When the Maine Legislature decided in 2021 to allow anyone to file a lawsuit over child sexual abuse regardless of how long ago it occurred, advocates said the state was ahead of the curve.

Maine had already removed the time limit on all future claims 20 years earlier.

But last week, Maine’s highest court deemed the transformational 2021 law unconstitutional. Elizabeth Ward Saxl, who directs the Maine Coalition Against Sexual Assault, said the ruling was a shock.

“We were on the front end of many of those changes in the nation,” Ward Saxl said. “We have been making slow, incremental, but steady progress in opening these paths to justice for survivors. This feels like a gigantic step backwards.”

Many states have been updating these laws with a renewed understanding of sexual assault and the time it takes some survivors to process what they’ve been through. And as many of these laws have been challenged, court decisions have run the gamut.

Just days after Maine’s court said the Legislature didn’t have a right to revive claims based on state precedent, the North Carolina Supreme Court took the opposite stance.

“They came out on the other side,” said Emma Hetherington, a clinical associate professor at the University of Georgia who studies the therapeutic effects of civil justice for child sexual abuse victims. “It’s almost a mirror image.”

The dueling opinions throw more confusion into an already emotional issue.

As survivors of sexual abuse and their supporters evaluate what to do next in Maine — to ask the court to reconsider, to try for a constitutional amendment — how other states have handled similar questions might offer some direction.

WHAT OTHER STATES HAVE FOUND

Maine is one of only a handful of states that tried to entirely wipe away time limits for civil sexual abuse claims.

In Vermont, the state Supreme Court last year upheld a law most comparable to Maine’s. And Maryland’s court has been considering a challenge to a similar statute since September.

Of at least 35 states that have attempted some kind of a “revival” law, most have involved “look back” windows, which create deadlines for how long survivors have to bring a claim. Some of these windows were only opened related to specific incidents or defendants.

More than a dozen courts have upheld these changes, often citing a U.S. Supreme Court decision in 1945 that said the U.S. Constitution doesn’t outright bar retroactive legislation for civil cases, so long as it doesn’t involve “taking of life, liberty, or property without due process of law.”

Maine, meanwhile, is one of several states that have ruled again and again that legislation cannot interfere with one’s “vested rights,” or those that have already been granted before a law change.

The justices cited dozens of court decisions dating back to 1825, referencing disputes between individuals, companies and estate holders, all in which the court has ruled against any actions that would deprive an entity of their already “vested” rights.

In one recent case, the court found a 2021 citizen’s referendum banning work on a pipeline was unconstitutional because it interfered with property that the pipeline company had already acquired.

“I think for the majority, it is really a case about this issue of retroactive legislation,” said Dmitry Bam, vice dean and provost of the University of Maine School of Law.

“I think there are some rights that everyone agrees are vested at some point,” Bam said. “Once you have a vested right in property, it can’t retroactively be taken away.”

The Maine supreme court’s latest ruling appears to stretch that definition beyond physical property rights. As a result, Bam said future legal arguments will continue to flesh out what Maine considers “vested rights.”

“I think then you get to the margins of, ‘What are you talking about as a right that’s vested?'” Bam said. “There’s where you get into disagreement. There’s no clear answer.”

Courts in Colorado, Kentucky and Utah have reached the same conclusion.

At the Utah Supreme Court, justices in 2020 said a woman could not sue the judge she said sexually abused her because her claim had expired under a previous statute of limitations. The court said a law attempting to revive the woman’s claim exceeded the Legislature’s authority.

“It’s really convoluted, obviously,” Hetherington said. “And it just depends on how the states are analyzing their state constitutions.”

SLAMMING A DOOR

In Louisiana, the state Supreme Court originally shot down a law that created a three-year window for previously expired claims on similar grounds. The justices changed their minds last summer, saying the law was passed with “legitimate legislative purpose.”

Sandi Johnson, senior legislative policy counsel for the national nonprofit RAINN, which advocates against sexual violence, said Utah’s and Maine’s courts failed to take “the second step” in their analysis, and consider whether these laws have enough value to outweigh precedent.

“I think that’s where the Louisiana court got it right,” Johnson said. “They originally did the same thing — but then they agreed, you just have to have a much higher reason and burden to do it.”

Rep. Lori Gramlich, D-Old Orchard Beach, introduced the 2021 bill in light of her own experiences with child sexual abuse, and a growing body of research that survivors often need decades to process their experiences.

Gramlich said Friday that she had a compelling reason, even if it was retroactive, because of the seriousness of child sexual abuse.

“This is an issue where we’re talking about the safety of children and we’re holding pedophiles to account,” Gramlich said.

Advocates who were disappointed by Maine’s ruling say child sexual abuse claims are “uniquely different” from others.

“These are not your typical slip and fall, car accident, fender bender cases,” said Kathryn Robb, director of the Children’s Justice Campaign at Enough Abuse, which works to end child sexual abuse. “They are not those types of claims at all. These are claims that are basically this: the perpetrator, the wrongdoer, by the very act of sexual abuse, harms the victim. And then they’re protected by that silence.”

Robb advocates for the removal of statutes of limitations on child sex abuse claims across the country and helped push for the 2021 law in Maine. She believes these lawsuits help force change in institutions that care for children.

“The piece that I think a lot of folks don’t understand … is when we pass revival legislation, we make children safer now and into the future, because what we do is we expose hidden sexual predators. We expose institutions or organizations that don’t have good practice, procedures, responses to child sex abuse,” Robb said.

Johnson said other state legislative bodies are updating their statutes of limitations for the same reason — especially as more survivors were coming forward with claims of institutional abuse and cover-up.

Like what dozens of people have alleged against the Roman Catholic Diocese of Portland.

In many of the cases filed in Maine after the 2021 law change, the plaintiffs alleged they were abused by various employees of the church between the 1950s and the 1980s, and that diocese leadership knew about the claims, but shuffled the perpetrators between different parishes with no warning to other churchgoers.

The Maine diocese has pushed back against any allegations of continued wrongdoing and said most of those involved in these claims have since died.

Johnson argues that people who were harmed, even decades ago, still deserve accountability.

And the ability to sue is only the first step in a long legal process. Plaintiffs still have to demonstrate that they have the evidence to back up their claims, just like anyone else.

“This isn’t just an arbitrary legal ruling. This is about real people and understanding that victims need to be able to have that time to process their trauma and come forward,” Johnson said. “And when they’re finally able to come forward … The response of the community and the justice system should be to allow them to access that. It shouldn’t be to slam the door in their face.”

CHALLENGING THE CONSTITUTION

For dozens who sued the Maine diocese, the court’s decision is a difficult one.

Attorneys Michael Bigos and Timothy Kenlan, who represent roughly a hundred people with such claims, said this ruling has been painful for many of their clients.

“I have been very concerned about some of my clients and their mental health,” Kenlan said. He said he is referring some clients to crisis lines and mental health providers. “That’s the impact this has had. … The message that they received was, ‘I wasn’t believed then and I’m not believed now, and no one really cares about me.'”

Hetherington, who studies these laws around the country, said decisions like Maine’s can have a chilling effect on survivors.

“To file a lawsuit is a lot,” Hetherington said. “It’s retraumatizing. There’s already been this power imbalance. So to then be effectively told that the rights these state courts are protecting are the rights of the defendants to not have to face liability for a certain amount of time … that has a muzzling effect.”

For anyone born after August 1970 who experienced child sexual abuse, Bigos and Kenlan say these cases aren’t affected. In other cases, Bigos said he is trying to determine if they have the evidence to prove “fraudulent concealment” by the diocese, which isn’t subject to the same statute of limitations. These are admittedly harder claims to bring because they depend on when a plaintiff discovered there might have been a cover-up.

Most of their options are going to be a heavy lift, including asking Maine’s court to reconsider its ruling, like they did in Louisiana, or even pursuing a constitutional amendment.

“I think it would be great to put the issue to bed,” Kenlan said.

But Kenlan still reflects on the change that has already been made as more people who have experienced abuse come forward.

“Every single person that I’ve spoken to, in the course of representing survivors, I think has made a huge, meaningful difference for people beyond what they may know,” Kenlan said. “They gave courage to somebody else to speak up — whether they came and spoke to a lawyer, brought forth a claim, or sought mental health treatment. They made a difference.”

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IF YOU or someone you know has experienced sexual abuse, you can call Maine’s Sexual Assault Crisis and Support Line at 1-800-871-7741 to talk to someone who can help. You can learn more online here.

OR you can call National Sexual Assault Hotline at 1-800-656-4673 or chat at online.rainn.org

TO REACH the Suicide and Crisis Lifeline, call 988 or chat online at 988lifeline.org.

FOR OTHER support or referrals, call the NAMI Maine Help Line at 800-464-5767 or email helpline@namimaine.org.

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