New efforts to reform California’s childhood sex abuse law draw on past proposals

California Grapples with Lingering Fallout of Child Abuse Law: Reforms Stall Amidst Fierce Opposition

A seismic shift in California law, intended to bring justice to victims of childhood sexual abuse, has triggered a cascade of costly lawsuits, leaving public agencies, particularly schools, in a precarious financial position. As lawmakers scramble for solutions, the path forward appears fraught with familiar challenges, mirroring stalled efforts from the previous legislative session.

The Unintended Consequences of Extended Justice

In 2020, California enacted a landmark law that dramatically expanded the window for survivors of childhood sexual abuse to file legal claims. This legislation, Assembly Bill 218, lifted the statute of limitations, allowing individuals to pursue legal action up to their 40th birthday or five years after discovering the abuse, whichever date came later. For a limited period, it also revived claims that had previously expired.

While the intent was to provide a long-overdue avenue for redress for victims, the practical impact has been a surge in litigation against public entities. These lawsuits, often concerning abuse that occurred decades ago, have resulted in substantial financial payouts, placing immense strain on the budgets of schools and other public services.

The urgency to address this burgeoning crisis is palpable, yet the proposed solutions emerging from the State Capitol echo those that failed to gain traction last year. This repetition suggests a deep-seated difficulty in balancing the imperative of justice for abuse victims with the fiscal realities facing public institutions.

A Legislative Stalemate: Déjà Vu in Sacramento

Sources close to the reform efforts indicate that progress has been sluggish. The legislative clock is ticking, with a late summer deadline looming for the proposal of new legislation. The fate of any potential reforms to Assembly Bill 218 remains uncertain, caught in the crosscurrents of competing interests.

Assembly Speaker Robert Rivas has tasked a working group of lawmakers with developing reform language. However, a spokesperson for the Speaker stated there were no updates on the group's deliberations, underscoring the slow pace of these critical discussions.

Meanwhile, the California State Association of Counties has been actively circulating a confidential draft bill. This proposal, along with a detailed fact sheet, outlines several legal changes aimed at modifying how lawsuits under Assembly Bill 218 are processed. These proposed changes would impact claims against a wide array of public agencies, with a particular focus on school districts.

Key Proposals Aimed at Rebalancing Litigation

The county association's proposed reforms include several key provisions designed to alter the landscape of these abuse claims:

• Elevating the Burden of Proof: For claims involving abuse that occurred more than two decades after the alleged harm, plaintiffs would be required to present "clear and convincing proof of liability." This aims to raise the evidentiary bar for older claims.
• Capping Non-Economic Damages: A significant proposal seeks to limit pain and suffering awards and compensation for emotional distress. The suggested cap would restrict these non-economic damages to four times the amount of economic damages awarded.
• Demonstrating Knowledge of Harm: For plaintiffs filing a claim on or after their 40th birthday, a new requirement would be to prove that the public entity involved had actual knowledge of the ongoing harm and failed to act. This shifts the focus to the entity's awareness at the time of the abuse.
• Stricter Scrutiny of Expert Testimony: The proposals also call for tighter restrictions on reports submitted by mental health professionals. These reports, which often attest to psychological harm and delayed recall of abuse, would face heightened scrutiny, especially for plaintiffs aged 40 and older. Detailed information would be mandated in such reports.

The repetition of these proposals from last year's legislative session is a telling sign, according to Professor David Levine of UC San Francisco Law School, who has extensively studied the issue. He suggests that "there is only so much you can do with procedural fixes," and that while some proposed changes might be minor, others could hold significant weight.

Ben Adler, a spokesperson for the county association, conveyed a strong sentiment that "it's clear to any impartial observer that the system is broken." He characterized the association's proposals as a starting point for discussion, declining to elaborate further due to the association's policy of not engaging in public negotiations.

Divergent Paths: The School Boards' Perspective

It remains unclear whether other organizations representing public agencies are pursuing alternative reform strategies. The California School Boards Association is also actively participating in these reform discussions. Troy Flint, a spokesperson for the association, indicated that their staff had not yet reviewed the county association's specific proposal, suggesting a degree of independent action.

"Our position on AB 218 reform is that California must balance restitution for victims who were students decades ago with the needs of today's students and those who will attend public schools in years to come," Flint stated. He emphasized the need for a "sustainable approach" that includes "liability caps that allow significant compensation for victims while restricting exposure for school districts to levels where they can remain solvent and provide students with critical resources."

This stance mirrors the association's position from the previous year, though it was communicated less publicly due to the sensitive nature of negotiations. Flint noted that the passage of time and the lack of substantial progress in resolving AB 218-related issues have prompted a reevaluation of what constitutes a workable solution.

"No solution will please everyone," he acknowledged, highlighting the inherent complexities of finding common ground.

Exploring Alternative Compensation Models

In a report issued last year, the state Fiscal Crisis and Management Assistance Team (FCMAT), an organization that assists school districts with fiscal responsibility, recommended exploring a state victim's compensation fund. This model, similar to those used in large class-action settlements and for compensating survivors of the 9/11 attacks, could administer settlements.

Michael Fine, FCMAT's CEO, explained that such a fund could eliminate the need for victims to pay legal fees if they choose to proceed without an attorney. It would also establish "a minimum and maximum award," providing a structured framework for compensation.

The Shadow of a Powerful Advocate

Looming over these legislative reform discussions is the formidable presence of John Manley, a Southern California plaintiff's attorney. Manley played a pivotal role in derailing last year's reform efforts and has made it clear he intends to be an equally vocal opponent this year.

Manley, who has secured millions of dollars in settlements for abuse victims from various entities, including school districts, religious organizations, and youth groups, has vowed to fight any legislative changes that he believes protect wrongdoers. He has previously employed aggressive public advertising campaigns, directly challenging lawmakers who support reforms he deems unfavorable to victims.

"I plan to be active in not only advertising, but in every other way I can to expose those who support pedophile enablers," Manley stated in a recent interview. He indicated that Speaker Rivas and any lawmakers who he believes have "allowed children to be consumed by predators" can expect a strong response from him and a coalition of concerned individuals.

Manley's tactics have drawn sharp criticism from some lawmakers. Senator Ben Allen, a reform advocate who has been involved in these discussions, described Manley's approach as "typical bully tactics." Allen, who has been a target of Manley's public criticism, asserted that he will not be intimidated.

"Manley's obviously gotten really rich off of suing public entities, and this is his M.O. I am not going to be bullied," Allen said. He emphasized his commitment to addressing a "very vexing public policy problem" that is impacting schools and other public agencies across California, stating, "Jurisdictions up and down the state are crying uncle right now. It's a real problem. At some point, our job has to be looking out for the general public."

As the legislative session progresses, the tension between providing justice for victims and ensuring the solvency of public institutions remains a central challenge. The path to reform is complex, marked by deeply entrenched positions and the formidable influence of key players, making the outcome of these critical discussions highly uncertain.