Reps. Matt Soper, left, and Dafna Michaelson Jenet speak before a second-reading vote on Senate Bill 73 on March 26, 2021. (Faith Miller/Colorado Newsline)
A Colorado bill that could open up state institutions, schools and youth programs like the Boy Scouts to millions of dollars in lawsuits from sexual misconduct that occurred decades ago passed a crucial test Wednesday in the state Legislature.
Advocates of sexual assault survivors have been pushing for legislation like Senate Bill 21-88 for years. The 2021 version of the bill — which saw several substantial amendments since being introduced in February — would allow people who survived sexual abuse as children to sue their abusers, as well as culpable public and private institutions, at any time after the abuse occurred.
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Sponsored by Sens. Jessie Danielson, a Wheat Ridge Democrat, and Don Coram, a Montrose Republican, along with Reps. Dafna Michaelson Jenet, a Commerce City Democrat, and Matt Soper, a Republican from Delta, SB-88 passed the House Judiciary Committee on Wednesday. The bill requires a hearing in the House Appropriations Committee before it heads to debate in the House. It has already passed the Senate.
For many survivors who were abused years or decades ago, there’s currently no way to bring a lawsuit, because the statute of limitations has expired. But SB-88 would create the ability for survivors to sue over events from any time in the past.
Until recently, survivors of child sexual misconduct had just six years to bring a lawsuit after they turn 18. Senate Bill 21-73, which Gov. Jared Polis signed into law April 15, allows people who survived sexual assault or other serious sexual crimes as children to bring a lawsuit against their abusers at any time after the crimes occurred.
That law allows child sexual assault survivors who have not turned 24 — and future survivors — to, at any point after the assault occurred, sue their abusers and any institutions that turned a blind eye to abuse. However, SB-73 is forward-looking only, meaning it doesn’t apply to survivors for whom the statute of limitations has already expired.
That’s where SB-88 fits in.
The bill would apply to abuse in youth programs tied to state government, such as juvenile detention centers, youth programs run by colleges and universities, and History Colorado day camps. And the state of Colorado expects plenty of possible lawsuits against its employees and youth programs if the bill passes.
According to the latest fiscal analysis by nonpartisan legislative staff, SB-88 would require the state to spend an estimated $13 million in damage payments each year from 2022 through 2025, plus legal fees to battle 25 child sexual misconduct lawsuits annually. That includes people who could be suing over abuse that happened far in the past.
SB-88’s revised fiscal note states the analysis is based on annual rates of sexual misconduct reported in the Division of Youth Services, which serves 4,500 children in its facilities, as well as the number of children served in “Colorado state programs and activities conducted by institutions of higher education and History Colorado,” which is 60,000 children. The analysis assumes that 25 child sexual misconduct lawsuits would be filed for each of the first five years the bill is in effect, and that nine cases per year would result in a judgment against the state.
Under SB-88, someone who experienced sexual misconduct as a child enrolled in a state youth program would be able to bring a claim against a department, program employee or agent of the Colorado government. An amendment to the bill in the Senate would waive the Colorado Governmental Immunity Act’s liability caps in lawsuits concerning child sexual misconduct. That means the state could pay damages greater than the $387,000 cap in the CGIA.
But a subsequent amendment in the House Judiciary Committee reinstated a new, slightly higher liability cap of $450,000. The bill’s fiscal note is likely to be revised again with that change.
Institutions outside of government that manage youth programs, such as the Catholic Church or Boy Scouts of America, could end up paying unlimited damages to people who were abused decades ago. The Colorado Catholic Conference opposes the bill.
“We have sought to address our past and make sure we’re doing everything we can to protect children today,” Brittany Vessely, executive director of the Colorado Catholic Conference, testified to the Senate Judiciary Committee on March 11. She referred to the victimization of 66 children by 43 Roman Catholic priests, which occurred in the archdioceses of Denver, Pueblo and Colorado Springs, according to a special report from the Colorado attorney general’s office. A follow-up report in 2020 reported 46 additional victims and implicated nine more priests.
The most recent abuse reported by the attorney general’s office occurred in 1999.
Vessely said the financial burden of litigation under SB-88 would fall on parishioners and people the church serves through social ministries.
Meanwhile, advocates say the ability for survivors to sue over past abuse would help them pay for services such as counseling to cope with the trauma, plus prevent similar cruelties from being inflicted on others.
If SB-88 were to pass, Colorado would be the first state to create a new pathway for survivors to sue over past actions, according to Raana Simmons, director of public affairs for the Colorado Coalition Against Sexual Assault. Other states have opened up a “look-back window” that allowed people a limited period of time to sue over long-ago abuse.
“The issue with the Colorado constitution is that we cannot revive expired claims,” Simmons said. “What Senate Bill 88 does is creates a new, distinct, freestanding cause of action when we are not reviving claims, that victims can actually bring their claim under this new cause of action.”
Providing this new legal path “allows survivors to have their day in court to access the single system designed to provide the monetary resources necessary to recover,” Simmons added, “and to go on record — explain what has happened to them in hopes that sharing their story prevents sexual abuse from continuing on in communities throughout Colorado.”
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