DIVISION OF LEGISLATIVE SERVICES
VIRGINIA LEGISLATIVE ISSUE BRIEF
Number 35                   September 2003

United States Supreme Court
Decides Ex Post Facto Case:

Virginia Code and
Constitution Affected

Ellen Bowyer, Staff Attorney

On June 26, 2003, the United States Supreme Court issued a 5–4 ruling reversing application of California Penal Code § 803 (g) in the matter of Marion Reynolds Stogner v. California. California’s statute, enacted in 1993, authorized criminal prosecution of cases involving sexual abuse of a minor after expiration of the previously applicable three-year statute of limitations. In a hesitant, narrowly drawn opinion, the Supreme Court held that application of California’s statute in Stogner’s case violated the Ex Post Facto Clause because the statute had been enacted after the statute of limitations applicable to Stogner’s crime already had expired and operated to revive a previously time-barred prosecution. The Stogner holding blocks application of subdivision 6 of Virginia Code § 8.01-249 — which establishes the accrual date for sexual abuse of minors — to cases alleging abuse committed prior to 1989 and limits the scope of a constitutional amendment permitting the General Assembly to make retroactive changes in accrual dates for intentional torts against minors.

Marion Reynolds Stogner v. California:
Supreme Court Decision

Background

Statutes of limitations establish the time periods within which the government or a plaintiff may file suit in civil and criminal matters and vary depending on the crime or tort at issue. For example, in Virginia, individuals generally must file personal injury actions within two years of the injury and actions for breach of a written contract within five years of the breach. For some crimes, most notably murder, there is no statute of limitations. A prosecution or civil action is “within the statute of limitations” when it is brought within the applicable time period; “time-barred” if the government or plaintiff has waited too long. When the term of years of a statute of limitations ends with respect to a given individual, the statute is said to have “expired.”

As a general rule, once a statute of limitations has expired, a person may not be prosecuted for the crime. The rationale underlying statutes of limitations involves principally evidentiary considerations: after extensive passage of time, evidence supporting either the prosecution or the defense may be stale or no longer available, and a fair trial may be impossible.¹

The United States Constitution directs that “[n]o state shall…pass…any…ex post facto Law…” (Art. I, §10, cl. 1). An “ex post facto law” is one “passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed.”² The Constitution forbids the state and federal governments from criminalizing an action, and prosecuting an individual for engaging in such an action, after the action already has occurred. The question that Stogner posed for the Supreme Court is whether the Ex Post Facto Clause prohibits the government from extending statutes of limitations in criminal prosecutions in cases where the statute of limitations already has expired.³ In short, is extension of a statute of limitations, after the initially authorized time period for bringing suit has passed, tantamount to criminalizing an action after the fact? The Court held that it is.

Facts and Procedural History

In 1993, California enacted a new criminal statute of limitations — California Penal Code § 803 (g) — governing crimes of childhood sexual abuse. Section 803(g) permitted prosecutions of crimes where the prior statute of limitations already had expired, provided that the victim has reported an allegation of abuse to the police, independent evidence clearly and convincingly corroborates the allegation, and prosecution begins within one year of the report. A 1996 amendment to § 803(g) specified that any prosecution satisfying the three conditions would revive any cause of action barred by prior statutes of limitations.

Petitioner Marion Stogner was indicted in 1998 on charges of sexual abuse committed between 1955 and 1973. At the time the abuses were alleged to have occurred, the applicable statute of limitations was three years. Stogner thus was charged 22 years after the last possible date for an indictment under prior law.

The trial court granted Stogner’s motion to dismiss the suit, agreeing that the Ex Post Facto Clause blocked reviving a prior prosecution where the statute of limitations had expired. The California Court of Appeal reversed. Stogner then moved to dismiss the indictment on the grounds that it violated both the Ex Post Facto Clause and the Due Process Clause. The trial court denied the motion and the California Court of Appeal upheld the denial. The Supreme Court granted certiorari as to both questions, and reversed.⁴

Decision

The Supreme Court held that “a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause where it is applied to revive a previously time-barred prosecution.”⁵ The holding contains two distinct requirements: for its application to be found unconstitutional, the statute at issue must be (i) enacted “after expiration of a previously applicable limitations period” and (ii) “applied to revive a previously time-barred prosecution.”

The Court did not invalidate California’s statute but only reversed the California courts’ decisions denying dismissal of Stogner’s case. The Court reversed in Stogner’s case because § 803(g) was enacted 17 years after expiration of the statute of limitations applicable to his alleged crimes and operated to revive a prosecution against Stogner that otherwise would have been time-barred. Thus, “[t]he statute before us is unfairly retroactive as applied to Stogner.” (emphasis added).

Basis for the Holding

The Court supports its holding with three arguments. First, the statute authorized the kind of “manifestly unjust” consequences that are fundamentally unfair.⁶ Second, California’s statute falls within two categories of ex post facto laws identified by Justice Chase in the seminal opinion Calder v. Bull, 3 Dall. 386 (1798). Specifically, the statute (i) aggravated the crime, making it greater than it was when first committed and (ii) altered the rules of evidence such as to require less evidence to convict an offender than when the crime was committed.⁷ Third, there is a well-settled tradition in America, expressed by “legislators, courts and commentators” that the Ex Post Facto Clause forbids resurrection of a time-barred cause of action.⁸

Throughout the analysis, the Court draws a clear distinction between laws with retroactive effect that are enacted after expiration of the statute of limitations applicable to a specific defendant, and those enacted before expiration: “Even where courts have upheld extensions of unexpired statutes of limitations (extensions our holding today does not affect, see supra at 5-6), they have consistently distinguished situations where limitations periods have expired.”⁹ (second emphasis added). The Court emphasizes that its decision “does not prevent the state from extending time limits for the prosecution of future offenses, or for prosecutions not yet time-barred.”¹⁰ California’s Penal Code
§ 803(g) is unconstitutional only to the extent that the state attempts to use it to indict defendants for whom the three-year statute of limitations, in place prior to enactment of the statute, had expired prior to 1994, the effective date of the new statute.

Basis for the Dissent

The dissent’s fundamental disagreement with the majority’s decision stems from its belief that the second category described by Justice Chase in Calder v. Bull is implicated only where the elements of the crime change: “[A] law which does not alter the definition of the crime but only revives prosecution does not make the crime ‘greater than it was, when committed.’”¹¹ In the dissent’s view, Calder v. Bull established a clear and comprehensive model for identifying those laws with unconstitutional ex post facto results: “The first three categories guard against the common problem of retroactive redefinition of conduct by criminalizing it (category one), enhancing its criminal character (category two), or increasing the applicable punishment (category three)”¹² (emphasis added). Because California’s law neither added new elements not present at the time of the offense, nor increased the punishment for which Stogner was eligible at the time of the offense, the dissent did not find the statute violative of the Ex Post Facto Clause.

Characterizing the majority’s distinction between expired and unexpired statutes of limitations as illogical, the dissent also rejects it as reflecting a mistaken belief that criminals either do or should have a reliance interest in knowing that at some point in time, they will be beyond the reach of the law: “When the criminal has taken distinct advantage of the tender years and perilous position of a fearful victim, it is the victim’s lasting hurt, not the perpetrator’s fictional reliance, that the law should count the higher.”¹³

Implications for Virginia

Virginia’s Constitution contains a prohibition against ex post facto laws similar to that in the United States Constitution.¹⁴ Further, although Virginia has authorized retroactive application of provisions enacted under Title 8.01, it has exempted from that retroactive application provisions affecting limitations of action (§ 8.01-256 of Chapter 4), as well as any retroactive application that “(i) may materially change the substantive rights of a party (as distinguished from the procedural aspects of the remedy) or (ii) may cause the miscarriage of justice” (Va. Code Ann. § 8.01-1). Virginia’s Constitution, however, authorizes the General Assembly to amend retroactively accrual dates for intentional torts to minors and to apply those amended dates so as to extend statutes of limitations even against persons for whom the statute of limitations already has expired. The Virginia Code also contains a provision that appears to permit the kind of retroactive application of a statute of limitations that Stogner prohibits.

Virginia’s Statutory Accrual Dates for Child Abuse

The determining date for when the clock starts running on a given statute of limitations is called the accrual date. In Virginia, most accrual dates are the date the wrong occurred, regardless of the victim’s knowledge of the injury (§ 8.01-230). A given statute of limitations may be tolled (i.e., the clock is stopped) where the victim is under a “disability,” such as youth (§ 8.01-229). Code § 8.01-249 contains special accrual dates for certain actions that are not amenable, for various reasons, to standard accrual provisions. In 1991, the General Assembly amended § 8.01-249 by adding a new subdivision 6 that established special requirements for accrual of a cause of action for sexual abuse to minors:

In actions for injury to the person, whatever the theory of recovery, resulting from sexual abuse occurring during the infancy or incompetency of the person, when the fact of the injury and its causal connection to the sexual abuse is first communicated to the person by a licensed physician, psychologist, or clinical psychologist. However, no such action may be brought more than ten years after the later of (i) the last act by the same perpetrator which was part of a common scheme or plan of abuse or (ii) removal of the disability of infancy or incompetency.

As used in this subdivision, “sexual abuse” means sexual abuse as defined in subdivision 6 of § 18.2-67.10 and acts constituting rape, sodomy, inanimate object sexual penetration or sexual battery as defined in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2.

The legislation included a retroactivity clause providing

That the provisions of subdivision 6 of § 8.01-249 shall apply to all actions filed on or after July 1, 1991, without regard to when the act upon which the claim is based occurred provided that no such claim which accrued prior to July 1, 1991, shall be barred by application of those provisions if it is filed within one year of the effective date of this act¹⁵(emphasis added).

Prior to 1991, the statute of limitations for sexual abuse was two years after the last act of sexual abuse, tolled until the minor reached the age of majority. The 1991 legislation changed the trigger for the accrual date from the act to the victim’s discovery, from a licensed professional, of the effect of the abuse on the victim’s life, with an overarching 10-year ceiling. The final clause appears to operate as a catchall to ensure that the enactment did not have some unforeseen effect such as to bar an otherwise valid claim.

An example is necessary. Assume that a perpetrator committed sexual abuse against a 15-year-old in 1980. The two-year statute of limitations would be tolled for three years (until 1983) until the victim reached the age of majority. Under the prior law, the victim would have had to file suit by 1985 (two years after attaining majority). Under the new law, if the victim had not filed suit by 1985 and the statute of limitations had expired in 1985, she still would be able to file a suit as late as 1993 using the 10-year ceiling in §8.01-249(6)(ii). The new statute thus clearly had the type of retroactive effect (i.e., it was applicable to persons for whom the statute of limitations already had expired at the time of the law’s enactment) found unconstitutional in Stogner.

Decision by the Virginia Supreme Court

In 1992, the Virginia Supreme Court held that application of subdivision 6 of § 8.01-249 in cases where the statute of limitations had expired prior to enactment of that statute violated the due process guarantees in Virginia’s Constitution.¹⁶ Marjorie Starnes filed suit against Robert Cayouette in July 1991, alleging that Cayouette had sexually abused her from 1969 until 1978.¹⁷ Starnes attained her majority in 1982. In 1990, Starnes’s psychologist advised her of the causal connection between the sexual abuse and the numerous physical and mental problems she was experiencing.¹⁸ Starnes filed suit in July 1991, stating several civil and criminal counts.¹⁹ Defendant argued that the suit was barred due to the expiration of the two-year statute of limitations for personal actions (calculated after Starnes reached the age of majority in 1982), and Starnes responded by asserting subdivision 6 of § 8.01-249.²⁰

The trial court sustained the defendant's plea, finding that the retroactivity provisions violated Cayou-ette’s constitutional due process guarantees.²¹ The Virginia Supreme Court granted an appeal as to whether “upon the lapse of the time fixed in the statute of limitations and the tolling statute, the defendant acquired a right protected by due process guarantees.”²²

The Court held that the defense of the statute of limitations is a substantive right that cannot be abrogated by legislation.²³ The legislature can extend statutes of limitations to increase the time in which suit could be filed, but such extensions cannot be applied to persons for whom the applicable statute of limitations had expired prior to the statute’s enactment.²⁴ The Virginia Supreme Court’s holding thus mirrors that of the United States Supreme Court except that it is rooted in the due process clauses of Virginia’s Constitution rather than the states’ ex post facto clause in the United States Constitution.

The Constitutional Amendment

In 1994, Virginia’s voters ratified an amendment to the Constitution, adding the following language as the fourth paragraph in Article IV, § 14:

The General Assembly’s power to define the accrual date for a civil action based on an intentional tort committed by a natural person against a person who, at the time of the intentional tort, was a minor shall include the power to provide for the retroactive application of a change in the accrual date. No natural person shall have a constitutionally protected property right to bar a cause of action based on intentional torts as described herein on the ground that a change in the accrual date for the action has been applied retroactively or that a statute of limitations or statute of repose has expired (emphasis added).

This constitutional amendment gave the General Assembly the power to do precisely what the Supreme Court has declared unconstitutional: enact a law extending a statute of limitations after the preceding statute of limitations already has expired.

Additional Modification of the Statute

In 1995, the General Assembly eliminated the 10-year ceiling on sexual abuse claims contained in subdivision 6 of § 8.01-249.²⁵ Then, in 1996, the General Assembly exercised its power under the constitutional amendment to modify subdivision 6 again:

That as authorized by Section 14 of Article IV of the Constitution of Virginia, Chapter 268 of the 1995 Acts of Assembly [i.e., elimination of the 10-year ceiling] shall apply to all actions accruing on or after July 1, 1991, for injury to the person resulting from sexual abuse occurring during the infancy or incompetency of the person and which were or are filed on or after July 1, 1995.²⁶

The 10-year cap was established in the original bill of 1991. This bill eliminates that cap, effective 1991. Had the 10-year cap been applicable to a case which accrued in 1991, however, that 10-year period would not have run by July 1, 1995. Setting aside the validity of the underlying change to the accrual date, this particular retroactive lengthening of the statute of limitations applicable to childhood sexual abuse appears constitutionally permissible.

In 1997 the General Assembly again amended subdivision 6 to clarify that the “discovery” accrual rule in subdivision 6 applies only where the fact of the injury and its causal connection to the abuse are not known to the plaintiff within the otherwise applicable limitations period.²⁷ The legislation included a clause stating that it was declaratory of existing law. Today, subdivision 6 of Va. Code Ann. § 8.01-249 reads as follows:

§ 8.01-249. When cause of action shall be deemed to accrue in certain personal actions.

The cause of action in the actions herein listed shall be deemed to accrue as follows:…
6. In actions for injury to the person, whatever the theory of recovery, resulting from sexual abuse occurring during the infancy or incapacity of the person, upon removal of the disability of infancy or incapacity as provided in § 8.01-229 or, if the fact of the injury and its causal connection to the sexual abuse is not then known, when the fact of the injury and its causal connection to the sexual abuse is first communicated to the person by a licensed physician, psychologist, or clinical psychologist. As used in this subdivision, “sexual abuse” means sexual abuse as defined in subdivision 6 of § 18.2-67.10 and acts constituting rape, sodomy, object sexual penetration or sexual battery as defined in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2;…

Implications for Statute and Constitution

There are significant questions regarding the current effect of the retroactivity provisions in § 8.01-249(6). The first retroactivity provision provided that the new statute would “apply to all actions filed on or after July 1, 1991, without regard to when the act upon which the claim is based occurred” (emphasis added). For a case in which a victim suffers a final act of abuse in 1970, then reaches her majority in 1975, under the pre-1991 law, the statute of limitations would have expired by 1977 — 14 years before § 8.01-249(6) was enacted. If, notwithstanding the Virginia Supreme Court decision in 1992, the first retroactivity provision is given effect today, that same victim conceivably could file suit as late as 2003, so long as “the fact of the injury and its causal connection to the sexual abuse” had not been communicated to her any earlier than 2001. The defendant affected would be one for whom the statute of limitations had expired 14 years prior to enactment of § 8.01-249(6). The statute thus would operate retroactively in a constitutionally impermissible way pursuant to Stogner.

Article IV, § 14 of Virginia’s Constitution explicitly seeks to empower the General Assembly to extend statutes of limitation for intentional torts to minors against individuals for whom the statute already has expired. Any future use of this constitutional provision to enact legislation applicable to persons for whom a statute of limitations already has expired would be unconstitutional under Stogner, as would any subsequent similar constitutional amendment governing other torts or crimes.

Notes

¹ See Atkins v. Schmutz Mfg. Co., 435 F.2d 527 (4th Cir. 1970, cert. denied, 402 U.S. 932 (1971). Statutes of limitations promote justice by preventing revival of claims after evidence is lost, memories are faded and witnesses have disappeared.

² Black’s Law Dictionary 580 (6th ed. 1990).

³ Stogner at 4591–4592.

⁴ The Court granted certiorari as to both constitutional questions but its decision addresses only the question relating to the Ex Post Facto Clause.

⁵ Stogner v. California, 71 U.S. L.W. , 4588, 4595 (U.S. June 26, 2003), reversing 93 Cal. App. 4th 1229, 114 Cal. Rptr. 2d 37 (2001). The Constitution contains two Ex Post Facto Clauses, one governing federal actions (Art. I, §9, cl. 3) and one governing state actions (Art. I, §10, cl. 1). The Court’s holding appears to relate only to the state Clause. See Stogner at 4588 (“[W]e conclude that the Constitution’s Ex Post Facto Clause , Art. I, § 10, cl. 1, bars application of this new law to the present case”).

⁶ Stogner at 4589.

⁷ Stogner at 4589–4590.

⁸ Stogner at 4590.

⁹ Stogner at 4591.

¹⁰ Stogner at 4595.

¹¹ Stogner at 4596.

¹² Stogner at 4597.

¹³ Stogner at 4601.

¹⁴ “...[T]hat the General Assembly shall not pass any bill of attainder, or any ex post facto law.” Article I, § 9.

¹⁵ 1991 Va. Acts ch. 674.

¹⁶ Starnes v. Cayouette, 244 Va. 202, 419 S.E.2d 669 (1992).

¹⁷ Starnes at 204.

¹⁸ Id.

¹⁹ Id.

²⁰ Id.

²¹ Id. at 205.

²² Id. at 207.

²³ Id. at 212.

²⁴ Id. at 208.

²⁵ 1995 Va. Acts ch. 268.

²⁶ 1996 Va. Acts ch. 377.

²⁷ Va. Acts 1997 ch. 970.

Virginia Legislative Issue Brief is an occasional publication of the Division of Legislative Services, an agency of the General Assembly of Virginia.

E.M. Miller, Jr., Director
R.J. Austin, Manager, Special Projects
K.C. Patterson, Editor

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