New Statute for Cases of Molestation

Maricela Montes was 7 years old when her mother’s live-in
boyfriend allegedly raped her repeatedly. She kept the secret for
eight years before coming forward to Gilroy police in 2000.
Gilroy – Maricela Montes was 7 years old when her mother’s live-in boyfriend allegedly raped her repeatedly. She kept the secret for eight years before coming forward to Gilroy police in 2000. By then, the state’s statute of limitations for child molestation had expired and the case was thrown out by the judge because of insufficient corroborating evidence.

In future cases like Montes’, a teen-ager will not be told their case was dismissed because they waited too long to report the crime.

The Child Abuse Prevention Act was signed by Gov. Arnold Schwarzenegger earlier this month, and extends the statue of limitations allowing child molestation charges to be filed up until an alleged victim’s 28th birthday. The new law is effective Jan. 1 but cannot be applied retroactively.

“We wanted to have a longer length of time for a child abuse victim to come forward,” said State Senator Elaine Alquist (D-San Jose), who authored the bill. “One of the jurors [in Montes’ trial] was one of my constituents. He and Jay Boyarsky [Montes’ lawyer] decided that I was the person that could change this … I am very protective of our children. I felt it was abominable that we didn’t take better care of them.”

Currently the statute of limitations is 10 years for child molestation, with additional time granted if corroborating evidence is found.

Alquist and Boyarsky went back to the drawing board after a 2001 bill they wrote called Maricela’s Law was virtually nullified by a 2003 U.S. Supreme Court decision that struck down all attempts to retroactively change the statute of limitations in sexual assault cases.

While Montes’ case is not affected by the new law, supporters of the new bill are hoping it will allow more victims to come forward in the future.

“Statistically, one out of every three girls and one out of every four boys will be molested or sexually assaulted before the age of 14,” said Perla Flores assistant program director of Community Solutions, a nonprofit human services agency in Santa Clara County.

Studies indicate that rape and sexual assault are some of the most underreported crimes – some victims are ashamed, others frightened.

“A lot of times because a larger percentage of rapes occur with people who are not strangers, it’s a lot harder to report,” Flores said. “It’s especially challenging for children when it’s someone they know … who they were taught to trust and respect. A lot of times it’s so hard for children to come forward in the first place.”

For the past 10 years, Community Solutions has taught area elementary school children the differences between a good touch and a bad touch, between a good secret and a bad secret.

Flores believes the new law will cause more victims to come forward.

But critics say the new law is flawed and infringes upon the rights of the accused.

“With the time lapses it makes it really difficult to defend someone,” said Santa Clara County public defender Malorie Street. “You have to give someone an opportunity to defend themselves.”

If a victim does not come forward for years, lab evidence may be impossible to collect and their memory of the incident may be different from what actually happened.

“The accounts of your memory differ over time. I’m really concerned about the recollection aspect,” Street said. “I have had a client kill himself over this.”

According to Street, her client was accused of child molestation and wrote a letter to his family saying he did not do it, but could not bear the thought of being accused.

“They’re housed as a sex offender. They’re treated as if they’re convicted,” Street said. “I do think that there are people who can’t come forward (earlier), but I also think there are others who come forward later out of anger for other reasons.”

Street has witnessed allegations surface in child custody battles and in divorce cases.

“There’s not enough checks and balances to make sure that a person can get a fair trial [under the new law],” Street said. “This issue emanated out of one case … It troubles me when we make emotional decisions (that may not be the most rational).”

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