Monday, November 28, 2011

Statute of Limitations (and this blog) balance competing goods

My column in Friday's Journal Sentinel and blogging social worker Chris Liebenthal's response were featured on WisOpinion.
I think Liebenthal's criticisms were anticipated and responded to in the column.  He fails to acknowledge that I defended the current - very long - limitations period for such victims precisely because it can take a long time to bring an action.

 But a long period within which to bring suit doesn't mean that there should be no cut off point. He does nothing to refute my point that testing the veracity of allegations about things that happened over twenty years ago is difficult (which is one of the reasons limitations periods are usually a fraction of what they are in child sex abuse cases) and doesn't address the inefficiencies inherent in imposing liabilities - often vicarious - on organizations for actions that happened on the watch of those who are long gone. He doesn't acknowledge that "flashbacks" and "recovered memories" can be wrong. On the merits of the question called, her offers little.

But there is this to say.

Mr. Liebenthal (in a parenthetical) totally misses the point of this blog's title.

He writes that the "shark" "is supposed to represent his skills as a lawyer"* and "[t]he shepherd is supposed to involve his alleged Christian values."*

Completely wrong.

As my reference to Private Joker in Full Metal Jacket makes painfully obvious, the shark and shepherd refer to competing tendencies to competition and cooperation, aggression and conciliation, charity and holding others accountable - in the same person. We are all varying degrees of shark and shepherd and both characters have their own strengths and weaknesses.

Liebenthal's lack of subtlety is reflected in his assumption that someone who thinks that permitting actions to be brought 20-30 years after the fact is a reasonable policy is  "a lousy Christian and even worse human being." This equation of his preferred resolution of the tradeoff between finality and fairness to the accused on the one hand and permitting potentially meritorious claims on the other to whether someone is a good person reflects his own inability to appreciate the paradoxical nature of life and the fact that so much of our policy differences are about resolving competing goods.

We can agree that it is good to allow people to recover from people who wronged them. But it is also good to prevent people who did no harm from being held liable.  Liebenthal's sense of moral self righteousness reflects an inability to recognize the shark and shepherd in his own soul.

But here's a question for Mr. Liebenthal. School districts and other public entities have a variety of legal protections against claims of child sex abuse including a $ 50,000 damages cap and qualified immunity. Does he support repealing them forthwith? Will he publicly urge Sen. Lassa and Rep. Pasch to introduce legislation repealing these obstacles to bring school districts and other public agencies who have sheltered sex offenders (who are no more likely to be found in the church than in the schools) forthwith? If he doesn't, can I say that he's a lousy human being?

*Gracious to the end, Liebenthal takes a shot at both my legal abilities and moral character. On the former, while, of course, deeply wounded by the judgment of an over the top political activist who has repeatedly embarrassed himself with his intemperate blogging and professional misconduct. I'll take solace in my professional reputation, resume and the fact that I have to turn away work. As to the latter, I make no claim of moral superiority (and certainly not over my political opponents) and do not even say that I am a good Catholic or good Christian. I try. I can do better.



Nick said...

I do tend to agree with your concerns regarding statutes of limitations... and how evidence can degrade over time.

However, there are some crimes that are deemed so heinous as to not have a statute of limitations, such as Murder.

So why is it acceptable in your view to have an exception for murder, but not child sex abuse?

Rick Esenberg said...

The absence of a statute for limitations for murder is normally a matter of criminal and not civil law. It is important not to confuse the two. While the consequences for the defendant are greater, the state's interest in prosecution is stronger and the defendant enjoys many more procedural protections including a strong presumption of innocence.

This suggests another distinction. Civil actions for abuse are almost never targetted at the perpetrator because the perpetrator almost never has any money. Rather, the target is an institutional deep pocket who is alleged to have failed to take some steps to prevent what happened.

But the more distant the events come, the less likely this insitution is to have anyone who was around and involved at the time and the more difficult it is for it to (effectively) "prove a negative." (I realize that the burden of proof is on the plaintiff but that may not mean much in practice in a civil case.)

It finds itself in the postion of defending a case about what other people did or did not do. This would obviously not be so in a criminal prosecution.

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