DENVER (CN) — A law meant to widen the window for victims of child sex abuse to sue their perpetrators violates constitutional protection in Colorado against retrospective legislation, the state Supreme Court ruled unanimously Tuesday.
Associate Justice Monica Márquez wrote for the court that her hands were tied.
"We certainly understand the General Assembly’s desire to right the wrongs of past decades by permitting such victims
to hold abusers and their enablers accountable," the 35-page opinion states. "But the General Assembly may accomplish its ends only through constitutional means."
Márquez, who was appointed to the bench by Democratic Governor Bill Ritter, underlined that the state Constitution prohibits the Legislature from creating new rules for past actions.
“By creating a 'new right for relief' that attaches liability for conduct predating the Act and for which any previously available cause of action would be time-barred, the CSAAA does just that,” Márquez wrote. “The CSAAA is therefore unconstitutional as applied to the plaintiffs’ claim in this case."
Passed in 2021, the CSAAA is short for Child Sexual Abuse Accountability Act. Angelica Saupe employed the law a year later to sue Aurora Public Schools and O’Neill. Her complaint in Arapahoe County District Court alleged that David O’Neill, her basketball coach at Ridgeview High School in Aurora, began grooming her for sexual exploitation in 2001 when she was 14.
O’Neill was 20 years older than her and allegedly forced the student to give him oral sex more than a hundred times before she graduated.
Since 1993, Colorado law has allowed victims of sexual abuse “six years to bring a claim, measured from the time the victim became able to acknowledge the assault and its harm.”
Saupe would have met the window because she filed a report with Aurora police about O'Neill's conduct in 2007, but Tuesday's ruling notes that she did not bring claims against the school or O'Neill because police wrongly told her that her claims were time-barred.
Over a decade later, the CSAAA opened a three-year window for victims to bring forward civil claims for child sex abuse that occurred between Jan. 1, 1960, and Jan. 1, 2022.
Saupe appealed after Judge Elizabeth Beebe Volz dismissed her case in the Eighteenth Judicial District under the retrospective clause. O'Neill meanwhile urged the justices to affirm dismissal.
After holding arguments this past April, the court found the Child Sexual Abuses Accountability Act cannot be used to bring forward claims predating the act. Another 2021 law successfully removed the statute of limitations period altogether for abuses occurring after Jan. 1, 2022.
“The people of this state determined that such constitutional limitations on the legislature’s power were necessary to prevent the legislature from encroaching on certain rights they considered to be crucial to a flourishing society,” Márquez wrote.
Although the U.S. Supreme Court has held ex post facto clauses only inherently apply to criminal law, several states specifically ban retrospective civil law. Colorado lies in a gray area, prohibiting enforcement of any law that is "retrospective in its operation."
The court additionally examined the Child Sexual Abuse Accountability Act under what is known as the Story definition, named after Justice Joseph Story's 1814 U.S. Supreme Court opinion in the case Society for the Propagation of the Gospel v. Wheeler.
Marquez was joined in the opinion by Hickenlooper-appointed Associate Justices Richard Gabriel, Carlos Samour Jr., William Hood III and Melissa Hart, as well as Maria Berkenkotter, appointed by Democratic Governor Jared Polis. Hickenlooper-appointed Chief Justice Brian Boatright sat center during April's hearing.
Several other victims of child sex abuse filed suit under the now-gutted accountability act. Two complaints were filed against the Archdiocese of Denver: one from a former student who said he was abused from 1978 to 1982 while enrolled as a student at St. Andrews Preparatory Seminary High School, and another who said he was abused at St. Elizabeth Ann Seton Catholic Parish in Ft. Collins between 1999 and 2003.
Attorneys representing the parties did not immediately return requests for comment.
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