Hard cases make bad law, and since 2002 the exposure of some ugly criminal cases has stirred legislators in several states to contemplate dreadful legal innovations.  However far removed these crimes may appear from regular mainstream American life, the legal principles involved threaten to wreak havoc in the coming decades.

As all the world knows, the Roman Catholic Church has for some years faced a problem from clergy sexual abuse.  In some cases, adult priests had sex with teenage boys and young adults, while others—true pedophiles—focused their attention on small children.  For the sake of argument, let us concede that perhaps three or four percent of priests over the past 60 years were involved in some such misconduct.  How should we as a society respond to this?  In most cases, the statute of limitations has long expired on such acts of molestation, and that restriction has infuriated media and legislators.  In 2002, the state of California passed what is known as a lookback law in an effort to remedy the perceived wrong.  For a period of one year, a so-called civil window, victims could launch civil lawsuits in cases that would otherwise have expired, however long ago the abuse occurred.  Delaware followed with a two-year window, and, as in California, the new opportunity provoked a torrent of suits.

From one perspective, such windows are a wonderful idea.  Imagine, for instance, a hypothetical pedophile priest who was ordained in 1955 and who spent the next 25 years molesting literally hundreds of children, before retiring comfortably.  Is it not simple justice that he, finally, should face the consequences of his acts?  And, by the same token, so should those Church authorities who winked at his acts, subjecting him to trivial or inconsequential forms of discipline, while ignoring the needs of victims.

But the reality is not nearly that simple.  Yes, I can point to cases of monstrous serial pedophiles, but they are wildly atypical in the records of clerical sexual misconduct.  In the vast majority of cases, sexual misbehavior was nothing so flagrant, and the evidence for it is often slim to nonexistent.  How on earth can anyone defend a case concerning an alleged incident of sexual impropriety that occurred in 1970?  Over time, memories fade, witnesses die or become hard to trace, evidence become scarcer, and the odds of conducting a fair trial decline precipitously.  The dangers of exhuming ancient allegations in a civil case are all the greater because plaintiffs have such an overwhelming financial interest in establishing their claims.

Also, we may today know that sexual abuse is an extraordinarily dangerous form of victimization, but earlier generations did not share that opinion.  Professional and expert opinions about the severity and frequency of sexual abuse have fluctuated dramatically over time, and concern reached an historic low between 1955 and 1975, the exact time that many of the alleged acts of abuse occurred.  Of course, diocesan authorities reacted to such cases then with much less urgency than they would in 2009.  Lookback laws thus demand that institutions be judged according to the standards and attitudes prevailing today, but for actions that occurred 30 or 50 years in the past.  Apples are to be judged as to how far they live up to the criteria of oranges.

This critique goes far beyond the specific problem of child-abuse cases.  In other matters, too, the seriousness that a given society places on a particular act may change swiftly and radically.  An act that a society regards as fairly minor at one time may 30 years later come to be seen as so appalling as to be unforgivable, and vice versa.  Over time, indeed, some kinds of conduct move entirely outside the scope of criminal law.  In the 1950’s and 60’s, consensual adult homosexual behavior constituted a very serious crime in most jurisdictions, although attitudes were radically transformed in later years.  But even when acts have remained criminal, the stigma that attached to them has changed to an amazing degree: Just think of the attitudes prevailing toward drug use in the 1970’s compared with today’s. 

Can any of us say with confidence how the laws and mores of our society will change between now and 2040?  I may today be a law-abiding person, observing laws and social standards as best I understand them; but unknown to me, I may be engaging in behaviors that, in the retrospect of 30 years, could come to seem irresponsible or cruel, and deserving of stern sanctions.  Will future courts be trying people on charges that, in 2009, they campaigned against “gay marriage” or denied the reality of global warming?  By no sane or reasonable standard should I be judged by the standards of a future generation.  Lookback laws represent a looming catastrophe for the U.S. legal system.