Christine Flowers: Why proposed Pa. sex-abuse law is wrong

By Christine Flowers
Daily Times
June 11, 2016

http://www.delcotimes.com/article/DC/20160611/NEWS/160619938

Philadelphia Archbishop Charles Chaput is leading the charge against a proposed state law that would ease the statute of limitations for allegations of sexual abuse.

I’m a lawyer, as the words at the end of this column signal to the eagle-eyed reader. I’m proud of my profession, of its capacity to craft some semblance of justice for victims, and of its overriding goal of order and equity. One of my favorite quotes is spoken by Thomas More in “A Man For All Seasons” when he tries to explain to an incredulous man named Roper why laws are necessary, even when they end up protecting the guilty: “When the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws not God’s. And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”

I’m beginning to think that the Pennsylvania Legislature is taking its lead from Roper, the man who wanted to abolish those evil laws that, in some unfortunate but necessary instances, protect the criminals among us. Of course, the members don’t feel that way at all. But I’m getting ahead of myself.

Last month, the Pennsylvania House of Representatives passed, by a very wide margin, House Bill 1947, which is ostensibly designed to make it easier for the victims of sexual abuse to obtain justice. The exact parameters of that justice are translated into both penal and monetary terms, with provisions that eliminate the statute of limitations for prosecuting abusers at the criminal end, and that extend the window in which victims can sue for money damages at the civil end. Like Roper in “A Man For All Seasons,” the representatives seem to believe that statutes of limitations are bad things, legal obstacles to a true and tangible justice that can be deposited in a bank account.

If that sounds flippant, it’s because I’m as angry as Thomas More at the prospect of laws being thrown aside in some misguided attempt to bring comfort to the wounded. Yes, there are many victims of abuse in this commonwealth, and the largest number of them were injured in public high schools and other governmental institutions, if the statistics are to be believed. And yet, thanks to a perfect storm of high-profile grand jury investigations, a sense that priests are prone to cover-ups and society’s growing antipathy for the traditional moral teachings of the Catholic Church, the term “sex-abuse scandal” has become synonymous with the Roman collar. Oscar-winning movies like “Spotlight” both feed, and benefit from, that presumption.

That’s where HB 1947 really becomes what Thomas More would have viewed as a bulldozer, slicing down the laws that protect defendants against baseless, stale claims. Statutes of limitations are not the sort of thing that make idealists happy, because they see them as obstacles to true justice. They stand between a victim and his victimizer, and prevent the weak from seeking retribution against the strong simply by virtue of the ticking clock. The more time that passes, the farther away the victim is pushed from ever seeking justice. And so, the crusaders want to eliminate those obstacles, and take shortcuts to justice. That is exactly what HB 1947 represents.

Let’s put the criminal aspect aside for a moment, even though in practical terms it is the most disturbing of the provisions passed by our Legislature. Allowing prosecutors to lodge charges decades after a crime has allegedly occurred has the effect of shifting the burden of proof to the defendant. Yes, I know that opponents of these limiting statutes come back with “but the prosecutor still has to prove his case,” and that’s technically true. But how much easier that prosecutor’s job becomes if the witnesses that could exonerate the accused have died, disappeared or otherwise lost their memory of the event.

But what is more disturbing to me is this sense that money will make the broken whole again, so we have to open the window wide to let the victims sue up until they reach the age of 50. That’s what HB 1947 allows: People who might have been abused at the age of 15 have the right to wait on their rights for 35 years and then bring a lawsuit for money damages. I’ve heard all of the arguments about how victims of abuse often suppress the memory of the trauma and aren’t ready to sue for years after the fact. Sorry, but using fuzzy psycho-social science to deprive a person of his right to a fair trial is nothing but a ribbon-wrapped present for my colleagues in the legal profession.

There, I said it. That dirty little secret so many people try to ignore. The plaintiff’s bar will be thrilled with the efforts of the Pennsylvania House, because it opens up a whole new class of clients, people who will now be able to quantify their pain with dollar signs. Even worse, it keeps an even larger class of people out in the cold, with no relief possible.

That’s because HB 1947 has a disparate and prejudicial impact on private institutions, the vast majority of which happen to be Catholic schools. While the bill provides for opening the window on civil claims by 20 years, raising the age by which you need to sue from 30 to 50, this will have no impact on public institutions because of sovereign immunity, which actually makes it next to impossible to sue a public institution.

To be successful on a suit against a public school, you need to show “gross negligence.” That’s not the case in the private sector that, surprise, has the deeper pockets. So the House has just passed legislation which will treat children abused in public institutions with less care and concern than those who wore Catholic uniforms. Let me put this another way. The House has just passed legislation that will make it next to impossible for a child who was abused by Coach Joe to obtain justice, while it has made it much easier for the victim of Father Joe to sue, and win. Since there are a lot more Coach Joes who abused children than Father Joes, it doesn’t seem fair, or just, or logical.

Funny how that doesn’t figure in the press releases.

Some House legislators were angry when fliers appeared in their parishes indicating how they had voted on the bill. They are quite happy to talk about how they stand for the abused, but are incensed when some people point out that this legislation is flawed, unfair and extremely prejudicial. The church has every right to point out the inconsistencies in this bill, and since the monolith of public sympathy favors the victims, it’s disingenuous of those legislators to complain about being slandered. The truth, as they say, is an absolute defense.

Thomas More was a lawyer, and a Catholic. He was also a martyr. Kind of like what’s happening to due process with this bill.