I don’t have a cite. And even if I did, I find it hard to highlight and copy more than one text to my smartphone. But I will try to paint the picture for you as best I can.
It was, oh, 15 or 20 years ago. And some states were thinking of changing the statute of limitations on child molestation. The argument went, some victims don’t come forward till years later. The only problem was it had already expired for some offenders. So the authorities would be changing the law years later.
Anyway the courts blocked them. And at least where I live (SE Michigan) the media was outraged. ‘Liberal courts’ they all complained. And I assume the public agreed.
I am not trying to minimize what these people did. But doesn’t the US Constitution say
(Emphasis mine.)
Wouldn’t changing ANY part of the law be an ex post facto law? Or is it only part of the law?
And what about the ‘liberal’/activist judge criticism? Wouldn’t an original intent judge be more likely to see there is no exception to this rule, as opposed to a more flexible judge who might argue ‘compelling state interest’?
I can trust you can see why I am confused here. (Side note. There is a similar clause in the Constitution applied to the federal government. But I couldn’t find them anywhere together to highlight and paste.)
Child molestation was a crime when the molestation happened. The states did NOT make a previously legal activity illegal. So I don’t think the prohibition on ex post facto laws applies.
But it does appear to “aggravate the crime by bringing it into a more severe category than it wsas in when it was committed”; it brings it into the category of crimes for which there is no temporal limit on prosection. Or, it changes the punishment; the day after this law is passed you can be punished in a way that you could not be the day before. Fairly clearly, this law exposes people accused of this crime to a greater peril than they were exposed to at the time they are alleged to have committed the crime.
I don’t believe you can change the statute of limitations to prosecute crimes committed in the past. i.e. If they charge you for a sexual assault that happened in 2005 the laws of that year would apply rather than whatever changes were made in 2019. If the statute of limitations was ten years in 2005 they can’t charge you in 2019 if the statute of limitations was eliminated or extended that same year.
Short version: If the statute of limitations had already expired, it cannot be revived by a new law. Ex Post Facto. If it had not (let’s say that there was previously a 5 year SOL, and you were in year 3) then the statute of limitations could be extended with no ex post facto issue.
“A law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution.” Stogner v. California, 539 U.S. 607 (2003).
The Court sort of split the baby on that. Imagine that I commit mopery in 2005 and mopery has a 5 year SOL. In 2008, the legislature eliminates the SOL on mopery and I am finally detected and prosecuted in 2015.
It’s not as if they retroactively made mopery illegal. I knew when I did it that it was wrong. The idea that when I did it that I knew that if I could evade the law for 5 years and I was home free is not really one of those freedom loving objectives that the ex post facto clause wanted to protect. And having evaded the law for 3 years and crossing my fingers hoping that two more years pass, it doesn’t seem improper for the state to say, well, forget it, you can wait forever. At this point, you haven’t reached the point where you can feel secure that you got away with your crime.
However, the settled case. That I did commit mopery in 2005, and now it is 2011 so I cannot be punished is a more concrete interest. Things are done; I made a mistake, but the law says that it cannot come and get me, and I will therefore now restructure my life as one of religious fulfillment.
But, boom, the legislature wants to change the law so it can now prosecute you. That seems…different from the prior example, and I think a reasonable distinction between the two.
ETA:
Example 1: You were not free from prosecution and you still aren’t, but now for a longer time.
Example 2: You are free from prosecution, but we are changing that status and making you subject to prosecution. Much different.
but didn’t new york just have a thing saying that for a year or so they were letting victims start cases because of the boy scouts and the priest controversies even if the deadline for filing such claims had passed ?
That one was for *civil *claims; Ex Post Facto applies in criminal law.
In most if not all states, child sex abuse statutes of limitations start ticking after the victim becomes an adult. The limits in NY were raised for both civil and criminal but the new limits apply to the unexpired cases. Civil cases up from 5 years after age 18 to until the victim’s 55, felonies from 5 years to 10, misdemeanors from 2 years to 7 after age 18.
