New efforts to reform California’s childhood sex abuse law draw on past proposals

With the legislative clock ticking, California lawmakers are working on possible solutions to curb payouts from childhood sexual abuse lawsuits that local officials say are crippling schools and other public agencies.
But rather than proposing sweeping changes, some of the proposals being discussed are similar to those that failed last year, documents obtained by EdSource and interviews show.

Two people familiar with efforts to reform Assembly Bill 218, the 2020 law that lifted the statute of limitations on child sexual abuse cases, opening the floodgates of litigation against agencies, said the work to find legislative fixes is not moving quickly.
While the Legislature has until late summer to propose reforms, the fate of AB 218 is unclear. Reform discussions reflect the tension surrounding the bill since its inception — the desire to achieve justice for victims of childhood sexual assault, while limiting the financial burden of public agencies, including schools, that are having to make enormous payments over claims of sexual abuse that may be decades old.

It’s this tension that may mean emerging reform ideas are practical but small. Assembly Speaker Robert Rivas, D-Hollister, has assigned a group of lawmakers to hammer out reform language. His spokesman, Nick Miller, said there was no update on the group’s work.
The California State Association of Counties has circulated a fact sheet and a draft bill, marked confidential, that contains several points similar to those in Senate Bill 577, sponsored by Sen. John Laird, D-Santa Cruz, which stalled in the Assembly last year. 

The county association’s documents contain several proposed legal changes in how AB 218 lawsuits work that would affect claims against all types of public agencies, including school districts.
They include: 

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• Raise the bar for liability. Requiring plaintiffs who sue for abuse that occurred more than 20 years after the alleged harm occurred to “demonstrate clear and convincing proof of liability.”
• Limit awards. Limiting pain and suffering awards and compensation for suffering and emotional distress to four times the amount of economic damages. “Without limits, we have seen awards of non-economic damages that range from the low millions of dollars to well over a hundred million dollars,” the fact sheet states.
• Prove knowledge of harm. Requiring plaintiffs filing a claim on or after their 40th birthday to prove the public entity involved had actual knowledge of the harm that was occurring and failed to act on that information. 
• Heighten the standards for mental health professionals’ reports. Putting tighter restrictions on the reports of mental health professionals who file certificates in court attesting that victims suffered psychological harm from abuse, and in some cases, did not recall the abuse for decades. The proposal calls for reports from plaintiffs aged 40 and older to include detailed information.  

That the proposals were also made last year is a sign that “there is only so much you can do with procedural fixes,” said UC San Francisco Law School Professor David Levine, who has studied and written about the issue. “Some are small. Some may be significant.”

Ben Adler, a spokesman for the county association, said in an email that “it’s clear to any impartial observer that the system is broken.” He called the association’s language a starting point and declined to comment further, saying the association “does not negotiate in the press.”

Different proposals

It’s unclear if other groups representing public agencies are circulating different proposals. The California School Boards Association is also involved in reform discussions.

Troy Flint, the association’s spokesman, said its staff has not seen the county group’s proposal. “It seems they’re working their own angle to some degree,” he said via email. 

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“Our position on AB 218 reform is that California must balance restitution for victims who were students decades ago with the needs of today’s students and those who will attend public schools in years to come,” he said. 

The school boards association is asking for what Flint called “the only sustainable approach.” He said there must be “liability caps that allow significant compensation for victims while restricting exposure for school districts to levels where they can remain solvent and provide students with critical resources.” The association made a similar request last year but “less publicly” because of sensitive negotiations, he said.

What’s changed this year is “the passage of time and lack of substantive progress in resolving AB 218-related issues has prompted people to reevaluate what would constitute a workable solution,” Flint said. “No solution will please everyone,” he added. 

In a report issued last year, the state Fiscal Crisis and Management Assistance Team (FCMAT), which aids school districts in being fiscally responsible, recommended studying a state victim’s compensation fund to administer settlements, similar to claims in large class action settlements and the way survivors of the 9/11 attacks and the families of victims were compensated.

It would eliminate victims having to pay legal fees if they choose to proceed without a lawyer, and establish “a minimum and maximum award,” Michael Fine, FCMAT’s CEO, told EdSource.

The lawyers’ take

Lawyers, whose share of a settlement can reach 40%, have dismissed the idea of a state victim’s compensation fund, saying it would fail to adequately compensate victims and would cut off public exposure of wrongdoing by public agencies that is often revealed in litigation.

As lawmakers work, looming over the reform discussions is Southern California plaintiff’s attorney, John Manley, who helped derail last year’s effort.
Last summer, he attacked Rivas with online advertising in which a woman identifying as a victim abused by a teacher said, “Tell Speaker Rivas pedophiles should be punished, not protected.”

Manley, who has won millions for abuse victims from school districts, the Catholic Church, the Boy Scouts of America and other groups, said he has no intention of backing down this year. 

“I plan to be active in not only advertising, but in every other way I can to expose those who support pedophile enablers,” he said.
Speaker Rivas and “anybody else who allowed children to be consumed by predators can count on a response from not only me, but a coalition of people who care about children,” Manley said in an interview.

Miller, Rivas’ spokesman, declined to respond to Manley’s comments.

Sen. Ben Allen, D-El Segundo, a reform advocate who worked with Laird last year and is again active on the issue, is also in Manley’s sights. In an interview, Manley called Allen “a clown.”

Manley is using “typical bully tactics,” Allen said. “Manley’s obviously gotten really rich off of suing public entities, and this is his M.O. I am not going to be bullied.”

Allen said he is trying to solve a “very vexing public policy problem” affecting schools and other agencies. “Jurisdictions up and down the state are crying uncle right now,” he said. “It’s a real problem. At some point, our job has to be looking out for the general public.”

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