The Scales Of Justice

We are all familiar with “Lady Justice”–the statue of a blindfolded woman holding scales, intended to represent the dispassionate weighing of evidence leading to a just result.

The justice system has developed a number of rules governing how the “weighing and measuring” symbolized by those scales occurs. Rules against the consideration of hearsay, for example, are intended to exclude evidence that is essentially gossip–matters for which the person testifying cannot personally vouch.

Most people understand why courts disallow hearsay, or allow cross-examination. The reasons for other rules are less intuitive. As Paul Ogden has recently noted on his own blog, statutes of limitations fall into that latter category.

Ogden shares his concerns about a recent case brought by a woman against singer/songwriter Bob Dylan, alleging that he molested her when she was twelve years old– in 1965. 

Let’s think about this.

The “Me Too” movement ushered in a long-deferred accounting of the exploitation of women by men who were often in positions of power and/or privilege. “Me Too” has done a lot of good–but like so many overdue movements, it has had its share of excesses. The state of New York, in a recent effort to protect abused children (male or female), passed the New York Child Victims Act. Among other things, it temporarily expanded by decades the statute of limitations for child victims to bring civil lawsuits.  It also protected the identity of those bringing such lawsuits from disclosure–presumably, even the identity of plaintiffs who are now adults.

On the surface, it might seem that allowing individuals much more time to bring a lawsuit would advance justice. But as Paul points out, there are sound reasons for statutes limiting the time periods within which suits can be filed. As he notes, in 1965 “Lyndon Johnson was President, man had not yet stepped on the moon (1969), and seat belts were not yet required in cars (1968).  

As Paul also notes, extending or eliminating statutes of limitations can put accused people at a distinct disadvantage.  As time passes, memories fade, witnesses die, evidence gets lost, destroyed or simply buried by history.  Statutes of limitations exist to ensure that claims are litigated while the evidence is relatively fresh and the evidence proving or disproving the claim is still available.

In his post, Paul lists the specific allegations of the complaint and details the monumental difficulty of proving or disproving those allegations over 50 years later.

We can certainly debate the ideal time period within which lawsuits should be commenced, but declaring “open season” for such suits not only makes the achievement of certainty virtually impossible, it invites all sorts of mischief. Let’s say you were on a date in college, had a bit more to drink than was wise (but not enough to make you insensitive), and had consensual sex that you later regretted. As the years pass, you “remember” the incident a bit differently–perhaps as date rape. If your “assailant” comes into a lot of money later in life (perhaps through fame, perhaps through hard work, perhaps through inheritance–whatever), how tempting would it be to use the justice system to confirm your now-sincere but somewhat “adjusted” recollection of the event?

I am absolutely not suggesting that tardy allegations are all–or even mostly– manufactured. I’m sure they aren’t. And I have no idea whether the plaintiff accusing Dylan was actually abused or not. She may well have been.

The point is, after the passage of a certain amount of time, it is absolutely impossible to know. 

Achieving justice requires according fundamental fairness to both the accuser and the accused. The rules governing “due process of law” are meant to ensure that injured people get their day in court, and that unfairly accused people have the means to demonstrate their innocence. 

Being as fair as possible to both parties means requiring an aggrieved person to sue within a reasonable period of time. Admittedly, what constitutes a reasonable time is debatable.

Research has shown memory can be unreliable at pretty much any time, but requiring that litigation be pursued while any witnesses are still likely to be alive and probative evidence is likely to be obtainable–seems only fair. 

It’s the process that is “due.”


  1. So, I guess we ought to do away with that no statute of limitation on murder thingy. And for those religious and educational organizations that cover up sex crimes of their members against children, well, gee whiz, their leaders will be thrilled with such limitations. Wow!

  2. Sound explanation that I wish everyone would read. I believe that there is widespread misunderstanding of both the nature of being human and the more legal process, conventional matters of the law. In addition to what you write, I would point out that even the witnesses, also human, have their memory issues as well. I believe that the ordinary person almost automatically assumes that when a suit against an accused is dismissed for reasons of the statute of limitations having been exceeded, the accused is guilty and has “beaten the system.” This falls into the same category as the general practice of the public’s pronouncing someone guilty based upon circumstantial evidence, before the case has even had a chance to make it to court. Anyone who understands the nature of public opinion and the justice system, should have a much greater appreciation of the need for that system.

  3. The claim/accusation of the “consensual sex you later regretted” is often the only defense of too many sexual predators. Trump and Kaufman are two examples; and let us not forget Prince Andrew. Celebrity – and money – are the best protections against all levels of criminal charges before the clock starts ticking away the statute of limitations. Can charges of all levels of sexual abuse, which were initially dropped, be reinstated or does the time frame of the accused crime protect the accused under the statue of limitations?

    “Admittedly, what constitutes a reasonable time is debatable.”

    Another question is; who is the statute of limitations protecting?

  4. In the 60s, I’m sure Bob’s memory was cloudy with all kinds of things. 😉

    These cases are lose-lose to me. I can argue all the points for both the accuser and the defendant, and it becomes a who do you believe fest. I had a good friend whose teaching career was destroyed by a vindictive ex-wife (once a student) who claimed she had been sexually abused while a student. She later retracted, but just the accusation submarined his teaching career.

    And remember Gwyneth Paltrow who came out against Harvey Weinstein after years of partying with Harvey in Hollywood. How many victims could she have spared had she come out when it happened, but then what would have happened to her career in Hollywood? It creates a moral twist. The Weinstein case was a great example of these moral twists.

    In 2017, Jonah Goldberg wrote this in the Chicago Tribune, and I quoted him in my own blog:

    “That brings me to the one group that has understandably been spared any criticism at all: the victims. I don’t condemn their silence when young and powerless. But there’s a real problem: Many stayed silent for decades, happily pocketing money from people they were willing to denounce only after it was safe — or even profitable — to do so.

    That hypocrisy may be the most dangerous because it sends the signal to young women that such compromises pay off and you can buy indulgences after you’re successful. That’s not a message I want my teenage daughter to hear.”

    Needless to say, the men haters club in my community wanted my neck in a noose for calling Gwyneth a hypocrite even though I posted half a dozen pics of her partying with Harvey after the referenced incident.

    Like I said, lose-lose. 😉

  5. As for “who is the statute of limitations protecting”, our system has always been based on innocent until proven guilty.

    Here is another case, the Boy Scouts have declared bankruptcy because of the New York law. When the process started several years ago, they had knew they had liability from some 570 cases dating to to the mid 80’s and before. Knowing they had problems, starting in the 80’s, they have developed and implemented some of the best child protection protocols in the world. Unlike the Catholic Church, their policies and training have been and continue to be model programs.

    After the NY Law was implemented, BSA set up a public claims process and set about a process to fund a sizable ($850,000,000) victims compensation fund. Once that became widely publicized, there are now 87,000 claims (pre mid 80’s and before) that have come forward, all through third party lawyers. The bankruptcy is now in the courts and recently made news. If I understand it correctly the big news was that the predatory lawyers that “discovered” these 87,000 other claims are now very close to not getting paid any legal fees because BSA had already set up a system to file claims without using a lawyer.

    So, in this case, BSA knowing they were not innocent, and knowing they had liability from long past misdeeds, they tried to compensate victims and at the same time move forward, they are now buried under the onslaught of predatory lawyers and newly discovered “victims”.

    1985 was only 36 years ago, how do you prove anything? If there were truly 87,000 pre 1985 victims, these guys deserve to be thrown in jail and the organization dissolved. This also begs the question, if things were that bad, where are what should be the tens of thousands of victims after 1985? For maybe 99.99% of these cases, it looks like an easy money grab with cases that are un-defendable based on unsubstantiated memories from newly discovered victims.

    There are good reasons to have statute of limitations , but old past mis-deeds should be admitted as evidence to prove patterns of behavior in new crimes even if they were not prosecuted at the time.

  6. Perfect justice will never be attained by the wronged or the wrongdoers via such vehicles as the statute of limitations, and for a reason: Perfect justice is a concept, not a reality. The employment of this time-limiting motion to dismiss on the merits is going to be wrong in some cases and right in others, and there are good arguments available to any and all on either side based on known factual situations. There is thus justice, imperfect as it may be, in time-limiting criminal allegations, and until someone can come up with a better way to advance our ways and means in administering a more perfect system I, personally, will stick with the current system.

    I suppose that in this day and age we could install a Big Brother electronic system in which every move by every person 7-24 is subject to survelliance by some central recording system and thus any such wrongs could be (under some view of the Constitution as O.K.) immediately redressed, but I think that would only add new imperfections to the already imperfect and I am not willing to add new imperfections to those under which we already laboring.

  7. I just read an report on NPR about how rape victims often do not recall well the traumatic incident. I have worked with victims of child sexual abuse who had repressed the incident to the point they had no memory of it till years later. This is a psychological defense against overwhelming trauma. I always felt deeply complimented when someone told me they had been molested as a child, or raped at some point in his/her life. I was often told that I was the first person he/she had ever told of the trauma.

    In this country people are assumed innocent till proven guilty which includes sexual predators and rapists. The victims are often re-traumatized on the stand by the defense attorney and often by police officers who don’t fully understand the defense mechanisms used by those who have been sexually violated. And then of course, there are additional problems to the victim’s memory if he/she was intoxicated or someone slipped in a date rape drug. There is a long history of blaming the victim because of the way she was dressed at the time of the rape, or that she got intoxicated, or perhaps was an adolescent at a party where she/he should not have been etc. If you want to see a dramatic presentation of this, there is an excellent presentation on Private Practice in which a doctor has trouble coming to terms with the trauma after she is raped in her office.

    Then there is the horrific stigma for the victim, the shame and self-blaming.

    All of these obstacles in a man/woman’s ability to cope with the trauma and the additional trauma experienced by the criminal “justice” system make many victims extremely reluctant to sue their assailant.

    It is reported to be rare that women make false claims of sexual assault against men, but it does happen.

    If we are going to get girls, women, boys, and men to come forward quickly after being raped,molested, harrassed etc., then somehow we have to help them overcome shame and stigma. We have to allow therapists to interview them about the assault instead of police officers because therapists are more adept at helping people with trauma remember what happen without retraumatizing them. They need to be allowed time to do this.

    Until we remove the shame and stigma and change who works with the victim, we will continue to hear allegations made many years after the assault/rape. This makes it much harder to allow Lady Justice to balance the scales and ensure that the rights of both the plaintiff and defendant are protected.

  8. Silly me. I thought the example of someone being sued for something that supposedly happened 56 years ago was so extreme that there would be no dissent about the need for reasonable statutes of limitations. Apparently I was wrong.

    What does a statute of limitations protect? It protects JUSTICE! We don’t assume people are guilty (or in civil cases – liable) based on an accusation. Unlike in criminal cases where the burden of proof is proof beyond a reasonable doubt, in civil cases, all the plaintiff has to do is to tip the scales of justice in his/her direction. In this type of case, the mere sworn testimony of the plaintiff might be enough to force the defendant into the position where he has to offer evidence to prove a negative…that the event never happened.

    Good luck getting that evidence. The doorman’s dead. Other possible witnesses are dead, can’t be located, or can’t remember what happened. No video of those entering and leaving the apartment exists.. Written records have been been destroyed. How are you, as Dylan’s attorney, going to prove it didn’t happen? Quite likely you can’t. Most likely Dylan’s attorney will advise settlement, not because Dylan did something wrong 56 years ago, but because he can’t prove he didn’t do anything wrong 56 years ago.

    It’s now being reported that Dylan might have been in Europe on a concert tour during the April, May 1965 time frame when he supposed molested the 12 year old who is now 68.. No problem. The plaintiff just amends the complaint to change the date of the supposed molestations. And I can’t fault the person for perhaps getting the original dates wrong. After being in Costco for 56 minutes, I can’t remember where I parked my car. I can’t imagine being able to remember dates or specifics of events that happened 56 years ago.

    And that’s exactly why we have statutes of limitations.

    Those people who believe we shouldn’t have statutes of limitations need to put themselves in Dylan’s shoes. What if YOU were sued for sexual molestation based on something that supposedly happened in 1965. Would you think that’s fair? Would you be able to marshal a defense to the accusation? Most likely not.

    Admittedly there are horrific examples of sexual abuse in which the perpetrator gets to walk because of the statute of limitations. But there has to be a balance between letting bad guys walk because of an SOL, and the abuses of justices which can occur when innocent people are falsely accused of misconduct that is decades old, and they have no way of defending themselves. That again is why we have statute of limitations.

    I would reiterate what Sheila said too. Just because a statute of limitations has run does not mean the allegations are manufactured. It just means that the justice system is no longer available to the plaintiff to proceed with his or her legal claim.

  9. Many good comments, and the “Who is being protected?” is primary among them.
    Sadly, but realistically, memories change over time. It has been written that each time someone tells the story of an event,the story shifts a bit.
    Then there was (I hope not still is) the issue of “recovered memories,” wherein therapists unwittingly “planted” memories of trauma that never happened. I have a cousin to whom that happened.

  10. I am not sure how justice is best served on this front, but as a former child therapist I know that very often child sexual trauma is repressed and lives in the unconscious for many years. Because of the “reasons” (i.e. lies) told by perpetrators to victims, the victim learns to repress memories or becomes convinced that telling someone else about the abuse will make the situation infinitely worse. Many of these “reasons” make sense to a child and are believed for decades after the abuse. If and when the victim finally begins to confront the abuse, the process is harrowing and often retraumatizes the adult. I think the justice system might be able to figure out if a law suit is being brought for purely monetary gain or if the victim is truly seeking resolution to the trauma by confronting the abuser. A skilled defense attorney should be able to do this. Too many perpetrators are walking the street because of repressed memories and the reasonable disinclination of victims to seek legal justice.

  11. Don’t forget that false accusations and baseless prosecutions are also a favorite tool of authoritarian dictators and wannabes. We can’t have perfectly robust systems to protect legitimate victims because they will be used as weapons by those who use imbalances in power to gain personal advantages, and that includes sociopathic power seekers like, for example, many in the Republican Party. Beware the power of prosecution.

  12. I suggest a statute of limitations at 5 years after the victim first mentions the incident to any third-person, including any spouse, lawyer, clergyman or medical provider or 5 years after the victim turns 18 if the incident is first mentioned during the victims minority.

  13. There are also those within the Justice system who cover up evidence and present false evidence; there are those who apply plea agreements by dropping charges or getting defendants to plead guilty to clear other charges off of court calendars for lower sentences. Not all of the criminals in our courts have been arrested and convicted in our court systems; they can be found on both sides, prosecution and defense, both before and behind the judges bench.

    My youngest brother, who spent half of his short life in and out of jails, prisons and mental institutions beginning at age 15, had an interesting way to view the legal system. He was known and disliked intensely by many police officers and jailers; he was not always guilty of the charges he was convicted of or received unfair longer sentences than his crime warranted. When asked why he didn’t fight for justice; he said he figured he was serving time for crimes they didn’t catch him for. He was murdered at age 32; police did little investigating, even after being told who his killer was, they declared his death a bizarre accident. That was in 1976; I still miss him.

  14. I won’t get into the legal issues here. It is too difficult for me to balance delayed justice, the inability to find reliable witnesses, and the various other factors.

    I will make two points.

    I remember, as an undergraduate, being taught about the experiments of Wilder Penfield, who during surgery for epileptic patients, stimulated parts of the brain in an effort to spare functional tissue. He discovered that the stimulation could trigger memories, visual, auditory and olfactory. The way it was taught is that the brain is a recorder, faithfully recording exact memories of the true situations.

    Sadly, may people still believe in the infallibility of memory. Equally sadly, it isn’t true. If we were totally honest, eye witness testimony would be taken with more than a grain of salt, even if given within a week.

    Secondly, I remember the McMartin preschool trial and similar trials that happened around the country at the time (1980s), ruining the lives of innocent people.

    Trauma can repress memories, but the recovery of those memories may or may not be accurate.

    It comes down to he said/she said, and most of the time, I wouldn’t know who to believe IF I want to be totally non-biased.

    As an example, I don’t believe Bret Kavanaugh, but that is because he seemed to be an arrogant SOB. I am not certain I could state with certainty that I didn’t have some prejudice against the man in this case. Either of them could have been telling the truth.

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