Where were you in July or August of 1975? You Might Need To Know If You Lived In Massachusetts!

The Massachusetts Supreme Judicial Court (SJC) has decided that you can be sued for an action you may have committed over 35 years and probably up to more than 45 years ago. Judge Margot Botsford, the senior woman justice on the court, issued a decision this week putting  huge swath of Massachusetts residents who lived here over that time liable to being sued by someone with a revived memory. The SJC whose last four appointments have been women, leaving the three men in the minority, were unanimous, as usual, which would make a person scratch his head as to why we rarely see dissents from that court unless he realized that in a blue state as blue as Massachusetts the judges are all basically from the same progressive mold.

This decision, Sliney  v. Previte, noted that until last year a civil action brought pursuant to a Massachusetts General Law had to be brought within 3 years but the Legislature changed the 3 to 35.  Why 35 rather than 50 or 20 is a mystery.

That law that was changed now reads: “Actions of tort alleging the defendant sexually abused a minor shall be commenced within 35 years of the acts alleged to have caused an injury or condition or within 7 years of the time the victim discovered or reasonably should have discovered that an emotional or psychological injury or condition was caused by said act, whichever period expires later; provided, however, that the time limit for commencement of an action under this section is tolled for a child until the child reaches eighteen years of age.”

So a person Jake who is 50 years old wakes up one day and says he remembers that 40 years ago in 1975 when he was 10 years old he was sexually abused by a family friend Pete can bring a suit. Pete now sixty-years-old has to figure out what he was doing back during the summer of 1975.

Reading the opinion of the SJC I was struck that by it included in its reasoning a case from the United States Supreme Court (Supreme Court), Campbell v. Holt, which was decided in, now get this, 1885, 130 years ago, and then a more recent Supreme Court case, Chase Sec. Corp. v. Donaldson, decided 60 years ago in 1945. Not to be outdone in relying on ancient Supreme Court law, Justice Botsford also cited a Massachusetts SJC decision, Foster v. Essex Bank, decided 196 years ago in 1819.

I’ve pointed out the law is what the judges say it is. When they have to go back 150 to 200 years to find precedent for their actions you know they are really stretching to justify what they are doing.

The person accused in this case, Previte, suggests he will be unable to defend himself because of the passage of time. The witnesses he would need are dead or unavailable. The SJC notes that statute of limitations are “pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.”

After writing such it makes the astute observation that, “thirty-five years is unquestionably a great deal longer than three.” It says the extension must be balanced against the public interest in protecting the minor children who may not appreciate the “sexual abuse perpetrated on them for many years after the abuse has ended” citing the remarks of a state senator.

The SJC just rubber stamps legislation that opens a Pandora Box of litigation to persons who suffered real or imagined abuse that may have occurred when they were children. It puts the many who will be accused in the absolutely untenable position of trying to defend themselves from allegations that occurred during ancient periods where most will have no idea where they were and have no ability to produce witnesses to defend them.

Justice Botsford wrote: “The extensive expansion of the statute of limitations undoubtedly affects a defendant’s (and similarly a plaintiff’s) ability to present evidence.” This statement is disenguous. The plaintiff victim’s evidence is rarely affected. The victim will testify that such and such happened. The person accused has to do more than deny it; that person has to come up with evidence of the impossibility of it happening by bringing in other witnesses to offer an alibi or showing the person was not at the place where the abuse allegedly occurred.

I had a case in the early 70s where a young eight-year-old girl accused my client a 20 something year old man of molesting her the previous evening in his apartment which was in the building next to where she lived. She was lying. My client at the time and all that day was with his fiancé and a group of people celebrating his engagement about thirty miles away. She testified at a probable cause hearing; I had to bring in each of those people to defend him; and even with that the judge had a difficult time not believing the young girl even though it was impossible that my client had anything to do with her. He asked me “why would she say that happened if it didn’t?” I had no answer.

If that girl came forward now and made the same accusation there is no way my client would have recalled where he was on that day. He would be unable to defend himself as he did back then. He would then be responsible for all the girl’s failings throughout her life which would be connected back to the abuse my client never committed by some psychologists.

The SJC is right we must protect children from abuse; it is wrong in failing to recognize that it has left the accused unable to show the abuse did not happen, or if it did, he had nothing to do with it. A 35 year statute of limitation (that can be extended to over 45 years) is on its face unreasonable. The SJC should be reminded an accused also has a right to defend himself.