Ten Frequently Asked Questions About the Status of the Child Victims Act of 2023 (CVA), Including Challenges to Its Constitutionality
1. What is the Maryland Child Victims Act of 2023 (CVA)?
The Maryland Child Victims Act (CVA), effective from October 1, 2023, empowers survivors of childhood sexual abuse to pursue civil actions against their abusers and the institutions that facilitated the abuse. Before the CVA, survivors were required to file claims within a given number of years after they reached the legal age of majority—usually within seven years of their 18th birthday. This groundbreaking law eliminates those deadlines ensuring that potentially thousands of survivors can seek justice no matter how long ago they were abused or how old they now are.
2. Why is the CVA important and why is it now prominently in the news?
Studies show that the average childhood sexual abuse survivors do not disclose the abuse, on average, until they are 52 years old. Because of the shame and stigma associated with sexual abuse and efforts by perpetrators and institutional enablers to silence and intimidate survivors, it often takes at least that long before survivors are ready to pursue justice. The CVA is crucial for survivors seeking justice, because it offers many their first opportunity to pursue legal action after decades of waiting. Many of those survivors filed lawsuits against alleged institutional enablers on the day the CVA became effective. The Catholic Church (Archdiocese of Washington, D.C.) and other institutions accused of enabling and covering up abuse moved to dismiss these lawsuits alleging the CVA violates their rights under the Maryland Constitution. The survivors who sued and the many others who are waiting to seek justice can only linger in frustration as their quest for justice and accountability is delayed once again.
3. What is at stake with the constitutional legal challenge?
To childhood sexual abuse survivors, everything. The Maryland Supreme Court, set to hear arguments September 10th from lawyers representing survivors and those accused of enabling their abuse, will determine whether the CVA stands as the law of Maryland. If the Court upholds the CVA, survivors will continue to have the right to seek justice, no matter their age nor how much time has passed since they were abused. If the Court declares it unconstitutional, that right could be severely limited or even eliminated.
4. Who is challenging the CVA and why?
The three cases about to be heard by the state’s highest court were filed by: The Key School, the Roman Catholic Archbishop of Washington, and the Board of Education of Harford County, Maryland. All have been accused in legal filings, directly or indirectly, of enabling and/or facilitating childhood sexual abuse. These entities argue that the CVA violates their rights under the Maryland Constitution. They argue that allowing survivors whose claims were barred under the previous statute of limitations to sue them violates their right to due process and other “vested rights” under the Maryland Constitution. The Maryland Supreme Court has previously held that the General Assembly has broad power to change the deadlines by which plaintiffs are required to sue. Defendants are seeking to limit that power in ways that could deprive countless injured Marylanders of access to justice.
5. What impact will two trial court decisions – one upholding, the other overturning the CVA on constitutional grounds – have on the upcoming Maryland Supreme Court ruling?
Ultimately, the Court will decide on the CVA’s constitutionality “de novo”—from the beginning; anew. While the Court may consider the trial courts’ opinions, it is in no way bound by them. The Court will likely look mainly to prior Maryland Supreme Court decisions to determine whether the Maryland Constitution authorized the General Assembly to pass the CVA.
Because many other states have passed or are considering measures similar to the CVA, the Court’s decision could impact survivors throughout the country.
6. What is the significance of the underlying CVA case, Valerie Bunker v. The Key School?
Valerie Bunker, a survivor-plaintiff and former Maryland resident, was among the first to file a lawsuit under the CVA, initiating her case just after midnight on October 1st. She accuses The Key School in Annapolis, her alma mater, of failing to prevent repeated, severe child sexual abuse by some faculty and staff during her time as a student in the 1970s. Ms. Bunker’s case is one of the three lead cases before the Maryland Supreme Court. She filed her case in the United States District Court for the District of Maryland (federal court) where a federal judge granted Ms. Bunker’s motion to “certify” the case to the Supreme Court of Maryland. That procedure allows Maryland’s highest court to decide whether the CVA is constitutional. If the Supreme Court of Maryland decides the CVA is constitutional, Ms. Bunker’s case will go forward in the Maryland federal court.
7. Who represents Ms. Bunker?
Ms. Bunker is jointly represented by a team of law firms including Hogan Lovells, Jenner Law, Grant & Eisenhofer, Baird Mandalas Brockstedt & Federico, and The Joel Bieber Firm. They are all focused on ensuring justice for childhood sexual abuse survivors. Central to this cause is upholding the constitutionality of the CVA.
8. What is an amicus brief and who has filed one in this case?
An amicus brief is submitted to the court by a person or organization that is not directly involved in the case but who has a compelling interest in the outcome. Several child abuse prevention/ human rights advocacy organizations and constitutional scholars have submitted amicus briefs:
The Maryland Crime Victims Resource Center, Inc.: A non-profit organization dedicated to assisting victims of crime, including survivors of sexual abuse. They have filed a brief supporting the CVA, emphasizing its importance in providing justice for survivors.
Survivors Network of those Abused by Priests (SNAP): SNAP, a national advocacy group for survivors of clergy abuse, submitted an amicus brief supported by several current and former legislators, including Maryland State Delegate C.T. Wilson. Del. Wilson, a survivor of childhood sexual abuse himself, played a key role in advocating for the passage of the CVA.
Human Rights for Kids: A non-profit organization focused on protecting the rights of children worldwide.
CHILD USA, Change the Conversation, Public Justice, The Maryland Association for Justice, The American Association for Justice: These organizations represent trial lawyers who fight for the rights of victims, and organizations committed to the prevention of and healing from child sexual abuse. They are advocating for the CVA, highlighting how it allows survivors to pursue justice even years after the abuse occurred.
Notably, The Maryland Attorney General’s Office, the state government’s top legal office, has also filed a brief in support of the CVA, arguing that the law is crucial for holding abusers accountable and protecting survivors.
9. When will the Court rule?
There is no set deadline for the Court to rule. The time it takes for the Maryland Supreme Court to issue an opinion after oral arguments can vary. The Court carefully reviews all the briefs, the oral arguments, and the relevant legal issues before making a decision. In complex or high-profile cases like those involving the CVA, the process might take longer as the Justices work to ensure their opinion is thorough and well-reasoned.
10. Is the related Federal Bankruptcy Court proceeding involving the Archdiocese of Baltimore (AOB) a factor in this court case?
The AOB filed a petition for bankruptcy in the U.S. Bankruptcy Court for the District of Maryland (Harner, J.) on the last business day before the CVA became effective (September 29, 2023). That filing effectively blocked survivors from filing suit under the CVA. Instead, survivors were required to submit claims within the Bankruptcy proceedings. More than 900 survivor claims have been filed with the Bankruptcy Court against the AOB. Because the AOB was never sued under the CVA, it is not a party to any of the cases before the Maryland Supreme Court and it has taken no position on the CVA’s constitutionality. Under the direction of three court-approved mediators, the AOB is currently working with survivors, insurers and other interested parties to come up with an agreed upon bankruptcy plan to submit for the Bankruptcy Court’s approval. The Bankruptcy Court proceedings have no impact on the Maryland Supreme Court’s decision on the CVA.
Originally published in Jenner Law by Rob Jenner.