Colorado Supreme Court Holds Child Sexual Abuse Accountability Act Unconstitutional

Child Sexual Abuse Accountability Act Unconstitutional: In 2021, the Colorado General Assembly passed the Child Sexual Abuse Accountability Act (“CSAAA” or “the Act”), which created a statutory cause of action for a victim of sexual misconduct that occurred while the victim was a minor participating in a youth-related activity or program. Under the Act, a victim may bring a civil claim for damages against both the actor who committed the abuse and the organization that operated or managed the youth-related activity or program, if the organization knew or should have known about the risk of sexual misconduct.

The CSAAA established a three-year window during which a victim may bring claims under the Act for child sexual abuse that occurred between January 1, 1960, and January 1, 2022, regardless of whether previously available causes of action were time-barred. The CSAAA also waived governmental immunity for claims brought under the Act.

The Colorado Supreme Court was asked to decide whether the CSAAA violates article II, section 11 of the Colorado Constitution (the “retrospectivity clause”), which prohibits the General Assembly from passing any law “retrospective in its operation.” Specifically, the Colorado Supreme Court was asked whether the CSAAA was unconstitutionally retrospective to the extent that it creates a new cause of action for conduct that predates the Act and for which any
previously available claims would be time-barred.

S.B. 21-073

The Colorado General Assembly passed S.B. 21-073, which amended section 13-80-103.7 to prospectively remove any limitations period for civil actions alleging sexual misconduct. Ch. 28, sec. 1, § 13-80-103.7(1)(a), 2021 Colo. Sess. Laws 117, 117. This legislation applies to causes of action accruing on or after January 1, 2022 (the effective date), and existing causes of action for which the statute of limitations had not yet run as of that date.

S.B. 21-088

Separately, the Colorado General Assembly passed the CSAAA (S.B. 21-088), which was codified at sections 13-20-1201 to -1207, C.R.S. (2022). Unlike S.B. 21-073, the CSAAA creates a new statutory right of relief for a “victim of sexual misconduct that occurred when the victim was a minor.” Ch. 442, sec. 2, § 13-20-1202(1), 2021 Colo. Sess. Laws 2923, 2925. The Act permits a victim to bring a civil claim for damages against both “[a]n actor who committed the sexual misconduct” and “[a] managing organization that knew or should have known that an actor or youth-related activity or program posed a risk of sexual misconduct against a minor and the sexual misconduct occurred while the victim was participating in the youth-related activity or program operated or managed by the organization.” The Act defines “managing organization” to include a “public entity” as that term is defined under section 24-10-103(5) of the Colorado Governmental Immunity Act, which includes school districts. Ch. 442, sec. 2, § 13-20-1201(4), (7), 2021 Colo. Sess. Laws 2923, 2924; see § 24-10-103(5), C.R.S. (2022).

Colorado’s constitution provides: “No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, . . . shall be passed by the general assembly.” Colo. Const. art. II, § 11. Despite the concerns expressed about the bill’s constitutionality, the legislature passed S.B. 21-088, and on July 6, 2021, the Governor signed the CSAAA into law.

The Colorado Supreme Court held in its June 20, 2023 Opinion: “we conclude that because the CSAAA creates a new cause of action for child sexual abuse, the Act creates a new obligation and attaches a new disability with respect to past transactions or considerations to the extent it permits victims to bring claims for which any previously available cause of action would be time-barred. We therefore hold that the CSAAA amounts to unconstitutional retrospective legislation as applied to the plaintiffs’ claim under the Act against the defendants here. Accordingly, we affirm the district court’s order granting the defendants’ motions to dismiss.”

Source Aurora Public Schools v. A.S., 2023 CO 39.

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