Maryland Attorney General Anthony Brown says office would defend Child Victims Act in court

Maryland Attorney General Anthony Brown said his office would defend a proposed law that would make it possible for child sex abuse victims to retroactively sue their abusers and the institutions that enabled them.

Brown wrote a letter to Democratic Senate Judicial Proceedings Chairman Will Smith of Montgomery County stating his office’s most recent analysis of the pending Child Victims Act found the law was “not clearly unconstitutional,” and that Brown believes he could make a “good faith defense” of the bill’s legality if it’s challenged in court.


The letter is Brown’s first comments on the proposed bill, which has failed to pass the state Senate every year it has been previously introduced. The Child Victims Act has received renewed support after former Attorney General Brian Frosh announced in November that his office had completed its yearslong investigation into the history of clergy sexual abuse of children within the Roman Catholic Archdiocese of Baltimore.

Frosh’s office asked a Baltimore Circuit Court judge for permission to release a 456-page report, which is expected to detail instances of abuse in the church and efforts to cover them up over eight decades. The report is secret under Maryland law because it relies on materials obtained by way of a grand jury, and a judge ordered all proceedings to be kept confidential in the fight to release the report. Brown has said he also supports its release.


Brown’s stance — that the law is “not clearly unconstitutional” — is different from the position the attorney general’s office took in 2019, and at odds with the Maryland Catholic Conference, the church’s lobbying arm. Brown’s letter came Wednesday, on the eve of a public hearing for the Child Victims Act in Smith’s committee.

Dozens of survivors and advocates were in Annapolis to testify Thursday in favor of the Child Victims Act, viewing the proposed law as both their best chance for financial restitution and accountability from the public and private institutions that enabled their abusers.

Sarah Conway, who attended the Key School where she was sexually abused as a child, told lawmakers about how both the school administration and law enforcement were either indifferent or unhelpful to her plight. Conway said she lost her right to sue at age 21, prior to when lawmakers extended the statute of limitations in 2003 to age 25.

“I spoke out publicly in 1993 and the school said they didn’t have any institutional responsibility, it wasn’t their problem,” Conway said.

Smith, who authored the Senate’s version of the bill (it is cross-filed with HB1, authored by Democratic Del. C.T. Wilson), testified Thursday and said Brown’s letter makes the proposed law an “open question” on constitutionality, but that the legislature should pass the law and give survivors a chance to have their day in court.

“I believe it’s in the interest of justice that we provide this opportunity for survivors of child sex abuse,” Smith said at the hearing.

Asked about Brown’s letter, Maryland Catholic Conference spokeswoman Susan Gibbs said: “He [Brown] needs to make his own call, and there are four prior opinions that came to a different conclusion. Ultimately, it will be up to the Court to determine should this come before it.”

The church has stated previously that it opposes any legislative language that would revive the claims.

Democratic Senate Judicial Proceedings Chairman Will Smith of Montgomery County introduces Senate Bill 686, The Child Victims Act of 2023, in the Senate Judicial Proceedings Committee.  He is the committee chairman as well as a bill sponsor.

In written testimony opposing the bill, an unsigned letter from the Maryland Catholic Conference states that the church already has provided “millions of dollars in therapeutic counseling assistance and in direct financial payments to victims” as part of an ongoing commitment to healing.

“We are, however, compelled to oppose the current version of the legislation before you, specifically the unconstitutional provision that seeks to open an unlimited retroactive ‘window’ allowing civil cases of child sexual abuse to be brought forward, regardless of how long ago the alleged incidents occurred,” the Maryland Catholic Conference’s testimony reads. “We have noted in connection with past legislation that eliminating the civil statute of limitations retroactively raises serious equity concerns and is particularly unnecessary in Maryland, which does not have a criminal statute of limitations for cases of child sexual abuse.”

Brown wrote that there is no prior case in Maryland history that directly relates to the constitutionality of the Child Victims Act.

“A law review article could be written evaluating the facets of the issue,” Brown wrote. “As intellectually interesting as the debate is, however, the victims of childhood sexual abuse are forefront in my mind, along with my constitutional obligations to provide sound legal advice to state officials and to defend state laws.”

In 2019, an assistant attorney general under Frosh wrote lawmakers a letter stating that the Maryland Supreme Court likely would find a retroactive “lookback window” to be unconstitutional because the issue at hand is what’s known as a “statute of repose.” A statute of repose is similar to a statute of limitations — the time limits to bring criminal charges or to file a lawsuit — but has key differences.

A statute of limitations is not absolute, and different factors can determine whether a lawsuit still could be filed. Whereas, a statute of repose is “a grant of immunity to a class of potential defendants after a designated time period,” according to Brown’s letter.


Other states have passed laws to create “lookback windows,” including neighboring Delaware, but they do not appear to be subject to the statute of repose language.

Child sexual abuse claims became subject to the statute of repose rules in 2017 when the General Assembly passed a bill extending the time victims had to sue their abusers. Capped at age 38, the language designating the law as a statute of repose was a secret amendment that was not debated publicly, according to legislative records. The amendment carries former Sen. Robert “Bobby” Zirkin’s name, who previously served as the Judicial Proceedings chair and is now a lobbyist for the church.

Zirkin has said it was not the legislative intent to permanently grant immunity to abusers or their institutions.

Smith, the current chair, testified Thursday that he was not aware of what a statute of repose was when it became law in 2017.

As currently written, Maryland law gives childhood sexual abuse victims until their 38th birthday to file a lawsuit. The Child Victims Act would remove that time limit entirely, and lawsuits would be able to be filed against all private and public institutions.

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The Maryland General Assembly has altered a statute of repose, the only other one on the books, to create a retroactive window for previously time-barred lawsuits. In 1991, lawmakers made it possible for people to retroactively sue builders who used asbestos as a construction material.


The Catholic Church supported that effort, as many of its schools were built using asbestos, according to old letters from Catholic officials to lawmakers.

Professor Kathleen Hoke studies statutes of repose as part of her work at the University of Maryland Francis King Cary School of Law, and Hoke uncovered the church’s old letters, as well as a letter from the attorney general’s office telling lawmakers it would be constitutional to alter the statute, as part of her research. The case law around the issue has grown since then, leading to the debate.

Gibbs, in a separate email, wrote that the 1991 law did not revive old claims, and instead “clarified the scope of the existing statute of repose.”

“The 1990 AG opinion regarding asbestos does not account for the many cases decided since 1990 that clearly indicate a statute of repose creates a substantive, vested right,” wrote Gibbs, noting that the attorney general’s 2019 letter found that changing the law likely would be found unconstitutional.

Hoke, who is an attorney, wrote in a Jan. 25 letter to Smith that the 1991 law put a time limit on how long people had to file lawsuits that were previously barred, meaning it obviously created a retroactive window.

“This is a lookback window designed to allow expired claims to be brought within the two-year period after the effective date of the legislation,” Hoke wrote. “There would be no reason to establish a filing deadline if stale claims were not revived by the 1991 changes.”