Justice for Childhood Sexual Abuse Survivors

By Neil Jaffee
Baltimore Sun
July 6, 2015

http://www.baltimoresun.com/news/opinion/oped/bs-ed-abuse-survivors-20150706-story.html

Childhood sexual abuse survivors who seek legal redress against their perpetrators share a common goal: a fair chance to establish the truth of what was done to them as children. No more, no less. But given the unfairness of our justice system's disposition of survivor cases, that goal is elusive and too often unattainable. However, in the past several weeks, there have been developments that could advance incrementally the goal of survivors to obtain justice against their abusers.

First, prosecutors in Minnesota recently filed unprecedented criminal charges against the Roman Catholic Archdiocese of St. Paul and Minneapolis, as a corporation, accusing church leadership of failing to protect children from a known abusive priest. The criminal charges and accompanying civil petition allege that the archdiocese's repeated mishandling of complaints against the priest was part of an institutional pattern of permitting predatory priests to continue working in the church and having access to children. The criminal charges consist of six misdemeanors, each carrying a maximum fine of $3,000. In other recent cases involving archdioceses, an individual church leader, rather than the entire archdiocese as an institution, was charged with failing to properly supervise abusive priests.

The investigation of the Minnesota archdiocese corroborated evidence arising from numerous civil cases against the archdiocese and priests filed by survivors after the state legislature enacted a law that opened a three-year window for filing lawsuits involving childhood sexual abuse claims that were previously barred by the statute of limitations. This led to official reports of sexual misconduct by priests and produced record evidence against the priests and the church leadership, culminating in the charges against the archdiocese. Only days after the criminal charges were filed, two of the archdiocese's bishops resigned their posts. (A bill that would have increased the window to file suit in Maryland from seven years to 20 years after the victim turns 18 failed in the legislature this year.)

Second, less than a week after the Minnesota charges were filed, the Vatican announced that Pope Francis approved the creation of a tribunal that will adjudicate accusations against bishops of covering up or failing to take action in childhood sexual abuse cases against priests. The tribunal will address both the backlog of cases against pedophile priests and the disposition of claims against church leaders that they covered up, or otherwise failed to protect children from, sexual abuse by priests. To be sure, there are certainly many unanswered questions as to how the tribunal will proceed, both procedurally and substantively, including what types of punishment it will impose on guilty bishops. Moreover, since the tribunal will consist of church officials adjudicating the guilt of other church officials, there is good reason to be skeptical of the tribunal's ultimate worth. But at a minimum, the pope's action will raise awareness globally of the child sexual abuse epidemic and will cause bishops to be held accountable for the sexual crimes committed by priests on their watch.

Finally, the Supreme Court of the United States handed down a ruling last month that will strengthen the prosecution of child sexual abusers. In Ohio v. Clark, the court held that statements made by a child to his teacher that identified the child's abuser were admissible as evidence at the abuser's trial. Because the child made the statements out-of-court, they were not subject to cross-examination by the defendant. Also, the child, who was three years old, did not testify at trial. However, the court found that the admissibility of the statements did not violate the defendant's constitutional right to confront evidence against him because the statements were not made with the primary purpose of creating evidence for the abuser's prosecution and therefore, were not "testimonial." The court noted that the teacher's status as a mandatory reporter of abuse did not convert the conversation between her and the child into a law enforcement mission to gather evidence for prosecution. Thus, in child sexual abuse prosecutions, a child's statements to individuals who are not principally responsible for prosecuting criminal behavior, reporting the abuse and naming the abuser, will likely be admissible as evidence against the perpetrator.

It remains to be seen how these developments will impact the struggle for justice by adult survivors. But those of us who advocate on behalf of survivors — and survivors themselves — should be encouraged that these vital issues are receiving attention from the media and, more important, from both legal and religious authorities. The winds of change continue to blow toward survivors' pursuit of truth. In the end, their truth will prevail.

Neil Jaffee is legal counsel at Vertigo Charitable Foundation in Fairfax, Va. His email is thejustice101@gmail.com.