C. Opposition to the Second Wave Legislative Reforms
Legislation reforming the state SOLs has been met with opposition and legal challenges.
For example, the Supreme Court ruled that the California window legislation for bringing
criminal claims was unconstitutional, striking it down in 2003.259 The Court held that it violated
the Ex Post Facto Clause of the Constitution, which forbids the retroactive change of a legal
260 In 2006, the California Court of Appeals ruled that the California window
legislation for bringing civil claims violated the state constitution’s separation of powers
261 However, the Supreme Court has a historical precedent for maintaining that the right
of an offender to be shielded from litigation by the SOL is not a fundamental one, such as life,
liberty, or property.
262 The legislature has the authority to determine whether expired claims can
263 Alternatively, some opponents argue that the SOL is a vested right, or a legally-protected right, and by depriving someone of that right it would be a violation of their Fourteenth
264 States have varied on their interpretations of whether a SOL is a vested
right, which is unconstitutional to remove.
Those standing in stark opposition to reformation of the SOL range from institutions to
individuals. In recent years religious institutions have been using new state versions of the
Religious Freedom Restoration Act to shield themselves from liability from the acts of their
266 This Act affords protection to religious institutions if any law imposes a
“substantial burden” on their religious practice.
267 Because of the recent increase in the number of
child sexual abuse cases brought against religious institutions,
268 insurance companies now offer
insurance coverage for sexual abuse litigation to protect religious institutions from the increased
number of claims.
269 These companies provide liability coverage for the institutions, as well as
offer educational programming to teach employers how to defend themselves against allegations
of sexual abuse.
270 As one researcher noted, “[t]here is hardly a more powerful set of lobbyists in
the United States than those laboring for the insurance industry. One can only imagine the
disparity in power between children and the insurance companies.”
271 Insurance lobbyists have
participated in legislative debates surrounding the SOL reforms in many states across the
259 Id.; Stogner v. California, 539 U.S. 607, 632–33 (2003).
260 HAMILTON, supra note 4, at 41; Stogner, 539 U.S. at 632–33; U.S. CONST. art. I, § 9, cl. 3.
261 Perez v. Richard Roe 1, 146 Cal. App. 4th 171, 174 (2006).
262 Khorram, supra note 12, at 412; Miller, supra note 14, at 615–16; Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 315 (1945).
263 Khorram, supra note 12, at 412; Donaldson, 325 U.S. at 315.
264 Khorram, supra note 12, at 419–21; Miller, supra note 14, at 618.
265 Miller, supra note 14, at 618.
266 Hamilton, supra note 235.
267 Id. “Under the typical RFRA, if the believer succeeds in proving that the law imposes a ‘substantial burden’ on religious conduct,
the burden shifts to the government to prove that the law serves a ‘compelling interest’ by the ‘least restrictive means.’” Id.
268 See, e.g., Liam Moloney, Vatican Defrocked 848 Priests for Child Abuse, WALL ST. J. (May 6, 2014),
http://online.wsj.com/article/BT-CO-20140506-709368.html (noting that the Catholic Church “laicized 848 priests between 2004 and
2013 for sexual abuses, with 2,572 receiving punishments”); Phillip Pullella &Stephanie Nebehay, U.N. Committee on Torture Grills
Vatican on Sexual Abuse, REUTERS (May 5, 2014), http://uk.reuters.com/article/2014/05/05/uk-pope-abuse-
idUKKBN0DL0RF20140505 (reporting that the U.N. committee on torture is questioning the Vatican about its “child sexual abuse
crisis” and the “climate of impunity prevailing for decades”).
269 See HAMILTON, supra note 4, at 51–66 Chapter 5, “The Insurance Industry.”
270 Id. at 53. The National Catholic Risk Retention Group (“TNCRRG”) created a “child sexual abuse prevention system known as the
Protecting God’s Children™ program” that contains litigation workshops, defense preparation, “including First Amendment issues,
statute of limitation issues, discovery considerations, and litigation planning and management protocols, processes, and procedures.”
Id. (citing Terry Carter, Collaring the Clergy, A.B.A. J., June 4, 2007).
271 Id. at 55.