Statutes of limitations for serious offences: why Europe needs a reform

Last Sunday, 30th of November, Switzerland, by a
narrow majority, approved a constitutional modification doing away with any
statute of limitations for paedophile crimes. The initiative proposing that
modification had been opposed by the government and by most of the country’s
political parties, who supported instead the idea of maintaining the existing
statute of limitations of 15 years but making it start later than had so far
been the case (thus giving more time to the victims to decide whether or not to
take legal action). The surprise acceptance of the initiative in the popular
vote was criticized by much of the Swiss press as marking a triumph of
“emotion” over “reason” (see for instance here and here; in French). But leaving aside the question of what actually led most Swiss voters to
endorse the initiative, does the very idea of opposing a statute of limitations
for paedophile (and other equally serious) crimes necessarily lend itself to
such criticism? I want to suggest that this is not so.


I would like to lay stress here on an issue that has hardly
been mentioned at all during the campaign, but which I think is nevertheless of
crucial importance for this debate: simply put, it is grossly unjust to forbid in
principle
the victim of a crime as serious
as sexual abuse in childhood to initiate legal proceedings after a certain period of
time,
regardless of the evidence
the plaintiff might put forward in support of her claims. Yet this is exactly
what a statute of limitations does, no matter what its duration might be. Even
assuming it is only rarely the case that a victim is able to present sufficient
evidence for her claims after several decades have elapsed, the existence (and
future possibility) of
some such
cases is enough to provide a strong reason for abolishing statutes of
limitations regarding sexual abuse of children – and the same reasoning
applies,
mutatis mutandis, to
comparably serious crimes like murder. The passage of time does not make such
crimes any less wrong, and their authors less worthy of punishment, than when they
were initially committed, particularly because it does not diminish the harm
done to the person who was murdered or, in many cases, the suffering of the
victim of child abuse.

Opponents to the aforementioned initiative have presented a
number of objections to it, but none of them really addressed the point I have
just made. They were more focussed on arguing that the initiative would not
have the deterring effect claimed by its proponents: potential sexual
molesters, it has been argued, would more likely be deterred by the prospect of
being convicted promptly (which the existence of a statute of limitations would
supposedly bring) than by the possibility of having to face criminal
proceedings at some remote future date (see here). This objection is unpersuasive, insofar as it assumes that child
molesters generally suppose, when a statute of limitations for such abuse does
apply in their country, that their victims are more likely to take legal action
earlier on, and this assumption seems questionable to say the least (among all
child molesters Switzerland had so far, how many were aware of the relevant
legal dispositions, and among these how many actually went on to reason in this
manner?).

Other objections were raised against the initiative, some of
which did appeal to considerations of fairness. It has been argued for instance
that accepting the initiative would increase the risk of convicting innocent
people. Yet somewhat inconsistently, the objectors have also stressed that the
relevant evidence disappears with time, thus making it more difficult to prove
the offender guilty. This latter point seems correct, but it clearly
contradicts the former one: given the principle of the presumption of
innocence, time would seem to benefit the accused, not the victims – assuming
of course that justice does its work as it should.

It has also been argued that abolishing the statute of
limitations for paedophile crimes was disproportionate, because it meant
putting such crimes on an equal footing with acts of genocide and war crimes
(for which no limitations apply). This, again, is incorrect. Such an abolition
only implies that we consider child sexual abuse a very serious offence, which
it obviously is. It doesn’t commit us to saying that it is just as wrong to
sexually abuse a child than it is to orchestrate the killing of thousands of
innocent people. To take an analogy, a policeman might lose his job after being
convicted of theft, but also after shooting someone without good reason. The
fact that the latter act is clearly morally worse than the former doesn’t warrant
the conclusion that the first policeman should not be dismissed, allegedly
because dismissing him would deny this difference in moral status. Being a
policeman involves certain obligations, some of which are deemed important
enough to justify dismissing anyone who violates them, but that doesn’t mean
that all violations leading to such an
outcome must be regarded as equally serious.

Perhaps the strongest point that might be made against the
initiative is that without any statement of limitations at all for paedophile
crimes, the Swiss judicial system risks having to deal with many cases that
wouldn’t result in any conviction due to insufficient evidence. This might both
threaten its effectiveness, by preventing courts from dealing with more recent
cases, and further harm the victims, who are likely to end up disappointed when
they take legal action at a very late stage. However, regarding the former
issue, it seems unfair, again, to ask the victims of sexual abuse to pay the
price of having an effective judicial system in their country; surely, other
ways of achieving that aim should be sought as much as possible. Suitable counselling that would make the victims fully aware of the difficulty of
successfully going to court a long time after the events would reduce the
likelihood of their taking legal action in inappropriate circumstances, thereby also reducing the risk
of their going through the pain of such legal proceedings to no avail in the
end. Victims should not be given false hopes, but fairness demands that they
have at least the choice whether or not to take the risky step of going to
court.

Finally, opponents to the initiative have pointed out the
inconsistency in removing a statute of limitations for child sexual abuse, when
such limitations still apply in Switzerland to offences like murder or torture,
which do not appear any less serious. There is indeed an inconsistency here –
but what I have argued so far implies that it ought to be corrected by removing
statutes of limitations for such practices as well, not by preserving them
across the board. This is already the situation in countries like the UK or
Canada. Unless objectors can point to any serious problems generated by the
legal systems of those countries, we should conclude that Switzerland, and more
generally continental Europe (where statutes of limitations are the norm even for serious offences), might benefit by taking them as models for future
reforms.

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2 Responses to Statutes of limitations for serious offences: why Europe needs a reform

  • Sean says:

    Really well-written blog post.

  • Oelsen says:

    As somebody opposing this initiative i write something specifically about the political process itself.

    This initiative was a “orphan poll”. We had four more, and some about drug (ab)use, legalization, liberalization of pensions etc. Each of them, except the one you wrote about, was scrutinized by the partisan media, press, state tv and in public, in pubs etc. Nobody spoke about it and most people didn’t even comprehend the accompanying booklet, as three friends told me privately.

    It was difficult to distinguish between emotion and reason. And no, there arent any “”, please. We did clearly distinguish between the Hemp-Initiative and the reinforcement of the official drug policy, despite of many occasions to “reason emotionally” .

    Time will show, and i suspect the comittee has to resolve the legal issues with the parliament or the legislature will just ammend some restrictions and further paragraphs, so that almost nobody’s case will fall into its scope. That is legal, because the text of the initiative can not be made into law directly.

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