New Sexual Abuse Litigation Reforms in Colorado

Two new Colorado laws that took effect in January 2022 significantly change the legal landscape of sexual abuse in the Centennial State. Senate Bill 2021-73 (SB 73) eliminates the civil statute of limitations for sexual misconduct against both minors and adults. Senate Bill 2021-88 (SB 88) goes further and creates a new civil cause of action for sexual misconduct against a minor and opens a three-year window to assert the new cause of action for conduct going back to 1960. Both bills include other significant reforms affecting sex abuse litigation. This article places SB 73 and SB 88 in the growing trend of similar laws across America, describes the major ways in which each of these new laws change Colorado law, and emphasizes the affect these new laws will have not only on victims of sexual abuse, but also on organizations and ministries that work with children.

A Nationwide Trend of Reform

SB 73 and SB 88 are among the latest of such reforms that various states have been enacting in recent years. Although the first decade of the 21st century saw some states enacting such reforms following the 2002 Boston Globe Spotlight series on abuse cover-up in the Boston Archdiocese, the 2010s and 2020s have seen even more states take these measures. This period saw major events such as the high-publicity sex abuse trials of Larry Nassar, Bill Cosby, and Harvey Weinstein; the revelations of the #MeToo movement; the 2018 Pennsylvania grand jury report on clergy sex abuse; and the Houston Chronicle’s report on church sex abuse. In the wake of these events, several states have recently made significant changes to their laws to hold offenders and their affiliated or formerly affiliated organizations accountable by expanding the ability of victims and prosecutors to seek justice in the courts.

One of the main points of focus in these reforms has been statutes of limitation (SOLs). An SOL is a law that imposes a time limit on how long after an incident a person can file a lawsuit to assert claims arising from that incident. When a claim is brought after the expiration of the applicable SOL period, it is said to be “time-barred” and will be dismissed regardless of its merits. A common objective of the sexual abuse reform movement has been to extend, suspend, or even abolish statutes of limitations for sexual misconduct claims, especially claims for childhood sexual abuse.

For example, in 2019, California passed a law that extended its civil statute of limitations for child sex abuse claims from the victim’s 26th birthday to the victim’s 40th birthday. That same law also opened a three-year window in which even that extended statute of limitations was suspended, thus allowing persons to assert historic claims that had long been time-barred. This kind of temporary suspension of the SOL is known as a “revival window.”

That same year, Pennsylvania extended the civil SOL to age 55 for victims of childhood sex abuse and also passed a legislative resolution to amend its state constitution to adopt a two-year revival window. This resolution was set to be voted on by Pennsylvania’s voters in 2021, but an administrative mistake by the Commonwealth’s Secretary of State kept the measure off the referendum ballot.

These measures in California and Pennsylvania are just two of a growing number of similar legislative reforms that several states have recently enacted, including Colorado’s new laws. Proponents of these laws claim that these reforms help victims of abuse by allowing them to seek justice and hold persons accountable who abused them or who covered up the abuse or neglected to do what was necessary to prevent the abuse. But others argue that these new laws open the floodgates for tort claims based upon decades-old allegations and create expensive litigation in which defendants are unfairly disadvantaged by being forced to defend against claims for which little or no extant evidence or living witnesses exist, and insurance policies are long-gone.

Colorado Law Before 2022

To best appreciate the significance of Colorado’s new sexual abuse laws, it is helpful to understand what the state of Colorado law was before these new laws took effect in 2022. To that end, here are a list of points that were true under Colorado law before 2022:

• The applicable SOL to bring a civil tort claim based on “sexual assault” or a “sexual offense against a child” was 6 years, except when the victim was a person under a disability or was in a special relationship with the perpetrator of the assault.
• “Sexual assault,” for purposes of the SOL, was defined as “subjecting another person of any age to sexual contact, sexual intrusion, or sexual penetration.”
• “Sexual offense against a child,” for purposes of the SOL, was defined co-extensively with the analog criminal statute that outlawed several forms of adult sexual conduct with minors.
• If a person asserted a claim for sexual assault or sexual abuse against a child, they were deemed to have waived any doctor-patient privilege to the extent necessary for the defendant to conduct discovery and to try the case in court. For example, the defendant could call plaintiff’s doctors and psychiatrists as witnesses to examine them about the plaintiff’s alleged injuries resulting from the abuse and the plaintiff’s medical records relevant to the alleged damages were discoverable and admissible as evidence.
• If a plaintiff brought an action for sexual assault or a sexual offense against a child after their 33rd birthday, the only damages they could recover were those for medical and counseling expenses.
• A plaintiff could not bring an action for sexual assault or sexual offense against a child against a defendant who was deceased or incapacitated.
• A claim for negligence in the practice of medicine that was based on a sexual assault was exempt from the SOL for claims involving sexual assault and instead was subject to the same limitation as any other claim for negligence in the practice of medicine (two years).
• Claims against defendants for negligence that arose from a plaintiff’s sexual abuse were subject to “comparative fault,” meaning that the defendant(s) could assert that other parties were partially responsible for the plaintiff’s injuries and the jury had to make a determination as to the degree of negligence of each party, expressed as a percentage.
• Claims arising from sexual abuse that were asserted against public employees or public entities (e.g., public schools, teachers, sports coaches, etc.) were often barred or limited by the doctrine of sovereign immunity and the Colorado Governmental Immunity Act.

Under the new laws that took effect in Colorado in 2022, none of the above points are true any longer.

Colorado’s New Laws

Colorado’s new laws reforming sex abuse claims that took effect this year are SB 73 and SB 88.

SB 73

The first thing to understand about SB 73 is that it takes the SOL categories of claims based on “sexual assault” and claims based on a “sexual offense against a child” and combines these into one category of claims based on “sexual misconduct.” The term “sexual misconduct” in the revised SOL, is defined as “any conduct that forms the basis of a civil action that is engaged in for the purpose of the sexual arousal, gratification, or abuse of any person,” and which constitutes one or more state or federal sexually-related criminal offenses. This is a rather broad definition and therefore encapsulates virtually every imaginable claim arising from or based on sexual abuse, sexual assault, or other forms of misconduct of a sexual nature.

With this broadened and streamlined definition in mind, it is important to understand the most significant reform that SB 73 effects, which is that it abolishes the limitations period for all claims or civil actions based on “sexual misconduct.” This means that there is no longer any SOL for sexual abuse claims in Colorado and persons seeking to file lawsuits in Colorado based on sexual misconduct now have an unlimited amount of time to do so, even when such claims are based upon negligence in the practice of medicine. However, this wholesale abolition of the sex abuse SOL is only prospective, not retrospective, meaning that it only applies to claims or causes of action that were not already time-barred as of January 1, 2022.

But SB 73 does much more than change definitions and abolish the SOL for sexual misconduct claims. It also does away with the limited waiver of medical privilege for plaintiffs, meaning that defendants will have less access to plaintiffs’ physicians, psychiatrists, and medical records in discovery and less ability to present such records or testimony as evidence at trial. SB 73 also does away with the limitation of actions against deceased or incapacitated defendants. Lastly, SB 73 makes it clear that all of these reforms to claims for sexual misconduct apply not only to claims against the individuals who perpetrated the abuse, but also to derivative claims against persons or organizations who are not the direct perpetrator (e.g., claims for negligent hiring, negligent training, failure to warn, etc.).

SB 88

SB 88 can be said to have picked up where SB 73 left off. Whereas SB 73 abolished the SOL for sexual misconduct tort actions going forward, SB 88 creates a new statutory cause of action for sexual misconduct claims. This new cause of action allows victims of sexual misconduct to bring a civil claim against the actor who committed the sexual misconduct. This new right of action also allows victims to sue an organization that operates or manages a youth-related activity or program if the organization knew or should have known of a risk of sexual misconduct against minors and the sexual misconduct occurred while the victim was participating in a youth program managed by the organization.

The damages under this new cause of action are limited to $500,000; except that if the court finds by clear and convincing evidence that the defendant failed to take remedial action against a person that the defendant knew or should have known posed a risk of sexual misconduct against a minor and the court finds that the application of the limitation would be unfair, the court may increase the award to up a maximum of $1,000,000.

Despite these caps on damages, this new cause of action has some serious teeth. For starters, SB 88 opens a 3-year window (January 1, 2022–January 1, 2025) in which this new statutory cause of action can be asserted for claims arising as far back as 1960. This means that persons who have been victims of sexual abuse that has occurred at any time since 1960 can now sue under this new cause of action so long as there is a jurisdictional nexus to Colorado. For claims under this new statute that arise on or after January 1, 2022, there is no SOL, meaning that the time to assert such claims is limitless.

Moreover, this new statutory cause of action for sexual abuse overrides Colorado’s scheme of comparative fault, so that juries hearing cases under this new cause of action cannot apportion fault to the plaintiff or to other responsible parties. SB 88 also waives sovereign immunity for the claim so that a victim may bring a claim against a public employee or public entity that operates a youth program, including an educational entity operating an educational program or a district preschool program. However, claims against public entities or public officials have a limited damages cap of $350,000.

Another important component of SB 88 is what it means for defendants’ ability to recover their attorney fees in defending meritless lawsuits. While Colorado law generally allows a defendant to recover their attorney fees when any personal injury action against them is dismissed on certain grounds like lack of jurisdiction or failure to state a valid claim, SB 88 specifically exempts its new cause of action from this rule. This means that defendants will not be able to recover their attorney fees incurred in defending meritless or frivolous claims brought under this new cause of action.

Lastly, SB 88 provides that a person may not, prior to an incident of sexual misconduct, waive the right to bring a civil action. The act effectually makes such pre-incident waivers void as against public policy.

Constitutional Uncertainty

Unlike the revival statutes in other states (such as the ones from California and Pennsylvania described above), SB 88 does not suspend the applicable SOL for tort claims based upon sexual abuse. Rather, it creates a new statutory right of action and then applies that newly created claim retrospectively back to 1960. This distinction is important. Both the United States Constitution and Colorado’s state constitution proscribe what are known as “ex post facto laws,” or laws that create retrospective obligations that did not exist before the law was enacted.¹ For example, the constitutional restrictions against ex post facto laws would prohibit the Colorado General Assembly from passing laws in 2022 that make it unlawful to have done something in 1995 that was not illegal in 1995.

Since SB 88 creates a new right of action that can be asserted retrospectively for claims based upon conduct going back to 1960, the question is whether it is the kind of ex post facto law which both the federal and Colorado constitutions prohibit. Indeed, the Judiciary Committee of the Colorado House of Representatives heard testimony and legal opinions on whether SB 88 would violate the prohibitions against ex post facto laws. As new lawsuits are filed under SB 88, defendants are likely to make arguments against the constitutional validity of the act. Time will tell whether such challenges to the act will be successful.

Who is impacted?

Both SB 73 and SB 88 are very significant, and each includes multiple substantial reforms to Colorado law. These reforms are very important to victims of childhood sexual abuse who may seek to assert civil claims for damages arising from their abuse. They are also crucially important to organizations such as churches, camps, ministries, youth programs, schools, and other organizations that work with children or that have worked with children in the past.

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¹ See U.S. Constitution, Art. I, § 9, Cl. 3 (“No [. . .] ex post facto Law shall be passed”); Id., at § 10 (“No State shall [. . .] pass any [. . .] ex post facto Law”); Colorado Constitution, Art. II, § 11 (“No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, . . . shall be passed by the general assembly”).

Featured Image by Rebecca Sidebotham.