Extending the Statute of Limitations

National Catholic Reporter
June 16, 2016

http://ncronline.org/blogs/faith-and-justice/extending-statute-limitations

A number of states, including Pennsylvania, New Jersey, and New York, are considering extending the statute of limitations dealing with the sexual abuse of minors. It is a well-documented fact that many victims of abuse do not come forward until long after their abuse occurred.

While a statute of limitations serves a reasonable purpose by preventing prosecution and litigation over actions in the distant past where witnesses, evidence, and alibis are missing and memories are foggy, it is galling to see criminals escape justice on a technicality.

For criminal prosecutions, modifying the statute of limitations is only constitutional for future crimes. In the United States, we cannot extend the statute of limitations for crimes committed in the past.

Civil suits are a different matter. States like California, Virginia, Minnesota, and Delaware have extended the statute of limitations for civil suits against the church when church officials did not protect children from abuse by priests. Often the legislation provides a one- or two-year window during which victims can sue the church for cases that under current law would have been disallowed under the statute of limitations.

The result has been hundreds of millions of dollars in legal fees and payouts, and the bankruptcy of some dioceses. The Los Angeles archdiocese under Cardinal Roger Mahony, for example, agreed to pay $660 million in settlements to more than 500 claimants after the window was opened.

On the surface, extending the statute of limitations seems like a very reasonable response to church officials who covered up the sexual abuse of children and simply moved abusive priests from parish to parish. They deserve to be punished. Their victims deserve to be compensated for their suffering and betrayal. Survivors deserve their day in court.

I agree with all of these points, but before we unequivocally support extending the statute of limitations, there are other factors that need to be considered.

When we talk about punishing the church for covering up abuse, we need to be clear on what we mean by "the church."

For many people, "the church" is synonymous with the bishops. But the bishops who covered up will not be punished by civil suits against the church. Most of these bishops are dead or retired. Although some bishops have sold their residences to help cover the cost of these suits, no bishop's lifestyle has been substantially affected by these suits.

Civil suits do not punish bishops. Despite the billions of dollars paid out by the church and 13 bankruptcies*, bishops have not suffered.

Who has suffered? It is not the church as bishops but the church as the people of God who have suffered as a result of these suits. I do not say this to blame the victims of sexual abuse. I say this simply to state a fact.

The church's money for the most part comes from donations from ordinary people. They gave this money to support the liturgical, evangelical, educational, and charitable ministries of the church. A loss of money means a loss of services. Investment portfolios that took decades or generations to build up are suddenly gone. The revenue stream from these investments dries up and, if not replaced, results in programs being shut down.

Concretely this means less financial support from the diocese for poor parishes, inner-city scholarships, and Catholic charities. Parishes are shut down and their property sold. Schools close or can afford to accept only students who can pay full tuition. Programs for the poor are cut back or shuttered.

The survivors of abuse who sue should not be blamed for these results, but the results are real. Those to blame are the perpetrators of abuse and those who did not do their job protecting children.

The problem is that American law treats profit and nonprofit corporations the same way when it comes to civil liability.

General Motors and Dow Chemical are owned by stockholders who elect their boards and profit from their activities. When profit-making corporations reduce costs by cutting corners and endangering people, stockholders financially benefit. Since they benefit and they elected the people who committed the crimes, it is appropriate to punish the stockholders.

Non-profits have stakeholders not stockholders. Donors (especially small donors) to the nonprofit and those who benefit from the nonprofit’s services have little say in the operations of the nonprofit.

At the beginning of the AIDS epidemic, the Red Cross discovered that some of its blood supply was tainted with the HIV virus. It did not have the technology in place to screen all its blood for the virus. Rather than going public, the Red Cross covered it up and some blood recipients were infected.

Huge fines and civil judgment would not punish those who made the decision but it would impact services, especially at a time when the Red Cross needed to spend millions on new systems to screen its blood.

The Red Cross, however, did something that the Catholic hierarchy refused to do. It admitted guilt and cleaned house. Top management and others involved in the cover-up were fired. Practically the entire board of directors resigned so that a new board could work toward the reestablishment of trust. A nationally renowned figure, Elizabeth Dole, was brought in to head up and reform the organization.

If 30 to 50 bishops in the early 1990s had stood up, accepted responsibility, and resigned, the church would not be in the place it is today. Sadly, it is too late for such gestures since most of the bishops involved in the cover-up are retired or dead.

When it comes to public institutions, legislators recognize that they are not like for-profit corporations. As a result, most legislators refuse to extend the statute of limitations for victims suing public schools that failed to protect children. Politicians know that taxpayers do not want their money going to pay for the crimes of others. States usually also limit the payouts that can be imposed on public institutions, which is why most lawyers are unwilling to take these cases.

Is there another way to resolve this?

In an ideal world, I would like to see the bishops of Pennsylvania go to the state legislature and offer an alternative to more litigation. The alternative would involve the dioceses establishing a fund to compensate victims of abuse.

The amount of money for the fund would be open to negotiation: $100 million? $200 million? $500 million? $1 billion? The dioceses would have to fully disclose their finances as part of the negotiations.

The fund would not be administered by the church. It would be administered by people appointed by a governor, attorney general, or the courts. No one employed by the church could be involved in the administration of the fund.

The fund managers would be empowered to make payments to survivors after hearing their stories.

Ideally, this would happen without the presence of attorneys so that the survivors would receive all of the money rather than losing 40 percent of the payment plus legal expenses to the lawyers. Perhaps the law could require that the victim first approach the board without an attorney and, if not satisfied, could bring an attorney to an appeal.

But money is only part of the solution. A second requirement would be a truth commission with the power to take sworn testimony, subpoena documents and witnesses, and publish a report. The process would be public and testimony would be under oath so that perjurers could be prosecuted.

This would allow survivors a chance to tell their stories, and it would force church officials to tell what they knew and what they did or did not do. This process would probably be more successful in getting the truth than court litigation, which is required to follow technical rules governing what evidence is or is not admissible. In addition, if a diocese declares bankruptcy, the victims do not get their day in court.

The National Catholic Reporter has been calling for some kind of a truth commission since the 1990's.

Is this a workable alternative? I am not sure, but I think it is worth discussing. It has the advantage of avoiding litigation and reducing legal costs. For the victims, it would speed up the process of getting help and getting at the truth. For the church, it would provide certainty about the cost and avoid bankruptcy.

Most importantly, it would also force church officials to tell the truth without bankrupting the people of God.

*An earlier version of this column included an incorrect number of bankruptcies.

[Jesuit Fr. Thomas Reese is a senior analyst for NCR and author of Inside the Vatican: The Politics and Organization of the Catholic Church. His email address is treesesj@ncronline.org.]

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