Can Church Entities and Sex-abuse Victims Find Justice in Compensation Funds?
By Peter Jesserer Smith
In the wake of the Pennsylvania grand jury report, lawmakers, survivors and Catholic bishops agree: The statute of limitations for sexual-abuse crimes must be reformed. But when it comes to addressing the sexual abuse of victims whose ability to bring forward criminal or civil action is time-barred by those same statutes, the bishops and many survivors are at an impasse about how best to achieve justice that works for the good of all. The grand jury report blamed the Church’s hierarchy for covering up sex abuse carried out by 300 predatory priests on more than 1,000 children over seven decades. It further blamed Church leadership for preventing abused victims from seeking effective relief from the justice system. “As a consequence of the cover-up, almost every instance of abuse we found is too old to be prosecuted,” the report said, advocating that victims be provided a two-year window that would open the statute of limitations. The Pennsylvania House of Representatives passed a statute-of-limitations reform bill on Sept. 25 that extends the time limit for civil claims on sexual abuse to 50 years old, up from 30. The bill also eliminates the statute of limitations for criminal cases. The House bill took up an amendment to allow a two-year “window” in the statute of limitations for victims to go to court. The bill is supported by Gov. Tom Wolfe, but its fate is uncertain in the Senate, where lawmakers have concerns that allowing a window to retroactively bring forward cases would violate rights guaranteed by the Pennsylvania Constitution’s “remedies clause.” The Pennsylvania Constitution states that “every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” However, Pennsylvania constitutional-law experts have argued for and against the state’s authority under the constitution to reopen a window for lawsuits. For its part, the Pennsylvania Catholic Conference released a joint statement of the state bishops that affirmed their support for “all reasonable and constitutional efforts focused on helping survivors and their families on a path toward healing.” “We deeply regret the suffering of survivors and any decisions that failed to protect them,” the bishops said. “We recognize our responsibility to provide an opportunity for sexual-abuse survivors whose cases are time-barred from pursuing civil claims to share their experiences, identify their abusers, and receive compensation to assist their healing and recovery.” Alternative Mechanism But the bishops stated that creating a time-limited window lifting the civil statute of limitations would lead to diocesan bankruptcy, severely hinder or even cause the closure of some existing ministries and social services, and deprive dioceses of the resources to provide compensation and healing to victims. Instead, the Pennsylvania Catholic bishops proposed an alternative mechanism: a voluntary compensation fund administered by an independent panel, where qualified specialists free from the Church’s influence would evaluate claims and compensation amounts. The compensation fund would also mean victims could forgo the ordeal of litigation. “We believe such a program will expedite the process for survivors to present their cases to experienced, compassionate experts who will determine an outcome for each case in a swift, efficient manner.” The Pennsylvania Catholic Conference declined a request for comment from the Register, and as yet, the bishops have provided no specific details about how the fund will work. Archbishop Charles Chaput of Philadelphia in his own letter argued the compensation fund is a better way to provide justice for victims, without bankrupting the Church’s institutions or spending resources meant for victims on lawyers. He pointed to the archdiocesan victims’ assistance program as evidence it has worked, quietly assisting “hundreds” of victims since 2002, underwriting their therapy to the tune of $18 million. “And we’re committed to dedicating substantially more resources to the task of helping survivors, unless destructive, retroactive statute-of-limitations legislation makes that impossible,” he said. The compensation fund idea is supported by state Sen. Joseph Scarnati, R-25, the Senate president pro tempore, so long as it is administered by “a neutral third party to ensure fairness and objectivity.” “The Church needs to establish a victim support fund this year, to make restitutions to its victims,” he said in an Aug. 29 statement, reaffirming his position that a two-year window to file time-barred lawsuits would be unconstitutional. What Do Survivors Want? But can survivor compensation funds achieve what survivors are looking for? Ron Vasek, a Minnesota resident who has alleged he is a victim of clerical sex abuse that he says was covered up by his bishop, told the Register that the money is not the primary issue for him and for other survivors he speaks to across the country. Vasek is currently engaged in a legal battle with the Diocese of Crookston, Minnesota, which did not hand over records he requested about his alleged sexual abuser. First and foremost, sex-abuse survivors want people held accountable and want transparency from their dioceses. But Vasek said they do not see another way to obtain full disclosure on sex abuse except by forcing the diocese to hand over records through civil lawsuits. “Justice isn’t doling out cash,” he said. “They want these guys held accountable and the bishops held accountable.” A lawsuit filed by Tom Emens against 11 Catholic dioceses in California omitted a demand for monetary damages, but called for the release of diocesan records of predatory priests. Emens told a reporter at an Oct. 2 news conference his reason: “The truth is far more valuable than any other money could ever be.” Australia has instituted a national compensation program that the Catholic Church and other entities have opted into. Stephen de Weger, an Australian survivor and researcher of adult sexual abuse, told the Register that victims of sex crimes would be better served by an “inquisitorial rather than adversarial system.” De Weger opted for compensation rather than going down the legal path, which can trigger enormous trauma for the victim. “I just couldn’t cope with the amount of time and psychological strain it would have taken,” he said, explaining the compensation allowed him to survive and find a new path after losing his job as a consequence of the trauma. But he knows others who took that path and “just died in the process and become almost permanent victims because of what they’ve been through, feeling abused all over again.” Funds Vary by Diocese The Church’s experience with compensation funds varies by diocese. In 2016, the New York Archdiocese established its “Independent Reconciliation and Compensation” program, which is overseen by an independent oversight committee. The arbiters of the program give mediators Kenneth Feinburg and Camille Biros complete autonomy: Their decisions cannot be overruled by the independent oversight committee or the archdiocese. Camille Biros, who handles the third-party-administered compensation fund set up by the Archdiocese of New York, told the Register that the process is transparent and fast and finally acknowledges and validates the victim’s pain. The victims receive sure compensation, since an archdiocesan loan has secured the funds, and victims do not need as much supporting documentation as they would in a trial. “There’s no other way for their abuse to get acknowledged,” Biros said, adding the process has helped many people find healing. More than 200 victims of sexual abuse have come forward, and the archdiocese has so far distributed $40 million in compensation. Biros said the compensation fund has also provided an opportunity for victims to bring forward allegations that lead to the Church taking decisive action. Biros stated the compensation fund was the vehicle for a man to bring forward his sexual abuse 50 years ago that led the Archdiocese of New York to investigate and bring down the most powerful cardinal in the U.S. Church: Archbishop Theodore McCarrick, former archbishop of Washington. “That’s one very prominent example,” Biros said. Kevin Stocker, an attorney representing victims of sex abuse in the Diocese of Buffalo, New York, said his clients are “highly motivated by protecting other people from what they went through.” Stocker said the problem with compensation funds is victims do not have the leverage they would have in arbitration proceedings. But they have no real alternative unless the statute of limitations is revised to allow them a retroactive window, he added. While a certain percentage of clients would prefer arbitration, others would prefer litigation because it would force the diocese to hand over documentation and other evidence. Stocker said the financial pain of civil litigation forces corporate entities, including the Church, to change their behavior. “I do believe they’re trying to buy off claims cheaply,” Stocker said. “And I think the problems are worse than they’re telling us.” Constitutionality Questions Gerard Bradley, constitutional law professor at the University of Notre Dame, told the Register that statute-of-limitations laws have a sound underlying rationale: The risks of an unjust judgment increase with older cases, because of the greater likelihood of unreliable or unattainable evidence. However, Bradley said there are “very few constitutional norms” regarding statutes of limitations. Long or short statutes of limitations would all be constitutional unless other constitutional claims were involved: for example, if a person claimed he could no longer get a fair trial “due to the absence of crucial evidence.” A retroactive statute of limitations reform, he said, “would in general be constitutionally permissible.” In the case of Pennsylvania, the issues of constitutionality hinge on a different matter. State Sen. Scarnati opposes introducing the House statute-of-limitations bill to the Senate, on the basis that the state constitution’s “remedies clause” bars the legislature from enacting retroactive changes to civil and criminal statutes of limitations. Archbishop Chaput has maintained the bill singles out religious entities, although the legislative language in the House bill under consideration only speaks in terms of private entities and public entities. It sets the legal threshold at “negligence” for suing private entities, a category that includes Catholic dioceses, while setting the legal threshold for public entities at “gross negligence.” The bill also eliminates sovereign immunity that barred sex-abuse lawsuits against public entities, such as public schools. Bradley said any retroactive law would be suspect, if not unconstitutional, if the window were opened solely for claims against the Catholic Church or even just against religious entities. In such a case aimed explicitly at religious entities, Bradley explained, judges would likely view the U.S. Supreme Court jurisprudence in the Masterpiece Cakeshop case as relevant and look for an “articulated animus against the Church.” Bradley said that while he opposes completely abolishing the statutes of limitations for sex-abuse claims, he thinks the USCCB has adopted a reasonable position: “namely, no opposition so long as any such ‘opening’ applies across the board for a certain set of claims, so that even public schools and every other possible defendant would also be exposed to the enhanced prospects of being sued or prosecuted.” Peter Jesserer Smith is a Register staff writer. The Risk of Bankruptcy Filing for bankruptcy protection is a likely fate when the statute of limitations has retroactive windows opened. And just because there was a window opened once does not mean it cannot happen again. California Gov. Jerry Brown vetoed a new statute-of-limitations window, pointing out that it exempted public institutions, and it had already been done once before. The Archdiocese of St. Paul and Minneapolis filed for Chapter 11 bankruptcy in 2015, following the state’s enactment of statute-of-limitations reform in 2013 that included a three-year window: the Minnesota Child Victim’s Act. Those proceedings have just resolved in federal court. According to the Minneapolis Star Tribune, the archdiocese has restructured and financially reorganized, but payouts from the archdiocese have been guaranteed to victims (up to $50,000), with attorneys taking up to a third share. Insurance companies of parishes and archdioceses will shoulder $170 million of the $210-million settlement, while the archdiocese will contribute $37 million and parishes $3 million. The terms of the settlement protect parishes and the archdiocese from any further litigation based on the past claims. The Star Tribune reported the bankruptcy led the archdiocese to reveal 91 clergy sexual predators. Both then-Archbishop John Nienstedt and his vicar general resigned for their failures to protect victims. Under Archbishop Bernard Hebda, the archdiocese has instituted new policies to assure the protection of the vulnerable from abuse and the sound handling of allegations. — Peter Jesserer Smith
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