Lawmakers in California are trying to facilitate sexual assault prosecutions with no legal time limit, inspired by the avalanche of sexual assault allegations against Bill Cosby, a number of which stem from incidents that allegedly occurred over a decade ago.
Last Thursday, a California Assembly unanimously passed a bill that would eliminate the state’s current 10-year statute of limitations for felony sex crimes, so that victims of rape or sexual abuse could theoretically bring charges at any time (more on how this works in practice later).
The bill will likely be passed by the state Senate, which passed an earlier version in June, and will subsequently be signed into law by the California governor.
California law currently mandates that rape and felony sex crimes be tried within 10 years, unless DNA evidence surfaces after the statute of limitations has passed.
The new measure is designed to ensure that victims of sexual assault will have more opportunities to bring their assailants to justice.
More than 50 women have accused Cosby of sexual assault in the ’70s, ’80s, and ’90s, a number of whom have not been able to pursue charges against the comedian because the statute of limitations for sex crimes in their jurisdiction have expired.
Three of those alleged victims spoke before the California Senate in June: Victoria Valentino, a former Playboy model who claimed Cosby raped her in Hollywood in 1969; “Kacey,” who said the comedian sexually assaulted her 20 years ago in Bel-Air; and the actress Lili Bernard, who claimed she was raped by Cosby in the ’90s in Atlantic City, New Jersey. Bernard recently discovered she’d missed her opportunity to file charges by a few months, according to the Los Angeles Times.
None of these women would benefit from the new law in California, since charges cannot be brought retroactively.
In 2002, the U.S. Supreme Court ruled in Strogner v. California that a law enacted after a prior limitation had expired violates the Constitution’s ex post facto clause.
The new law would therefore only apply to future victims of rape and sexual assault, as well as to victims for whom California’s current 10-year statute of limitations had not yet expired.
There are now 34 states across the country that have statutes of limitations on rape or sexual assault (or both), with legal time limits ranging from three to 30 years.
Those limits exist to account for the deterioration of evidence, but also out of concern that criminal defendants will not be able to mount a defense for a crime they allegedly committed many years ago.
But aging cases are often more problematic for the prosecution, according to Robert Weisberg, professor of law at Stanford University.
“The prosecution still has to prove beyond a reasonable doubt that the crime occurred, and it’s not easy to win cases that late,” Weisberg told The Daily Beast. The defense, meanwhile, has to give the court a very specific reason why they’re unable to guard themselves against these charges.
Weisberg noted that jurisdictions have been making an increasing number of exceptions to statutes of limitations in cases of sexual assault over the past 30 years, in part because we’ve developed a greater understanding of how trauma affects memory.
In many cases, prosecutors have successfully argued that plaintiffs—particularly those in child sexual assault cases—had developed psychological issues as a result of the trauma that prevented them from recognizing or articulating the crime until years after the fact.
“If a legal system is granting a lot of exceptions, they might decide that it makes more sense to categorically change the law,” Weisberg said. “That way they don’t have to worry about case-by-case exceptions, but the significance of the delay in terms of how probative the evidence is will always be up for grabs if the case goes to trial.”
Weisberg also noted that, in most jurisdictions, there is no statute of limitations for murder, which has always been considered the most serious felony crime. Needless to say, the legal system is not weighing complex psychological issues like repressed memory in murder cases.
“To some extent, the call to eliminate the statute of limitations on rape is a call for social recognition that rape is a very serious crime,” Weisberg said.
But advocates arrived at that decision years ago.
“Statutes of limitations for rape and sexual assault are artificial time limits created for the sake of convenience, but only for the perpetrator’s convenience,” said Marci Hamilton, a professor at the University of Pennsylvania specializing in child sex abuse.
“There’s no record of an avalanche of false claims in states where there never has been a statute of limitations [for rape], so the arguments defending these statutes are very weak,” she added.
When asked about the child sex abuse panic in the late ’80s and ’90s that led to a series of false convictions, Hamilton stressed that advancements in child psychology and interviewing techniques would preclude a similar national phenomenon today.
“At this moment in history, there is no evidence that statutes of limitations for rape and sexual assault should not be eliminated.”
One thing critics and proponents of the bill agree on is that it reflects a long overdue shift in cultural attitudes about sexual assault.
The fact that California will likely sign this bill into law “certainly shows that we’re taking sexual assault more seriously,” said Tamara Lave, professor of law at the University of Miami. “But it makes it hard for someone who is innocent to defend themselves. And for a country that believes in liberty, that’s a problem.”