Bans on Gay Sex Ruled Unconstitutional; California Molestation Law Struck Down

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 students, 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 -- Kennedy, 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.

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(BEGIN TEXT OF INFOBOX)

Child molestations

Majority:

Breyer

Stevens

Souter

Ginsburg

O’Connor

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Dissenters:

Scalia

Kennedy

Rehnquist

Thomas