Trimmed but Not Tossed: Colorado’s Child Sex Abuse Accountability Act

In 2021, the Colorado legislature passed the Child Sex Abuse Accountability Act (CSAAA). As described in an earlier post, the CSAAA created a new cause of action for a victim of any sexual misconduct that occurred while the victim was a minor participating in a youth-related activity or program. In addition to creating this new legal claim, the CSAAA established a three-year window in which victims could assert claims that were otherwise time-barred, going back to 1960. This provision had significant implications for Colorado churches and ministries because it created an avenue for lawsuits against them arising out of decades-old allegations.

As we discussed in our previous post on the CSAAA, its retroactive application was constitutionally suspect. In June of 2023, the Colorado Supreme Court struck down the retroactive provisions of the CSAAA, ruling that they were in violation of Colorado’s constitution. This post briefly explains the Court’s decision and discusses the implications of the ruling, explains what the decision does and does not do, and gives tips on how organizations in Colorado can avoid liability under the remaining provisions of the CSAAA.

Restrictions on Retroactivity

In the case of Aurora Public Schools v. A.S., the plaintiff brought claims under the CSAAA against a school district, alleging that a former school athletic director sexually abused her when she was a minor student in the district between 2001 and 2005. The lawsuit was filed immediately after the CSAAA took effect in January 2022. Without CSAAA’s provisions creating a three-year retroactive window to assert claims of sexual misconduct, the plaintiffs’ claims would have been time-barred.

The school district moved to dismiss the claims, arguing that the retroactive window created by the CSAAA violated Colorado’s constitutional prohibition against any law that is “retrospective in its operation.” The trial court ruled in favor of the district and agreed that the CSAAA’s retroactive application was unconstitutional. On appeal, the Colorado Supreme Court affirmed the trial court’s ruling, reasoning that the CSAAA’s retroactive application imposed new obligations on past conduct. The plaintiffs argued that the CSAAA’s retroactivity was justified by compelling public policy concerns of giving abuse victims an avenue of recourse. But the Court rejected this argument and clarified that “there is no ‘public policy exception’ to the ban on retrospective laws,” under Colorado’s constitution.

It is important to understand what this decision does and does not mean. It does mean that organizations in Colorado cannot be held liable for sexual misconduct allegations that arose before the enactment of the CSAAA and that are already time-barred. However, it does not mean that the CSAAA is struck down in its entirety. All the other provisions of the CSAAA, including its new (and rather undefined) cause of action against organizations, its new and broad definition of “sexual misconduct,” its abrogation of comparative fault, its voiding of pre-incident waivers, its waiver of sovereign immunity, its shifting attorney fees, and its waiver of any statute of limitations, all continue prospectively into the future.

Ramifications and Repercussions for the Remaining Rules: Risks and Recordkeeping

The scope of potential liability under CSAAA is very broad. It encompasses a broad array of organizations that work with children, including churches that have youth groups or Sunday school programs for children. The standard for liability under the CSAAA whether the defendant organization “knew or should have known that an actor or youth-related activity or program posed a risk of sexual misconduct against a minor and the sexual misconduct occurred while the victim was participating in the youth-related activity or program operated or managed by the organization.”

CSAAA liability operates with respect to an organization’s knowledge, not just its actions. Moreover, CSAAA claims have no statute of limitations, meaning that an alleged victim of sexual misconduct can bring an action against the organization 50+ years in the future, long after the relevant witnesses are dead or gone from the organization. In order to defend against CSAAA claims in the remote future, Colorado churches and ministries that manage or sponsor youth activities must be prepared to prove in court that they did not know or have reason to know of sexual misconduct risks to minors. This is true with respect to every single worker or volunteer and situation.

To successfully defend against CSAAA claims in the distant future, organizations should implement effective record-keeping policies and procedures. Below are just a few ways in which organizations can  avoid and reduce liability:

1. Staff / Volunteer Screening: Organizations should be able to prove that they effectively vetted personnel who work with or around children. This includes keeping track of written applications, background checks, reference responses, and other documents that demonstrate an organization’s due diligence in hiring and screening.
2. Training: Organizations should be able to prove that their personnel were effectively trained on child protection and reporting.¹
3. Personnel Files: Organizations should be able to show what they knew and did not know about a particular employee or volunteer. This includes keeping track of job descriptions and records of training, certificates, promotions, discipline, correction, performance evals, etc.
4. Policies / Bylaws: Organizations should be able to show what policies were in place during the relevant time period and that they were followed.² This entails keeping a record of what policy changes were made and when.
5. Email / Communications: With respect to child safety and sexual misconduct matters, organizations should be able to show who knew what and when they knew it. This includes keeping emails, meeting notes, minutes, and other records of communications that pertain to child protection and safeguarding incidents.
6. Incidents / Reporting: Organizations should be able to show what happened, who knew about it, and what was done in response. They need a written reporting system for safeguarding concerns and documenting reports made to law enforcement.
7. Insurance Policies: Organizations should be able to know which insurance policy was in place during a particular time period. Organizations should also be able to show that they gave notice to their carriers when they became aware of a risk event.

In conjunction with effective child protection policies and safeguarding procedures, effective record-keeping in these areas can be critical in defending against a CSAAA action (or other potential liability) when no relevant witnesses are around to exonerate the organization. To ensure that records are admissible in court, all such record-keeping should be done according to a regular policy and practice of the organization. Organizations that work with children, especially those in Colorado and other states with laws similar to the CSAAA, should consult with experienced legal counsel to explore ways to reduce legal risk.

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¹Telios Teaches Child Protection Training

²ECAP Child Safety Standards

Featured Image by Rebecca Sidebotham.