Is Justice Delayed Justice Denied?, 0716 SCBJ, SC Lawyer, July 2016, #46

AuthorVance Eaton and Joseph Berry, J.

Is Justice Delayed Justice Denied?

No. Vol. 28 Issue 1 Pg. 46

South Carolina Bar Journal

July, 2016

Vance Eaton and Joseph Berry, J.

Rarely does public attention turn to esoteric provisions of law, but shocking allegations made against beloved celebrity Bill Cosby have brought into the public discourse the status of criminal statutes of limitations across the country. Mr. Cosby stands accused of using drugs to incapacitate and sexually assault women. Over 50 women have submitted such allegations, in a variety of jurisdictions, dating back to the 1960s. As discussions of rape and hush money shatter the comedian's wholesome, father-figure image, statutes of limitations have captured the attention of media and legislatures. Many have been stunned to learn that Mr. Cosby will not face prosecution in many states because of criminal statutes of limitations barring prosecution.

Were Mr. Cosby to face an allegation in South Carolina, nothing under our state law would bar a potential prosecution. While civil claims here generally must be filed within three years of the tortious act,1 South Carolina has no statute of limitations (SOL) for criminal offenses. As often can be our way, South Carolina is the exception to the national rule. The only other state in the nation without a criminal statute of limitations is Wyoming.2 Elsewhere, standards vary.

Bars to prosecution do not exist in the common law, and are instead purely creatures of statute.3 The most basic rationale for a criminal statute of limitations is stated in Toussie v. United States:

[SOLs] limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts . . . to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.4

As such, SOLs serve as "an optional form of legislative grace."5 They date back to ancient Roman law, although legal historians are unsure of the exact origins.6 SOLs have been a component of American law since 1790, when Congress first set a federal limitation of three years for capital offenses, not including forgery and willful murder, and two years for most other offenses.7 Today, federal law bars prosecutions after five years from the commission of the crime, with exceptions for crimes punishable by death (no time bars), as well as certain acts of terrorism, sexual offenses and other assorted crimes, like securities fraud.8 State laws vary widely, but generally the more severe the crime the longer prosecutors have to bring charges. For example, misdemeanors have shorter SOLs than felonies, and many statutory schemes split misdemeanors into serious and less serious categories. No state has a time limit for murder, and felony charges such as arson, rape, robbery and kidnapping often have longer SOLs.9 Five states have no statute of limitations for felony cases at all.10 Yet a number of states have statutes of limitations as short as three years for burglaries.11 Surprisingly a handful of states have statutes of limitations set as low as three years on rape charges, and a total of 23 states have set time bars at seven years or less.12

The severity of the crime is not the only consideration. The nature of the evidence also plays a role in some statutory schemes. Sex crimes in particular provide some of the most compelling evidentiary circumstances justifying the prosecution of cold cases, when factors such as the youthfulness of victims, the stigma of reporting, and repressed memories could all contribute to delayed reporting. Generally the commission of a crime triggers the statute of limitations time period. Many states, however, have created special rules to adjust to the special circumstances. For example, in sex cases some SOLs do not begin to run until the victim turns 18, and "John Doe" indictments may charge an unnamed defendant within an SOL, preserving the prosecution until law enforcement identifies the person.

Amidst the various statutory schemes, public opinion and evolving investigative tools in criminal cases, the trend for states and the federal government is to extend existing statutes of limitations. Sometimes spurred by outrage at perceived miscarriages of justice, along with the increased availability of DNA evidence,13 many states have expanded the available time period for prosecution.14

For example, Illinois had a five-year SOL for rape until 1999. The Illinois General Assembly then extended its limitations period to 10 years, reacting in part to a publicized case of a barred prosecution. In that case, Lori Kustudick was the victim of a violent rape in 1978, but at the time could not make a positive identification of the perpetrator. Only after years of suffering and therapy was she able to face the incident sufficiently to identify her attacker. She definitively chose her attacker from an enormous collection of mugshots, and independent evidence corroborated that identification. But the then existing SOL barred prosecution of her assailant.15

Similarly in Oregon, victim rights advocate Danielle Tudor tells the story of a notorious "jogger rapist" who assaulted her in 1979 when she was 17 years old. She could not identify her attacker, but another victim did identify him seven years later. Oregon's then existing six-year SOL for rape had run, barring the prosecution of her assault. In 2015, in part due to her advocacy, Oregon extended the statute of limitations for rape from six to 12 years.[16] Oregon again altered its SOL for sexual assault in April 2016 by eliminating any bar to prosecution if prosecutors present corroborating evidence.17

Policy considerations

Those voicing caution against the trend to extend or eliminate SOLs cite the following policy arguments or variations thereof: the accused cannot properly defend herself, the criminal and society deserve repose from old harms, and SOLs encourage efficiency on the part of law enforcement and prosecutors.18

Those arguing against bars to prosecution put forth fairly straightforward and intuitive arguments: all victims deserve justice and the government should not needlessly grant criminals amnesty. Furthermore, SOLs can be inflexible in that they do not allow for prosecutorial discretion and...

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