Rescinding of Molestation Case Deadline Upheld

The California Supreme Court decided Monday that a defendant may be charged with child molestation even if the alleged crime took place years or decades before a complaint was made to police.

In a 4-3 ruling, the state high court said a 1994 state law that virtually eliminated the statute of limitations for child molestation can be applied retroactively to child molestation cases in which the legal deadline for prosecution had expired.

The ruling, described as the first of its kind in the nation, is expected to unleash a barrage of prosecutions against defendants whose victims kept their molestations secret for years. It also could encourage other states to rescind statutes of limitations retroactively for child sexual abuse.

Previously, many such victims went to civil court and obtained monetary compensation but could not seek criminal prosecution if the statute of limitations for child molesting, generally six years in California, had expired.

Special Assistant Atty. Gen. Janet Gaard, who represented prosecutors in the case before the court, said the ruling will allow for the prosecution of 40 cases already in the pipeline, “and I would think substantially more than that.”

She said she was “ecstatic” about the decision. “We have been litigating this for 5 1/2 years,” she said.

Criminal defense lawyer Charles M. Sevilla, who represented the state’s criminal defense lawyers association as a friend of the court, said the decision means that all statutes of limitations in California are now “ephemeral” because the Legislature can change the rules at any time and make them retroactive.

“No case in the history of the United States--no federal circuit case, no U.S. Supreme Court case or state Supreme Court case--has ever held this,” said the San Diego lawyer. “As a matter of fact, the court in its decision today overruled three California Court of Appeal decisions.”

The ruling stems from a state law enacted five years ago that said suspects may be prosecuted for child molesting within one year after a complaint to law enforcement has been made.

Some California courts refused to apply the law to cases in which the statute of limitations for prosecution had expired. The Legislature responded by passing another provision in 1996 that clearly stated that the new child molestation law was to be applied regardless of when the alleged crime was committed.

In such cases, the crime must have involved one of a series of specified sexual acts, from intercourse to mutual masturbation, and prosecutors must present evidence that clearly and convincingly corroborates the crime. Such evidence can include a witness, additional victims or photographs but cannot consist of the opinion of a mental health professional.

The state high court Monday upheld the retroactivity of the law in the Mendocino prosecution of Raymond Lawrence Frazer. Frazer was charged in 1996 with one count of lewd conduct upon a child under the age of 14. The victim was identified only as Jessica F., a relative of Frazer.

The crime had allegedly occurred 12 years earlier, and the six-year statute of limitations had long since passed. The prosecutor filed the charge under the child molestation law that the Legislature had approved.

Defense attorneys maintained that under both the state and federal constitutions, it is illegal to apply a law retroactively to cases in which the legal deadline for prosecution has expired.

Under constitutional rules, a law cannot be applied retroactively if it takes away a defense that was available at the time the crime occurred. The state Supreme Court majority decided that a statute of limitations is not the kind of defense covered by these rules and therefore the state law is constitutional.

Justice Marvin Baxter, writing for the majority, noted that lawmakers across the country in the 1980s began to increase the time in which child molestation charges could be filed.

Lawmakers “became increasingly aware that young victims often delay reporting sexual abuse because they are easily manipulated by offenders in positions of authority and trust,” Baxter wrote.

“Prosecutors have wide latitude in . . . determining whether and when indictments should be filed,” wrote Baxter. “Such discretionary decisions offend the United States Constitution only where unfair tactics or improper motives are involved.”

Oregon, in addition to California, passed laws that eliminated the statutes of limitations for child molestation retroactively, according to Gaard of the attorney general’s office. Oregon’s state high court eventually struck down its law on state constitutional grounds.

California Justice Joyce L. Kennard, in a dissent joined by Justice Stanley Mosk, said the state has “an obligation to deal fairly with its citizens.”

“Once it has made an absolute and irrefutable assurance that it will not initiate a prosecution, it may not renege on that promise years afterwards, when memories may have faded and evidence may have been destroyed,” she wrote.

Kennard said the court majority has made “California the first and only jurisdiction in this country to allow the prosecution of time-barred criminal offenses under an extended statute of limitations.”

Justice Janice Rogers Brown, in a separate dissent, faulted the ruling for failing to “comport with California’s guaranty of fundamental fairness.”

“Child molestation will always rank among the most heinous and odious of crimes,” Brown wrote. “The victims suffer long after completion of the act. Nonetheless, the potential that a guilty person will avoid just punishment is inherent in all statutes of limitations. Society has assumed this loss in exchange for other considerations.”

William T. Rigsby, who represented the defendant in the case, did not return several calls for comment. Rigsby, who now works as a Mendocino prosecutor, could seek U.S. Supreme Court review of the ruling.

Mendocino Deputy Dist. Atty. Beth Norman, who was prosecuting Frazer, said victims have varied reasons for waiting many years to report that they were molested as children. She said some fear retribution or are embarrassed. “For many years, there is just too much shame attached to report it,” Norman said.