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	A Response to “Marciworld” By Marci A. Hamilton First Things March 18, 2009 http://www.firstthings.com/article.php3?id_article=6540 Martin and Melissa Nussbaum have written an indefensible and disingenuous review of my book, Justice Denied: What America Must Do to Protect its Children. A point-by-point refutation of some of their many scurrilous statements reveals that “MartyWorld” is a world filled with biased misrepresentations. Nussbaums: “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?” Hamilton: Did they miss page 72 (among many others)? “The reality: SOL reform is all about children, not the Church. SOL reform will protect all children and deter perpetrators as well as any institutions aiding them. The 70-80 percent of survivors who were abused by family or family friends need it just as much as the hierarchy’s victims. But the Catholic hierarchy has lobbied as though theirs was the only entity affected.” To the point about singling out the Church, the Nussbaums might also have read Chapters 5 and 7, in which I focus on the insurance industry, public school teacher unions, and defense attorneys. Nussbaums: “She never expressly calls for abolishing statutes of limitations going forward for public entities as she does for private entities.” Hamilton: Oh really? How many times do I need to say it for them to read it? After a section talking about the elimination of SOLs in the private sphere, I say on page 42, “The same principles justify abolishing SOLs for childhood sexual abuse that was perpetrated in the public sphere as well.” And then on page 44: “States, just like private institutions, need to be deterred by law from covering up the identities of abusers and be held publicly accountable by survivors. If the SOLs are eliminated in the state sphere, there is a powerful motive to identify predators and remove them. That motive is criminal and civil liability . . . As I have said before, one of the key elements at stake is protecting future children from abuse by identifying abusers. This goal is just as important in the public realm as in the private. Predators draw no such distinction. Nussbaums: “Hamilton claims the ‘Catholic dioceses were not targeted’ by [window] legislation.” Hamilton: That is not what I “claim,” but rather what a federal court in California ruled in the Melanie H case, which they mention. Did they not read that either? Nussbaums: Refer to me as one of the “’plaintiff attorneys’ . . . that persuaded the California State Assembly to enact the first window bill.” Hamilton: Actually, I would like to take credit for the visionary window bill passed in California, but I had nothing to do with it. I was brought into the California litigation after the law was passed, because the Church was fighting the survivors of abuse by priests by raising First Amendment and other constitutional defenses. I am a former United States Supreme Court clerk and a constitutional law and church/state expert. That has been my sole role in clergy abuse cases. I am paid by the hour for my litigation expertise on these issues, not through a contingency arrangement. Like any other lawyer, my fee reflects the value I bring to a case. I will not apologize for it. May I ask, Mr. Nussbaum, how much the Church pays you to attempt to shut down cases brought by victims of sexual abuse? I’m sure your loss to me in the Portland Archdiocese bankruptcy case did not do much for your rate, whatever it is. Perhaps the hierarchy would like to publish the fees it has paid to lawyers to litigate against victims? Nussbaums: “After ‘the window legislation was passed,’ over a thousand previously time-barred claims were filed against Catholic institutions.” Hamilton: That is inaccurate. The thousand-plus claims filed were against others besides the Catholic institutions, e.g., the Explorer Scouts. Only about 80 percent were against Catholic institutions, which is to say the law helped victims of a number of organizations. Still, that may seem to be a disproportional amount, but it is a function of the fact that at the time Catholic victims were energized by the Boston Globe’s disclosure of bishop coverup of abuse and mobilized to get their day in court while other victims did not understand what the window meant or simply were not ready to come forward. After the window closed, I heard from victims of the Buddhist community, the Children of God (a cult that started at Berkeley), and various schools, among others. Nussbaums: The Colorado Catholic Conference asked for “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: That is my goal, as I make clear above and in Justice Denied. What I found objectionable was the Colorado Catholic Conference’s hiring of a pricey public relations firm to come up with a plan to kill SOL reform with a strategy of saying that the bill was targeting the Church because it did not apply to the public sector. In fact, the bill was not targeting the Church (anymore than California’s bill, which was used by a variety of victims and not just Catholic victims) and the political play of saying that it should also extend to the public sphere was cynically intended to engender opposition from public school teachers, among others. Those interested in the truth, rather than misleading quotations couched in lies should read pages 85 to 92 of Justice Denied. Nussbaums: “Where’s the call for withholding federal dollars?” Hamilton: Page 47. Nussbaums: “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.” Hamilton: Actually, the Catholic Church has pristine files in numerous cases documenting the abuse and the cover up. Nussbaum surely has read thousands of such pages by now. The survivors in the California settlements are still waiting for the Los Angeles Archdiocese to release the millions of pages of evidence which were promised as part of the settlement (and yet to be delivered). Nussbaums: “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.” Hamilton: As any law student knows, changing an SOL does not affect the plaintiffs’ burden of proof, which remains heavy and a threshold to the suit going forward. Nor does it change rules of evidence or any of the other rules that surround a lawsuit and trial. All it does is change the date of going to trial. Moreover, it is rare that the perpetrators in these cases only have one victim to face. As I point out in Justice Denied, in California, when one victim came forward, others frequently did as well, and sadly, it was not uncommon that the next victim was a sibling. Moreover, the Nussbaums seem fundamentally confused about the distinction between criminal and civil cases. If they are talking about being found “guilty,” that is what happens in a criminal trial, not a trial involving damages. Nussbaums: “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’ 40-percent cut.” Hamilton: More deceptions. The financial impact falls on the hierarchy, which orchestrated the cover up that made them defendants in the first instance. And, as Nussbaum knows full well, settlements have been paid out of insurance proceeds and typically sale of lands owned by the Church that are not dedicated to religious purposes. For example, the San Diego Diocese had so many such properties, it did not even have to sell an empty lot in the middle of downtown San Diego. When the Archdiocese there asked parishioners to assist in paying the settlement because it could not afford it, the federal bankruptcy judge was prompted to cry out of frustration at the ongoing lies being perpetrated by the Diocese. Nussbaums: “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 . . .” Hamilton: Once again, Martyworld uses selective quotation to deflect the truth. What I say on page 17, after summarizing the move from short statutes of limitations from the moment of abuse to the age of majority, is this: “While more than half of the states instituted a discovery rule, some still capped the age at which the survivor could file a claim at age eighteen plus two or a few more years, well before most survivors are capable of making their abuse public.” That is the truth. After all their misrepresentations of my plain statements, they have the nerve to call my work “sloppy.” They cornered that market. Finally, I wrote this book, because as I learned more and more about clergy abuse, I realized that there was something fundamentally wrong with American law that related to all victims of child sex abuse. It is a moral outrage that statutes of limitations are giving predators a free pass and preventing survivors entry to court when they are finally ready to be there. I can tell you that the many survivors who have contacted me since reading Justice Denied only reaffirm my conviction that this easy solution must be adopted in every state if we are ever to live in a society that protects our children. If you are one of the 25 percent of girls or 20 percent of boys who were sexually abused, you need to read this book. If you care about justice and want to learn the most direct way to learn the identities of the predators amongst us, you need to read this book. If you want to know why the laws we have, like Megan’s law, have not identified so many of the child predators, you need to read this book. It was written for the general public, because the need to change these laws as soon as possible is extraordinary. If the Nussbaums want me to stop criticizing the Church’s handling of child sex abuse, they should drop the ad hominem attacks and lead the charge to persuade their Church (and the Church of my beloved husband and children) to drop its feverish opposition to SOL reform. As the second half of Justice Denied documents, the most publicly active entity trying to halt SOL reform is the hierarchy of the Catholic Church. But this is not about them in the end. In the one reliable statement the Nussbaums make, clergy abuse makes up a small category of victims, a fact I repeat more than once in Justice Denied. All the more reason to condemn the hierarchy for attacking legislation that would benefit over 90 percent of the victims—victims the Church will never help. Until the legal system works to protect children instead of predators and their enabling institutions, I will not back down. Get used to it. Marci A. Hamilton is the author of Justice Denied: What America Must Do to Protect its Children A Replyby L. Martin Nussbaum and Melissa Nussbaum We have read Marci Hamilton’s letter in response to “MarciWorld,” our review of her book, Justice Denied: What America Must Do to Protect its Children. She does not modify her central claim that legislation can stop the sexual abuse of children. Legislation against murder, sadly, has not stopped murder, nor has legislation against theft stopped thievery. Human nature, with its inevitable propensity toward sin, means that Hamilton begins in error and continues in error. Nor does she respond to the principal points we make in our review. Hamilton offers no response to the report we cite, Child Maltreatment 2006, nor to the revealing statistics it offers. This report, from the U. S. Department of Health and Human Services, states that around 66 percent of those who sexually abuse children are parents, other relatives, unmarried partners, friends or neighbors, and that only 0.5 percent are professionals, of which clergy are a subset, and Catholic clergy a further, and by definition, smaller subset. Family members are generally judgment proof, and extending statutes of limitations for suits against them does little for their victims. She offers no response to the fact that sexual abuse of children by public-school teachers, coaches, and employees dwarfs anything that occurred in Catholic institutions. She does not comment on the statement of Charol Shakeshaft—an expert Hamilton cites in her book—that “the physical sexual abuse of students in [public] schools is likely more than 100 times the abuse by priests.” Hamilton offers no response to our claim, based on the 2007 Associated Press report, and the 2007 Annual Report prepared by the Catholic bishops and based upon an outside audit, that the problem of childhood sexual abuse within Catholic institutions is largely resolved while the problem of childhood sexual abuse within public schools is ongoing and growing. Our proof lies in the numbers: an annual average of 1.875 allegations of abuse occurring within the Catholic Church for the years 2000 to 2007 versus an annual average of 514 documented cases of public school teachers having their licenses “taken away, denied, surrendered voluntarily or restricted” as a result of sexual misconduct with minors during the years 2001 to 2005. Hamilton cannot address these facts, because to do so would endanger her ongoing crusade against the Catholic Church. Consider what she does not say in her response. She does not deny that 71 of the 113 pages in her book mention Catholic clergy and institutions. She does not deny that she labeled Archbishop Charles Chaput’s call for fairness and prevention when the repeal of statutes of limitation came before the Colorado legislature in 2006 “vile” and “insidious.” (Yes, she claims the strategy was “vile” and “insidious” because the Colorado Catholic Conference “hired a pricey public relations firm.” The title of disingenuous goes to Hamilton: She did not like the strategy of the Colorado Catholic Conference because it revealed the basic dishonesty of her own.) She does not deny that the Findlaw website lists twenty seven commentaries she has written about the Catholic Church’s sex-abuse scandal and not one about the public schools’ sex-abuse scandal. She does not deny our claim that statutes of limitation protect the falsely accused through the use of more recent and, therefore, more reliable evidence. Nor does she deny Monsignor Cox’ description of twelve exemplar claims brought against California priests who are themselves not only long dead, but so too are the bishops, seminary professors, fellow priests, school principals and housekeepers who might give witness to the truth or falsehood of such charges. She does contest our claim that statutes of limitation protect future innocent generations. We write that when claims are brought for alleged conduct decades earlier, the cost falls on someone other than the abuser or his actual supervisors. She hedges by arguing that “the financial impact falls on the hierarchy,” as if the hierarchy were not spending church funds to serve the faithful and the needy today and as if a bishop consecrated in 2009 could never be innocent of the failures from the 1970s. In MarciWorld a bishop taking office twenty years after an allegedly abusive priest has died, must accept the blame for and the cost of the deceased priest’s sin. Then she claims that no school or soup kitchen need be harmed by these multimillion-dollar settlements since the money for “settlements have been paid out of insurance proceeds and typically sale of lands owned by the Church that are not dedicated to religious purposes. For example, the San Diego Diocese had so many such properties, it did not even have to sell an empty lot in the middle of downtown San Diego.” (Emphasis ours) In its bankruptcy settlement, the Diocese of San Diego sold two former high schools, a family shelter, and the residences for religious and campus ministers. It substantially reduced diocesan services, and yes, the diocese does own something in the middle of downtown that one might describe it as “an empty lot.” To the many faithful of the diocese it is known as the parking lot for the cathedral. They—especially the aged and the infirm—experience its “religious purpose” every time they gather for worship. Hamilton contests our claim that over 1,000 previously time-barred claims were filed against Catholic institutions as a result of legislation passed by the California Assembly in 2002. Hamilton calls our claim “inaccurate,” and says, that of “the thousand-plus claims filed . . . only about 80 percent (of the more than 1,000 claims) were against Catholic institutions.” Even if she were correct, 80 percent would strongly suggest the legislative targeting of one particular institution that works with children. But we have gone back and checked our sources, and the evidence of successful targeting of Catholic institutions is worse than we originally stated. Here’s the number of claims filed against Catholic dioceses during the 2003 window period, diocese-by-diocese: Fresno 6, Los Angeles 558, Monterrey 14, Oakland 67, Orange 90, Sacramento 38, San Diego 135, San Bernardino 60, San Francisco 92, Santa Rosa 11, and Stockton 12. Hamilton says 800 or so. The facts say 1,083, and that’s without counting the hundreds of additional claims against Catholic religious orders and non-California dioceses. Hamilton wishes to be known as the advocate for all victims of childhood sexual abuse. She writes, “SOL reform is all about children, not the Church. SOL reform will protect all children and deter perpetrators as well as any institutions aiding them.” This does not square with what she does. In her book, Hamilton notes that public entities are often protected by sovereign immunity. She explains that this doctrine “protects a state’s treasury from private lawsuits.” This allows legislators to shield public entities from the same kind of multimillion dollar judgments that have been brought against Catholic institutions. Considering that the ratio of abused children in public schools to that of abused children in the Catholic Church is 275 to 1, one would suppose that Hamilton might be busy testifying before state legislatures and writing articles calling for the repeal of the doctrine of sovereign immunity in cases involving childhood sexual abuse. We haven’t seen it. In fact, after she submitted her letter, she was quoted in the New York Times supporting a bill before the New York State Assembly that would expose Catholic and other private institutions to massive liability for very old claims while leaving public institutions untouched. Nowhere in her book does Hamilton call for elimination of statutes of limitation prospectively for public institutions as she has campaigned for when cases involving private institutions are involved. She remains silent on the subject of the repeal of sovereign immunity. As Hamilton well knows, for the repeal of statutes of limitation to have any effect against public institutions, sovereign immunity must first be repealed for such lawsuits to proceed. She has not called for the repeal of the doctrine of sovereign immunity, and, until she does so, her calls for reform in the public sector are nothing more than cover for her obsession with and vendetta against the Catholic Church. In its 1993 Church of the Lukumi Babalu Aye decision, the U. S. Supreme Court struck down a city ordinance regulating the slaughter of animals that, while using facially neutral language, targeted the ritual sacrifice of animals by the Santerian religion. In that case, the Court reasoned that “there are . . . many ways of demonstrating that the object . . . of a law is the suppression of religion.” These include the effect of the legislation, legislative intent, and underinclusiveness. Hamilton contests our claim that the 2002 California State Assembly intended to target Catholic dioceses by stating that the Melanie H case found otherwise. This is simply incorrect. In Melanie H, the United States District Court avoided reaching the issue as to whether the California legislation targeted Catholic institutions by finding that a bishop’s supervision of a priest was not part of the free exercise of religion; the statute, therefore, did not trigger “free exercise” analysis, and “the Court need not address the arguments of the parties as to neutrality and general applicability of SB 1779.” When the bill sponsor and president of the California Senate said that the bill “basically . . . comes down, unfortunately, to several issues that have involved . . . the Catholic Church” and that the “bill was a response to the widening national scandal over sex-abuse by Catholic priests,” that’s proof enough for us that he knew his quarry. The Lukumi court explained that a bill is “underinclusive” when it fails to burden “nonreligious conduct that endangers” the interests that the bill purports to address. Retroactively and prospectively suspending or eliminating statutes of limitation for private entities in the face of a backlog of time-barred claims against Catholic institutions while pretending to address the universal problem of childhood sexual abuse claims is exactly what underinclusiveness is about. It is, simply, saying one thing and doing another, which is the project of Hamilton’s book and her professional work. In the Melanie H case that challenged the constitutionality of the California law, for example, Hamilton informed the Court that the window bill “applies to public schools and all state entities” even though legislative services predicted zero fiscal impact against such institutions should the bill pass and the bill resulted in no successful litigation against public institutions. Hamilton’s mania aside, there is recent news to be reported: Within the past month, two state legislatures—in Colorado and Maryland, both with Democratic majorities—have defeated retroactive legislation allowing time-barred claims to be reinstated. We hope legislators in New York and elsewhere will look to their example. We ask only that legislative proposals regarding childhood sexual abuse be fair and preventive. We ask for justice; not justice for some, but justice for all. 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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