Did lawmakers err in passage of child sex abuse law?

Legislature seal. (PNC file photo)

Atty. Jacque Terlaje argues that the legislature had the opportunity to fix the language in the law but chose not to do so.

Guam – Did the Guam Legislature mess up when it introduced and passed the bill that lifted the statute of limitations indefinitely for civil child sex abuse cases?

That was the point of contention between attorneys on a motion to dismiss four lawsuits against Archbishop Anthony Apuron, and the ensuing decision could have far reaching consequences on the law itself.

The current law that lifted the statute of limitations for civil claims of sexual abuse was passed in Sept. 2016 and since then a deluge of sex abuse lawsuits have been filed in both federal and local courts. As of today, the total count is 147.

But Attorney Jacque Terlaje, who represents suspended Archbishop Anthony Apuron, is seeking dismissal of the four lawsuits that involve her client.  She argues, among many other points, that the legislature made a mistake in drafting the legislation.  Terlaje focuses on parts of the law she believes is ambiguous. And as unremarkable as the three-letter word she refers to sounds, in the context of this law, it could be significant enough to influence the outcome of the case.

The word is “the.” Terlaje says the problem can be found in one section of the law where it says that child sex abuse claims that could not be filed because of “‘the’ previous civil statute of limitations,” can now be filed.

And that’s where legislative intent may be muddled with legislative execution. Which statute of limitations was the legislature referring to when it said “‘the’ previous civil statute of limitations”? And does it even matter? Terlaje maintains it does because the 2016 law only ever references the 2011 law addressing statute of limitations, which was a window legislation.

She points out that there are other enacted laws addressing statute of limitations that were passed in 1976 and in 1986.

Thus, Terlaje argues, the legislature’s intent may be confronted by a cold truth: that the law they passed is not sufficient enough to lift all previous statutes of limitations and therefore apply retroactively.

“The legislature created a special hardship. They created an oppressive law when the legislature changed its mind on the statute of limitations law multiple times,” she said. “The legislature shouldn’t have the right to take away a defendant’s accrued right.”

Among other reasons, such as loss of memory from the passage of time, Terlaje says the cases should be dismissed.

But Attorney Gregory Nicolaysen, for the alleged victims, countered by saying there is no ambiguity to the 2016 law because he argues it is the same as the 2011 law but with an extended deadline.

He also pointed out that the 2016 law was created as the result of a public outcry. And if intent had any weight on the question of ambiguity, Nicolaysen said, “There’s no question that this was done with yesterday’s children in mind.”

During the course of oral arguments, Chief Judge Frances Tydingco Gatewood asked both parties similar questions regarding the language of the measure and legislative intent.

At times, she appeared to lean in favor of the plaintiffs as the cases pertain to affected children, correlating Guam’s sex abuse scandal to recent sex abuse scandals in the mainland, most of which involve powerful men.

As Terlaje argued that the alleged victims in these cases had multiple opportunities to file claims against their perpetrators over the course of decades but failed to do so, Judge Gatewood noted that based on her observations as an attorney who’s “been around the block,” many victims of sexual abuse never come forward out of fear of persecution and retribution because of the stature of their alleged perpetrators.

Much like the Harvey Weinstein and Bill Cosby cases in Hollywood, it wasn’t until several accusers came forward at one time that others felt encouraged to speak up.

“The tipping point for the victims was when Attorney David Lujan came out with a press conference [accusing Apuron of sexual abuse]. After that, a flood of cases were filed,” said Gatewood, adding that Atty. Lujan, who represents all 101 plaintiffs in District Court, also has stature in the community with the reputation of being a tenacious lawyer–no doubt boosting the fortitude of sex abuse victims.

“Child sex abuse claims often have delayed reporting. It’s just a fact of life,” she added.

Gatewood is hearing the motions to dismiss based on the report and recommendation of U.S. Magistrate Judge Joaquin Manibusan who recommended denial of Terlaje’s motions. The decision, however, ultimately rests with the chief judge.

Gatewood granted both parties’ request to delay her decision until the end of December, pending potential settlement talks. She has taken the motions under advisement.

Meanwhile, Atty. Lujan said that they have identified a settlement mediator, Tony Piazza. However, Lujan noted that some defendants may not be completely on board with their selection.

Atty. Terlaje indicated that Archbishop Apuron has no position on Piazza as a mediator pending a finalized mediation protocol.