Pitino should have seen that one coming. Louisville strikes back.

As I wrote about lessons to be learned from Rick Pitino’s lawsuit against Louisville, here is another lesson: when you sue someone, you open the litigation door and you never know what is going to come flying back at you. In Pitino’s case, its a counter-claim; Louisville has sued him back.

Louisville contends that Pitino is liable for breach of contract, negligence and unlawful interference with business relationships between the university and the NCAA, Atlantic Coast Conference, media companies, TV networks and sponsors. Louisville also demands that Pitino indemnify the school for any penalties it must pay to the NCAA for wrongdoing connected to his acts.

There is a technical legal reason why this should have been expected and also a practical one. The technical legal one:

One reason for Louisville to include counterclaims is the legal principle of “res judicata” which is sometimes called “claim preclusion.” In its simplest form, res judicata requires that legal claims stemming from a case must be litigated in that case, and that many types of related claims cannot be litigated once the case is resolved. Federal Rule of Civil Procedure 13(a) outlines res judicata, and it applies to Pitino’s federal lawsuit. As a result, Louisville likely needed to include claims against Pitino while the court (U.S. District Judge David Hale) considers Pitino’s arguments.

And the second is to gain leverage in settlement:

Louisville’s counterclaims are also designed to raise the possibility that Pitino might need to pay the school for the damage it believes he caused. Such damage, Louisville asserts, goes beyond a mere failure to perform his contract.

 

2018 Estate and Gift Tax Credits (Do Not Confuse the Tax Rules with Medicaid Rules)

The Unified Estate Tax Credit will increase to an amount that equates to $5,600,000 for 2018 per individual. So basically, if you are married, as a couple, you can leave $11,200,000 estate tax free.  (Speak with an attorney to know the nuances of effectively obtaining the benefits for both spouses; ask about portability.)

Relatedly, you can give away $15,000 per year per donee in 2018. For gift tax purposes, you can gift-split as well, so you and your spouse can give $30,000 per year per donee after January 1. These annual exclusions are over and above the lifetime unified credits.

Forbes has a good explainer for further detail.

However, do not confuse or conflate these estate and gift tax exemptions with Medicaid rules. Medicaid counts all gifts; there are no amount of transfers of assets for less than fair market value which are exempt. These federal estate and gift tax exclusions do not apply when calculating Medicaid eligibility.

 

California Shaken Baby Conviction Set Aside After 15 Years

Adding to the increasing numbers of exonerations in “shaken baby” cases, the New York Times reports Zavion Johnson may be released:

A California man is set to walk out of prison after 15 years, after a judge on Friday set aside his life sentence for shaking his 4-month-old daughter to death in 2001.

Amazingly,

At least 14 people nationwide had already been exonerated since 2011 in shaken baby cases, attorneys said, citing the National Registry of Exonerations. Northwestern University’s Medill Justice Project said in 2015 that there were more than 3,000 shaken baby syndrome cases nationwide, though attorneys said it’s not clear how many might have resulted in wrongful convictions.

The prosecution typically rely on medical testimony to prove these cases. They allege a certain triad of symptoms cannot occur accidentally or in absence of intentional shaken force. Defending their acquiescence to the judgment being set aside, Johnson’s prosecutors stated:

“Research and scientific studies conducted after the date of Zavion Johnson’s trial have altered the opinions of the prosecution experts,” Sacramento County Chief Deputy District Attorney Steve Grippi said in a statement.

There is a newly released documentary which highlights these prosecutions and the increasing doubt:









And lastly, here is another story of a lady adopting her nephew when she was convicted of murder:

Baumer was able to get her case retried and several expert witnesses were brought in to testify on her behalf. They filed for a 6500 motion which would introduce new evidence that Baumer’s nephew had not suffered from shaken baby syndrome, as originally believed, but rather Cerebral Sinovenous Thrombosis, a form of childhood stroke which had caused the brain hemorage. This process took three years to go through the court system and it wasn’t until Oct. 2010 that the jury finally came to a verdict. . .

Her case demonstrates what can go wrong in the American legal system when pride and ego get in the way of what is right and just. In her second trial, Baumer’s defense lawyer testified that he hadn’t been knowledgeable enough about the medical aspects of her case to provide her with an adequate defense, just one of the many factors that led to her wrongful conviction and imprisonment.

When it was all said and done, Baumer served almost five years of her 10-15 year sentence.

 

 

Schiano may get 75% of $27.7 million from UT

As a follow-up on my previous opinions on the Greg Schiano-Tennessee vols mess (see here, here, here), the executed memorandum of understanding has been released:

Paragraph 4 of the MOU deals with termination without cause by the University. It states that the University of Tennessee may, in its sole discretion, terminate the MOU without cause and provide Schiano 75% of the base pay and supplemental pay as stated in the document. The MOU would have paid Schiano $27.7 million over the span of six years.

Ouch.

 

Eighth Amendment Challenge to Drug Free Zones

Supreme Court of Tennessee Blog posts:

A groundbreaking constitutional challenge has been filed regarding Tennessee’s “Drug Free School Zone Act,” a flawed but well-intentioned law that has recently come under fire by several conservative groups because it “ensnare[s] many individuals who fall outside of the scope and purpose of the law” and has resulted in significant collateral consequences that have been “passed on to taxpayers without any public safety returns.” The law has long been a target of criminal justice reformers, who have argued that the severe, mandatory minimum penalties contemplated by Tennessee’s School Zone law fail to make appropriate distinctions between people who sell drugs to children and people who don’t.

Alabama has a similar statutes which may be subject to similar constitutional attack because it suffers the exact same defects.

In addition to any penalties heretofore or hereafter provided by law for any person convicted of an unlawful sale of a controlled substance, there is hereby imposed a penalty of five years incarceration in a state corrections facility with no provision for probation if the situs of such unlawful sale was on the campus or within a three-mile radius of the campus boundaries of any public or private school, college, university or other educational institution in this state.

The Alabama statute imposes a mandatory (not eligible for probation) if the sale occurred within 3 miles of a public school regardless whether a child was involved in the sale. (There is a similar statute for sales on or near public housing.)

Disappointing News in the Making-a-Murderer saga. (SPOILER ALERTS, but do yourself a favor and binge watch this Netflix docu-series)

In a heavily divided opinion, the 7th Circuit Court of Appeals has affirmed the conviction and thereby approved the abusive interrogation tactics employed against this disabled teen.

A federal appeals court in Chicago narrowly overturned a ruling Friday that could have freed a Wisconsin inmate featured in the “Making a Murderer” series from prison, though one dissenting judge called the case “a profound miscarriage of justice.”

The full 7th U.S. Circuit Court of Appeals reviewed Brendan Dassey’s claims that investigators tricked him into confessing that he took part in raping and killing photographer Teresa Halbach in 2005. Dassey was sentenced to life in prison in 2007 after telling detectives he helped his uncle, Steven Avery, rape and kill Halbach.

The 4-to-3 opinion conceded a ruling wasn’t obvious or easy, but said it came down to whether findings by Wisconsin state courts that Dassey wasn’t coerced into confessing were reasonable.

I’ll be honest; I binge watched this series. If I was a law school professor, I would use the series as the basis for an entire class on criminal defense. I nearly threw my laptop across the room watching the episode wherein the statements are obtained. The police behavior was bad; his defense lawyer was atrocious. Without his “coerced” confessions obtained by investigators (and his lawyer!), there would be no evidence to implicate Brandon.

Here is the statement of his attorneys, Laura Nirider and Steven Drizin:

We are profoundly disappointed by the decision of four judges of the United States Court of Appeals for the Seventh Circuit to reverse two prior decisions and deny relief to Brendan Dassey. Like many around the globe, we share the view of the three judges who wrote, in dissent, that today’s ruling represents a “profound miscarriage of justice.” We intend to continue pursuing relief for Brendan, including through a petition for certiorari to the United States Supreme Court.

Today’s ruling contravenes a fundamental and time-honored position of the United States Supreme Court: interrogation tactics that may not be coercive when applied to adults are coercive when applied to children and the mentally impaired. Indeed, when such tactics are applied to vulnerable populations, the risk of false confession grows intolerably. Unfortunately, this time-worn lesson was ignored today by four judges in the case of Brendan Dassey. We at the Center on Wrongful Convictions of Youth are committed to continuing to fight on behalf of Brendan and others like him to prevent future miscarriages of justice.

The Northeast Innocent Project tweeted:

Another travesty of justice: The 7th Circuit rules against Brendan Dassey. False confessions are a leading cause of wrongful conviction and courts who fail to act in cases like this are failing innocent men and women everywhere.

Dassey’s statement was completely contradicted by any forensics:

 

This matter highlights the danger of exposing juveniles to law enforcement. As I have posted, DO NOT TALK TO POLICE, its is especially true for your children. DO NOT LET YOUR CHILD OR TEEN TALK OR BE QUESTIONED BY POLICE.

In Alabama, Section of 12-15-202 of the Alabama Code enumerates the rights of children in this setting: (a) When a child is taken into custody, the person taking the child into custody shall inform the child of all of the following, in language understandable to the child: (1) The reason that the child is being taken into custody, (2) That the child has the right to communicate with his or her parent, legal guardian, or legal custodian whether or not that person is present. If necessary, reasonable means will be provided for the child to do so, (3) The child has the right to communicate with an attorney. If the child does not have an attorney, one will be appointed for him or her. If the child has an attorney who is not present, reasonable means shall be provided for the child to communicate with the attorney. Before the child is questioned about anything concerning the charge on which the child was taken into custody, the person asking the questions shall inform the child of the rights a second time.

The Alabama Supreme Court held in Ex parte Whisenant, 466 So.2d 1006 (Ala. 1985): “If any one or more of the 12-15-202 warnings are omitted, the
use in evidence of any statement given by the child is constitutionally proscribed.” These rights are sometimes referred to as “Super-Miranda rights.”

In 18 years of practice, I can count on one hand the number of parents who wisely did not let their child speak or be interviewed by law enforcement. However, this past month, one mother refused law enforcement an interview with her teen son; the charges were ultimately dismissed.

(IMPORTANT NOTE: THERE IS NO PARENT-CHILD PRIVILEGE. Anything a child tells a parent can and will be used against them. Therefore a parent could be compelled by court to testify about any statements made by their child to them. Therefore if you get the call, do not talk about the details of the case. Tell your child to remain silent and DEMAND A LAWYER.)

 

 

 

Star NFL player sued by NC man who says the player seduced his wife

According to the Charlotte Observer,

Fletcher Cox, a two-time Pro Bowl defensive tackle with the Philadelphia Eagles, is being sued for alienation of affection by Joshua Jeffords in Mecklenburg County Civil Court.

This lawsuit has been brought in North Carolina. “An action for alienation of affection permitted recovery for ‘loss of consortium, humiliation, shame, mental anguish, loss of sexual relations, and the disgrace the tortious acts of the defendant have brought.’” Andrews v. Gee, 599 F. Supp. 251, 253 (D.S.C. 1984)

I am not sure the policy reasons for such but this kind of suit is unavailable in Alabama. An Alabama statute, Section 6-5-331, reads:

There shall be no civil claims for alienation of affections, criminal conversation, or seduction of any female person of the age of 19 years or over.

“Since the abolition in Alabama of the heart-balm torts, this Court has refused to recognize ‘any claim for damages against a third party, no matter how denominated, that is based on allegations of interference with the marriage relationship.’” D.D., 600 So. 2d at 223

Laws like that in North Carolina seem to be good policy which protect the family and marriage; it certainly puts a financial penalty for potential adulterers. Perhaps its something the Alabama Legislature should reconsider. Seemingly, only Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota and Utah still have such a cause of auction.

However, in some jurisdictions, alternative theories have been allowed. For instance, in Scamardo v. Dunaway, 650 So. 2d 417 (La. Ct. App. 1995), the Louisiana Court of Civil Appeals allowed an intentional infliction of emotional distress:

In comparing the two theories of recovery, we find that they are distinguishable. Neither the policies nor legal principles giving rise to the claims for framing the rights are the same. Although both have the emotional distress of plaintiff as a primary element of damages, and thus, may appear to overlap, the infliction of emotional distress is a separate, recognizable tort. The law does not limit the action to non-marital situations. However, the mere seduction and loss of one’s spouse due to the seduction or affair cannot be the basis for the action. There must be proof that defendant violated some legal duty to plaintiff, so that plaintiff is in fact the victim and not just the jilted party. Further, the burden of outrageous conduct is a heavy one. Otherwise, the cause of action is for alienation of affections, which is not legally recognized in this state.

D.D. seems to preclude this argument. (However, perhaps the existence of the separate duty towards the Plaintiff could make a difference to the Alabama courts.) See also, Gasper v. Lighthouse, Inc., 533 A.2d 1358 (1987); Accord Payne v. Osborne, No. 1997-CA-001818-MR (Ky. App. 06/04/1999).

New Interview: “Don’t Talk to the Police! The Fifth Amendment protects both the guilty and the innocent.

Professor Duane is back with a new interview on the Fifth Amendment:









Practically:

His argument, which he’s since expanded into a new book called You Have the Right to Remain Innocent, is that even if you haven’t committed a crime, it’s dangerous to tell the police any information. You might make mistakes when explaining where you were at the time of a crime that the police interpret as lies; the officer talking to you could misremember what you say much later; you may be tricked into saying the wrong things by cops under no obligation to tell you the truth; and your statements to police could, in combination with faulty eyewitness accounts, shoddy “expert” testimony, and sheer bad luck, lead to you being convicted of a serious crime.

He further details the treacherous territory Americans are in with respect to their right to remain silent:

Up until about five years ago, lawyers would give out business cards to their client and say, “Read this to the police,” and it’d say, “At the advice of my attorney I decline to answer on the grounds that it may incriminate me, I’m invoking the Fifth Amendment.” And there wasn’t a lot of soul-searching and agonizing that went into all of this, because as long as the jury never finds out that you took the Fifth, it’s a perfectly sensible solution. But the tide turned three years ago in 2013 with this wretched, abominable decision by the Supreme Court in Salinas v. Texas that changed everything.

In the Salinas case, a young man was interrogated by the police, and when they asked him a bunch of questions that didn’t seem to be very threatening, he took the bait and answered them all. Then all of the sudden, they [asked a question that made it] obvious they wanted information that might expose him to criminal prosecution, and he just got silent. He didn’t say a word. And there’s no doubt that he was exercising his Fifth Amendment privilege, but he didn’t [formally] assert his Fifth Amendment privilege. So the five Republican [appointees] on the Supreme Court said, Because you didn’t tell the police that you were using your Fifth Amendment privilege, your exercise of the privilege, or your decision to remain silent can be used against you as evidence of guilt. Which probably had a dozen Supreme Court justices rolling over in their grave.

The game has changed now that your choice to use the Fifth Amendment privilege can be used against you at trial depending exactly how and where you do it. As I explain in the book, now the problem is, if you’re kind of clumsy about the way you assert the Fifth Amendment, you’re running a lot of different risks.

 

He was my evidence professor and here is the lecture which got it all started:









 

Alabama statute has placed a target on the back of juveniles for sex predators.

In Alabama, some juvenile sex offenders which have been adjudicated low-level offenders have protection from the harshness of the Alabama Sex Offender Registration and Notification Act. After consideration of evidence from a juvenile court, the judge may exclude a child from notification or, at least, limit the requirements as the particular facts demand.

However, in an odd quirk of statutory language, many juveniles which are automatically transferred to adult court are subject the full impact of lifetime, mandatory registration and notification scheme.

For these children, the state has placed a target on their back for sexual predators. According to this study performed by Dr. LeTourneau of Johns Hopkins University,  children on the registry were five times as likely to have been approached by an adult for sex in the past year, compared to nonregistered children.

The study also showed:

  • Children on the registry were four times as likely to have attempted suicide in the last 30 days, compared to nonregistered children.
  • Registered children were nearly twice as likely to have experienced a sexual assault.

Dr. LeTourneau concludes,

“The process of subjecting children to sex offender registration and notification requirements not only conveys to the child that he or she is worthless, it also essentially alerts the rest of the world that a child has engaged in an illegal sexual behavior,” says study lead Elizabeth Letourneau, PhD, a professor in the Bloomberg School’s Department of Mental Health and director of the Moore Center for the Prevention of Child Sexual Abuse. “Not only is this policy stigmatizing and distressing, but it may make children vulnerable to unscrupulous or predatory adults who use the information to target registered children for sexual assault.”

I argue that the Alabama Sex Offender Registration and Community Notification Act (hereinafter “ASORCNA)” is unconstitutional as applied to minor children like this because it violates his due process rights and is a cruel and unusual punishment.

The Alabama statute, without question, is the most comprehensive in the nation. If convicted as a youthful offender, a child will be required to SORNA register as an adult for life as follows:

  1. His name, photograph, address of residence and employment and where he goes to
    school, his physical description, the license plate and description of any vehicle he
    uses, the criminal history of the sex offense for which he was convicted, the text
    of the criminal provision of the sex offense for which he has been convicted and
    his current status will be posted on a website available to the public for the rest of
    his life. Ala. Code § 15-20A-8 (a)(1)-(10).
  2. If he fails to register, he will be guilty of having committed a class C felony,
    which carries a prison term of up to ten years. Ala. Code §§ 15-20A-10(j); 13A-5-
    6(a)(3).
  3. He will be required to appear during his birth month and every three months
    thereafter to reverify all of the information on file with the registry. Ala. Code §
    15-20A-10(f).
  4. Any time he changes residences or schools or employment, or any other change
    which affects the information required for registration, he must appear in person
    “immediately” to re-register. Ala. Code § 15-20A-10(b-c).
  5. His driver’s license or ID shall bear designation that he is a registered sex offender. §15-
    20A-18.
  6. He will subject to electronic monitoring supervised by the Board of Pardon and Paroles for 10 years following release.
  7. There are housing and employment restrictions. A child may be required to move out of their home if minor sibling resides there, regardless whether the sibling was the victim or even the same sex as the offending child.

ASORCNA, and other registration schemes like it, do not reduce recidivism when applied to minor children because juvenile recidivism is already statistically less than five percent. If anything, evidence shows that registration and notification for juveniles may actually increase the level of recidivism due to the ostracism and lack of opportunity for healthy social connections that juveniles experience.

Minor children have transitory character traits and lessened culpability. Because of this, they are entitled to individualized review of the risk of recidivism before any adult registration requirement can be imposed on them. In 2014, the Pennsylvania Supreme Court ruled that Pennsylvania’s own lifetime registration requirements for violated due process when applied to youth offenders. In the interest of J.B. 107 A. 3d 1, 35 (Pa. 2014). The majority opinion held that “statutes that infringed upon protected interests or denied benefits by utilizing presumptions that the existence of one fact was statutorily conclusive of the truth of another fact” violated due process when there was no “meaningful opportunity to contest the validity of the second fact.” Id., at 25 (citing Vlandis v. Kline, 412 U.S. 441 (1973); Stanley v. Illinois, 405 U.S. 645 (1972); Bell v. Burson, 402 U.S. 535 (1971)). Like the Pennsylvania statute, Alabama’s law creates an irrebuttable presumption that all minor children who have committed certain sex offenses are likely to recidivate without giving them a meaningful opportunity to contest this presumption.

Furthermore, juvenile “impulsivity and sexual curiosity” lower as children become more mature, which leads to the lower rate of sex offense recidivism. J.B., at 17. Alabama’s juvenile code has an acceptable alternative for determining whether an offender is likely to recidivate, namely by assessing each juvenile individually to determine what is in their best interest and the best interest of the community.

The Supreme Court of Ohio addressed this issue in In re C.P., In holding that the federal registration requirements violated due process, the court said that “fundamental fairness is not a one-way street”. In re C.P., at 750. In other words, fundamental fairness does not mean that states can lessen due process requirements for juveniles. Instead, fundamental fairness mandates “additional procedural safeguards for juveniles in order to meet the juvenile system’s goals of rehabilitation and reintegration into society.” Id. Several states give discretion to courts to weigh specific facts and circumstances in making the decision as to whether registration will be required of an adjudicated juvenile. See A.R.S. 13-3821(D); IC 11-8-8-5(c); M.G.L. 6 § 178E(c); N.C.G.S. §14-208.26(a); 10A Okl.St. § 2-8-104A-B; RI ST § 11-37.1-4(j); VA Code § 9.1-902G; RCW 9A.44.143. In those states, unlike Alabama, lifetime registration is not automatically imposed simply because of the nature of the offense. Courts are allowed to determine whether registration is vital to the public interest. To provide fundamental fairness in the adjudication of minor children, Alabama should, at a minimum, join the ranks of these states.

This tradition of treating juveniles differently than adults is based on our knowledge of child brain development. The United States Supreme Court held, ten years ago, that juveniles are inherently less culpable than adults for their actions because they are not fully developed, which leaves them more impulsive, susceptible to outside forces and with transitory traits of character. Roper v. Simmons, 543 U.S. 551, 569-570 (2005) (finding the imposition of the death penalty on juveniles to be cruel and unusual punishment). More recently, in 2010, the Supreme Court ruled that life without parole sentences for non-homicide crimes is cruel and unusual punishment when applied to juveniles. Graham v. Florida, 560 U.S. 48, 68 (2010). Based on empirical evidence of the American Medical Association and the American Psychological Association, the Supreme Court of the United States held that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds . . . parts of the brain involved in behavior control continue to mature through late adolescence.” Id., at 68. The Court also recognized that “juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.” Id., at 68, quoting Roper, at 570. The Court stated, moreover, that, “it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Id. ASORCNA ignores the judicial findings of fact by the Supreme Court of the United States by declaring that certain children are not capable of change or rehabilitation and should be punished as adults simply because of the nature of the crime, without taking into account the individual, transitory characteristics of the child.

In 2006, Franklin Zimring, a law professor at the University of California, conducted a study of 6,000 juveniles and determined that “juvenile sex offending did not predict adult sex offending” because “juvenile sex offenders were not statistically more likely than juvenile non-sex offenders to commit an adult sex offense.” Amy. E. Halbrook, Juvenile Pariahs, 65 Hastings L.J. 1, 14 (2013).

Just five years ago, the Supreme Court of the United States voided a portion of Alabama’s Juvenile Code which automatically sentenced juveniles to life imprisonment without parole for homicides as a violation of the United States Constitution’s 8th Amendment ban on cruel and unusual punishment. Miller v. Alabama, 132 S.Ct. 2455, 2469 (2012). The Supreme Court’s reasoning was as follows, “by making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Id., at 2469. The Court invoked its previous rulings, acknowledging that, “we have by now held on multiple occasions that a sentencing rule permissible for adults may not be so for children.” Id. at 2470. Alabama has not, to date, evaluated the constitutionality of mandatory lifetime registration provisions of ASORCNA under the United States Supreme Court’s rulings that adolescent development must be taken into consideration when determining punishment and culpability for the juvenile defendant.

Registration and notification denies the youth the ability to develop a positive self-identity. Id. “For a juvenile offender, the stigma of the label of sex offender attaches at the start of his adult life and cannot be shaken . . . It will be a constant cloud, a once every three month reminder to himself and the world that he cannot escape the mistakes of his youth.” In re C.P., 697 N.E. 2d 729, 741-42 (Ohio 2012). This is disastrous to both the juvenile justice goal of rehabilitation and for preventing recidivism, as is the stated goal of SORNA. “Crime is more likely to occur when bonds with mainstream society are weakened — that is when individuals lose or fail to develop social anchors such as school involvement, stable employment, stable residence, military service, job advancement, engagement with prosocial institutions, becoming a part of prosocial friendship networks, fitting into a neighborhood, having prospects for marriage or committed relationships or raising a family.” Mark Chaffin, Our Minds are Made Up — Don’t Confuse us with the Facts, University of Oklahoma Health Sciences Center, Child Maltreatment Vol. 13 No. 2, 110, 113 (May 2008).

Secondly, ASORCNA is cruel and unusual punishment as applied to minor children. The state argues that its not “punishment.” As the statutes applies to juveniles, the statutory scheme is “‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’”Smith v. Doe, 538 U.S. 84 (U.S. 2003) However, it meets the criteria for punishment set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Moreover, there is a national trend against juvenile registration. ASORCNA does not take into account the rehabilitative potential of minor children and, therefore, does not meet the penological goals of rehabilitation and integration.

Adult Survivors of Childhood Sexual Abuse Can Sue their Perpetrator

There has been another foster parent charged with sexually abusing a foster child, per reports:

The investigation began in November, after the Calhoun County Department of Human Resources filed a report with Rainbow City police alleging the sexual abuse of a male juvenile over a long period. Kelley had access to the boy as a foster parent with Seraaj Family Homes, described by its website as a network of therapeutic foster homes.

I prosecuted hundreds of child abuse cases while an assistant attorney general. I saw the lasting damage these children sustained years after the case concluded. The law though allows for these children, even after they become adults, to seek compensation for the psychological and emotional harm which the abuser caused to them.

They can seek damages for medical and therapeutic care.  They may also seek damages for the lingering impairment of their capacity to carry on their life. After obtaining a money judgment, these victims can recover that judgment through seizure of assets and wages of the perp.

The two most critical questions for those abused. The first question is directed at the mental health, strength, and endurance of the person abused. The court process can be very traumatic. Attorneys get to cross-exam and depose the victim. There is a substantial loss of privacy; these type of proceedings are usually open to the public. Even medical and pyschotherapy records become open to discovery.  Consultation with their therapist as well as the attorney should be considered before bringing this type of a lawsuit.

Secondly, there are statute of limitations involved. A statute of limitation is a bar to bringing lawsuits after a certain amount of time has passed since the last action. For assaults and false imprisonment claims, there is a six year statute of limitation. Other claims would be limited to two years. However, 6-2-8 extends the Statute of Limitations for civil actions by an additional 3 years after the child reaches the age of majority, 19 years old. (Update: There is a 20 year total cap. Also, if the child had a trustee or conservator, this extension may not apply.)

Note: for many child sexual offenses, there is no statute of limitations to institute criminal prosecutions in Alabama. Accordingly, you can institute criminal prosecution at any point. Criminal prosecution and civil prosecution can work together but are completely independent actions.

UPDATE, comparison with New York:

For 11 years, activists and lawmakers in New York have tried and failed to pass the Child Victims Act, which would expand the legal recourse available to people who say they were sexually abused as children, who now face some of the most restrictive laws in the country. As the national conversation bursts with a reckoning over sexual misconduct, activists hope that this year they will succeed and are advancing a new, more aggressive strategy to pass the bill. , ,

Under New York State law, victims of childhood sexual abuse have until they are 21 to sue the institution where the abuse took place, like a church or a school, and until 23 to sue their attacker. Criminal charges, with the exception of rape, must be filed before a survivor turns 23. . .

The Child Victims Act would allow survivors to sue until they turn 50 and let criminal charges be filed until they are 28. It would also create a one-year window during which cases from any time could proceed in court.

While the Alabama statute is overly constrained, this proposal is overly broad. There are legitimate policy reasons to have time limitations on civil and criminal allegations: death of witnesses, inability to mount a defense beyond he said- she said, inability to mount alibi, etc.