Seed for Texas abortion ban was planted 20 years ago, in Louisiana

Twenty years ago, the Fifth Circuit Court of Appeals took up a case over a Louisiana abortion law that might sound familiar: it empowered citizens to sue abortion providers.

Opponents called the law a back-door attempt to cut off access to the procedure, despite judicial precedent, and they sued state officials to block it. But the court ultimately dismissed the claim, saying it couldn’t weigh in on the privately-enforced statute, at least not preemptively.

As Texas now rolls out its unprecedented six-week abortion ban, decimating access to millions of people of reproductive age, the 2001 decision in Okpalobi v. Foster is not just a historical landmark. It directly influenced the new law.

“We had missed it,” said Republican state Sen. Bryan Hughes, who authored the Texas law, Senate Bill 8. “But about 20 years ago the Louisiana legislature employed citizen enforcement in this area on a much smaller scale. The full Fifth Circuit Court of Appeals said that works.”

He added, “I’m embarrassed it took us 20 years to put this together.”

The Texas law, which took effect last week after the Fifth Circuit and the U.S. Supreme Court declined to intervene, has shocked many who were unaware that a state could essentially bypass decades of court rulings protecting abortion access.

But while the statute is pioneering in its scope, allowing nearly anyone to sue providers and others who defy the ban, its legal framework has existed for decades, essentially hiding in plain sight.

NO EXCEPTIONS: Anti-abortion laws used to exempt cases of rape and incest. Not anymore in Texas

The new law arrived just as the judicial and political winds were aligning for the antiabortion movement, including Justice Amy Coney Barrett’s rise to the high court last fall, which cemented its conservative majority.

“There are folks who have been waiting to pull out this Rube Goldberg-like procedural trap for a time when the Supreme Court might let them get away with it,” Steve Vladeck, a law professor at the University of Texas at Austin, said of the Louisiana approach. “And that wasn’t 20 years ago, and it wasn’t 10 years ago, and it wasn’t even four years ago.”

At the center of the new law was Jonathan Mitchell, a former Texas solicitor general who has pushed the private-enforcement model as a way to shield laws on abortion and other issues from judicial review.

“It is practically impossible to bring a pre-enforcement challenge to statutes that establish private rights of action, because the litigants who will enforce the statute are hard to identify until they actually bring suit,” Mitchell wrote in a law review article in 2018.

The next year, he helped the tiny East Texas city of Waskom enact an abortion ban much like SB 8, using private enforcement. Nearly three dozen other cities in the state followed suit, though the laws were mostly symbolic because there were no local abortion providers.

Lubbock was the first to successfully stop an abortion clinic from operating this spring when voters there passed an ordinance that Mitchell has offered to helped defend.

Mitchell did not respond to an interview request, but Hughes, who represents Waskom and said he has known Mitchell for years, called his work critical to getting the Texas ban off the ground. Hughes said he became aware of the 2001 Louisiana case through Mitchell’s article, which cited it in a footnote.

‘Privatizing’ an abortion ban

Hughes worked closely with Mitchell to craft SB 8 and then pitch it to colleagues late last year, where it met initial skepticism. Texas Right to Life, an antiabortion lobbying group, had pushed for civil penalties in previous abortion laws, but never as the sole form of enforcement, and its political director John Seago was not optimistic that a six-week ban could survive in both legislative chambers.

At the time, Seago was struggling to get support for even less ambitious restrictions, specifically a ban on abortions done because of genetic anomalies detected in fetuses.

“We had many Republicans tell us that was still too stout,” he said in an interview last September, shortly after Barrett’s nomination was announced. “And it was nothing close to a Heartbeat bill, it wasn’t an 8-week ban, it wasn’t a full-out abortion ban.”

Seago said he got on board after four Democratic district attorneys in Texas signed on to a letter last October vowing not to enforce criminal penalties if the Supreme Court rolls back or overturns Roe v. Wade, the 1973 decision that established women’s constitutional right to abortion. If the movement couldn’t rely on public officials to carry out the law, he said, it would have to find another way.

Other factors were also lining up. Texas Republicans far outperformed expectations in the November statewide elections, emboldening conservative factions who have long called for stiffer abortion laws. And six of the Fifth Circuit’s 17 active judges were appointed by former President Donald Trump, a Republican who had campaigned on overturning Roe. Only five members of the court were picked by Democrats.

IN-DEPTH: Gov. Greg Abbott said Texans have ‘at least’ six weeks to get an abortion. It’s more like 10 days.

“There was an air, especially in the grassroots, of there are no excuses not to be bold when it comes to this issue,” Seago said.

Some Republicans were turned off by the enforcement approach, saying it was either too weak or opened the door to more frivolous lawsuits, a trend that many in the party have been fighting for years to squash. Another antiabortion group testified against the bill, warning lawmakers it would not hold up in court and could set the movement back in Texas.

“We had to go in and explain that this is actually the best way you enforce a pro-life bill, this is how these suits would come, this would actually hold the abortion industry accountable,” Seago said.

The Fifth Circuit’s 2001 decision was a sign that SB 8 might be able to survive where other six-week bans, known among antiabortion activists as heartbeat laws, have so far failed.

“This was exactly my fear, that this would be a new strategy,” said Maya Manian, a visiting professor at the American University Washington College of Law who compared the Louisiana law to a “Sword of Damocles” in a 2007 law review article she wrote on the ruling.

“The threat of a catastrophic lawsuit alone will chill abortion providers,” she wrote in the piece, titled ‘Privatizing Bans on Abortion: Eviscerating Constitutional Rights through Tort Remedies.’

The Louisiana law, passed in 1997, allows patients to sue their abortion providers for damages to themselves or their aborted fetus for up to 10 years, even if they signed consent forms informing them of the risks. It also bars abortion providers from accessing a state-run fund used to help doctors pay down medical malpractice judgments.

The statute was challenged again years later, after the first private lawsuits were brought against providers, and upheld in 2013 by a panel of three Republican-appointed judges at the Fifth Circuit. The law is one of many that the state Legislature has passed restricting abortion access; it specifically makes it difficult for abortion providers to get malpractice insurance, an outcome that Texas providers have feared with SB 8. Today there are just three abortion clinics in Louisiana, compared to well over a dozen in the early nineties.

Mary Ziegler, a professor at Florida State University who has studied the antiabortion movement, said the Louisiana law was part of a different era, when activists were more outwardly focused on protecting the health of pregnant people. Since then, antiabortion groups have pushed for laws that can chip away at or directly challenge Roe, rather than create legal loopholes around it.

“It seemed pretty clear that there was a strategy that most abortion opponents were using, and this was not the strategy,” Ziegler said. “People weren’t paying attention to it because they didn’t feel that they had to.”

jeremy.blackman@chron.com

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Ninth Circuit Reverses Dismissal in Jurisdiction Complaint

Thursday, September 9, 2021

The US Court of Appeals for the Ninth Circuit reversed a district court’s dismissal of a complaint, finding that the foreign defendant was subject to specific personal jurisdiction in the United States in light of the defendant’s marketing, sales and operations, each of which reflected a significant focus on the United States. Ayla, LLC v. Alya Skin Pty. Ltd., Case No. 20-16214 (9th Cir. Aug. 27, 2021) (Rakoff, J.)

Ayla is a beauty and wellness brand based in the San Francisco area that offers skincare and hair products through retail and online sales, as well as health and personal care advice on its website. Ayla has three registered trademarks “for use of the ‘AYLA’ word mark in connection with on-site beauty services, online retail beauty products and cosmetics services, and cosmetics.” Alya Skin is a skincare company with its place of incorporation and principal place of business in Australia. Alya Skin sells and ships its products worldwide but about 10% of its total sales are made to the United States.

Alleging a “confusingly similar” mark on its products and advertisements, Ayla sued Alya Skin for trademark infringement and false designation of origin pursuant to the Lanham Act, as well as unfair competition under the California Business & Professions Code and California common law. Alya Skin moved to dismiss the lawsuit for lack of personal jurisdiction. The district court granted Alya Skin’s motion to dismiss, finding that it did not have personal jurisdiction. Ayla appealed.

On appeal, Ayla challenged the district court’s determination that it did not have nationwide jurisdiction over Alya Skin under Fed. R. Civ. Pro. 4(k)(2). The Ninth Circuit framed the issue on appeal as a question of whether the district court “erroneously held that the exercise of nationwide jurisdiction over Alya Skin does not comport with due process.” The Court noted that the due process analysis under 4(k)(2) is “nearly identical” to the traditional personal jurisdiction analysis but “rather than considering contacts between [the defendant] and the forum state, we consider contacts with the nation as a whole.” Because trademark infringement is “treated as tort-like for personal jurisdiction purposes,” the Court focused its specific jurisdiction analysis on whether the Alya Skin “purposefully directed its activities toward the United States.”

The Ninth Circuit’s inquiry focused on a totality analysis surrounding Alya Skin’s marketing, sales and operations, each of which reflected a significant focus on the United States. The Court noted that Alya Skin promoted its allegedly infringing products specifically to US individuals through “significant advertising efforts.” These efforts included, for example, an Instagram post directly referencing the “USA,” Alya Skin’s advertising efforts during “Black Friday” and Alya Skin’s reference on its website that its products were featured in US magazines. Moreover, Alya Skin presented to consumers “that its products are FDA approved,” which the Court found to be “an appeal specifically to American consumers for whom the acronym ‘FDA’ has meaning.” The Court also noted that Alya Skin’s volume of sales reflected a purposeful direction toward the United States.

The Court also found that Alya Skin’s contract “with a fulfillment center located in Idaho to ship its products throughout the United States and elsewhere” was an “ongoing” contract, which “envisioned performance in the United States.” The Court stated that Alya Skin could “better serve the American market and grow its American contacts” by contracting with a US distribution center, and “Alya Skin could offer two- to four-day shipping within the United States, whereas delivery to most other parts of the world would take five to ten days.”

Taking all of the factors into account, the Ninth Circuit concluded that Alya Skin “purposefully directed its activities toward and availed itself of the protections and benefits of the United States.” The Court further explained that Ayla’s claims clearly “arise out of or result from” Alya Skin’s “forum-related activities” of selling alleged infringing products in the United States and further found that Alya Skin did not meet its burden to present a “compelling case” that “the exercise of jurisdiction [in the United States] would be unreasonable and therefore violate due process.” Accordingly, the Court found that Alya Skin was subject to specific personal jurisdiction in the United States.

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Tunica Co, MS – Chad Little Dies in Wreck at US-61 & Green River Rd

Tunica Co, MS (September 8, 2021) – On Sunday, September 5, a two-vehicle accident in Tunica County resulted in confirmed fatalities. 

The deadly crash occurred at the intersection of US-61 and Green River Road. State troopers were notified of the collision at around 5:54 a.m. that morning. Local reports indicated that 30-year-old Nrsimha Broomfield of Memphis was headed southbound on the highway in a 2006 Chevrolet Cobalt. 

At the same time, 64-year-old Chad Little of Southaven was traveling east in a 2014 Nissan Versa. The Chevy crashed into the left side of the Nissan. Both Little and a rear passenger in the Nissan, Brett Little, were killed in the accident. Both victims were pronounced dead at the scene by attending medical personnel. 

An ongoing investigation into the cause of the crash is being managed by local law enforcement officials. 

We would like to offer our deepest condolences to the families of Chad and Brett Little at this time.  

Deadly Intersection Crashes in Mississippi 

Traveling through a junction increases your chances of being involved in a vehicle accident, and new data shows that traffic crossroads have gotten far more dangerous over time. Even traffic lights can only go so far in preventing a fatal accident. According to national data, red-light runners are responsible for hundreds of deaths each year across the country.

Following a terrible accident, the individual responsible must pay the surviving family members of the deceased victims. The only way to do so is to work with a Mississippi legal practice that has years of experience aiding wrongful death victims.

Wrongful death lawsuits are notoriously difficult to succeed in. Having an experienced Tunica County car crash attorney on your side is a significant advantage. A wrongful death case may pay funeral and burial costs, medical expenditures, mental pain, and other damages incurred as a result of the tragedy. When a loved one is killed as a result of someone else’s negligence, the next step is to file a wrongful death lawsuit to seek just compensation.

If a loved one was killed in an accident that might have been avoided, contact a wrongful death lawyer in Tunica County as soon as possible. Check your lawyer’s qualifications to determine if he or she has the relevant experience.

Tunica County Car Crash Lawyers

The psychological effects of losing a loved one should be understood by everyone. After a wrongful death, the speed with which debt may accumulate can be terrifying. Germany Law Firm PLLC has been handling wrongful death cases for many years. For our clients, compensation is critical.

If you have been injured or lost a loved one as a result of someone else’s carelessness on the road, do not hesitate to contact a Tunica County personal injury lawyer. Call us at (601) 487-0555 right now.

Note: The information provided within these posts has been gathered from outside sources, for Germany Law Firm, PLLC and, as such, has not been independently verified. All provided information has been gathered from secondary sources including news bulletins and other first-hand accounts. If you find any information that is incorrect or you would like this post to be removed, please contact our law firm immediately so that we can correct the story or remove it entirely from the website.

Disclaimer: At Germany Law Firm, PLLC, we provide the information found in these accident reports as a resource for families who have been in similar situations and to raise awareness about the dangers of driving. We would also like to honor the victims who have been injured or lost their life as a result of a Mississippi accident and hope that the information reported will help prevent future accidents. The photographs depicted in these posts are not representative of the actual accident scene.

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Austin Energy, ERCOT sued over February outages that led to woman’s death

The daughter of an 87-year-old woman who died after her urinary catheter froze is seeking $1 million in damages.

AUSTIN, Texas — A woman has filed a $1 million lawsuit against Austin Energy and ERCOT, seeking damages for her mother’s death during the February freeze that left millions without power.

Colinda Meza claims her 87-year-old mother, Connie Mae Richey, died from a frozen urinary catheter that resulted from the sustained power outages.

The filing says Austin Energy claimed the outages that began on Feb. 15 would last “no more than 40 minutes at a time,” but Richey’s home was without power for four days.

The lawsuit alleges wrongful death and gross negligence by the actions of ERCOT and Austin Energy.

It said Richey was living with her daughter at the time, to allow her to remain in a home environment and avoid assisted living facilities and the risk of COVID-19. She was receiving hospice care for the purpose of pain medication management, the lawsuit says.

“Prior to the freeze, she was fully engaged with her family and comfortable,” according to the filing. “She particularly enjoyed seeing her grandchildren every day.”

Richey’s family attempted to keep her warm during the power outages, using multiple blankets and moving her bed into a centralized location, as well as burning firewood in the fireplace.

But as more days went on without power, Richey became confused and withdrawn and moaned in pain throughout the night, the lawsuit claims. The morning of Feb. 17, Meza noticed her mother’s catheter was “slushy and bloody” from the freeze, and a decision was made to call EMS.

Richey was taken to St. David’s Medical Center in South Austin but could not be admitted due to freeze-related water supply issues. She was later admitted to Dell Seton Medical Center in Downtown Austin.

Despite the hospital care, Richey was pronounced dead on Feb. 19.

“Contrary to Mrs. Richey’s long-expressed wishes, she died in a hospital in the absence of her family,” the lawsuit said.

More than 210 people died as a result of the winter storms, state data shows.

Austin Energy provided the following statement Wednesday evening:

“We haven’t yet received the lawsuit, but once we do we will evaluate it and look for next steps that are appropriate for the City.”

ERCOT told KVUE it is unable to comment on pending litigation.

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How physicians can protect themselves from litigation risk from virtual care

One of the biggest risks in the act of practicing medicine virtually involves the challenges of virtual examinations: reviewing diagnostics, communicating with the patient and loss of contextual clues, among other factors.

Two-thirds of telemedicine-related claims received between 2014 to 2018 were related to diagnosis, according to CRICO, the risk management arm of the Harvard Medical Institutions.

Physicians conducting a telemedicine appointment must rely on a patient’s description and interpretation of their symptoms to try to make a diagnosis without the benefit of testing and physical examination, as at an in-person clinical visit. That could more easily lead to misdiagnosis, missed symptoms or physical clues, prescription of the wrong medication and the potential consequence of prescribing medication across state lines without conducting an in-person examination (a criminal offense in some states).

Security & technology concerns

Virtual health care can also be prone to security and technology threats. Privacy breaches, software malfunctions, cyber security threats, ransomware and other issues could result in noncompliance with regulations.

Something as simple as a poor internet connection or an older computer with a low-quality camera lens could play a role in misdiagnosis or miscommunication between patient and provider.

Protect yourself

Despite these risks, the standard of care test remains the same for virtual medicine: acceptable medical treatment provided by reasonably prudent health care professionals under like or similar circumstances.

Providers who choose to offer virtual care can reduce their risk by implementing best practices and recommendations from the American Telemedicine Association (ATA) and working with attorneys who are experienced in medical malpractice defense to develop policies and procedures for following those guidelines.

They should be vigilant about patient confidentiality, including written documentation, and ensure their software platforms have encryption, cybersecurity and other safeguards that comply with federal and state privacy laws such as HIPAA and the Health Information Technology for Economic and Clinical Health Act, also known as HITECH.

Providers should educate patients on the proper protocols of virtual visits and describe the possible risks of seeking care remotely. They also need to be mindful that there will be an inherent lack of personal connection and continuity of care, which tend to reduce the risk of litigation in longstanding doctor-patient relationships.

Physicians may need to be more careful in making sure patients follow through on diagnostic testing such as bloodwork or radiology, prescription medications, other recommended treatment or specialized care.

Most important, when a virtual visit doesn’t yield enough information, especially if the patient may have a serious illness or condition or a history of underlying health issues that may cause complications, physicians should document the lack of information and insist on an in-person appointment for a more detailed examination or diagnosis.

Pros and cons

Telemedicine offers many new opportunities and potential benefits for patients and physicians in the increasingly complex health care environment. As it evolves, medical providers must stay alert to the possible risks of litigation, especially when making a new diagnosis or presented with a new symptom or health concern. Work with experienced medical malpractice counsel to create policies and procedures that comply with ATA guidelines, and vigilantly follow best practices.

Remember that virtual care is still in its infancy, and we have much to learn.

James R. Embrey Jr. is a partner at Hall Booth Smith, P.C., who defends businesses in medical malpractice litigation, general liability, and more. Send your questions to medec@mjhlifesciences.com.

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11th Circuit Leaves it to Alabama to Decide if Pollution Exclusion Applies to Carbon Monoxide Deaths

National Trust Insurance Co. contends that a pollution exclusion in a policy it sold to an Alabama furnace-repair company excludes coverage for a wrongful death claim caused by carbon monoxide poisoning, but it won’t be able to test that argument in federal court any time soon.

A panel of the 11th Circuit of Court of Appeals affirmed a decision by the Northern Alabama U.S. District Court not to hear a lawsuit filed by National Trust that seeks a declaratory judgment that its pollution exclusion applies to carbon dioxide emissions. The court said that no Alabama state court has ruled on whether carbon monoxide is a pollutant under an insurance policy exclusion, so a ruling by a federal judge could create friction between state and federal courts.

In a concurring opinion, Circuit Judge Andrew L. Brasher said some states have ruled that carbon monoxide is a pollutant subject to a policy exclusion, but others have not.

“For its part, the Supreme Court of Alabama has described this morass of conflicting caselaw as, ‘not just a split of authority, but an absolute fragmentation of authority . . . with cases reaching the same conclusion as to a particular issue . . . on the basis of differing, and sometimes inconsistent, rationales.”

Steven Hoge filed a wrongful death suit against Southern Heating and Cooling Inc. and other defendants in Dekalb County Circuit Court after his parents died from carbon monoxide poisoning in January 2018. His lawsuit alleges that a technician for the company who was called out for a service call failed to inform Billy Carl and Mary Ellen Hoge that the burner in their gas furnace was misaligned, causing fatal levels of carbon monoxide to accumulate in their home.

Southern Heating had purchased a commercial liability policy from National Trust with a $1 million limit. The insurer filed a lawsuit in federal court seeking a declaratory judgment that no coverage is owed under that policy because of the pollution exclusion.

Attorney Christopher S. Randolph Jr., with the Hare/Wynn law firm in Birmingham, represents Hoge. He said he knows of no Alabama appellate court decision that has addressed the question of whether carbon monoxide is a “pollutant” under an insurance policy exclusion, but he believes that state courts will find that the exclusion does not apply.

It is the province of state courts to resolve questions of state law. Randolph said any ruling by the district court about whether an pollution exclusion applies in this case would be just a “guess.”

Randolph said National Trust has been defending Southern Heating in the state law case under a reservation of rights.

The 11th Circuit panel said in its opinion that the district could would also have to decide whether a “hostile fire exception” to the pollution exclusion in the policy applies. A hostile fire is a fire set intentionally that expands outside its intended boundaries.

The district court ruled that the two lawsuits are “parallel,” meaning they require resolution of substantially the same facts. Attorneys for National Trust argued that in light of that finding, the district court abused its discretion by refusing to hear its case.

The 11th Circuit, however, declined to adopt a “bright line rule” that the existence of parallel proceedings require federal trail courts to accept a declaratory judgment case in all circumstances.

“In sum, a district court may exercise its discretion and decline to adjudicate a claim under the Declaratory Judgment Act even in the absence of parallel proceedings,” the opinion says.

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Priest sex abuse survivor dedicated to changing Ohio laws

When Chris Graham slides his tablet across the table to show lawmakers the police report detailing his rape, he sees their faces change.

That’s because in the report, there’s the account of someone who remembers seeing the perpetrator, a Catholic priest, chasing after a 14-year-old Graham and then grabbing him and trying to get him to go back into a private room at St. Joan of Arc Catholic Church in Powell.

It’s a powerful corroboration of his abuse in 1997 by the late Rev. Raymond Lavelle, Graham has found — as is the fact that the Delaware County Sheriff’s Office and the Roman Catholic Diocese of Columbus both declared the allegation credible. 

Now, he’s using it to raise awareness about clergy sexual abuse of minors and the Ohio laws that keep people like him from seeking justice.

‘There’s no escape’: Memories of being raped by Catholic priest haunt Columbus man

“My goal is simple,” said Graham, now 39 and living in Westerville. “I’m going to change these laws, and I’m going to do it by befriending the right people, and I’m going to tell them my story so they know someone who’s been touched by this.”

Graham is referring to Ohio’s laws regarding victims of child sexual abuse, including statutes of limitations for reporting and damages caps.

The Ohio civil statute of limitations for victims of childhood sexual abuse is capped at age 30 and its criminal statute of limitations for victims of childhood sexual abuse is capped at age 43, with another five years granted if DNA is found within 25 years.

Tell us your story:Are you a victim of priest sexual abuse? Share your experience anonymously.

And no matter what a jury grants a victim, state law dictates that they can only be awarded $250,000 in damages, what many say is barely — if even — enough to cover attorney’s fees. The state’s damages cap, put in place during tort reform in 2005, applies to personal injury cases.

The civil statute of limitations, and the fact that Graham’s abuser is dead, have kept him from being able to pursue civil or criminal charges. But he would sue the Roman Catholic Diocese of Columbus or his abuser if he could.

“The right time for justice is always now,” Graham said. “I hope Ohio gets with the times.”

Resisting change: Ohio’s statute of limitations laws restrictive

Experts have repeatedly said that Ohio’s laws regarding child sexual abuse survivors are some of the worst in the nation.

“Ohio persists in the dark ages,” said Marci Hamilton, founder and CEO of CHILD USA, a Pennsylvania think tank that works to improve laws and policy regarding child abuse.

In recent years, many states have changed their laws in order to better protect survivors of child sexual abuse.

Arkansas, Louisiana, North Carolina, New York, New Jersey, California and Nevada are among those that have passed window legislation, allowing survivors a set time period to come forward with their case, no matter how long ago it was, Hamilton said. 

‘In the dark ages’:Ohio’s statute of limitations for sex crimes among worst in nation, experts say

But not the Buckeye State.

“Ohio is just one of those states that … is just very, very slow and has not yet done what the whole society needs,” Hamilton said.

In July, two U.S. congresswomen introduced a bill to incentivize states to eliminate civil statutes of limitations on child abuse. If passed into law, the act would make $20 million in grants available to states if they meet the bill’s reform suggestions.

Where did accused priests serve locally?:Find out via this searchable database

“Our justice system does not work for all survivors of child sex crimes,” one of the sponsors, Rep. Jennifer Wexton (D-Va.), said in a statement. “The trauma experienced by victims of child sexual abuse … stays with them for a lifetime, and arbitrary statutes of limitations block many from getting the justice they deserve when they are ready to bring those claims to court.”

When survivors are empowered and able to come forward with what’s happened to them, predators who are still abusing children often are identified, Hamilton said.

“The immediate impact is that the public learns very quickly about perpetrators they didn’t know were operating against their children,” Hamilton said. “It’s all about whether or not you’re going to choose the predators who are currently operating or the children.”

‘Fighting the good fight’

For more than 15 years, Ohio legislators have been introducing laws to improve the statute of limitations and monetary caps that they say discourage survivors from reporting what happened to them.

But it has been largely to no avail.

Yost and Seitz discuss:Should Ohio eliminate the statute of limitations for rape?

“I have repeatedly heard that specific senators who are in charge absolutely will not allow these sorts of bills to move forward,” said state Rep. Tavia Galonski, a Democrat from Akron. With Rep. Jessica Miranda, D-Forest Park, she introduced House Bill 266 this session to eliminate the statutes of limitations for civil and criminal sex crimes.

The bill, which Galonski has introduced three other times, is in committee but has not yet had a hearing. Still, Galonski remains hopeful and persistent.

Richard Strauss case:Democrats, governor push to remove criminal statute of limitations on sex crimes

“We’ve already agreed that murder is one that shouldn’t have any statute of limitations,” Galonski said. “And I would say to you that certainly children whose childhoods are taken away should not have a period of time after which they cannot seek redress from their crimes.”

Rep. Kristin Boggs, a Democrat from Columbus, is another lawmaker working to change Ohio’s laws. She introduced House Bill 199 to raise the cap on damages for survivors of rathree times, as she believes victims should get the money juries award them.

Ohio’s damages cap is $250,000, while most states don’t even have damages caps, according to Hamilton.

“It is mind-blowing to me that … our statutes are going to say you are not entitled to the justice that they determined was appropriate,” Boggs said.

‘The obstacle’: Do insurance companies’ interests stop reform?

Advocates for reform point to insurance companies as the real reason why some lawmakers aren’t keen to make changes. Such companies worry that paying out all the claims could bankrupt them — and the diocese.

“It’s a combination of the bishops who don’t want any more stories to come forward and the insurance industry,” Hamilton said of the reasons why laws haven’t changed in Ohio. “They have been in league covering up sex abuse all these decades.”

Some lawmakers say one legislator who supports these businesses is the main barrier to reform.

“Bill Seitz is really the obstacle to this legislation,” Boggs said, adding that her Republican colleague from Green Township, near Cincinnati, has already proposed changes to the bill she introduced. 

Seitz is an influential lawmaker who has been working as an elected official in the Statehouse since 2000. He serves on both the civil and criminal justice committees in the House and favors making the state more “business-friendly,” according to his website.

‘No amount of money’:Teenage rape victim, lawmaker seek to repeal cap on sexual assault damages

Seitz said the proposed laws are nothing new, and he won’t support them as written.

Boggs’ bill, for example, would change Ohio law to allow victims to not only sue their perpetrator, but also those who employed or supervised them.

Seitz has said he won’t support it. In committee, Seitz said he wouldn’t support the bill unless his proposal of exempting employers and supervisors of abusers from litigation was used, Boggs said.

‘Where there’s a will, there’s a way’:Why aren’t Ohio officials investigating Catholic sex abuse cases?

But Boggs said doing that would deny access to justice.

“That’s where the larger economic compensation to victims comes from because the organization carries insurance to protect themselves from being liable, and that’s why insurance companies are opposed,” she said.

Setiz said if past efforts to eliminate statutes of limitations and damages caps laws had been successful, it could have “resulted in the bankruptcy of many dioceses of the Catholic church.”

“If you look at all the good the Catholic church has done through their hospitals and churches and nursing homes and charities and churches, we felt that was extreme,” Seitz said.

$1 million:Diocese settles priest sexual abuse case

Graham couldn’t disagree more.

“Saying their good works justify raping children is the slipperiest slope I’ve heard of in my life,” he said. “What else justifies raping children?”

‘The floodgates of monetary liability’

As for statutes of limitations, Seitz said labeling Ohio’s laws as being in the “dark ages” is “hyperbolic and untrue.”

“The statute of limitations for rape cases is 25 or 30 years,” he said. “That’s very long, and I don’t see how they can say what they’re saying. What it’s all about is certain people want to open the floodgates of monetary liability.”

Survivors, survivors’ groups and advocates say that it’s not about the money; they want reform and justice, especially when it comes to what has gone on within the Catholic church.

Monetary settlements are the only punishment the church is worried about, said Zach Hiner, executive director of the Survivors Network of those Abused by Priests (SNAP).

“Church officials for decades have shifted abusers and attempted to downplay claims of abuse in order to protect their reputations and their coffers, so a monetary punishment ‘speaks the language’ of the church as far as abuse goes,” Hiner said in an email.

Hiner said most victims tell him what they want most is for no other child to experience what they have and for people to believe their story.

“They’re there to warn parents about something that happened to them,” Hiner said.

When allegations are made against a priest and found credible, the Diocese makes an announcement to its parishes, officials said in a statement. It also makes the Victims Assistance Coordinator available to alleged victims and that person “becomes an advocate for the victim, helping to promote hope and healing in different ways, such as connecting the victim with a mental health provider for treatment and support.”

Hiner believes Seitz has a “somewhat ignorant” view of what the legal system is like for sex abuse victims.  

“It helps perpetuate the culture of shaming victims,” Hiner said.

‘It’s all in the approach’:Columbus Diocese hires counselor to speak with victims, priest no longer working with survivors

“No one comes forward with a child sexual abuse claim because they think ‘Wow, I’m going to make so much money in the courts,'” he said.

No way to seek justice

Graham discovered through psychotherapy last year that he was raped by Lavelle, who died in 2015.

The average age for adults to disclose such abuse is 52, and Hiner said that’s in part because victims suffer from shame, self-doubt and degradation.

“Some have buried the trauma so deep they don’t even remember it years later,” he said.

But, despite his memories coming back “early,” Graham’s case is outside of the statute of limitations and his abuser is dead, so he can’t pursue criminal or civil charges against the church.

Although he can’t bring a legal case, Graham still wants justice, and he intends to get it not only for himself, but for other victims of sex abuse by pushing for legal reform and raising awareness.

Graham has said he’d like to work with the Catholic church toward reform and hopes to partner with church officials, not destroy it.

“We need to get this stuff out in the open,” Graham said.

Catholics and statute of limitations reform

Years ago, Ohio had a chance to be one of the first states to reform its laws regarding sex abuse victims, Hamilton said, but then-Columbus Catholic Bishop Frederick Campbell stepped in right before the law changes were passed.

In 2006, the state legislature was about to approve a one-year window in which victims could report abuse that had happened as long as 35 years ago, Hamilton said. At the last moment, Campbell pressured Republican lawmakers not to do it and it failed, she said.

Today, when asked about statute of limitations reform, officials from the Roman Catholic Diocese of Columbus and the Catholic Conference of Ohio, a lobbying organization, released nearly identical statements saying they don’t oppose it. 

The diocese said that it wasn’t alone in its opposition in 2006, which was because it would have reopened claims that previously had expired under Ohio law and because, it said, it was unconstitutional.

That hasn’t stopped many states from having such legislation, Hamilton said, including New York, which just closed a two-year window during which than 9,000 sexual abuse cases were filed.

“If you can prove beyond a reasonable doubt that you were a victim of rape, I don’t see any reason why the statute of limitations should thwart your ability to access justice,” Boggs said.

Hot potato of prosecuting child sex abuse

Graham has big goals, starting with wanting a grand jury to be called like the one convened by the 2018 Pennsylvania attorney general, which found more than 1,000 victims of sexual abuse by more than 300 priests.

“The ultimate question is: How widespread was this?” Graham said. “It is imperative that we know how widespread this was so we can find out 1) Is it still going on? and 2) How do we keep it from happening again?”

“We have to know the extent of the wound to be able to heal it,” he said. 

But Ohio officials have declined to call a grand jury, saying it’s not within their jurisdiction due to Ohio’s home rule laws or that there isn’t cause for one.

Gov. Mike DeWine, who advocated in 2019 for legislators to revisit statute of limitations for sex crimes, said his office remains in discussion with legislators on the issue and hopes they will pursue reforms, according to a statement from his office.

Ron O’Brien, who concluded 24 years as Franklin County’s prosecutor in December, said for that years that there was nothing to prosecute when it came to the local diocese, as officials told him of all allegations and there hadn’t been any since 2002.

Current Prosecutor Gary Tyack, elected in November, said in an email that he hasn’t discussed the topic with the diocese.

“I will always listen carefully to any victim of any crime and do my best to ensure their trauma is not ignored,” Tyack said.

But some feel like not only is the trauma of survivors being ignored, but children are, too.

“I think a good society starts with keeping children safe,” Graham said. “And they have not been. And we don’t know to what degree.”

SNAP (Survivors Network of those Abused by Priests) will talk to victims confidentially. The group can be reached via SNAPNetwork.org, or locally at 614-653-1502 or SNAPCentralOhio@gmail.com.

Anyone who might have experienced sexual abuse by those associated with the Catholic church is encouraged by the Diocese of Columbus to contact law enforcement and the diocesan Victims’ Assistance Coordinator at 614-241-2568, or email helpisavailable@columbuscatholic.org.

Find more coverage of clergy sex abuse in Columbus here and at Dispatch.com. 

dking@dispatch.com

@DanaeKing

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