DIVISION OF LEGISLATIVE SERVICES
VIRGINIA LEGISLATIVE ISSUE BRIEF
States Supreme Court
Decides Ex Post Facto Case:
Ellen Bowyer, Staff
On June 26, 2003,
the United States Supreme Court issued a 54 ruling reversing application
of California Penal Code § 803 (g) in the matter of Marion Reynolds
Stogner v. California. Californias statute, enacted in 1993,
authorized criminal prosecution of cases involving sexual abuse of a minor
after expiration of the previously applicable three-year statute of limitations.
In a hesitant, narrowly drawn opinion, the Supreme Court held that application
of Californias statute in Stogners case violated the Ex Post
Facto Clause because the statute had been enacted after the statute of
limitations applicable to Stogners crime already had expired and
operated to revive a previously time-barred prosecution. The Stogner
holding blocks application of subdivision 6 of Virginia Code § 8.01-249
which establishes the accrual date for sexual abuse of minors
to cases alleging abuse committed prior to 1989 and limits the scope of
a constitutional amendment permitting the General Assembly to make retroactive
changes in accrual dates for intentional torts against minors.
Marion Reynolds Stogner v.
Supreme Court Decision
Statutes of limitations
establish the time periods within which the government or a plaintiff
may file suit in civil and criminal matters and vary depending on the
crime or tort at issue. For example, in Virginia, individuals generally
must file personal injury actions within two years of the injury and actions
for breach of a written contract within five years of the breach. For
some crimes, most notably murder, there is no statute of limitations.
A prosecution or civil action is within the statute of limitations
when it is brought within the applicable time period; time-barred
if the government or plaintiff has waited too long. When the term of years
of a statute of limitations ends with respect to a given individual, the
statute is said to have expired.
As a general rule,
once a statute of limitations has expired, a person may not be prosecuted
for the crime. The rationale underlying statutes of limitations involves
principally evidentiary considerations: after extensive passage of time,
evidence supporting either the prosecution or the defense may be stale
or no longer available, and a fair trial may be impossible.1
The United States
Constitution directs that [n]o state shall
post facto Law
(Art. I, §10, cl. 1). An ex post
facto law is one passed after the occurrence of a fact or
commission of an act, which retrospectively changes the legal consequences
or relations of such fact or deed.2 The Constitution
forbids the state and federal governments from criminalizing an action,
and prosecuting an individual for engaging in such an action, after the
action already has occurred. The question that Stogner posed for
the Supreme Court is whether the Ex Post Facto Clause prohibits the government
from extending statutes of limitations in criminal prosecutions in cases
where the statute of limitations already has expired.3 In short,
is extension of a statute of limitations, after the initially authorized
time period for bringing suit has passed, tantamount to criminalizing
an action after the fact? The Court held that it is.
Facts and Procedural History
In 1993, California
enacted a new criminal statute of limitations California Penal
Code § 803 (g) governing crimes of childhood sexual abuse.
Section 803(g) permitted prosecutions of crimes where the prior statute
of limitations already had expired, provided that the victim has reported
an allegation of abuse to the police, independent evidence clearly and
convincingly corroborates the allegation, and prosecution begins within
one year of the report. A 1996 amendment to § 803(g) specified that
any prosecution satisfying the three conditions would revive any cause
of action barred by prior statutes of limitations.
Stogner was indicted in 1998 on charges of sexual abuse committed between
1955 and 1973. At the time the abuses were alleged to have occurred, the
applicable statute of limitations was three years. Stogner thus was charged
22 years after the last possible date for an indictment under prior law.
The trial court granted
Stogners motion to dismiss the suit, agreeing that the Ex Post Facto
Clause blocked reviving a prior prosecution where the statute of limitations
had expired. The California Court of Appeal reversed. Stogner then moved
to dismiss the indictment on the grounds that it violated both the Ex
Post Facto Clause and the Due Process Clause. The trial court denied the
motion and the California Court of Appeal upheld the denial. The Supreme
Court granted certiorari as to both questions, and reversed.4
The Supreme Court
held that a law enacted after expiration of a previously applicable
limitations period violates the Ex Post Facto Clause where it is applied
to revive a previously time-barred prosecution.5 The
holding contains two distinct requirements: for its application to be
found unconstitutional, the statute at issue must be (i) enacted after
expiration of a previously applicable limitations period and (ii)
applied to revive a previously time-barred prosecution.
The Court did not
invalidate Californias statute but only reversed the California
courts decisions denying dismissal of Stogners case. The Court
reversed in Stogners case because § 803(g) was enacted 17 years
after expiration of the statute of limitations applicable to his alleged
crimes and operated to revive a prosecution against Stogner that otherwise
would have been time-barred. Thus, [t]he statute before us is unfairly
retroactive as applied to Stogner. (emphasis added).
Basis for the Holding
The Court supports
its holding with three arguments. First, the statute authorized the kind
of manifestly unjust consequences that are fundamentally unfair.6
Second, Californias statute falls within two categories of ex post
facto laws identified by Justice Chase in the seminal opinion Calder
v. Bull, 3 Dall. 386 (1798). Specifically, the statute (i) aggravated
the crime, making it greater than it was when first committed and (ii)
altered the rules of evidence such as to require less evidence to convict
an offender than when the crime was committed.7 Third, there
is a well-settled tradition in America, expressed by legislators,
courts and commentators that the Ex Post Facto Clause forbids resurrection
of a time-barred cause of action.8
Throughout the analysis,
the Court draws a clear distinction between laws with retroactive effect
that are enacted after expiration of the statute of limitations applicable
to a specific defendant, and those enacted before expiration: Even
where courts have upheld extensions of unexpired statutes of limitations
(extensions our holding today does not affect, see supra
at 5-6), they have consistently distinguished situations where limitations
periods have expired.9 (second emphasis added).
The Court emphasizes that its decision does not prevent the state
from extending time limits for the prosecution of future offenses, or
for prosecutions not yet time-barred.10 Californias
§ 803(g) is unconstitutional only to the extent that the state attempts
to use it to indict defendants for whom the three-year statute of limitations,
in place prior to enactment of the statute, had expired prior to 1994,
the effective date of the new statute.
Basis for the Dissent
fundamental disagreement with the majoritys decision stems from
its belief that the second category described by Justice Chase in Calder
v. Bull is implicated only where the elements of the crime change:
[A] law which does not alter the definition of the crime but only
revives prosecution does not make the crime greater than it was,
when committed.11 In the dissents view, Calder
v. Bull established a clear and comprehensive model for identifying
those laws with unconstitutional ex post facto results: The first
three categories guard against the common problem of retroactive redefinition
of conduct by criminalizing it (category one), enhancing its criminal
character (category two), or increasing the applicable punishment (category
three)12 (emphasis added). Because Californias
law neither added new elements not present at the time of the offense,
nor increased the punishment for which Stogner was eligible at the time
of the offense, the dissent did not find the statute violative of the
Ex Post Facto Clause.
majoritys distinction between expired and unexpired statutes of
limitations as illogical, the dissent also rejects it as reflecting a
mistaken belief that criminals either do or should have a reliance interest
in knowing that at some point in time, they will be beyond the reach of
the law: When the criminal has taken distinct advantage of the tender
years and perilous position of a fearful victim, it is the victims
lasting hurt, not the perpetrators fictional reliance, that the
law should count the higher.13
Implications for Virginia
contains a prohibition against ex post facto laws similar to that in the
United States Constitution.14 Further, although Virginia has
authorized retroactive application of provisions enacted under Title 8.01,
it has exempted from that retroactive application provisions affecting
limitations of action (§ 8.01-256 of Chapter 4), as well as any retroactive
application that (i) may materially change the substantive rights
of a party (as distinguished from the procedural aspects of the remedy)
or (ii) may cause the miscarriage of justice (Va. Code Ann.
§ 8.01-1). Virginias Constitution, however, authorizes the
General Assembly to amend retroactively accrual dates for intentional
torts to minors and to apply those amended dates so as to extend statutes
of limitations even against persons for whom the statute of limitations
already has expired. The Virginia Code also contains a provision that
appears to permit the kind of retroactive application of a statute of
limitations that Stogner prohibits.
Accrual Dates for Child Abuse
The determining date
for when the clock starts running on a given statute of limitations is
called the accrual date. In Virginia, most accrual dates are the date
the wrong occurred, regardless of the victims knowledge of the injury
(§ 8.01-230). A given statute of limitations may be tolled (i.e.,
the clock is stopped) where the victim is under a disability,
such as youth (§ 8.01-229). Code § 8.01-249 contains special
accrual dates for certain actions that are not amenable, for various reasons,
to standard accrual provisions. In 1991, the General Assembly amended
§ 8.01-249 by adding a new subdivision 6 that established special
requirements for accrual of a cause of action for sexual abuse to minors:
In actions for
injury to the person, whatever the theory of recovery, resulting from
sexual abuse occurring during the infancy or incompetency of the person,
when the fact of the injury and its causal connection to the sexual
abuse is first communicated to the person by a licensed physician,
psychologist, or clinical psychologist. However, no such action may
be brought more than ten years after the later of (i) the last act
by the same perpetrator which was part of a common scheme or plan
of abuse or (ii) removal of the disability of infancy or incompetency.
As used in this
subdivision, sexual abuse means sexual abuse as defined
in subdivision 6 of § 18.2-67.10 and acts constituting rape,
sodomy, inanimate object sexual penetration or sexual battery as defined
in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2.
The legislation included
a retroactivity clause providing
That the provisions
of subdivision 6 of § 8.01-249 shall apply to all actions filed
on or after July 1, 1991, without regard to when the act upon which
the claim is based occurred provided that no such claim which
accrued prior to July 1, 1991, shall be barred by application of those
provisions if it is filed within one year of the effective date of
this act15(emphasis added).
Prior to 1991, the
statute of limitations for sexual abuse was two years after the last act
of sexual abuse, tolled until the minor reached the age of majority. The
1991 legislation changed the trigger for the accrual date from the act
to the victims discovery, from a licensed professional, of the effect
of the abuse on the victims life, with an overarching 10-year ceiling.
The final clause appears to operate as a catchall to ensure that the enactment
did not have some unforeseen effect such as to bar an otherwise valid
An example is necessary.
Assume that a perpetrator committed sexual abuse against a 15-year-old
in 1980. The two-year statute of limitations would be tolled for three
years (until 1983) until the victim reached the age of majority. Under
the prior law, the victim would have had to file suit by 1985 (two years
after attaining majority). Under the new law, if the victim had not filed
suit by 1985 and the statute of limitations had expired in 1985, she still
would be able to file a suit as late as 1993 using the 10-year ceiling
in §8.01-249(6)(ii). The new statute thus clearly had the type of
retroactive effect (i.e., it was applicable to persons for whom the statute
of limitations already had expired at the time of the laws enactment)
found unconstitutional in Stogner.
Decision by the Virginia
In 1992, the Virginia
Supreme Court held that application of subdivision 6 of § 8.01-249
in cases where the statute of limitations had expired prior to enactment
of that statute violated the due process guarantees in Virginias
Constitution.16 Marjorie Starnes filed suit against Robert
Cayouette in July 1991, alleging that Cayouette had sexually abused her
from 1969 until 1978.17 Starnes attained her majority in 1982.
In 1990, Starness psychologist advised her of the causal connection
between the sexual abuse and the numerous physical and mental problems
she was experiencing.18 Starnes filed suit in July 1991, stating
several civil and criminal counts.19 Defendant argued that
the suit was barred due to the expiration of the two-year statute of limitations
for personal actions (calculated after Starnes reached the age of majority
in 1982), and Starnes responded by asserting subdivision 6 of § 8.01-249.20
The trial court
sustained the defendant's plea, finding that the retroactivity provisions
violated Cayou-ettes constitutional due process guarantees.21
The Virginia Supreme Court granted an appeal as to whether upon
the lapse of the time fixed in the statute of limitations and the tolling
statute, the defendant acquired a right protected by due process guarantees.22
The Court held that
the defense of the statute of limitations is a substantive right that
cannot be abrogated by legislation.23 The legislature can extend
statutes of limitations to increase the time in which suit could be filed,
but such extensions cannot be applied to persons for whom the applicable
statute of limitations had expired prior to the statutes enactment.24
The Virginia Supreme Courts holding thus mirrors that of the United
States Supreme Court except that it is rooted in the due process clauses
of Virginias Constitution rather than the states ex post facto
clause in the United States Constitution.
The Constitutional Amendment
In 1994, Virginias
voters ratified an amendment to the Constitution, adding the following
language as the fourth paragraph in Article IV, § 14:
The General Assemblys
power to define the accrual date for a civil action based on an intentional
tort committed by a natural person against a person who, at the time
of the intentional tort, was a minor shall include the power to provide
for the retroactive application of a change in the accrual date. No
natural person shall have a constitutionally protected property right
to bar a cause of action based on intentional torts as described herein
on the ground that a change in the accrual date for the action has
been applied retroactively or that a statute of limitations or
statute of repose has expired (emphasis added).
amendment gave the General Assembly the power to do precisely what the
Supreme Court has declared unconstitutional: enact a law extending a statute
of limitations after the preceding statute of limitations already has
of the Statute
In 1995, the General
Assembly eliminated the 10-year ceiling on sexual abuse claims contained
in subdivision 6 of § 8.01-249.25 Then, in 1996, the General
Assembly exercised its power under the constitutional amendment to modify
subdivision 6 again:
That as authorized
by Section 14 of Article IV of the Constitution of Virginia, Chapter
268 of the 1995 Acts of Assembly [i.e., elimination of the 10-year
ceiling] shall apply to all actions accruing on or after July 1, 1991,
for injury to the person resulting from sexual abuse occurring during
the infancy or incompetency of the person and which were or are filed
on or after July 1, 1995.26
The 10-year cap was
established in the original bill of 1991. This bill eliminates that cap,
effective 1991. Had the 10-year cap been applicable to a case which accrued
in 1991, however, that 10-year period would not have run by July 1, 1995.
Setting aside the validity of the underlying change to the accrual date,
this particular retroactive lengthening of the statute of limitations
applicable to childhood sexual abuse appears constitutionally permissible.
In 1997 the General
Assembly again amended subdivision 6 to clarify that the discovery
accrual rule in subdivision 6 applies only where the fact of the injury
and its causal connection to the abuse are not known to the plaintiff
within the otherwise applicable limitations period.27 The legislation
included a clause stating that it was declaratory of existing law. Today,
subdivision 6 of Va. Code Ann. § 8.01-249 reads as follows:
When cause of action shall be deemed to accrue in certain personal
The cause of
action in the actions herein listed shall be deemed to accrue as follows:
6. In actions for injury to the person, whatever the theory of recovery,
resulting from sexual abuse occurring during the infancy or incapacity
of the person, upon removal of the disability of infancy or incapacity
as provided in § 8.01-229 or, if the fact of the injury and its
causal connection to the sexual abuse is not then known, when the
fact of the injury and its causal connection to the sexual abuse is
first communicated to the person by a licensed physician, psychologist,
or clinical psychologist. As used in this subdivision, sexual
abuse means sexual abuse as defined in subdivision 6 of §
18.2-67.10 and acts constituting rape, sodomy, object sexual penetration
or sexual battery as defined in Article 7 (§ 18.2-61 et seq.)
of Chapter 4 of Title 18.2;
Implications for Statute and
There are significant
questions regarding the current effect of the retroactivity provisions
in § 8.01-249(6). The first retroactivity provision provided that
the new statute would apply to all actions filed on or after July
1, 1991, without regard to when the act upon which the claim is based
occurred (emphasis added). For a case in which a victim suffers
a final act of abuse in 1970, then reaches her majority in 1975, under
the pre-1991 law, the statute of limitations would have expired by 1977
14 years before § 8.01-249(6) was enacted. If, notwithstanding
the Virginia Supreme Court decision in 1992, the first retroactivity provision
is given effect today, that same victim conceivably could file suit as
late as 2003, so long as the fact of the injury and its causal connection
to the sexual abuse had not been communicated to her any earlier
than 2001. The defendant affected would be one for whom the statute of
limitations had expired 14 years prior to enactment of § 8.01-249(6).
The statute thus would operate retroactively in a constitutionally impermissible
way pursuant to Stogner.
Article IV, §
14 of Virginias Constitution explicitly seeks to empower the General
Assembly to extend statutes of limitation for intentional torts to minors
against individuals for whom the statute already has expired. Any future
use of this constitutional provision to enact legislation applicable to
persons for whom a statute of limitations already has expired would be
unconstitutional under Stogner, as would any subsequent similar
constitutional amendment governing other torts or crimes.
See Atkins v. Schmutz Mfg.
Co., 435 F.2d 527 (4th Cir. 1970, cert. denied, 402 U.S. 932
(1971). Statutes of limitations promote justice by preventing revival
of claims after evidence is lost, memories are faded and witnesses have
Blacks Law Dictionary 580 (6th ed. 1990).
3 Stogner at 45914592.
Court granted certiorari as to both constitutional questions but
its decision addresses only the question relating to the Ex Post Facto
5 Stogner v. California, 71 U.S. L.W. , 4588, 4595 (U.S.
June 26, 2003), reversing 93 Cal. App. 4th 1229, 114 Cal. Rptr.
2d 37 (2001). The Constitution contains two Ex Post Facto Clauses, one
governing federal actions (Art. I, §9, cl. 3) and one governing state
actions (Art. I, §10, cl. 1). The Courts holding appears to
relate only to the state Clause. See Stogner at 4588 ([W]e
conclude that the Constitutions Ex Post Facto Clause , Art. I, §
10, cl. 1, bars application of this new law to the present case).
6 Stogner at 4589.
7 Stogner at 45894590.
8 Stogner at 4590.
9 Stogner at 4591.
10 Stogner at 4595.
11 Stogner at 4596.
12 Stogner at 4597.
14 ...[T]hat the General Assembly shall not pass any
bill of attainder, or any ex post facto law. Article I, § 9.
15 1991 Va. Acts ch. 674.
16 Starnes v. Cayouette, 244 Va. 202, 419 S.E.2d 669
17 Starnes at 204.
21 Id. at 205.
22 Id. at 207.
23 Id. at 212.
24 Id. at 208.
25 1995 Va. Acts ch. 268.
26 1996 Va. Acts ch. 377.
27 Va. Acts 1997 ch. 970.
Issue Brief is an occasional publication of the Division of Legislative
Services, an agency of the General Assembly of Virginia.
R.J. Austin, Manager,
Division of Legislative Services
910 Capitol Street, 2nd Floor
Richmond, VA 23219
Commonwealth of Virginia.