California Molestation Law Struck Down
Abuse: Hundreds of convictions will be tossed out and prosecutions dropped, some involving priests.

By Richard Winton, Jean Guccione and Henry Weinstein, Times Staff Writers
June 27, 2003

California violated the Constitution when it passed a law to revive criminal
prosecutions in long-ago sexual-abuse cases, the U.S. Supreme Court ruled
Thursday in a decision that will affect hundreds of molestation cases statewide.

The best known of the cases are those involving Roman Catholic priests, more
than 20 of whom have been arrested statewide in the last 18 months for
allegedly abusing children. Nearly all those cases will now have to be dismissed.

Beyond the priests, however, are hundreds more cases that do not involve
clergy — parents who abused their children, teachers who abused studdents, police
officers who molested Scouts.

State officials did not have a precise count of how many convicted molesters
would now be released from prison or how many pending prosecutions would have
to be abandoned. But the law has been used in roughly 800 cases since it took
effect in 1994, said Hallye Jordan, spokeswoman for the California attorney
general's office.

The case that prompted the court's 5-4 ruling is an example of the
non-clerical cases. It involves a 72-year-old man, Marion Stogner, a retired paper plant
worker and Korean War veteran who is now living on an Indian reservation in
Arizona. In 1998, Stogner was indicted on charges of having raped his daughters
repeatedly between 1955 and 1973.

At the time the offenses allegedly occurred, the time limit for prosecuting
the crimes would have been three years.

But in 1993, the Legislature changed the law to say that accused abusers
could be prosecuted in cases of significant sexual contact so long as the charges
were brought within one year of when authorities were first notified. The
change was made retroactive.

The effect was to dramatically expand the number of cases that could be
prosecuted, reviving hundreds of long-dormant cases. The California Supreme Court
upheld the new statute of limitations in 2001.

The new law opened the way to prosecution of many priests in cases that
victims advocates say were hidden for years by church officials.

In the Los Angeles Archdiocese, criminal charges are pending against 10
priests and a seminarian, and "nearly all, if not all, will be dismissed," said Los
Angeles County Dist. Atty. Steve Cooley.

The case of Father Carl Sutphin, 71, a retired priest from Ventura County who
is charged with 14 counts of child molestation involving seven boys during
the late 1960s and '70s, also is likely to be affected. Sutphin pleaded not
guilty to those charges last month and remains free on bail.

But while prosecuting child abusers is a laudable goal, "there is also a
predominating constitutional interest in forbidding the state to revive a
long-forbidden prosecution," Justice Stephen G. Breyer wrote for the majority. If the
California law was permitted to stand, it would tempt legislators to "pick and
choose when to act retroactively," Breyer wrote.

Changing the rules retroactively was a clear violation of the Constitution's
ban on laws that are "ex post facto," meaning after the fact, the majority
held.

"California's law subjects an individual ... to prosecution long after the
state has, in effect, granted an amnesty," Breyer wrote. "It retroactively
withdraws a complete defense to prosecution after it has already attached," he
added. " 'Unfair' seems to us a fair characterization."

Justices Sandra Day O'Connor, David H. Souter, Ruth Bader Ginsburg and John
Paul Stevens joined Breyer's opinion.

Justice Anthony M. Kennedy issued a stinging dissent.

It is often difficult for a victim of sexual abuse to muster the courage to
go to authorities and report an abuser, who in many cases is a figure of
authority in the victim's life, he wrote. The law should "show its compassion and
concern when the victim at last can find the strength, and know the necessity,"
Kennedy wrote.

"The court now tells the victims their decision to come forward is in vain."

Chief Justice William H. Rehnquist and Associate Justices Antonin Scalia and
Clarence Thomas joined the dissent. Three of the dissenters — Kenneddy, Scalia
and Thomas — were raised as Catholics.

Spillover Effect

In addition to its impact on California's sex-abuse law, the ruling may also
have an impact on the federal government's anti-terror efforts.

In a brief, the Bush administration had asked the justices to uphold
California's law. They warned that a decision striking down the California law could
imperil aspects of the Patriot Act, the anti-terror statute enacted after the
Sept. 11 attacks. The Patriot Act had eliminated an existing eight-year time
limit on prosecuting terrorism cases that involve death or serious bodily injury.

The administration also has proposed legislation that would eliminate the
statute of limitations in cases covering child abduction and in instances where a
perpetrator was identified through DNA evidence, the brief noted.

A Justice Department spokesman said Thursday that officials were still
reviewing the court's decision to determine whether it would, in fact, undermine
those laws.

The ruling does not affect sex-abuse prosecutions based on more recent
crimes. Sexual-abuse cases that have occurred since the California law was passed
will still be subject to prosecution any time up to one year after authorities
are notified.

In addition, because the ruling affects only criminal prosecutions, it has no
impact on the scores of civil damage lawsuits brought against priests and
Catholic dioceses in California stemming from the sex scandal, said USC law
professor Erwin Chemerinsky.

Tod Tamberg, spokesman for the Los Angeles Archdiocese, said the ruling also
will have no effect on the church's "zero tolerance" policy against sexual
abuse.

"The priests found to have abused minors have been permanently removed from
the ministry in the Archdiocese of Los Angeles," Tamberg said. "The court's
ruling does not make way for those men to reenter ministry or to function in any
way as priests."

Tamberg also said the archdiocese will continue to follow rules adopted by
U.S. Catholic bishops last year, which require that any priest suspected of
having abused a minor, regardless of how long ago, be immediately reported to law
enforcement.

Nonetheless, prosecutors and advocates for sex-abuse victims decried the
ruling.

"It is a devastating loss for the victims of child abuse who were taken
advantage of solely because they were children," said Cooley. "It is unfortunate
that many child victims of sexual abuse will not be able to obtain justice in a
criminal court. Obviously, some sexual predators will escape criminal
accountability."

Once paperwork is completed, prosecutors will go to court in the next few
weeks to drop cases against people with pending charges or to seek release of
those whose convictions will now have to be reversed, prosecutors said.

In total, the Los Angeles County district attorney's office will have to
review more than 200 cases to see which are affected by the high court ruling,
Cooley said.

Ventura County Dist. Atty. Greg Totten said his deputies have begun to review
current and former sex-abuse cases to determine which ones must be dismissed
based on the court's ruling. They have flagged more than 20 so far, he said.

"We are duty-bound to comply with it, but I am disappointed because I think
the decision really rewards child abusers," Totten said.

It is too early to know how many would have to be dropped because in some
cases defendants face multiple charges, some of which may pass legal muster. But
Cooley warned of dire consequences.

"We could have hundreds of convicted child molesters on the streets and we
would rather have them behind bars," he said.

Robert Kalunian, chief deputy public defender in Los Angeles County, said it
is likely to be months before the first inmates are released from prison.
Lawyers will have to search a decade of case files to determine which clients
qualify for release.

"It's going to be a problem for us to try to locate them," Kalunian said.
"Even once they are identified, it is going to take court action."

California's law grew out of an explosion of public awareness about sexual
abuse that began in the early 1980s, according to Nancy O'Malley, an Alameda
County chief assistant district attorney who chairs the sexual assault committee
of the California District Attorneys Assn.

In many cases, victims were coming forward to report sexual abuse that
happened too long ago to allow prosecution. Victims and prosecutors lobbied to
change the statute of limitations.

The change in the law gave prosecutors a powerful weapon that victims'
advocates had held up as a national model. They had urged other states to copy what
California had done, although legislators in most states held off on such
action, waiting to see what the high court would rule in the current case.

In other states, prosecutors investigating sexual abuse by priests say they
have been severely hampered by statutes of limitation that prevent
prosecutions. In Massachusetts, for instance, Boston-area prosecutors have said they will
not be able to prosecute more than 30 of 50 cases they have had under
investigation because the abuse happened too long ago.

A grand jury looking into sexual abuse by priests on Long Island made a
similar complaint in a report earlier this year.

The demise of California law is a "terrible blow," said David Clohessy,
national director of the Survivors Network of those Abused by Priests.

"Frankly, I worry about those brave women and men in California who've taken
great risk to do their civil duty to report their abusers and now face the
awful reality of their victimizers back on the streets," he said. "It sends the
wrong message to the bishops to conceal more effectively and maybe you'll get
lucky and the clock will run out."

But the ruling was hailed by defense lawyers.

"The witch hunt is over, by order of the U.S. Supreme Court," said Donald
Steier, an attorney who represents several accused priests in Southern California.

"Never before has a state attempted to go back in time to resurrect criminal
charges that were never reported, never investigated and never brought to
court in a timely manner," Steier said.

"I hate to think how much public money has been wasted on these ancient
cases."

Kalunian, the chief deputy public defender in Los Angeles County, said the
ruling "is based on fairness."

"After a statute of limitations runs, a person should be free from the
government's attempt to incarcerate them," he said. "Old cases are very problematic
for both sides because memories fade and witnesses can die or disappear."

The ruling removes a significant legal cloud for the Los Angeles Archdiocese
because it will prevent prosecutions of priests who prosecutors had hoped
would provide evidence implicating senior church officials in cover-ups.

But it will hardly end the litigation the archdiocese faces.

Records Still an Issue

Cooley said the case would not derail his long-running dispute with the
archdiocese over access to personnel records that church argues should be kept
confidential.

"We engaged in significant amounts of litigation to get the records," Cooley
said. "We still want to be able to get the records because, for institutions
like the archdiocese, there will be more cases in the future. And we we'll keep
trying to get the records until a court decides we don't have the right to
them."

J. Michael Hennigan, who represents the archdiocese, said he was heartened by
the decision's language about fairness. Lawyers for the church may make
similar arguments in the civil cases, he suggested.

Civil lawyers vowed Thursday to continue to seek access to those alleged
admissions of sex abuse by priests.

Times staff writers Megan Garvey and Rick Schmitt contributed to this report.

Copyright 2003 Los Angeles Times