Legislators explain positions on proposed bills

By Jennifer Burke/Catholic Courier    |    03.26.2009
Category: Local News


State Assemblywoman Margaret Markey (D-Queens) and state Assemblyman Vito Lopez (D-Brooklyn) agree on one important point: The sexual abuse of children is a horrific crime, and steps should be taken to prevent its occurrence.

That's about as far as their agreement goes. Both have proposed bills intended to address the issue by reforming New York's statute of limitations as it relates to the sexual abuse of children, but the two bills go about this in vastly different ways.

Markey, who was elected to the Assembly in 1998, first introduced her bill, titled the Child Victims Act of New York, to the Assembly in 2006.

"She became interested in the issue after she became a member of the Assembly when she met constituents and other New York metropolitan-area residents who had been denied justice as a result of the current unreasonable statute of limitations regulations," said Michael Armstrong, Markey's communications assistant.

"As awareness has increased about the terrible human tragedy at the root of this issue, society has also become aware of how important it is for victims of sexual assault to have the opportunity to get justice for the wrongs done to them," Markey said in a February 2009 press release.

Markey's proposed legislation -- which was passed by the state Assembly but blocked in the state Senate in 2006, 2007 and 2008 -- seeks to bring justice to the sexually abused by extending by five years the statute of limitations as it applies to civil lawsuits filed against private institutions. An identical piece of legislation, S2568, has been sponsored in the state Senate by Sen. Thomas K. Duane (D-Manhattan).

Not only would Markey's bill, known this year as A2596, extend the statute of limitations until an alleged victim's 28th birthday, but it also would open a one-year "window" during which victims of any age could seek civil damages for sexual abuse that occurred when they were children -- even if that was 50 or more years ago.

Opponents, including Lopez, have argued that Markey's bill is unfair because it doesn't tackle the statute of limitations as it applies to public and municipal institutions. Currently, anyone seeking to sue a municipality or public agency for any reason first must give notice of claim within 90 days of the incident in question, and then a judge must determine whether a suit can be filed, according to Armstrong. In some instances a plaintiff is permitted to file a late notice of claim, asking the court to consider permitting a suit, he said.

"That late period is generally one additional year after the 90 days," Armstrong said.

Markey's legislation doesn't specifically address the notice of claim requirements in relation to public institutions, but maintains that her bill doesn't unfairly target private institutions. Rather, according to a press release from her office, Markey believes her bill's one-year window in the statute of limitations would provide justification for judges to accept late notice of claims from abuse victims with old claims against public institutions.

"It is the assemblywoman's expectation that the one-year window in her bill puts any sexual crime allegation within this one-year 'late notice of claim' period, putting a public-sector plaintiff on equal footing with a private-sector plaintiff," Armstrong added.

Lopez, however, takes issue with the fact that Markey's legislation says nothing about changing the statutes of limitations as they relate to sexual-abuse claims against public institutions, according to Debra Feinberg, Lopez' legislative assistant. Upon reading the Markey bill, Lopez noted a huge disparity between the way public and private institutions were treated, she said.

"He thought it unfairly targeted private institutions. That's why he chose to draft this legislation. He's created a bill that levels the playing field," Feinberg said.

Lopez's bill, A5708a, and its companion piece in the Senate, S3107a sponsored by Sen. Carl Kruger (D-Brooklyn), amend the state's general municipal law to exclude sexual abuse of children from the notice-of-claim requirements so that the same rules would apply to victims abused at public or private institutions.

In the spirit of compromise, Lopez also seeks to extend the statute of limitations by two years instead of the five proposed under the Markey bill, said Feinberg, who added that Lopez decided not to include a one-year window provision in his bill after consulting with legal experts.

"The lifting of the statute of limitations for the one-year window is terribly bad legal precedent, bad policy, bad law," she said. "Lifting the statute of limitations so that a 70-year-old can bring claim doesn't really do anything going forward ... to protect children."

The window provision also flies in the face of everything the American judicial system is based on, by potentially denying those who are accused of committing abuse decades ago of the right to a fair and speedy trial in which the defendant is able to defend himself or herself, Feinberg said.

Assemblyman Gary Finch (R/C/I-Springport) is one of several local Assembly members who agreed this provision in Markey's bill is unfair.

"I think the Lopez bill recognizes the fact that you can't go out 25 or 30 years and try to prosecute someone. I mean, people die, memories surely fail and testimony is weakened," said Finch, who represents parts of Cayuga and Tioga counties and is cosponsoring the Lopez bill.

Assemblyman Jim Bacalles (R-Corning) is cosponsoring the Lopez bill because he also thinks the Markey bill is unfair, and that cases of decades-old alleged abuse would be difficult to prove or disprove.

"The Markey bill doesn't treat public and private institutions alike. You have to be fair, and you also have to put some limit on (the statute of limitations)," Bacalles said.

Local politicians cosponsor Markey, Lopez bills
 
Cosponsors of the Markey bill representing districts in the Diocese of Rochester are:

* Assemblywoman Susan John, D-131st

* Assemblyman Daniel Burling, R-147th

* Assemblyman David Koon, D-135th

* Assemblyman Joseph Errigo, R-130th +

Cosponsors of the Lopez bill representing districts in the Diocese of Rochester are:

* Assemblyman Bill Reilich, R-134th

* Assemblyman Joseph Morelle, D-132nd

* Assemblyman Jim Bacalles, R-136th

* Assemblyman Joseph Errigo, R-130th +

* Assemblyman Gary Finch, R-123rd

* Assemblyman Thomas O'Mara, R-137th

NOTE: + indicates politicians who have cosponsored both bills.

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