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Stogner V. California: a Collision Between the Ex Post Facto Clause and California's Interest in Protecting Child Sex Abuse Victims Ashran Jen

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Stogner V. California: a Collision Between the Ex Post Facto Clause and California's Interest in Protecting Child Sex Abuse Victims Ashran Jen Journal of Criminal Law and Criminology Volume 94 Article 7 Issue 3 Spring Spring 2004 Stogner v. California: A Collision between the Ex Post Facto Clause and California's Interest in Protecting Child Sex Abuse Victims Ashran Jen Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Ashran Jen, Stogner v. California: A Collision between the Ex Post Facto Clause and California's Interest in Protecting Child Sex Abuse Victims, 94 J. Crim. L. & Criminology 723 (2003-2004) This Supreme Court Review is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4 169/03/9403-0723 THEJOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 94, No. 3 Copyright Q 2004by NorthwesternUniversity, Schoolof Law Pintedin USA. STOGNER v. CALIFORNIA: A COLLISION BETWEEN THE EX POST FACTO CLAUSE AND CALIFORNIA'S INTEREST IN PROTECTING CHILD SEX ABUSE VICTIMS Stogner v. California, 123 S. Ct. 2446 (2003) I. INTRODUCTION In Stogner v. California,' the United States Supreme Court held that California Penal Code section 803(g), 2 which extended the statute of limitations for prosecuting child sex abuse crimes in California, violated the Ex Post Facto Clause3 of the Constitution where the original statute of limitations had tolled before the drafting and implementation of 803(g). This Note argues that the Supreme Court's decision was incorrect and that section 803(g) does not violate the Ex Post Facto Clause. While the majority used the correct analytical framework in considering the issue, it ultimately came to the wrong decision. It misinterpreted precedent and failed to adequately consider the comprehensive scientific literature documenting the unique traumas and recovery processes faced by child sex abuse victims. The dissent, however, did not provide a satisfactory response either because its framework for analyzing the issue was too narrow and discounted the importance of public policy. A collective analysis of precedent, history, and public policy is necessary to determine the legality of section 803(g). With no case law having addressed this issue, precedent is sufficient only to establish the general categories of ex post facto laws and the historical underpinnings of ex post facto jurisprudence. To accurately determine whether section 803(g) fits the profile and characteristics of an ex post facto law, a consideration of the statute's public policy implications is necessary. The result of this analysis shows that section 803(g) does not have the unjust characteristics of an ex post facto law as it protects a unique victims' 1 123 S. Ct. 2446 (2003). 2 CAL. PENAL CODE § 803(g) (West 2003). 3 U.S. CONST. art. I, § 10, cl. 1. SUPREME COURT REVIEW [Vol. 94 interest while adequately safeguarding against any harms that would trigger ex post facto concerns. Finally, this Note predicts that similar provisions in other statutes seeking to extend expired limitations periods for prosecuting criminal offenses are likely in jeopardy. This will impact all types of legislation ranging from state laws covering child abuse crimes to the federal USA PATRIOT Act.4 The unfortunate consequence of the Stogner holding is that courts will now have to rigidly invalidate statutes if they are similar to section 803(g). Such a restricted application of the law makes no sense because courts will be compelled to invalidate laws without considering the resulting impact on public policy. II. BACKGROUND A. EX POST FACTO CLAUSE "Ex post facto" is translated from the Latin as "from a thing done afterward" and is colloquially understood to refer to actions, decisions, or formulations done after the fact and retroactively, particularly in relation to law.5 The United States Constitution contains two Ex Post Facto clauses with the first applying to the federal govemment and the second applying to the states.6 The first Ex Post Facto Clause prohibits the United States Congress from passing an ex post facto law.7 While Stogner did not involve a federal Congressional statute, the Supreme Court's holding in Stogner does have direct ramifications on Congress' ability to pass certain types of retroactive laws.8 The second Ex Post Facto Clause prohibits a state from passing an 4 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified as amended in scattered sections of 18 U.S.C.). 5 See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 410 (10th ed. 1993); BLACK'S LAW DICTIONARY 601 (7th ed. 1999). 6 See U.S CONST. art. I., §§ 9-10. 7 U.S. CONST. art. I, § 9, cl. 3. 8 This Note will consider Stogner v. California'spotential impact on the USA PATRIOT Act, the PROTECT Act, and other state statutes. See infra text accompanying notes 219- 233. The USA PATRIOT Act contains a provision eliminating the statute of limitations for terrorist crimes which resulted in foreseeable death or severe bodily injury. See USA PATRIOT Act § 809, 115 Stat. at 272. The PROTECT Act eliminates the statute of limitations for prosecuting sexual and physical abuse and kidnappings committed against children under eighteen. See PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (codified as amended in section 202, 18 U.S.C. § 3283 (2003)). 2004] STOGNER v. CALIFORNIA ex post facto law,9 and this is the constitutional clause at issue in Stogner's challenge against California. B. CALDER V. BULL In Calder v. Bull, a late eighteenth century case involving a probate dispute over the property of a Connecticut doctor, the Supreme Court for the first time set forth an explanation of ex post facto laws prohibited by the Constitution.1° Justice Chase established four major categories of ex post facto laws: 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different; testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive.] In distinguishing unconstitutional ex post facto laws from constitutional retroactive laws, Justice Chase suggested that legitimate laws applied retroactively, such as pardons mitigating criminal punishments, do not have the onerous characteristics found in ex post facto laws which make previous 1 2 lawful acts unlawful or laws that aggravate punishment. Justice Chase relied on several sources of authority in recognizing four major categories of ex post facto laws. First, language from the Constitutional Conventions of Massachusetts, Delaware, North Carolina, and Maryland all prohibited punishing individuals for crimes that were not criminal when committed.1 3 Justice Chase also found that his four categories were consistent with a historical understanding of ex post facto doctrine articulated by legal practitioners, legislators, and scholars, but his opinion did not explain how his categories were consistent with these views.14 Furthermore, the Court found a certain philosophical grounding that a "fundamental principle flows from the very nature of our free 9 "No state shall enter into any... ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility." U.S. CONST. art. I,§ 10, cl.1. 10 3 U.S. 386 (1798). " Id. at 390 (emphasis added). 12 Id. at 391. Further examples of permissible retrospective laws include those that "save time from the statute of limitations; or . excuse acts which were unlawful, and before committed, and the like." Id. 13Id. at 391-92. 14Id. at 391. SUPREME COURTREVIEW [Vol. 94 republican governments, that no man should be compelled to do what the ' 5 laws do not require."' In explaining why the drafters of the U.S. Constitution added two Ex Post Facto clauses to limit the power of federal and state legislatures, Justice Chase suggested that the United States had witnessed and learned ' ' 6 from Great Britain's retroactive use of "acts of violence and injustice. 1 One category of such unjust acts passed by Parliament included "times... they inflicted punishments, where the party was not, by law, liable to any punishment."' 7 While Justice Chase did not explicitly state that such acts were ex post facto, he clearly disapproved of these unjust Parliamentary 8 actions. ' C. OTHER EX POST FACTO JURISPRUDENCE It is well established that extending the statute of limitations for prosecuting crimes which have not become time-barred is not a violation of the Ex Post Facto Clause.' 9 However, aside from Stogner, not one United States Supreme Court case or any other federal court case has directly addressed the constitutionality of a statute extending the limitations period for an already expired statute in the criminal or civil context. 20 In Falterv. United States, a case involving the extension of a limitation period for an unexpired statute, Judge Learned Hand opined that "certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life."' 2' Thus, "the question turns upon how much violence is done to our 22 instinctive feelings of justice and fair play., To add support to his comment, Judge Hand cited a New Jersey case, Moore v.
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