Plan to cap sexual abuse survivors’ payout called ‘insulting,’ unconstitutional

Attorneys representing hundreds of people with allegations of sexual abuse while in state custody said a late-session attempt to limit financial damages is insulting and likely unconstitutional.

The state faces what could be billions in potential financial settlements under the 2023 Child Victims Act, which made it easier for child sex abuse victims file claims against public and private institutions.

The House Judiciary Committee, which passed that law, is now being asked to consider changes in an effort to limit liabilities some believe could bankrupt state government.

“We’re in a very different situation, and as stewards, fiduciaries of taxpayers money, you really have to think things through on this,” said Del. N. Scott Phillips (D-Baltimore County), a member of thec ommittee. “I voted wholeheartedly for CVA, and I believe in it. At the same time, I’ve got to say this is impacting the state of Maryland … in a really challenging way.”

The committee held a hearing Wednesday on House Bill 1378 by Del. C.T. Wilson (D-Charles), the sponsor of the 2023 law. He said HB1378 is an attempt to hold the state “accountable for all the atrocities committed within the facilities, while recognizing the financial constraints that come with governance.”

“We’re not a private corporation. We do not have endless reserves, nor can we shift the cost to the shareholders,” Wilson said of the potential impact of the 2023 law. “You must maintain a responsible budget, while safeguarding the central services that millions of people depend upon, including education, public safety and health care.”

The passage of the 2023 law was personal for Wilson, who himself is a survivor of physical and sexual abuse as a child. He said the law, which he worked more than a decade to pass, was not about the money.

“I just wanted people to have an opportunity to come and tell their story,” Wilson said. “That’s what they begged for — giving survivors a voice, allowing them to acknowledge their pain, and making sure they know that Maryland hurt them, however, but what’s definitely changed is our understanding of the fiscal realities.”

The bill proposed this session by Wilson, chair of the House Economic Matters Committee, would reduce the maximum payout that each plaintiff could receive. It also would require each case to go through a mandatory arbitration process before seeking a civil jury trial.

Amendments provided to the committee ahead of Wednesday’s hearing establish a mandatory arbitration process that plaintiffs would participate in before they could seek a jury trial. Payouts made through the arbitration process would be public, though victims could request their identities be withheld.

The new draft of the bill substantially reduces potential claims.

First, it removes a plaintiff’s ability to seek damages for each instance of abuse. Instead, awards would be based on the individual claimant, regardless of the number of times they alleged abuse.

The maximum award would remain at the current $890,000 for those who sue before Oct. 1, 2025, but drop to a $400,000 award for those who file after then.

The changes would not lower liability caps for private institutions.

Wilson said he had assurances from Attorney General Anthony Brown that the proposed changes would pass constitutional muster. Neither Brown, who was on a list of witnesses for the hearing, nor anyone from his office appeared Wednesday.

With 12 days remaining in the 2025 legislative session, Wilson’s efforts are also in a race against the clock.

Lawmakers, concerned about the potential of billions in damages, are motivated to move quickly. But the bill must clear the Judiciary Committee and full House before heading to the Senate to begin the process again.

Opponents of the bill said the ever-changing proposal should be tabled for the session to allow a more thoughtful review.

“This is very ‘ready, shoot, aim’ legislation,” said Tom Yost, founder of Baltimore-based Yost Legal Group. “The bill was one thing on Saturday, a different thing on Sunday, a different thing on Wednesday.”

Wilson became emotional as he faced questions from Del. Robin L. Grammer Jr. (R-Baltimore County) about the fairness of reining in liability for the state but not for private institutions.

Wilson said state victims are “people who are trapped, not only being detained but being raped. When you compare that to a situation where they’re in a church, it’s a little bit different. It seems to me that the state seems to be the biggest offender here.”

He said that if Grammer wants to “punish and bankrupt the state, God bless you. You can do that, if that’s your goal, but it’s not mine.”

“It’s what you want to do to the taxpayer, I’ve told you what I want to do. I don’t have to explain any more than this,” he continued. “I’m sorry to be this way. I’m not going to sit here and go back with you. If you don’t like this and you want to go to the taxpayer, you screw them, because I’m not.”

When Grammer said he worried victims were getting lost in the debate, Wilson shot back, “Holy sh-t…. Who are you talking to? No, no, no, no.”

“Do you really think for a minute that I don’t know? Do you think I don’t know what the victims go through and do you think there’s any amount of money that’s going to make it better?” he said. “You can lie to yourself, but it’s not.”

House Judiciary Chair Luke Clippinger (D-Baltimore), attempted to tone down the exchange and called on another member of the committee to ask questions.

Wilson later apologized for the heated exchange.

Wilson’s proposal also faced criticism from attorneys representing clients with potential cases against the state.

Andrew Freeman, a partner at Brown, Goldstein & Levy told the committee the current law is “inadequate” to compensate survivors of institutional abuse. Reducing the amount to $400,000 per claimant “is more than inadequate consulting. It also is retroactive to the extent that we’re taking away the expectations that people have built.”

The change is also likely unconstitutional, he said, adding that it “would still be unconstitutional, no matter what it costs taxpayers.”

Freemen downplayed the potential for bankrupting the state. But he said taxpayers were responsible for the system that locked victims up and failed to protect them. That, he said, makes taxpayers “responsible for some sort of fair compensation to them. Is that going to cost money? Yes. Is that going to bankrupt the state? No.”

Ben Crump, a national civil rights and personal injury attorney, said he and other attorneys want to work with Wilson to help “these victims right these historical wrongs.”

“While this is a human rights issue, I believe this is a civil rights issue as well because a substantial majority of the plaintiffs — over 90% of them — are African Americans,” Crump said. “The proposed amendment with the $400,000 ceiling I believe is an insult to them because these African American men and women were abused and raped as boys and girls when they were in the full custody of the Maryland juvenile detention facilities.”

Capping the damages on a per claimant basis is “not just denial of equal justice, I believe it is a shame before God.”

The size of the financial risk to the state is both an academic discussion lacking a lot of specifics and a budgetary boogeyman.

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. It also raised the liability limit on claims against private institutions for noneconomic damages, such as pain and suffering, to $1.5 million.

Much of the original focus was on the Roman Catholic Church. The Archdiocese of Baltimore filed for federal bankruptcy protection in September 2023, one month before the new law took effect, because of mounting claims.

But Wilson’s law also opened the door to lawsuits against state and local governments despite warnings from some lawmakers including Sen. Justin Ready (R-Carroll and Frederick).

Lawmakers were warned in January about the “enormous liability” facing the state. Legislative analysts at the time said there were 3,500 cases against the state alleging sexual abuse, some dating back as far as the 1960s.

The potential value of a settlement was not given to lawmakers at the time. Based on current law and the potential for a payout of $890,000 for each instance of abuse — which some lawmakers said remains an open legal question — the minimum payout approaches $3.1 billion, about as much as the structural budget deficit lawmakers were already facing in the coming budget year.

That amount could be much higher if claimants could collect on more than one occurrence. It could also be much lower depending on the outcome of settlement negotiations with plaintiffs’ attorneys, which have been ongoing.

One group of nearly two dozen firms claims it currently has 5,000 clients with potential claims against state agencies, including the Department of Juvenile Services.

Those attorneys said many of those clients have multiple instances of abuse. The potential liability to the state could run in the multiple billions of dollars.

Those attorneys said they have been in negotiations with the Office of the Attorney General since 2023 and have asked for a fraction of the potential full value. The attorneys declined to provide specifics of the potential liability or a settlement demand citing ongoing negotiations.