WTE: Civil laws that punish sexual assault must walk a fine line

Sexual assault is an unspeakably heinous crime, second only to murder. Unlike thievery or slander, which attack a person’s possessions or good name, it is aimed at the body, the person himself. Sexual violence perverts love and tenderness into its opposite, letting hate and violence invade that which is holy.

Law should address assault, both by just punishment and strong protections. Lawmakers must make use of every tool at their disposal. That includes both criminal and civil statutes.

Currently, House Bill (HB) 10 “Human trafficking—penalty for subsequent conviction” has passed the House and is before the Senate. It establishes a minimum prison sentence of 25 years on a second conviction for the human trafficking of a minor. HB 68 “Sex offender—prohibited access to school facilities” is working its way through the House. Both bills use criminal law to increase punishment and protections.

Civil laws must also play a role. However, for different reasons, two attempts to do so failed introduction. HB 210 “Modifying termination of parental rights requirements,” and Senate File (SF) 12 “Child sexual abuse civil action statute of limitations” will both have to try again.

Last year Wyoming created a law (W.S. 14-2-309) that denies a convicted rapist any custody rights concerning a child thus fathered. By shielding a woman from an ongoing custodial arrangement with her rapist, this law has the dual effect of protecting both mother and child.

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

Civil fines can be levied on “clear and convincing evidence.” This standard of proof is one step lower than “beyond a reasonable doubt,” and easier to meet. HB 210 proposed that termination of custody rights be awarded as damages—in addition to fines--in the case of sexual assault.

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, currently, an eight-year window for filing a civil claim.

SF 12 would have extended that window to 35 years after the victim turns 18. Assault victims may take decades to come to terms with their ordeal. Child predators have skated because witnesses and evidence were lost with time. This extended statute of limitations can provide a way for victims to seek financial damages from perpetrators.

While civil damages are no substitute for criminal conviction, they nevertheless acknowledge the injustice and provide some remedy. A recent law in the state of Utah, dropped the statute of limitations altogether. However, two provisions in SF 12 differed from the Utah law and caused our legislators to hesitate. First, it was retroactive. Second, it was not singularly focused on the perpetrator.

SF 12’s 35-year retroactive provision would reopen cases in which the statute of limitations has already expired. That may run counter to Supreme Court precedent of Stogner v. California.

More concerning is that it would jeopardize not only the perpetrator but also any legal entity connected with the crime. So, for instance, if a teacher molested a student in 1977 and has since died, the student would 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 tuition make the school an ongoing reality.

These present-day parents can be financially penalized for the sins of someone they never met. Alternately, their child may be deprived of his or her school. The costs of civil litigation can bankrupt even the innocent.

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.

Civil action is a good way to extend the reach of the law to punish perpetrators and validate victims. It does, however, harbor the danger of punishing innocent parents and depriving children of their own rights. If civil laws are to be useful, they cannot be so broad as to punish the innocent with the wicked. Lawmakers must find a way to walk this line.

Also published in the Wyoming Tribune Eagle on February 21, 2020.