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TESTIMONY BY WENDY J. MURPHY, NEW ENGLAND SCHOOL
OF LAW
JUDICIARY COMMITTEE HEARING
REGARDING BILLS TO REMOVE SOL ON SEX CRIMES AGAINST
CHILDREN
MARCH 14, 2006
We all understand that limitation periods promote
peace of mind and repose -- and that's fine -- for
some types of bad behavior. But it's not fine when
we're talking about the kind of violence that can
destroy a child for life. The United States Supreme
Court has called rape the most serious harm to the
self, short of murder -- and while they've ruled it
is cruel and unusual to impose the death penalty
when the victim is an adult, the court has upheld
the death penalty as a just punishment when the
victim is a child. In short, rape of a child is the
only interpersonal crime, other than murder, for
which the law constitutionally permits the death
penalty to be imposed. This speaks volumes about the
seriousness of the crime and the appropriateness of
eliminating the statute of limitations altogether.
The death penalty is lawful for child rape because
defenseless kids need all the thumbs on the scale we
can give them when it comes to protection from harm
-- and eliminating the statute of limitations is
exactly the type of extra help kids need.
Children don't vote and they don't have any money
-- they also lack physical power -- which is why
they disproportionately suffer certain types of
harm in society.
Children depend on all of you - to provide the
leadership necessary to pass laws that will protect
them from harm.
I realize some of you are concerned about the claim
that passing this law will harm fundamental
"liberty" interests and constitutional rights of
accused criminals - but I think we need to take a
step back and ask -- whose liberty and whose
constitutional rights are really at stake?
Children -- like all citizens -- enjoy a fundamental
constitutional right to seek redress from their
government. Perpetrators enjoy the benefit of a
statutory limitation period -- but this is not a
constitutional right.
Child rapists may find comfort in the fact that they
can walk away scot-free after an arbitrary time
period ends, but we have to be honest about the fact
that there is no constitutional interest at stake
and moreover -- it's poor public policy to send a
message to child rapists that they can someday stop
looking over their shoulders, wondering whether
their defenseless victims are finally ready to
tell.
Let’s be clear about this - child victims have a
constitutional right to seek redress -- while
perpetrators have no constitutional right to stop
the clock.
The law in this state is exactly backward --
The presumption should be that the window to
prosecution is always open. This fosters the fullest
exercise of fundamental rights. And because there is
no constitutional right to a limitation period, this
is not unfair to criminal defendants. Yet because
the accused does enjoy important fair trial rights,
it should be noted that if an extraordinary delay
prevents the defendant from receiving a fair trial,
he can file a motion and attempt to prove that his
rights would be violated if the prosecution were
allowed to proceed. If he succeeds, the charges can
be dismissed.
This is not only the correct constitutional analysis
in terms of where the presumptions lie and who
should bear the burden -- it's sound public policy.
90% of child sex abuse is never reported and
according to a study funded by the National
Institutes of Mental Health, the average child
molester has 117 victims during the course of his
life. That's an awful lot of harm to society -- much
of which goes unredressed because of statutes of
limitation.
Kids are obviously very easy to silence -- which is
why disclosures are rare -- and even if a disclosure
is made and prosecution is possible -- plea bargains
and unjust sentences are common because we're too
willing to trade on the idea that we should "protect
the child" from the system and give the guy a
discount -- (we should be forcing more kids to
testify).
This is problematic enough -- but the ultimate irony
is that having any limitation period creates a
perverse incentive for perpetrators to be especially
brutal in their attacks and especially terroristic
in their intimidation tactics because the better
they are at scaring and hurting the child, the
better the chance it will take the victim a long,
long time to tell - -- which means the clock might
just run out. Far better than a discount, the
perpetrator gets a complete pass. The law should
deter bad behavior, not incentivize child rapists to
cause extra harm.
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