Swift Resolution is More Important than Any Statute of Limitation
The recent discovery of long-past instances of child abuse and rape in an orphanage on the outskirts of the Vienna Woods has re-opened the debate over statutes of limitation. (See Austria Briefs)
One can argue about the sense or nonsense of statutes of limitation. But the longer ago the crime, the less use a conviction is to the victim, or to society.
Certainly, it is tempting to call for extended statutes. Who wants to appear to be protecting alleged child abusers? But before we join in the chorus, let’s make sure that we are aware of a few things.
For instance, the fact that a change in legislation would not affect the statute of limitation still applying to these recently publicised cases from years past. Criminal Law can never be applied retroactively. And the Ancient Roman principle "nulla poena sine lege" (no punishment without a law) does have a purpose. Just imagine the opposite, a country suddenly issuing laws that put people behind bars retrospectively. That would be a useful device for governments to rid themselves of inconvenient critics.
At this point, you may say that the people in question are not the victims of political persecution, but child abusers, the epitome of evil. Nonetheless, a constitutional state is defined by its adherence to the law, towards both good and bad citizens. And when a deed has once legally passed beyond the statute of limitation, then we must – whether we want to or not – abide by that today.
This should not, of course, stop us from thinking about improving laws and statutes of limitation for the future. In fact, the rules have been tightened repeatedly. Since last year, the statute of limitation for child abuse starts ticking only once the victim turns 28. It will take several decades, however, before we can sensibly judge whether this change in legislation is enough to sentence more perpetrators.
Now we can, of course, extend the statute of limitation in abuse cases by a little bit each year, to pacify emotions after new incidents are made public. But it has never been a good idea to change laws in moments of passion. Before we start extending statutes little by little, we should address the fundamental question: Should there even be a statute of limitation for certain crimes?
The question can be argued both ways. And it forces us to philosophise about the purpose of punishment itself. Does it serve to take revenge on bad people? If so, statutes of limitation should be abolished in general. Or is the purpose of the punishment to bring a deviant member of society back to the straight and narrow path of the righteous? Then it would be pointless to punish someone who committed an aberration decades ago, but has behaved properly ever since.
And then there is still the question of prevention, which is now being discussed outside of law school lecture halls thanks to Uwe Scheuch [Deputy Governor of Carinthia, FPÖ, convicted in the first instance of accepting gifts in public office, ed.]. Should people be punished for the rest of the population to see that crime doesn’t pay?
Punishment should probably be a bit of each, which is why the legislature is seeking a compromise. Thus a simple thief’s case expires after a year, a child molester’s after a great number of years, and a murderer’s never, because in this case the need for revenge is greatest. Another argument against the abolition of statutes of limitation is that it is very difficult to solve a crime conclusively after many decades.
What should not be allowed to happen (as it did with the accusations of malpractice against ex-Minister Ernst Strasser [ÖVP, ed.]) is for the prosecution to "overlook" a case just long enough for it to "sadly" expire.
When it comes to child abuse, it is easy to find arguments for an abolition of the crime’s statute of limitation, especially since the victims often only gather the courage to talk about their traumatic experience much later.
This leads us to the real issue. No matter whether it concerns state or church-run institutions, there needs to be enough supervision to ensure that offenders are convicted as quickly as possible. The victims need to have the support and comfort that would give them the courage to press charges immediately, rather than decades later. And we must be able to count on the judicial system to hold criminals to account
Because a swift resolution will always be more important than an annual debate about statutes of limitation.
Philipp Aichinger is a politics writer for Die Presse.
This is a translation of a commentary published in
Die Presse on 17 Oct. 2011.