A proposal to eliminate the statute of limitations to file civil claims for sex crimes against children may be scaled back.
Several bills have been brought this legislative session in response to a case from Miles City in which an athletic trainer has been accused of molesting boys from the 1970s to 1998.
Though James "Doc" Jensen cannot be criminally charged because the allegations are outside the statute of limitations, there is a civil case pending against him.
In Montana, victims of child molestation have a 20-year period in which to bring criminal claims. On the civil side, there are two windows. Claims must be brought within three years of the crime or three years from when the person recognizes a crime occurred.
The House Judiciary Committee has heard three bills to lift those statutes:
- The first, from Rep. Mary Ann Dunwell, a Democrat from Helena, would eliminate the statute of limitations for criminal cases.
- A second, from Rep. Shane Morigeau, a Democrat from Missoula, would eliminate the statute of limitations for civil claims.
- A third, from Rep. Kim Dudik, D-Missoula, would increase the amount of time people have to bring civil claims.
There are other bills that have been drafted but not introduced or heard by committees, including one from Sen. Kenneth Bogner, a Republican, to eliminate the limits for civil claims, and another from Rep. Eric Moore, also a Republican, to eliminate the limitations on the criminal side. Bogner and Moore are both from Miles City, where Jensen is accused of molesting children at the local high school. Changes to civil claims could be retroactive.
Rep. Alan Doane, a Republican from Bloomfield who chairs the House Judiciary Committee, said this week if all three bills his committee has heard were to pass, it would be a "coordination nightmare." Doane instead wants to see a committee bill combining the civil and criminal proposals, along with mandatory reporter laws that would create fines for those who are required by law to report suspected abuse but do not.
"I'm confident a committee bill will be coming out," Doane said Wednesday.
Morigeau said he's concerned because his bill to eliminate the civil statute of limitations may be scaled back in a committee bill. He's heard proposals for a 25- to 30-year window from the time of abuse and a five- to 10-year period from when the abuse was recognized.
While that's not what he proposed or what he wants to see, Morigeau said he could support a compromise that meets his minimum requirements if it means getting something changed this legislative session.
Doane said one of the reasons for moving away from an unlimited time-frame is a worry there may be a large amount of claims brought.
“We don’t know what kind of floodgates that might be opening up,” Doane said.
While criminal cases must be proved beyond a reasonable doubt, in civil cases there’s a different burden of proof, something Doane said could lead to fewer solid cases years after the alleged abuse occurred.
That concern was also raised by insurance companies that oppose Morigeau's bill.
In a letter to the committee, the National Association of Mutual Insurance Companies said " … this proposed language, which may be emotionally satisfying, is rife with unacceptable due process implications which are bad for society in the aggregate. … The legal process needs to be fair and balanced for BOTH parties, even when we as a society absolutely deplore the alleged behavior of one of the parties …"
Morigeau said there is still the same burden of proof, however, even decades after a crime was committed.
“These are cases you have to prove. You have to have a jury and a judge, and you have to provide evidence. You don’t get to just make stuff up,” Morigeau said. “I don’t care how much time has (gone) by, you still have to prove the case."
Morigeau said he doesn't want to decrease the window for claims below 25 years from the assault and five years from when it's recognized. To do so, he said, would fail to recognize what studies have found about when people report abuse that happened when they were young.
Child USA, a think tank that examines child protection, found that many child victims of sexual abuse make disclosures at a median age of 48 and an average age of 52.
Another modification to Morigeau's bill, which he would support, could be adding a two-year sunset, which would give legislators time to see if there is a flood of claims.
Dunwell, who is carrying the criminal bill heard in committee, said she would support a committee bill with her proposal included, though she would prefer to see all limitations eliminated. There's less resistance to an unlimited window on the criminal side.
“We want to get these predators off the street,” Doane said.
Morigeau said he's been working with Doane, but frustrated at the lack of action and has reached a point of concern. His bill could run into deadline issues as the transmittal break approaches. A committee bill, however, would be classified as a revenue bill, Doane said, because of the fines for people who don't report suspected abuse. That's subject to later deadlines.
Doane said rules dictate the committee must vote on Morigeau’s bill.