Lawmakers consider proposal to reduce potential of billions in sex abuse payouts

Facing the potential of multibillion-dollar payouts, lawmakers will consider legislation this week that would limit the state’s liability under the 2023 Child Victims Act.

But advocates, legal experts and, not unexpectedly, attorneys for one group of nearly 5,000 plaintiffs who claim to have been sexually abused at the hands of state workers, say the proposed fix goes too far, and is likely unconstitutional.

Even Del. C.T. Wilson (D-Charles), the author of both the original bill and the new proposal to rein in the state’s liability, said Monday night that the proposed fix will likely be heavily rewritten. But something needs to be done, he said.

When it passed, the Child Victims Act was heralded as a way for survivors of institutional sexual abuse to seek justice. But it inadvertently threw open the doors to potentially budget-crushing payouts that would be difficult for the state to absorb in a year when it is flush with cash.

This is not one of those years.

Wilson’s proposed remedy could help limit that liability. But the bill must pass through two chambers in less than two weeks and land on the governor’s desk.

And then, face a court challenge.

“Without a doubt it will be litigated,” Wilson said Monday night.

Wilson, who is also chair of the House Economic Matters Committee, admits that the 2023 law unleashed unintended consequences he could not foresee.

“When you go through this, you always think you’re alone,” said Wilson, who has publicly discussed a childhood that included physical and sexual abuse. “Never in my wildest dreams did I think there were this many people — enough to bankrupt the state.

“Just how much money should taxpayers pay to honestly not make a difference, to not change anything that happened?” Wilson said. “My goal was, if they told their story, then it gets out. We used to call the bill ‘The Hidden Predator Act.’ That was my goal, to just face your abuser, to get a chance to expose this person for what they did. I was shocked beyond belief that there’s this many people.”

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The House Judiciary Committee will hold a hearing Wednesday on House Bill 1378, Wilson’s bill that attempts to temper some of the unintended consequences of the 2023 law. But that proposal is already drawing concerns.

D. Todd Mathews, an attorney with Bailey & Glasser, said in a March 24 letter to the Judiciary Committee that “Wilson fought for over 10 years to enact a just law that is a good and moral redress of immoral and heinous actions. The current proposed amendments are clearly unconstitutional and designed simply to buy time for an unconstitutional law to proceed through the appellate courts to arrive right back at square one.”

Bailey & Glasser, a law firm based in Washington D.C., is one of nearly two dozen firms representing roughly 5,000 plaintiffs. The coalition of firms has been in active negotiations with the Maryland Attorney General’s office since 2023.

“There is already a system developed to address these claims in a very reasonable manner, far below what has been reported, which allows the Survivors to find closure,” Mathews’ letter said. “The proposed resolution has safeguards in place that protects the state and ensures the survivors are compensated accordingly.”

The 2023 law lifted limitations on filing lawsuits against institutions involved in hiding sexual abuse allegations and protecting abusers. It capped liability at $890,000 per occurrence, but also raised the liability limit on claims against private institutions for noneconomic damages, such as pain and suffering, to $1.5 million.

At the time, much of the focus was on the Roman Catholic Church, but the law also opened state and local governments to more lawsuits.

“I could have never comprehended 4,500 claimants, and it’s an open door with another 1,500 in the hopper,” Wilson said, who again asked “how much are taxpayers going to be on the hook for this?”

“How much of our DDA (Developmental Disabilities Administration) budget do we need to cut? How much of our Medicaid or waivers do we need to give back because we’re paying this off?” Wilson asked. “If my argument was that no amount of money is going to undo what happened, why would I expose the state to so much because of the wrongful actions of a few?”

No potential settlement was mentioned during that briefing, but the math was not hard: If each plaintiff made one claim of sexual abuse, at up to $890,000 each, the potential liability would be more than $3.1 billion. That is an amount roughly equal to the structural budget deficit lawmakers were already facing in the coming budget year.

A source familiar with the plaintiffs’ cases said the estimate is wrong for two reasons.

The $3.1 billion estimate is substantially lower than the potential liability to the state based on claimants with multiple abuse allegations who might be able to collect on each individual occurrence, the source said.

And it is higher than the amount sought by attorneys representing the alleged victims. The source spoke on background because of ongoing negotiations with the state, and declined to provide specific dollar amounts on the record citing those ongoing discussions.

Kristen Gibbons Feden, an attorney with Philadelphia-based Anapol Weiss, said Monday that plaintiffs’ attorneys “understand that the state has concerns about the liability and, most importantly, the recovery. We hear that, we’re not ignoring it.”

Anapol Weiss is among the coalition of law firms that have been negotiating with the Office of the Attorney General since 2023.

As introduced, HB 1378 would set new limits on claims against the state.

But a draft set of amendments provided by Wilson strips the original bill, including its provision requiring cases to be filed by the end of the year.

The early version of the amendments also includes a requirement that claims be handled by a state-appointed arbitrator, who would be selected by a state workgroup. Neither the workgroup nor the arbitration system would be subject to the state’s open meetings or records acts, according to a draft provided by Wilson. The draft allows for an appeal before a judge but only for areas of dispute. The appeal can only be on record from the arbitration case. No jury would be involved.

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Mathews, in his letter, said such a system as envisioned by the early draft would hurt victims.

“The Child Victims Act opened the courthouse doors and provided survivors of childhood sexual abuse a right to a jury trial for claims arising from their abuse,” Mathews wrote. “Mandatory arbitration would unconstitutionally strip that vested right away from survivors. Forced arbitration of sexual assault claims is, simply put, bad policy.”

Feden said the proposed changes so far “don’t strike a balance at all. They tip the scales really entirely in the state’s favor. And it really, what it does is it forces survivors into a system that would limit their rights, that would restrict their access to justice and really would protect the very institutions that fail them in the first place.”

Feden said she and other attorneys have been “negotiating in good faith.” The attempt to change the law now will only hurt survivors of sexual abuse, many of whom are Black and brown, she said.

“It’s a system of delay,” she said. “If this gets caught up in the courts, what’s going to happen? It’s going to deny these survivors justice even longer. What the AG’s office is doing here is trying to stall, stall, stall.”

The proposed changes so far increase the potential for a courtroom battle.

“We are attorneys. That’s what we do all day. We fight, fight, fight,” said Feden. But she said, as someone who has been “representing survivors for close to two decades,” that the state is stalling.

“They know that the longer a survivor has to wait for justice, the likelihood that they may wait it out could be reduced,” she said. “So it’s not about the fight. We’re prepared. We’re ready. But when you delay justice to individuals, let’s be real … look at the suicide rate, look at the trauma.”

Kathleen Hoke, a University of Maryland Francis King Carey School of Law professor, said in an email that the amendments to the bill shown to her by a reporter attempt to create a system similar to one in New Hampshire. But they raise a number of legal questions, she said.

“I think there are concerns about legislation retroactively depriving a court of jurisdiction in a case and depriving a plaintiff of that avenue for relief; I think there are also concerns about retroactively limiting a plaintiff’s recovery,” Hoke said in an email. “These concerns are particularly acute as to claims for which a complaint has already been filed.”

Hoke said she hoped lawmakers asked the Office of the Attorney General “about the constitutionality of the bill/amendments—because that is whose opinion matters a lot here.”

A spokesperson for Attorney General Anthony Brown did not respond to a request for an interview.

Lisae Jordan, executive director and counsel at Maryland Coalition Against Sexual Assault, said the potential for secrecy is concerning.

“Given the subject matter, it is especially important that the state is as transparent and open about all of its decision making,” Jordan said in an interview.

Wilson, in an interview, called the amendment language a “misdraft” and said he intended to offer a proposal that required a claim go through the arbitration process. Following that, plaintiffs could seek a jury trial, he said.

“The last thing I’m going to do to these victims is let them know they have no right to a jury trial in Maryland,” Wilson said.

Wilson’s early amendments also attempt to limit the potential number of claims.

First, it would lower the financial liability cap from $890,000 to $400,000 per occurrence.

Feden called that “a silencing tactic. Damages in civil cases are not simply financial awards … they’re a legal recognition of harm, accountability and deterrence.”

Language in the 2023 law included references to “occurrences,” which quickly became a subject of debate: how to count multiple incidents of abuse of a person.

Wilson’s amendments would eliminate that vagary by limiting the payout to a single claimant to $400,000.

“It was never about an amount of money,” Wilson said.