Prescription and Derogation from Prescription in Sexual Abuse of Minor Cases

PRESCRIPTION AND DEROGATION FROM PRESCRIPTION IN SEXUAL ABUSE OF MINOR CASES Charles G. Renati, J.C.D, J.D.* The Meaning of Prescription In both civil and canon law, prescription is a means by which one acquires or loses a subjective right or frees himself from an obligation upon the passage of a specific period of time and the fulfillment of specific conditions prescribed by law. Laws of prescription derive from Roman law and were instituted in order to provide final resolution of disputes concerning the ownership and use of property and the exercise of rights.1 In civil law the means of acquiring the ownership right of someone else’s real property by prescription is by taking unopposed possession of it for the entirety of the prescription period, that is, taking it by what the law calls “adverse possession.” The means of acquiring a right simply to use another person’s property for a certain purpose, such as an easement, is by the unopposed using of it for that purpose for the entirety of the prescription period. Both rights are created by prescription. Passage of time alone, however, is not sufficient to establish prescriptive rights. One must prove the fulfillment of all the other conditions required in addition to the passage of statutory time.2 Canon 197 states that canon law accepts, and therefore will apply, the laws of prescription as they exist in the legislation of the respective nations, except where specific canons of the code provide otherwise.3 Canon 1362 does provide otherwise for criminal actions , including that of sexual abuse of minors by clerics. The Jurist 67 (2007) 503–519 503 * San Francisco, California. 1 Canon 197: “Praescriptionem, tamquam modum iuris subiectivi acquirendi vel amittendi necnon ab obligationibus sese liberandi, Ecclesia recipit prout est in legislatione civili respectivae nationis, salvis exceptionbus quae in canonibus huius Codicis statuuntur .” Cf. Robert T. Kennedy, in New Commentary on The Code of Canon Law, ed. John P. Beal, James A. Coriden, Thomas J. Green ( NewYork: Paulist Press, 2002) 230. 2 Thus, the possession or use of the land must be open, notorious, continuous, hostile to the owner’s interest, made under claim of right and exclusive. 2 Corpus Juris Secundum (Thomson/West, 2003) 434–435; 3 AmJur 2nd (West Group, Bancroft Whitney, 2002) 89; Thomas v. England (1886) 71 Cal.456. 3 An interesting example of the Church’s applying the law on civil prescription is a Rotal decision of June 21, 1924, concerning a dispute between two Roman colleges over 504 the jurist Prescription in Canonical Criminal Actions For all other types of prescription to take effect, certain conditions must be fulfilled in addition to the specified passage of time. This is not the case for prescription pertaining to canonical criminal actions. Prescription in these actions is effected solely by the passage of time. When the prescription time period set by canon law for a specific criminal action has passed, the effect of prescription on that action is immediate, complete, and irreversible. Thus, the rights acquired and lost by the respective parties in a canonical criminal action, namely the ecclesiastical authority and the accused, are acquired and lost ipso facto by the expiration of the canonical prescription time period. Canon 198 states that no prescription is valid unless it is based on good faith not only at the beginning but through the entire course of time required for prescription “without prejudice to the prescript of canon 1362.”4 Canon 1362 which sets the prescription time period for criminal actions, including that of sexual abuse of minors by clerics, is the exception . Neither good faith nor any other condition is required for the effective running of prescription time in criminal actions. In these cases the passage of time alone establishes prescription. Prescription Time Period for Crimes of Sexual Abuse of Minors by Clerics From 1917 until April 25, 1994, the prescription period for sexual abuse of minors crimes committed by a cleric was five years.5 On November 30, 1993, The National Conference of Catholic Bishops of the UnitedStatesaskedtheHolySeefora“derogation,”thatis,achangefrom this five-year time period for the United States.The bishops asked that the timebeextendedtothetimewhentheallegedvictimhadcompletedtwenty eight years as...