The California Catholic Bishops Fight Access to Justice for Child Sex Abuse Victims

The California Catholic Bishops Fight Access to Justice for Child Sex Abuse Victims

Professor Marci A. Hamilton, August 8, 2013

At the end of July, Los Angeles Roman Catholic Archbishop Jose Gomez sent the following letter to the editor ofCalifornia Catholic, Bob McPhail, asking him to publish Gomez’s letter encouraging parishioners to contact their state elected representatives urging them to vote against statute-of-limitations (SOL) reform for child-sex- abuse victims, by voting against Bill SB131.  The primary target of the Catholic bishops, and bishops nationwide, is this statute-of-limitations window which would open a one-year period during which those victims of clergy child sex abuse whose statutes of limitations had expired (which is the vast majority) could still file lawsuits against their abusers and those who covered up the abuse.

Here is an excerpt of what Gomez said:

Friends, my brother bishops and I in the California Catholic Conference are asking all Catholics to contact their Assembly members and Senators and urge them to vote “No” on Senate Bill 131.

SB-131 fails to protect all victims of childhood sexual abuse, discriminates against Catholic schools and other private employers, and puts the Church’s social services and educational mission at risk.

This is the same playbook that was first conjured up by now-Philadelphia Archbishop Charles Chaput when he was the Archbishop of Denver, Colorado.  The main idea is that, once SOL reform is proposed in the legislature, the bishops then mobilize their parishioners against it, with messages that misrepresent the actual impact of such legislation, and then play a false anti-Catholic card to really get their parishioners out of the pews and onto their computers and phones.  The trouble is that neither claim is true, nor is either truly in the spirit of Catholic teachings.

Who Is Listening to Catholic Bishops on the Issue of Child Sex Abuse, and What Religious Values Fuel Their Opposition to Victims’ Access to Justice?

The natural response to such a push is to ask who now, in 2013, is looking to the Catholic bishops for guidance on the protection of children?  When it comes to child sex abuse, they have proven themselves deceptive and dangerous.

Why are elected representatives of the people giving them any traction on this particular issue?  There are plenty of others and this is just one of many they have put on their agendas.  Currently, they are chattering up a storm trying to keep gay couples away from the altar, keep contraception away from working women, and to stop abortion and the death penalty.  While many do not agree with them on these issues, at least, each of those positions has a home in their theology.

For the Catholic Church, the sexual abuse of children, and their continued endangerment, however, are not acts sanctioned by theology.  And, while the bishops have observed in the past a theologically-based “rule against scandal,” which led them to shield abusers to protect the reputation of the Church, they now say that they are engaging in “zero-tolerance” of abuse, and “cooperating” with authorities.  They are also committed, we are told, to transparency.

So, what religious values are served by their opposition to victims of childhood sexual abuse?  I am told that Catholic theology does embrace the pursuit of justice.  While the Church litigators fighting the victims of the Catholic hierarchy and priests in court frequently intone Canon Law to avoid discovery and liability, the Catechism of the Catholic Church (CCC), which John Paul II issued in 1992, is also part of their theological system.  Father James Connell, one of the brave founding members of the Catholic Whistleblowers, recently brought the definition of “justice” in Section 1807 of the CCC to my attention:

Justice is the moral virtue that consists in the constant and firm will to give their due to God and neighbor.  Justice toward God is called the ‘virtue of religion’. Justice toward men disposes one to respect the rights of each and to establish in human relationships the harmony that promotes equity with regard to persons and to the  common good.

This refreshing reminder about justice, one’s neighbor, respect for rights, and the common good provides a sharp contrast to the campaign to keep victims out of the justice system.  Where are these values in the public relations-fueled campaign against victims’ access to justice?  Nowhere.  Instead, the plea to parishioners tells them that SOL reform is about money, or more specifically, about putting services and schools at risk.

The Factual Shortcomings in the California Bishops’ Plea to Parishioners to Fight Victims’ Access to Justice

A cardinal problem with the Catholic bishops’ claims in this vein, however, is that, in fact, SOL reform has not led to shutting down schools or services.  Catholic schools have been shuttered because of demographics, not victims.  To triangulate the relationship between victims and parishioners, so that the victims are purportedly the enemies of the parishioners, is indefensible and about as far from the spirit and letter of CCC Section 1807 as you can get.

It is interesting to note that the California bishops are not fighting SB131 with the argument they have tried elsewhere: they have irresponsibly alleged that SOL reform leads to diocesan bankruptcies.  They have had to pull back on that whopper, because only one state has had a diocese file bankruptcy following SOL window legislation, which actually went forward—Delaware.  Under the 2003 window in California, only one diocese, San Diego, filed for bankruptcy, and it was ushered out of the bankruptcy court because of its copious holdings and wealth.  The other diocesan bankruptcies, in Spokane, Portland, Davenport, Tucson, and Milwaukee have had nothing to do with SOL reform.

Moreover, the California settlements that were paid to those victims who could come forward in 2003 were paid out of insurance proceeds and the sale of property that was mostly unrelated to religious uses.  To tell parishioners that they must oppose SB131 in order to protect their programs and schools is the height of misleading propaganda.

What religious values sanction the bishops’ fabrication of arguments against victims’ access to justice?  None I could find.

The bishops are upset in part, because there was a statute-of-limitations window that was open in 2003 in California, which assisted over 800 victims of the church hierarchy.  I suppose they figure that having meted out partial justice to a fraction of their victims, it should all just go away.  But many victims of the hierarchy, other institutions, and those in the largest number, victims of incest, did not know that the window was open, or understand what it meant.  This new window, and the accompanying extension of civil SOLs, is intended to reach those victims whose needs were left unmet by the prior window.

Let us also look to history to learn what the bishops fear the most from such lawsuits.  When settlements were reached following the 2003 California SOL window, they were paid expeditiously.  But the bishops then litigated, hammer and tongs, for ten years, in order to keep the files that they promised to release as part of the settlements, shuttered in darkness.  Only in 2013 were those files finally released, and they are embarrassing to the bishops, because of the depravity of their actions in letting criminals have easy access to children, and because of their instinct to protect themselves, rather than the children of their own believers.  Cardinal Mahoney lost public credibility and his position of authority because of the files’ release, and every bishop in the United States fears similar treatment when the files on which they are perched are eventually released.

If Gomez were being sincere with his parishioners, he would have written that he needs them to contact their representatives in order to protect his and his brethren’s already-tarnished reputations from going all the way down the tubes.  It’s not the services, or the schools, or the money that is motivating this frantic and expensive fight to keep clergy child abuse victims out of court.  What they fear is the ugly truth’s finding its way outside their mansions, cathedrals, and file drawers.

It Is Not Anti-Catholic to Provide Victims of Incest and Every Private Institution Access to Justice

The anti-Catholic charge in Gomez’s letter is pure “malarkey” to borrow a phrase from Cardinal Timothy Dolan, because SB131 is aimed at all private institutions and entities.  How is it that an institution that presumably has contact with families everyday that are struggling with incest can lobby against giving those victims access to justice, just to protect their own hides?

And where is the Catholic value that leads the bishops to fight to keep victims of incest out of court?  Which fathers, grandfathers, mothers, aunts, and cousins should be protected from legal accountability under Catholic theology?

True, SB131 does not cover public institutions.  As I argue in Justice Denied: What America Must Do to Protect Its Children, public institutions need justice for sex abuse.

I wholeheartedly urge the California legislature to take up that issue as well, and to consider a separate bill involving state and local institutions.  These institutions are always treated differently than private institutions, and issues like sovereign immunity, which are irrelevant to the private sphere, need to be considered when such institutions are at issue.  Let’s create justice for all victims of child sex abuse.  But there is no necessity that all entities are included in any one bill.  SB131 includes some of those that absolutely need to be addressed: families especially.

The claim by Gomez that SB131 is prejudiced against the Catholic Church, because it does not address public institutions, also needs to be taken with a large grain of salt (one that is about the size of California), because it is not as though the bishopswant justice for victims of public institutions.  Instead, Gomez only floats this propaganda in order to kill the bill, not to make it more inclusive.  His fear is the potential access to the files of the victims on the private side, not any concern for the victims on the public side.

SB131 Is Constitutional

The other argument the bishops typically try to float against victims’ access to justice is the weak argument that windows are unconstitutional.  Gomez did not mention it in his short missive to parishioners, but his lobbyists are pushing it in the halls of the legislature in Sacramento.  Surprisingly, Professor Stephen Bainbridgeposted a blog with a weak constitutional argument against it.  He does not take into account any of the actual cases or arguments that are relevant, and appears not to fully grasp all of the work that has already been done on the issue.

My explanation of why it is obviously constitutional is here.

If I were Professor Bainbridge, I would have declined the “opportunity” to defend the indefensible.

The Lobbying Picture in California

The bishops have been exerting the only truly active and well-financed lobbying pressure against sex-abuse victims’ access to justice in California, and any legislator who kowtows to their pressure on an issue over which they deserve absolutely no deference is no better than they are.  There are rumors that USA Swimming is lobbying against the bill as well, with the same lame argument that it’s “unfair,” but their involvement is less obvious, and harder to pin down.  Olympic athletes across the country should be scared if this is where the USA athletic leagues are headed—against access to justice for athletes.  USA Swimming should be ashamed of itself, and, again, any legislator deferring to an institution that has a history of child sex abuse on the protection of children and victims’ access to justice is no better than the institution pressuring them.

The choice is plain: protect children, or protect predators and the institutions that gave them access to children.  The victims of child sex abuse who are suffering right now need state legislators to do the right thing, for the right reasons, and to send packing the bishops who have lost their way on the issue of justice.

The pending California SOL reform bill, SB131, and the SOL window within it, is about access to justice for child-sex-abuse victims, and offers the only means to justice for thousands of survivors of sexual abuse that California law has currently barred from the system.  Every parishioner needs to understand what is really at stake: justice for those who allowed children to be terribly abused.