Fact Vs. Fiction, by Bill White, Morning Call (June 15, 2016)

I've been writing -- here and here -- about the way the Catholic Church is working hard to convince its faithful to exert pressure on state lawmakers over a bill that would extend statutes of limitations in cases of child sex abuse.

House Bill 1947, which easily passed the House in April, would eliminate the statute of limitations for criminal cases of child sexual abuse and extend the statute for civil cases until the victim reaches age 50, retroactively, from the present age 30.

It also would partially lift sovereign immunity protection shielding public entities such as public schools, although the retroactive provision wouldn’t apply in those cases because experts say it would be illegal.

As I watched comments unfold after I posted the link on Facebook, it occurred to me that I should address some of the concerns raised by the Philadelphia Archdiocese in the letters being read from the pulpit, sent to the parents of Catholic schoolchildren and posted in church bulletins and church websites. We may also be seeing a commercial before long, if advance publicity for a recent Catholic gathering was correct.

The blog post I linked to above included a letter from Philadelphia Archbishop Charles Chaput that lays out many of the church’s arguments. I encourage you to check it out.

In the further interests of equal time, I'll also offer here a statement from the Pennsylvania Catholic Conference regarding Monday's hearing on the constitutionality of HB 1947, held before the Senate Judiciary Committee. (Here are links to my column and blog post on the hearing.)

The Senate Judiciary Committee today was scheduled to hear from several witnesses on whether House Bill 1947 violates Pennsylvania’s Constitution, which prohibits the General Assembly from retroactively altering statutes of limitations to revive causes of action that have expired.

“I applaud this Committee for its care in developing legislation to protect victims of childhood sexual abuse and striving to do so in a manner that is consistent with the Pennsylvania Constitution,” said attorney Cary Silverman. “Based on my examination of Pennsylvania law, it is my opinion that H.B. 1947, to the extent it would revive time-barred civil claims, violates the Remedies Clause.”

Silverman, a partner at Shook, Hardy & Bacon LLP law firm and an adjunct professor at George Washington University Law School, previously testified before state legislatures on bills that would retroactively eliminate or extend a statute of limitations. He was asked by the Insurance Federation of Pennsylvania and the Pennsylvania Catholic Conference to closely examine the issue.

“My conclusion is that over 150 years of Pennsylvania law is consistent and unequivocal on this point: reviving a civil claim for which the statute of limitations has run impermissibly interferes with a vested right and violates the Remedies Clause of the Pennsylvania Constitution,” Silverman wrote.

Silverman explained that the Pennsylvania Constitution in Article I, Section 11, contains a provision known as the Remedies Clause. The provision does not permit the General Assembly to eliminate certain fixed rights, including the right to bring an accrued claim or the right to assert an established defense.

Silverman cited multiple court cases as far back as 1908 and as recent 2008 that reaffirm the protections offered by the Remedies Clause. Silverman said, “There is no inconsistency in these decisions. Individually and collectively, they stand for the proposition that the General Assembly cannot eliminate accrued claims or defenses.”

The PCC is not opposed to eliminating the statute of limitations for criminal prosecutions. We can all agree that anyone who sexually abuses a child should be punished by the law.

However, the PCC is opposed to a provision in the bill that would allow retroactive civil lawsuits against private and religious entities. The lawsuits, many of which would be impossible to defend, could lead to the closure of parishes, schools and ministries that serve today’s Catholics, who are in no way responsible for abuse that occurred decades ago.

The Catholic Church has learned hard lessons regarding child sexual abuse and has taken responsibility for the abuse that has occurred within its ranks. The dioceses across Pennsylvania have implemented changes that offer assistance to abuse survivors and affirm that they are not at fault for the crimes committed against them.

The Church has also taken great strides to protect children and provide financial assistance for services for survivors and their families, no matter how long ago the crime was committed, and for as long as necessary. To date, Pennsylvania’s dioceses have spent more than $16.6 million to provide compassionate and supportive victim assistance to individuals and families.

Today, the Church is a leader in ensuring that children are protected. In 2002, the U.S. Conference of Catholic Bishops issued its Charter to Protect Children and Young People, requiring education, reporting and training in an effort to stop child abuse.

Permanent removal from ministry of clergy for any credible allegation of misconduct.
Complete background checks for all adults who interact with children, including clergy, employees and volunteers
Training for all adults who interact with children through the church regarding how to keep children and young people safe from sexual abuse, how to recognize the signs of abuse, and how to report abuse. Catholic school students receive age-appropriate safety training.

Back to me, here are some of the primary concerns expressed or hinted at in church communications, followed by factual clarification.

The Catholic Church has done more than enough to respond to the problem of child sex abuse, so it shouldn’t be slammed now with lawsuits based on old cases.

The church responded only after repeated, horrifying revelations about chronic problems with abuse and coverups, in Pennsylvania and worldwide. Nor was it all that quick to act. One of the conclusions of the 2011 Philadelphia grand jury report on this subject was that not much had changed since the 2005 Philadelphia grand jury report.

Does the church act more responsibly now to reports of abuse than it did in decades past? In most cases, that does seem to be the case, and it deserves credit for the way it has helped some victims, by paying for their counseling, for example. But that doesn’t come close to mitigating the horror of the way it has betrayed generations of young children, many of whom never got anything approaching justice.

Ensuring that it pays for the consequences of those actions and inactions, even it takes the courts to make it happen, is eminently fair.

And although I preferred a two-year window that would have permitted people of any age to sue, the fact is that the 50-year-old limit ensures that the oldest cases, for which abusers and witnesses are less likely to still be around, won’t be pursued.

That certainly has been a big underlying theme of its lobbying blitz, but it’s not true. This bill applies to a wide range of public and private institutions, not to mention a wide range of individuals.

Keep in mind that the vast majority of victims were abused by family members or acquaintances, not clergy or teachers. Most of the victims I’ve interviewed were molested by people in or close to their own families, and part of their frustration has been knowing that even after they finally had come to grips with their abuse and found the courage to talk about it, they had no legal way to name and confront their abusers, whose anonymity left the predators free to prey on new children. I couldn’t name any of them in my stories, because there was no court documentation to back it up.

Will a lot of the resulting lawsuits be directed at the church and its priests? I’m sure they will. But there almost certainly will be many other targets, equally deserving, and some of them will rip the mask from previously unidentified abusers.

This one is baffling to me. The fact that sovereign immunity shields public entities from suits is worth exploring and changing, and although I don’t think that change should have been tacked onto this legislation — I’ve been told it was a poison pill designed to kill it by arousing new opposition from an entirely different front — it’s ridiculous to suggest that this legislation in any way is protecting abusers who are public employees. As it now stands, the bill would make them all much more vulnerable to court action than they are under present law.

That has not been the experience elsewhere. How many people would want to claim they were raped when they weren’t, particularly when they have no evidence to back it up? The cases would be thrown out.

The Church will be bankrupted by lawsuits, resulting in closed schools and churches and diminished service to the poor.

These closings are taking place already as a result of declining church attendance, and since Catholic charities get most of their funding from the government, they shouldn’t be closed by whatever court settlements are made, particularly since a significant part of those will be covered by insurance.

The experience in other states has been that no dioceses have been forced into bankruptcy by victim lawsuits. Several of them have voluntarily entered bankruptcy as a tactic for controlling court settlements, but it hasn’t shut them down.

For me, the bottom line is that all abusers and any organizations that protected them from prosecution deserve punishment through the courts. Certainly there will be hardships associated with that — and there should be. To suggest that those financial hardships should carry more weight than the rights of victims is monstrous.