We must talk about sexual assault for the sake of the innocent

Photo by Sasha Freemind on Unsplash

There are some bills before the legislature this year that no one really wants to talk about. They are emotionally laden and speak of ugly things. But if no one talks about them, the problems only grow. Worse, those who are not so deeply affected by them, will be the only ones pushing an agenda that only makes matters worse.

Sexual assault is a heinous crime that is second only to murder. Unlike thievery or slander, which attack a person’s possessions and good name, assault is directed at the body. Since the body and the person are one and the same, the attack is direct.

Assault of a sexual nature is especially perverse. It twists the realm of love and tenderness into its opposite. Hate and violence invade the sanctuary of holiness. The soul is deeply wounded in ways that few, if any, truly understand.

For these reasons, our lawmakers must strive to punish offenders justly, with sentences that fit the crime. While doing so, they must do everything in their power to protect the innocent from future violations.

To punish the offender, they must make use of every enforcement tool at their disposal. To protect the innocent, they must honestly address the evil at its very root.

There are several bills before the legislature this year that address both the criminal and the civil penalties for sexual assault. HB 10 “Human trafficking—penalty for subsequent conviction” passed the House Friday and now goes to the Senate. It establishes a minimum prison sentence of 25 years on a second conviction for the human trafficking of a minor. For additional protection, HB 68 “Sex offender—prohibited access to school facilities” is being considered by the House Education committee.

Criminal law is an important tool for punishing perpetrators and protecting their victims. But civil law provides additional ways to accomplish these goals. Wyoming’s legislature is looking at changes to civil laws in two separate bills: HB 210 “Modifying termination of parental rights requirements,” and SF 12 “Child sexual abuse civil action statute of limitations.”

In 2019 Wyoming created a law that addresses children conceived by sexual assault. W.S. 14-2-309 denies the paternal rights of a convicted rapist toward the child conceived by that assault. By shielding a woman from an ongoing custodial arrangement with a convicted rapist, this law has the dual effect of protecting both mother and child.

However, since the standard of proof for conviction is “beyond a reasonable doubt,” the woman and her child may still be forced into a custody arrangement with her attacker if the prosecutor fails to meet that highest standard of proof.

For this reason, the federal Rape Survivor Child Custody Act of 2015 encourages states to enact laws that terminate parental rights not only as a result of criminal conviction, but also as result of civil action. The standard of proof in civil proceedings is “clear and convincing evidence.” This is one step lower than “beyond a reasonable doubt,” and an easier standard to meet.

Grant money from the Violence Against Women Act (U.S.C. 3796) is made available to states that amend their custody laws to terminate parental rights with a civil action. That’s what HB 210 “Modifying termination of parental rights requirements,” proposes.

SF 12 “Child sexual abuse civil action statute of limitations,” also turns to civil law to address the horrors of sexual assault. While Wyoming state law has no statute of limitations on sexual crimes, there is a time limit for civil action.

Currently, a minor who has been sexually assaulted can file a civil suit up to eight years after his 18th birthday. SF 12 would extend that to 35 years. The additional time allows for the reality that many assault victims take decades before they are able to deal with the crimes they endured.

Many child predators have gone unconvicted because evidence was lost to time and witnesses became unavailable. But while prosecutors may not be able to meet the “beyond a reasonable doubt” standard, civil attorneys may still be able to prove the assault by “clear and convincing evidence.” But if the statute of limitations for civil action has expired, even this remedy is denied the victim.

By extending the civil statute of limitations, SF 12 provides a mechanism for perpetrators to pay financial damages to their victims. This can vindicate to those who suffered and give just punishment to the perpetrator. A recent law in the state of Utah, did exactly this.

There are, however, two provisions in SF 12 that differ significantly from the Utah law. First, SF 12 is retroactive. The 35-year extension of time would reach backward as well as forward. Accordingly, it would be theoretically possible for an infant molested 52 years ago to still file a civil action in 2022.

That provision of SF 12 may run counter to a Supreme Court case (Stogner v. California) that prevented California from reopening the possibility of prosecution after a previous statute of limitations had expired.

More troubling is that SF 12 not only extends the statute of limitations for action against the perpetrator, it also exposes any legal entity connected with the crime to civil action. So, for instance, if a teacher molested a student in 1977 and has since died, the student would now be able to sue the school where it occurred.

This is unjust. While the school may have the same name that it had 43 years ago, almost everything else has changed. It has a completely new administration, a completely different Board of Education, altogether new staff, and—most of all—an entirely different group of parents whose finances support the school.

All of this raises the real possibility that parents who are only trying to provide the best education for their children will be financially penalized for the sins of someone they never met. More likely, they will see their child’s school bankrupted by legal fees even if it is ultimately vindicated by the civil court that tries the case.

Just laws should bring the fullest possible penalties against the actual perpetrators of crime while taking care not to penalize the innocent. That’s why both SF 12 and HB 210 require careful deliberation and wise legislators who can strike the proper balance.

Nobody wants to see children and their parents penalized for a crime that took place in their school before they were born. Nobody wants to see a father lose his parental rights for a crime that he did not commit. But within these parameters, everyone wants to see that a victim of sexual assault gets justice and will not spend the rest of her life in a custody battle with her rapist.

This year SF 12 failed to garner enough votes even to be considered during a budget year and HB 210 didn’t get a vote at all. Legislators in both chambers seemed reluctant to act rashly on such an important and momentous issue. Perhaps the Joint Judiciary Committee can use the interim to find a way forward that punishes offenders justly, while also protecting the innocent of every generation.