Imagine being accused of a crime, but then discovering the statute of limitations has expired. You feel safe, until your enemies visit the state Legislature and get them to pass a law that removes the statute of limitations.
Is this unfair?
The framers of the Constitution wrote protections into that document against ex post facto laws, which would make behavior that was considered legal at the time it was committed to now be illegal, and to punish people retroactively. That is at the heart of the U.S. Supreme Court's decision last week to overturn a California law that lifted the statute of limitations on child sexual abuse.
The court's decision was by a narrow 5-4 margin. Frankly, the majority got it wrong.
It's easy to speak in generalities about ex post facto and laws that are passed to punish deeds already committed. It's much harder to confront the raw facts of this case.
Marion Reynolds Stogner was accused of sexually molesting one of his daughters several times between 1955 and 1964 and another daughter between 1967 and 1973. The allegations surfaced as police were investigating allegations that Stogner's son was abusing his own stepdaughter.
To children, the crime of molestation is devastating, physically and mentally. Rarely do they ever come forward and press charges until they are much older. Before California's new law, the crime carried a three year statute of limitations, which was ridiculous.
Stogner's ex post facto arguments make little sense. Ex post facto presumes that someone committed an act that was legal at the time, only to be prosecuted later when the act was made illegal. At the time Stogner allegedly committed the acts, they were indeed illegal. The statute of limitations was lifted, but Stogner's rights to due process and a fair trial have not changed, nor can he reasonably claim that the law was changed specifically to prosecute him. California's law is hardly unfair, as Justice Stephen Breyer wrote for the court's majority. It is, however, unfair that allegations of a heinous crime will now go untried.
But the real danger of this ruling is that it will affect a wide variety of laws, some of which have nothing to do with child sexual abuse. The federal Patriot Act has many weaknesses and shortcomings, but one of its strengths is that it removes the statute of limitations on all acts of terrorism that result in death or serious injury. The federal Protect Act, signed into law earlier this year, removes the statute of limitations on all child abduction and abuse cases. Now, both of these laws may be considered unconstitutional if applied to people who committed crimes long enough ago.
That is bad for everyone concerned.