Opinion
MMXCV165008760
06-01-2016
T.S. v. Charles Jarzbek
June 2, 2016, Filed
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISMISS AND APPLICATION FOR PREJUDGMENT REMEDY
Julia L. Aurigemma, J.
The plaintiff, T.S., has brought an application for prejudgment attachment against the defendant, Charles Jarzbek, in which she seeks to secure the sum of $750,000 in damages. The defendant has moved to dismiss the action on the grounds that Connecticut General Statutes § 52-577d as applied to the defendant is unfair, unconstitutional and facilitates abuse of the justice system. By agreement of the parties the court heard evidence in support of the prejudgment remedy application prior to ruling on the motion to dismiss due to scheduling issues, with the understanding that the court would rule on that motion before deciding whether to grant or deny the application.
Factual and Procedural Background
The plaintiff is a victim of sexual abuse at the hands of her father, the defendant, Charles Jarzbek, who was the subject of a criminal prosecution, the appeal of which resulted in a case of first impression concerning the use of video-taped testimony of minor victims, State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987). The Supreme Court summarized the proceedings as follows:
The defendant, Charles Jarzbek, was charged by information with the crimes of risk of injury to or impairing the morals of a child in violation of General Statutes § 53-21 and sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(1). Prior to trial, the state, over the defendant's objection, obtained permission from the trial court to videotape the testimony of the defendant's daughter, one of the alleged victims, outside his physical presence. As requested by the state, this videotaped testimony was admitted into evidence at the defendant's trial. In accordance with a jury verdict finding the defendant guilty on both counts, the trial court rendered a judgment sentencing the defendant to a total effective term of imprisonment for five years, execution suspended, and five years probation. The defendant has appealed from that judgment.State v. Jarzbek, 204 Conn. at 684-85.
The Jarzbek court summarized the facts of the case as follows:
In the videotape that was introduced into evidence at trial, T described the game of " roll around, " which she demonstrated through the use of anatomically correct dolls. After the dolls' clothes had been removed, she placed them together, face to face, demonstrating genital contact. She stated that she had played the game with her father " many times" and that they had always played with their clothes off. She further testified that her buttocks had gotten dirty from the game and that she had had to take a bath " [s]o Grammy [wouldn't] know." She also stated that her father had told her that he would hit her if she told anyone about the game.
The jury could reasonably have found other evidence introduced by the state at trial to be corroborative of T's videotaped testimony. The games that the defendant played with T came to light when J, her eleven year old cousin, observed T, then four years old, and I, her three year old brother, playing in a bedroom of their Middletown home. J observed the two on the bed, the victim on top of her brother, face to face, " rubbing up and down" in an obviously sexual manner. After watching his cousins for about thirty seconds, to confirm that he was not misconstruing their behavior, he asked what they were doing. Although the victim initially tried to " cover up" their activity, she then acknowledged that she and her brother had been playing a secret game that her father had taught her, and that her father had told her to keep the game a secret or else she " would never see him again."
Various adult relatives also testified, at trial, about conversations with T concerning the games she had played with her father. The victim had given essentially the same account, in varying degrees of detail, to her aunt, her mother, her maternal grandmother, and a social worker.State v. Jarzbek, 204 Conn. at 687-88.
At the hearing on the prejudgment remedy application, the plaintiff, T.S., testified that she had reviewed the Jarzbek decision and other documents relating to the prosecution shortly before she testified. Her testimony about the events surrounding the sexual assaults were nearly identical to the facts as recited by the court and set forth above. The plaintiff was four years old at the time of the assault and, although she claimed to have a memory of the assaults, the court finds that the memory is largely based on a recent reading of accounts of the events and extensive discussion with family members.
The plaintiff, now 36 years of age, testified that she and her mother and brother moved away from Middletown when she was 5 years old. She stated that she thought she had received some counseling, but had not received regular medical checkups as a child. The plaintiff played sports and an instrument in high school, where she was on the honor roll. She was never suspended in school for any misconduct. The plaintiff received a bachelor's degree from the University of [Redacted], where she was on the Dean's List and a master's degree from the [Redacted]. She married in 2010, had a child, and was divorced in 2015.
The plaintiff testified that she had never been diagnosed with depression by any medical professional. However, she stated that she diagnosed herself with depression and obtained anti-depression medication from her primary care physician. She last took the anti-depression medication in 2013.
The defendant introduced a letter that the plaintiff had written to her father's brother, Robert, in 1999 where the plaintiff states, in part:
Well, since the last time we saw each other, I have been very busy growing & the like. I've lived in the same town, and am now going to a wonderful liberal arts university (All I do is write paper after paper), still living at home, savin' $. Its rather nice, actually--campus is a place to escape, I couldn't imagine living there. I was a busy bee in high school, compiling a list of things to add to a resume. I've been playing trumpet for 8 years, though not too seriously anymore. I'd like to join a jazz band this summer if I'm not working at a summer camp, but I haven't decided yet.
I played baseball when I was a little kid. Ian and I were hardcore! Not to brag or anything, but I was better than a lot of guys that I played with and there was a lot of prejudice at the fact of being a girl . . .
Baseball got lame after a while, so I took up soccer and played throughout H.S. I did a little video animation/production, and would like to go somewhere with it.
In college I'm taking up history & art history. I've had to do drawing & 2-d design along with it, which has gotten me into art. It's not really a reliable profession, though. I'm thinking about video courses for documentary type work. I hope to find some museum in Europe that will hire me as a curator or maybe let me live in the basement & dust the paintings, just something involving art.
We have a pirate radio station, my friend Jaimie and I have a show called " Kill the Capitalist Consciousness" where we assume Russian names and talk about Marx & Lenin & play different tunes . . .
The radio show helps build my confidence as a public speaker. I have to give a lecture for my humanities class (» 150 people). After this semester, I'll be able to do/say anything with little reservation . . .
The plaintiff currently works as an administrator.
The plaintiff testified that the main effect that the sexual assaults had on her life was that she grew up only knowing her mother's side of her family, she felt guilty about her father's prosecution and was embarrassed when people asked her where her father was. When asked why she decided to bring this lawsuit now, after the passage of so many years, the plaintiff testified she struggled everyday and also, learned that the case against her father had considerable notoriety.
Motion to Dismiss
The defendant has moved to dismiss the application for prejudgment remedy and the underlying action " based primarily upon the lapse of time from Ms. T.S.'s clear knowledge of a cause of action based on sexual abuse and her dilatory tactic of waiting thirty (30) years to bring the known claim." Memorandum of Law in Support of Objection/Motion to Dismiss Plaintiff's Application for Prejudgment Remedy, March 18, 2016, p. 2.
The defendant argues that Connecticut General Statutes § 52-577d is unconstitutional insofar as it is applied to the defendant in this case. That statute provides:
Notwithstanding the provisions of section 52-577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority.
Section 52-577d has been twice modified to extend the time for bringing suit. Public Act 91-240 changed the statute to extend the limitations period from two years after reaching the age of majority to seventeen years after attaining majority. Public Act 02-138 extended the limitation from seventeen to thirty years after the attainment of the age of majority.
The defendant argues that the primary objective in extending the statute of limitations was to " account for alleged victims who had repressed memories relating to the alleged sexual abuse." Memorandum of Law in Support of Objection/Motion to Dismiss Plaintiff's Application for Prejudgment Remedy, March 18, 2016, p.6. He relies on Giordano v. Giordano, 39 Conn.App. 183, 193, 664 A.2d 1136 (1995), where the appellate court noted that the legislative history of Public Act 91-240 reveals a clear objective to accommodate victims who often " sublimate their memories of childhood abuse." The defendant also cites some of the legislative history of the 1991 public act, wherein Gail Burns-Smith, representing the Connecticut Sexual Abuse Crisis Center testified:
Traditional approaches presume immediate recognition by the victim that a crime has been committed against him or her and the ability to report that crime immediately. Children, however, are often unaware that a crime has been committed and often the abuser will pressure or threaten the child victim to keep the abuse a secret. As you've heard in this previous testimony, child sexual abuse, particularly incest, may be psychologically repressed because of the need to block the pain and the trauma resulting from such injuries . . . We know through experience and with documentation from the research literature that many survivors simply will not recall the abuse until the third or fourth decade of life.Conn. Joint Standing Committee Hearings, Judiciary, pt. 4, 1991 Sess., p. 1140.
The Connecticut Supreme Court has considered the meaning of 52-577d on several occasions. Roberts v. Caton, 224 Conn. 483, 619 A.2d 844 (1993); Doe v. Norwich Roman Catholic Diocesan Corporation, 279 Conn. 207, 901 A.2d 673 (2006); Doe v. Hartford Roman Catholic Diocesan Corporation, 317 Conn. 357, 119 A.3d 462 (2015).
In Roberts v. Caton, supra, the plaintiff brought a civil action for damages against her grandfather, alleging that he had sexually assaulted her from the time she was five years old until she was eleven years old. The trial court granted the plaintiff's application for prejudgment remedy for $350,000. The defendant opposed the prejudgment remedy on the grounds that the statute of limitations, § 52-577d, had already expired. At the time the suit was commenced, § 52-577d had been amended by Public Act 91-240, which extended the time period within which actions arising from sexual abuse of minors may be brought from two years to seventeen years after the plaintiff attained the age of majority. The plaintiff reached the age of majority in 1986 and brought the action in 1992.
The defendant argued that § 52-577d could not be applied retroactively because it creates a substantive change in the law. The court disagreed, and held that § 52-577d as amended did not create a substantive change in the law that would preclude its retroactive application.
The defendant in Roberts also argued that the dictates of good sense and justice should prevent the retroactive application of the statute to him because he was unexpectedly exposed to liability for conduct which occurred most recently thirteen years before the date of suit. The Court responded to this argument as follows:
Although statutes of limitation generally operate to prevent the unexpected enforcement of stale claims; Lametta v. Connecticut Light & Power Co., 139 Conn. 218, 221, 92 A.2d 731 (1952); one object of § 52-577d is to afford a plaintiff sufficient time to recall and come to terms with traumatic childhood events before he or she must take action. The defendant's assertion that he is now unexpectedly exposed to liability was an express purpose of the statute. We see no injustice in retroactively applying § 52-577d as amended so as to effect that purpose. We conclude that the trial court properly found probable cause to grant the plaintiff's application for prejudgment remedies.Roberts v. Caton, 224 Conn. at 493-94.
In Doe v. Norwich Roman Catholic Diocesan Corporation, 279 Conn. 207, 901 A.2d 673 (2006), the Court considered when the thirty-year statute of limitations period under Connecticut General Statutes § 52-577d, triggered by a minor victim of sexual assault attaining the age of majority, begins to run for the plaintiff, David Doe, who was nineteen years old when the legislature lowered the age of majority from twenty-one years to eighteen years in 1972.
The Court described its process of interpreting the statute as follows:
The issue before this court involves a question of statutory interpretation that also requires our plenary review . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Citations omitted; internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 7, 882 A.2d 597 (2005). The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation. (Internal quotation marks omitted.) Tarnowsky v. Socci, 271 Conn. 284, 287 n.3, 856 A.2d 408 (2004).Doe v. Norwich Roman Catholic Diocesan Corporation, 279 Conn. at 212.
The Court in Doe v. Norwich Roman Catholic Diocesan Corporation, supra, concluded that " the meaning of § 52-577d, when read in light of § 1-1d., is plain and unambiguous because it is susceptible of only one reasonable interpretation, namely, that a minor victim of sexual assault may bring a civil action no later than thirty years from the date that he or she attains the age of majority as that age is defined by § 1-1d." Doe v. Norwich Roman Catholic Diocesan Corporation, 279 Conn. at 214.
Most recently, in Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 119 A.3d 462 (2015), the Supreme Court again rejected a defendant's challenge to the constitutionality of the expanded limitations period that had the effect of reviving an otherwise time-barred civil claim. The court concluded that the retroactive application of the longer limitation period did not violate the United States Constitution or the Connecticut Constitution. Id. at 439-42. The defendant in Doe, like the defendant here, argued that the late commencement of the suit by the plaintiff created problems for defendants like itself by interfering with their right to plan their affairs and by complicating the defense of very old cases where many witnesses are dead or elderly and many relevant records have been destroyed. 317 Conn. at 403-04. The Supreme Court rejected these arguments and noted, " [a]n express limitations period reflects a legislative value judgment striking the appropriate balance between the interests promoted by the statute and countervailing interests of repose . . . The legislature determined the point at which the interests in favor of protecting valid claims are outweighed by the interest in prohibiting the prosecution of stale ones . . . In some special cases, as here, the legislature has decided, based on fairness concerns, that a plaintiff may have an additional or indefinite amount of time to file suit." Id. at 401.
The defendant argues, " The Plaintiff attempts here to lay waste to the spirit and intent of the extended statute of limitations as she and her family have been keenly aware of the jury's verdict and finding for three (3) decades." Memorandum of Law in Support of Objection/Motion to Dismiss Plaintiff's Application for Prejudgment Remedy, March 18, 2016, p.8. The plain and unambiguous language of the statute applies to all plaintiffs who were the victims of sexual assault as minors, not just plaintiffs who were the victims of sexual assaults which were unknown to third parties. Merely because her case was the subject of a criminal prosecution does not necessarily mean that the plaintiff does not require " sufficient time to recall and come to terms with traumatic childhood events before [she] must take action." Roberts v. Caton, 224 Conn. at 493-94.
In light of the court's rulings in Roberts v. Caton, 224 Conn. 483, 619 A.2d 844 (1993), Doe v. Norwich Roman Catholic Diocesan Corporation, 279 Conn. 207, 901 A.2d 673 (2006), and Doe v. Hartford Roman Catholic Diocesan Corporation, 317 Conn. 357, 119 A.3d 462 (2015), the extended limitations period of § 52-577d does not violate the United States or Connecticut Constitutions.
The defendant's other constitutional arguments are all based on the assumption that this action is a criminal action. Clearly, it is not. Therefore, the court cannot find that § 52-577d violates the defendant's due process rights, his rights to a speedy trial, his right to avoid double jeopardy or his right to confrontation. The motion to dismiss is, therefore, denied.
In Doe v. Hartford Roman Catholic Diocesan Corporation, 317 Conn. 357, 437, 119 A.3d 462 (2015), the court describes research on the effects of sexual abuse on minors:
In one significant example, Professor Marci Hamilton observes that " [l]egislation that eliminates the civil [statute of limitations] or includes a discovery rule is supported by various studies on the long-term effects of child molestation and the likely delay in disclosure. Researchers in various studies have found--specifically in men who were sexually abused as children--that long-term adaptation will often include sexual problems, dysfunctions or compulsions, confusion and struggles over gender and sexual identity, homophobia and confusion about sexual orientation, problems with intimacy, shame, guilt and self-blame, low self-esteem, negative self-images, increased anger, and conflicts with authority figures. There is also an increased rate of substance abuse, a tendency to deny and delegitimize the traumatic experience, symptoms of [p]ost[t]raumatic[s]tress[d]isorder, and increased probability of fear and depression for all victims . Often, it is not until years after the sexual abuse that victims experience these negative outcomes. As clinician Mic Hunter has observed: 'Some of the effects of sexual abuse do not become apparent until the victim is an adult and a major life event, such as marriage or birth of a child, takes place. Therefore, a child who seemed unharmed by childhood abuse can develop crippling symptoms years later . . .'" (Footnotes omitted.) M. Hamilton, " The Time Has Come for a Restatement of Child Sex Abuse, " 79 Brook.L.Rev. 397, 404-05 (2014).Emphasis added.
The plaintiff has clearly established probable cause that the defendant sexually assaulted her when she was four years old. However, she has produced no evidence of medical or other expenditures associated with the sexual abuse at issue, and no evidence that she suffered significant physical or psychological damages due to the abuse. That abuse had the effect of cutting the plaintiff off from all of her paternal relatives and depriving her of any relationship with her father. The plaintiff failed to establish that she suffered other negative consequences such as those described in the above passage from Doe v. Hartford Roman Catholic Diocesan Corporation, 317 Conn. 357, 437, 119 A.3d 462 (2015). She did well in school, had no discipline problems, achieved a high school degree, followed by a bachelor's and a master's degree. She was married and had a child and holds down steady employment. Her bringing suit now was prompted in part by her realization that the case of State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), was a case of considerable notoriety.
Based on the foregoing the court finds that there is probable cause that the plaintiff will recover a judgment in the amount of $150,000 from the defendant and orders a prejudgment attachment in that amount.