time Out?
A dangerous amendment that would revive a long-dead statute of limitations in sex crimes is before the state Supreme Court.
It is fundamentally appalling--not to mention unconstitutional--to force individuals to defend themselves against ancient charges that have long been time-barred from prosecution. It is a violation of both the ex post facto clause and the due process clause of the U.S. Constitution.
Yet that is what is occurring under California Penal Code Section 803(g), which extends the statute of limitations for certain sex crimes to a date one year after the victim files a report. This statute is problematic enough, but even more troubling is a new amendment that went into effect Jan. 1, making 803(g) applicable to any cause of action arising on, before, or after the effective date of the provision.
It is only because of the nature of the crime, child molestation, that the Legislature and judiciary are willing to condone such a blatantly unfair statute. It has become fashionable for our courts and politicians to take a "let's get those child molesters off the streets" stance, no matter the inanity of the particular statute. For the voting public, if they believe that their elected officials are being tough on criminals, they are willing to accept any statute.
The battle over 803(g) is being waged before the California Supreme Court. Before the Jan. 1, 1997 amendment, it was unclear whether the Legislature intended 803(g) to be applied retroactively. Case law is divided over the issue and whether such application is a violation of the ex post facto clause. Currently, all the cases are before the Court under People v. Richard G. (1995) 48 Cal.App.4th 1411, (Review granted September 14, 1995 (S0670334). The Court is expected to hear arguments later this year.
In People v. Maloy, 42 Cal.App.4th 361, the Fifth District held that retroactive application of 803(g) is not an ex post facto violation. Using convoluted reasoning and dogmatic language, the court ignored precedent to manipulate the law to meet its agenda. The court begins by citing the familiar language of Collins v. Youngblood, 110 S.Ct. 2715 (1990), the U.S. Supreme Court case that defines as ex post facto law. The Maloy court correctly states that the critical issue to decide is whether the revival of an expired statute of limitations deprives a defendant of any defense available according to law at the time the act was committed. The answer is obvious. If the statute of limitations has run, the case is time-barred, and the court has no jurisdiction over it. At that moment, the defendant has a perfect defense. Yet, somehow, the Maloy court manages to claim that no such deprivation had taken place. The court asserts that the statute of limitations is not a defense because it is not related to the definition or elements of the crime.
Even more convoluted is the court's statement that the legislature clearly intended 803(g) to be applied retroactively. It is a basic canon of interpretation that statutes are not given retrospective application unless it is clearly what the Legislature intended. Before the amendment, the statute and legislative history were completely silent on the subject. The legislature quickly moved to cover the court's misstep by adding the Jan. 1 amendment.
In contrast to Maloy is People v. Regules (1995) 42 Cal App.4th 1291. In Regules, the Sixth District states the obvious. Every federal and state court decision discussing the extension of a statute of limitations to a crime after the prior statutory period had expired has ruled that such extension violated the federal ex post facto clause. The prosecution raised virtually identical issues as Maloy, but the court stated, whether the statute of limitations technically is an element of the crime or not, the fact that the prosecution was commenced within the statutory period is clearly an essential matter that the people must prove.
Even without the retroactive amendment, the application of 803(g) has several problems. It has the potential to convict innocent people.
For example, when Ms. Jones alleges that Mr. Smith molested her as a child 35 or more years ago, Mr. Smith is at a distinct disadvantage to prove his innocence. With Ms. Jones adamantly insisting that all manner of horrible things were done to her as a child, they immediately label Mr. Smith a monster before the case gets to court. Furthermore, there is likely to be a dearth of evidence for the defense. Witnesses will be hard to find. Memories may be hazy at best. Did Ms. Jones seem fearful of Mr. Smith as a child? Did Mr. Smith act strangely around children? Consider the role of expert witnesses, commonly used in sex crime cases. How can a psychologist testify about Mr. Smith's likelihood to commit such a crime? The alleged crime occurred so long ago the task would be virtually impossible. The case becomes a battle of witnesses, the victim versus the accused child molester. In such a highly charged atmosphere, the possibility of a jury delivering a wrong verdict against an innocent man is very real.
Code section 803(g) has safeguards. The stature only allows prosecution if there was substantial sexual conduct and independent evidence that is clear and convincingly corroborates the victim's allegations. But just what constitutes "clear and convicting corroboration?" No definition is provided in the legislation. With decisions like Maloy, it is easy to see what the result may be. Imagine, for example, the following possibilities: Ms. Jones, 37, claims she had repressed memory and now says she had been molested as a child by Mr. Smith. She can describe Mr. Smith's bedroom as it existed near the time of the alleged incident. Ms. Jones' friends testify that she was a withdrawn child. A neighbor at the time of the alleged incident testifies that Ms. Jones told her she was afraid of Mr. Smith. Do any of these events mean that Mr. Smith molested Ms. Jones? Of course not. Again, Mr. Smith will have trouble defending himself against this "corroboration" testimony because it concerns events from so long ago.
It is wrong to give an individual an assurance that "the chase is off" and then remove that assurance. The purpose of the statute of limitations is to ensure actions are brought within a reasonable period. This has the dual purpose of allowing potential defendants to move on in their lives, and ensure that a fair trial is possible. Similarly, the ex post facto clause gives a defendant the assurance that the rules will not change after the fact. If this statute pertained to a more neutral crime, one that does not carry the same emotional baggage as child molestation, society would be outraged. Defenders of 803(g) say that the difference in this statute is that children are the victims and are often unwilling to talk about the incident until they reach adulthood. Even if true, does this allow for a constitutional violation? If we condone a violation for this type of case, the courts will have a precedent to allow it for more mundane crimes.
California Penal Code Section 803(g), with or without the current amendment, is a very dangerous statute because its emotional subject matter makes it easier to allow the abrogation of important constitutional rights. While no one will deny that child molestation is a horrible crime, we cannot use this truth to allow the prosecution of potentially innocent people.