The Other SOL: Clarifying the statute of limitations

Our rabbis taught… the sword comes into the world, because of justice delayed and justice denied…. Pirkei Avot (“the chapters of the fathers,” ethics passed down to the rabbis from prophet-teachers beginning with Moses), transcribed 1^st century BCE-2^nd century CE

Many people requested clarification regarding the statute of limitations, which is of course in the news due to Dr. Christine Blasey Ford’s accusations of Justice Brett Kavanaugh. I hesitated to write more about this, but then I realized that everyone is still talking about it and it’s an excellent way to illustrate the concept of the statute of limitations, so why not use it for some good purpose?

What is it?

The statute of limitations is the time period after a certain incident (such as a crime or a civil wrong) during which a legal proceeding can be started.

Most laws have a statute of limitations written into the law, and it varies from jurisdiction to jurisdiction and varies widely depending on the nature of the wrong.

For example, in Tennessee, a civil lawsuit for slander must be brought within “six months after words are uttered” (Tenn. Code Ann. 28-3-103), while criminal charges for a crime that carries the penalty of death of life imprisonment can be brought “at any time after the offense is committed” (Tenn. Code Ann. § 40-2-101)—in other words, forever.

Sleeping on your rights

The statute of limitations is an ancient concept that can be found in the Magna Carta and the Old Testament as well as in the commentaries of the early rabbinical scholars and classical Greek and Roman law.

Its rationale is evident.

1) “Speak now or forever hold your peace.” If a plaintiff or the state has got a valid claim, they should pursue it. If it’s not important to you, then let the rest of us move on.

2) Physical evidence can be lost or degraded and witnesses forget, move, or die. The sooner the case begins, the better result we can expect.

3) “Justice delayed is justice denied.” It is cruel to make crime victims or other injured parties wait for their day in court. Likewise, it’s cruel to let a defendant languish in a state of limbo with the matter hanging over his or her head.

It is therefore in everyone’s best interests to adjudicate matters within a reasonable time.

Of course, this only applies to the start of the action (the filing of the criminal charges or the filing of a civil lawsuit) and does not require for the action to be concluded by any certain time.

Limits to the limitation

As I said, very serious crimes, such as murder, do not have a statute of limitations, in part because the crime is so serious that we are no longer as concerned about allowing the defendant to move on with his or her life--particularly after taking someone else’s.

Sometimes, we allow the statute to “toll.” In other words, we stop the clock. For example, if a suspect goes on the lam, we don’t reward him by letting him run out the clock while he’s a fugitive from justice. We stop the clock and let the prosecutor file charges once the suspect is apprehended.

Similarly, we don’t reward defendants for concealing their wrongdoing or punish plaintiffs for failing to uncover it. If a surgeon leaves a sponge inside a patient, but the patient has no adverse symptoms for five years, we stop the clock during the time that the patient had no reasonable way of discovering the surgeon’s malpractice. Once the patient has symptoms and should reasonably investigate the cause, the clock starts again—even if the patient fails to investigate.

Likewise, underage victims of sexual assault cannot always be expected to report the crime when it happens, particularly when the victim is very young and lacks the language and understanding of the crime necessary to report it. This time lapse, while often necessary, unfortunately results in lost evidence, unreliable or missing witnesses, and faulty memory.

This brings us to the Ford-Kavanaugh matter.

If she’s telling the truth, why doesn’t she have him arrested?

Ten thousand internet commenters—and a few hundred bloggers and television pundits—have raised this question: If Ford is telling the truth, why doesn’t she seek redress in the criminal courts or by filing a civil lawsuit?

Due to the statute of limitations, however, she cannot.

Ford testified that Kavanaugh and his friend attempted to rape her at a house party that occurred in Montgomery County, Maryland, in 1982, when Kavanaugh was 17 and Ford was 15.

Ford’s allegations most closely describe the crime of attempted rape in the first degree in Maryland’s current criminal code (MD Crim Law Code §3-309). There is no statute of limitations for this crime (Md. Code Ann. Cts. & Jud. Proc. §5-106 et seq.; see also Greco v. State, 48 A.3d 816).

The current law is irrelevant, however, because we must use the law that was in effect at the time that the alleged incident occurred, which was 1982. Alternately, we toll the statute until Ford reasonably was able to report it (perhaps when she reached the age of majority in 1984 or 1985), but either way, the law at the time prescribed a one-year statute of limitations for the crime of attempted rape, which was then a misdemeanor. Ford may report the crime, but it cannot be prosecuted.

On September 28, 2018, the Montgomery County chief of police and the state’s attorney (the prosecutor) issued an official joint letter in which they clarified that they would not be able to bring criminal charges against Kavanaugh. (Read the letter here: http://www.baltimoresun.com/bal-police-and-state-s-attorney-response-to-montgomery-county-house-delegation-s-request-to-open-crimina-20180928-htmlstory.html )

Further, the statute of limitations has run on any civil action that Ford may have filed. It’s hard to say exactly what the statute of limitations might be, because we don’t know what Ford’s theory of the case would be. We therefore can’t determine which cause of action she would pursue, but the statute of limitations for most civil causes of action in Maryland at the time was three years at most, so it’s safe to say that Ford is barred from filing a civil lawsuit as well.

While I discourage this type of speculation, it’s interesting that no one seems to be accusing Kavanaugh of sleeping on his rights here. Unlike Ford, he has got a possible cause of action: He could sue Ford for defamation. Her accusation is less than a year old, so it is well within the statute of limitations. The burden of proof would be on Kavanaugh to show to a preponderance of the evidence (“more likely than not,” a low bar) that Ford knowingly made false statements that harmed him. Both he and she would be allowed to conduct a thorough investigation through the process of discovery, clearing his name once and for all.