BishopAccountability.org
	MarciWorld By L. Martin Nussbaum and Melissa Musick Nussbaum First Things February 5, 2009 http://www.firstthings.com/onthesquare/?p=1307 Welcome to MarciWorld, where legislation can stop the sexual abuse of children. Marci Hamilton, a Yeshiva University law professor, describes her book, Justice Denied: What America Must Do to Protect Its Children, as "a how-to book on stopping child abuse, empowering survivors, and helping society identify child predators." The answer, Hamilton claims, "is straightforward and attainable: eliminate SOLs"—statutes of limitation, in other words, both for criminal prosecution of sexual perpetrators and for civil damage suits against them and their employers. In Child Maltreatment 2006, a report from the U.S. Department of Health and Human Services, we're told that around 66 percent of those who sexually abuse children are parents, other relatives, unmarried partners of parents, friends, or neighbors, and that only 0.5 percent are "professionals." And clergy are a subset of "professionals," and Catholic priests are a subset of clergy. Neither Child Maltreatment 2006 nor any other study identifies clergy (much less Catholic priests) as a statistically significant class of perpetrators. Statistically insignificant and taken from years and decades past, cases of abuse involving Catholic clergy—though profoundly troubling—are nonetheless few compared to the cases involving, for example, public-school teachers. Thus, for example, in both actual numbers and percentages, sexual abuse of children by teachers, coaches, and employees in public schools exceeds anything that occurred in Catholic institutions. Furthermore, in contrast to Catholic institutions, sexual abuse of children in public schools is still occurring in significant numbers. Prof. Carol Shakeshaft, an expert cited by Hamilton, told Education Week, "So we think the Catholic Church has a problem? . . . The physical sexual abuse of students in [public] schools is likely more than 100 times the abuse by priests." The difference between the problem in the Catholic Church and the continuing problem in public schools is likely greater than that. The 2007 Annual Report prepared by the Catholic bishops identifies fifteen allegations of childhood sexual abuse in the American Catholic Church from 2000 to 2007—an average of less than two per year. The 2007 Associated Press investigation identifies 2,570 public school teachers who, from 2001 through 2005, had their teaching licenses "taken away, denied, surrendered voluntarily, or restricted" as a result of sexual misconduct with minors—an average of 514 per year. The comparison is based on different criteria, but the differences hardly help the public schools. The bishops' study is based on an outside audit. It counts possible victims based on unproved allegations. The AP report is based on public records. It counts only perpetrators when the allegations are sufficiently proved to warrant the restriction or loss of a license. Assuming only one victim per disciplined public school teacher, the ratio of abuse in public schools to that in the Catholic Church could run as high as 275 to 1. If Hamilton's goal is to stop child abuse through the repeal of statutes of limitation in every state, and if child abuse is a more pervasive problem in public institutions than in private ones, why does Hamilton concentrate on private institutions and, in particular, the Catholic Church? For a book claiming to consider the problem of childhood sexual abuse everywhere it occurs, Justice Denied expends most of its effort on the place where even Hamilton notes "only a small fraction of sexual abuse" took place. Seventy-one of the 113 pages in her book mention Catholic clergy and institutions. But there's a reason she wants to concentrate on the Catholic Church. In 2002, a coalition—consisting of Hamilton, other plaintiff attorneys, and the Survivors Network of Those Abused by Priests—persuaded the California State Assembly to enact the first window bill concerning private, not public, entity defendants. ("Window" legislation retroactively revives time-barred claims and, for future claims, eliminates the statute of limitation altogether.) As a result, over a thousand previously time-barred claims were filed against Catholic institutions. Some alleged abuse from the 1930s, and a significant percentage alleged abuse by over a hundred priests long dead. While Hamilton claims that Catholic "dioceses were not targeted" by this legislation, John Burton, president pro tem of the California Senate and chief sponsor of the bill, told the Los Angeles Times, that his "bill was a direct response to the widening national scandal over sex-abuse by Catholic priests" and was aimed at "deep pocket" defendants such as the Catholic Church. When these claims are all resolved, the California window bill will generate over one-half billion dollars in legal fees for plaintiffs' counsel including the $700 per hour that Hamilton charged the Diocese of San Diego when she represented the creditors committee in its resulting bankruptcy. When Hamilton and her coalition came to Colorado in 2006 to lobby for window legislation, the Colorado Catholic Conference, led by Denver Archbishop Charles Chaput, asked only that legislation in question satisfy two principles: fairness and prevention. In fairness, the conference asked that the general assembly protect the welfare and safety of children in public institutions under the same rules and with the same real penalties applied to private institutions. How could Hamilton object to such a reasonable goal? Hamilton calls the Colorado Catholic Conference's argument for fairness and prevention "an insidious strategy" and writes that "there is not a more vile strategy out there." But given that she knows the Catholic Church "is responsible for only a small fraction of the total number of child sex abuse survivors," she seems oddly unwilling to admit that "stopping child abuse" by eliminating statues of limitation must include public institutions. Calling for childhood sexual abuse legislation that treats public and private entities alike is only insidious if one's real goal is to burden only private institutions. Hamilton scolds Catholic leaders, accusing them of "orchestrating" the sexual abuse of children. She describes Catholic Church representatives and their allies as "sleazy" and "vile," while those who align with her are "visionary" and on "the side of the angels." This may explain why the Findlaw website lists twenty-seven commentaries Hamilton has written about the Catholic sexual-abuse scandal and none about the public-school sexual-abuse scandal. In a section of her book entitled "State Reform in the Private Sphere," she calls both for abolishing "statutes of limitation going forward" and for retroactively reviving time-barred claims. But when she turns to public entities, Hamilton goes curiously vague. She notes that public entities are often protected by sovereign immunity, a doctrine that "protects a state's treasury from private lawsuits in order to shield a state from onerous interference with the performance of governmental duties and to preserve its control over state property and funds that might otherwise be endangered." She shows no such concern for soup kitchens, homeless shelters, and schools endangered by private lawsuits against the Catholic community. Indeed, she claims that the Catholic institutions and their insurers were able to pay in settlement over two billion dollars to date without affecting the Church's "charitable public works." In MarciWorld, settlements paid by public schools "onerously interfere" with their mission, while settlements paid by Catholic ministries miraculously do not. She suggests ever so politely that legislators "have an obligation to investigate the financial and legal ramifications of eliminating" statutes of limitation "for childhood sexual abuse by state employees" and says that hearings should be "held and public discussion fostered," but she never expressly calls for abolishing "statutes of limitation going forward" for public entities as she does for private entities. The Catholic community in California should be made to pay hundreds of millions of dollars for suits brought against dead priests while suits against the public school institutions in which living, and still active, sexual predators stalk their victims should be "discussed." Or, rather, public discussion should be "fostered." Where's the call for withholding federal dollars? Hamilton blames Republicans for fighting her efforts in the statehouse, arguing, "Republicans tend to be more beholden to religious interests than others." The others are Democrats, of course, who tend to be more beholden than Republicans to the interests of the public-school teachers' lobby and the plaintiff lawyers' lobby. Hamilton advises her readers to "follow the money." Do so, and one will likely find the reason she is loathe to treat public and private institutions alike. Hamilton calls statutes of limitation "arbitrary," "technical," "artificial," and "unjust." She offers only one sentence stating the purpose of such laws: "They encourage litigants to get to court before evidence is lost or stale." She then tries to confine this purpose to "contract and property disputes" and concludes, "there is no good reason [for statutes of limitation] to barricade the courts against victims of sexual abuse." In fact, there are many good reasons that statutes of limitation exist, and getting to court before "evidence is lost or stale" is surely one. Because sexual abuse is an act of darkness and secrecy, it often occurs hidden from sight. Such acts are hard to prove or disprove. Reliable evidence is crucial to uncovering, stopping, and punishing child abusers. The more institutions and individuals are encouraged to act promptly to report abuse, the greater the chance the abuser will be apprehended and convicted. Nearly every child-abuse-reporting statute mandates immediate reporting because prompt reporting leads to persuasive evidence, arrests, and prison sentences. Furthermore, statutes of limitation protect the falsely accused. In his 2004 sworn declaration filed in the Melanie H. case, Msgr. Craig A. Cox, vicar for clergy for the Archdiocese of Los Angeles, testified that Hamilton's "window bill" enacted by the 2002 California State Assembly resulted in 760 individuals suing the archdiocese. Many of these claims allegedly involved one of the sixty-eight priests who had died before the claims were brought. Msgr. Cox describes in detail twelve exemplar claims for conduct alleged to have occurred from 1931 to 1968. In each of the cases, not only is the priest long dead but so is any one who knew or supervised him. Bishops, seminary professors, fellow priests, school principals, housekeepers—all dead. There are no witnesses, either to confirm or deny the man's alleged guilt. Prompt reporting makes a just outcome more likely. In MarciWorld, a person can be tried and found guilty on the testimony of one person, the one person who stands to gain financially from his or her testimony. Statutes of limitation protect innocent future generations. When window legislation is proposed for either public or private institutions, the liability—the cost—falls on someone other than the abuser. In the case of public schools, the financial impact falls not on the molesting teacher but on the later students who suffer budget cuts and citizens who pay higher taxes. In the case of churches, the financial impact falls not on the priest perpetrator, often long dead, but on churchgoers who must tithe, not to support ministry, but to support the plaintiff lawyers' forty-percent cut. What of the small child who is abused and, afraid to tell, keeps her terrible secret? Is she barred from bringing a claim against her accuser when she finds the strength to do so? Current statutes of limitation already protect her right to bring a delayed claim through minority tolling provisions. Hamilton not only ignores the purpose but the facts of statutes of limitation when she writes, "It was not uncommon twenty years ago for states to impose a mere two-year [statutes of limitation] on legal actions concerning childhood sexual abuse, which meant that a child abused at age seven would have to get to court by age nine or else lose the right to sue." That's simply wrong. Such statutes were uncommon twenty years ago. Hamilton is also wrong regarding the current situation when she alleges, "over the years, some states have started counting from the age of eighteen, instead of the date of the abuse, and some have added two, five, fifteen, and even twenty-five years to the original" statutes of limitation. Hamilton leaves the impression that, in most states, seven-year-old victims must engage legal counsel and file suit by age nine or forfeit their claims. This is false, and Hamilton knows it. According to the study she cites, "Nearly every state has a basic suspension of the statute of limitation ('tolling') . . . while a person is a minor." In fact, all fifty states and the District of Columbia suspend the running of the statute of limitation until a child victim turns eighteen. So Hamilton's seven-year-old victim would have eleven years to reach majority plus, depending on the state, up to twenty-five more years before the statute bars the claim. Hamilton's straw man may fill pages, but it does not help the child victims or child targets of molestation, and it does not help inform public policy. Marci Hamilton's Justice Denied is a sloppy piece of work, poorly researched and poorly written. It is a diatribe against the Catholic Church disguised as a solution to child sexual abuse. Hamilton's clients and ours—all of us—deserve better. L. Martin Nussbaum is legal counsel for the Colorado Catholic Conference and other religious institutions. Melissa Musick Nussbaum is the author of six books and numerous articles. Her work has appeared in Commonweal, the Notre Dame Magazine, and National Catholic Reporter.
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