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.
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?
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.
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2013-08-08 16:14:282013-08-08 16:14:28The California Catholic Bishops Fight Access to Justice for Child Sex Abuse Victims
12 more join $380 million molestation suit against Yeshiva University High School
number of claims against the school to 31. The $380 million lawsuit was filed by students who said they were molested by staffers and that officials covered up the dirty deeds.
Former principal George Finkelstein (left) and ex-teacher Rabbi Macy Gordon (right) in 1970. The two are accused of covering up decades of sexual abuse at the Yeshiva University High School.
A dozen former Yeshiva University High School students have joined a bombshell $380 million lawsuit, claiming they were molested by staffers, an attorney for the plaintiffs said Tuesday.
The number of alleged victims in the suit against the prestigious Manhattan school now stands at 31 — up from the initial 19, said attorney Kevin Mulhearn.
31 former students of Yeshiva University High School are suing for $380 million.
Former students said in the initial claim filed last month that officials covered up decades of sexual abuse by Rabbi George Finkelstein, the school’s former principal, and Rabbi Macy Gordon, a former Judaic studies teacher. The accusers come from all over the country and at least one was abused in the early 1970s, Mulhearn said.
Attorneys for Yeshiva University asked the court to dismiss the suit because the allegations “occurred between 42 and 25 years ago.”
“In all candor (the suit), is a very old case,” defense attorney Karen Bitar told Manhattan Federal Court Judge John Koeltl on Tuesday.
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Camden priest-abuse suit to proceed despite ‘recovered memory’ controversy.
Alleged victim says he recalled it only recently
CAMDEN — A Camden man who claims he was molested as a child by a South Jersey priest can argue in court he repressed memories of the abuse for more than 40 years, a federal judge has ruled.
Mark Bryson contends he was repeatedly assaulted in the late 1960s by the Rev. Joseph Shannon at St. Anthony of Padua Parish in Camden. But Bryson also says he only remembered the abuse in February 2010 — an assertion key to a lawsuit he filed last year against the Diocese of Camden.
Bryson’s awareness of any alleged abuse could affect the two-year statute of limitations for his lawsuit. Bryson, who now lives in Ohio, contends the 24-month period began when his memory returned.
In contrast, the diocese contends the deadline passed two years after Bryson’s 18th birthday.
“There’s controversy over the issue of recovered memory,” Peter Feuerherd, a diocesan spokesman, said Friday. “We dispute the issue of recovered memory in this particular case.”
U.S. District Judge Jerome Simandle Thursday said he will hold a hearing in his Camden courtroom to address the statute of limitations issue. The session, known as a Lopez hearing, will be held Oct. 15 and 16.
Simandle rejected requests by the diocese to dismiss Bryson’s case and strike the testimony of his proposed expert witness.
Bryson, who was born in 1961, claims he was molested as a first-grade student at his parish school in the Cramer Hill neighborhood. He asserts his memories were suppressed by “traumatic amnesia” until an incident in February 2010.
According to the ruling, Bryson was living in Florida when his wife “accessed a website listing sex offenders living in their police district.”
“One offender lived on their street, often wore black and resembled a priest,” Simandle’s decision said.
When Bryson realized his neighbor was a sex offender, the opinion continues, “the memories of abuse by Shannon flooded back in.”
According to a report from Bryson’s expert witness, sex-abuse counselor Mary Gail Frawley-O’Dea of Charlotte, N.C., “it is not unusual for sexual abuse victims to dissociate those experiences, having amnesia for the memories until some environmental cue triggers them into consciousness.”
She said Bryson’s description of how his memories returned “is not unusual among adult survivors of childhood sexual abuse.” According to the opinion, Bryson said he “cried and wailed” as he first recalled the alleged abuse.
But Frawley-O’Dea produced her findings in two reports, and the second came several months after a court-ordered deadline. As a result, Simandle ruled, the diocese’s attorney could depose, or question, Frawley-O’Dea in advance of the hearing.
The judge also ordered Bryson to cover the cost of bringing his witness to South Jersey for that deposition.
Simandle also noted the diocese “may choose to rebut her testimony at the (upcoming) hearing with other expert witness testimony.” He observed, too, that the diocese has indicated “future plans to challenge the scientific validity of memory repression theory.”
The judge also noted he must assess the “extent of prejudice” to the diocese, “which depends in part on the credibility of (Bryson’s) memories and the memories of other living witnesses.”
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RE: The Constitutionality of S.B. 131, An Act Relating to Damages: childhood sexual abuse: statute of limitations
DATE: August 2, 2013
By way of introduction, my name is Marci A. Hamilton, one of the leading church/state scholars in the United States. For the past twenty years, I have been a full-time faculty member at Benjamin N. Cardozo School of Law, Yeshiva University, New York, NY, where I currently hold the title of Paul R. Verkuil Chair in Public Law. My book, Justice Denied: What America Must Do to Protect Its Children (Cambridge University Press 2008, 2012), and website, www.sol-reform.com are the leading resources in the field of legislation to protect child sex abuse victims. As an expert in this arena—who has researched, written, and testified regarding the inadequacy of the current statutes of limitations (“SOLs”) to deal with child sex abuse in the United States, and abroad—I feel compelled to write an explanation as to why amending and extending the SOLs for child sex abuse is a necessary tool to provide access to justice for child sex abuse victims and to protect our children.
I write specifically to explain why S.B. 131, relating to childhood sexual abuse SOLs, is constitutional. I will recite several misguided arguments commonly used against such legislation, and provide responses to each.
S.B. 131 contains three key elements: (1) it would prospectively eliminate the SOL for civil actions brought by victims of childhood sexual abuse; (2) extend for thirty (30) years some previously lapsed claims; and (3) retroactively revive for a period of one (1) year all other actions for which the statute of limitations (“SOL”) had previously lapsed. The retroactive revival of an SOL is often called a “window.”
Misguided Argument 1:All retroactive SOL legislation is unconstitutional.
Answer 1:In reality, while the United States Supreme Court has closed the door on retroactive criminal SOLs, it has found retroactive civil legislation constitutional. CompareLandgraf v. USI Film Prods., 511 U.S. 244, 267 (1994), withStogner v. California, 539 U.S. 607, 610 (2003) (striking retroactive revival of criminal SOL). Under the federal Constitution, retroactive civil legislation is constitutional if the legislative intent is clear and the change is procedural. The Supreme Court in Landgraf explained the duty of judicial deference to legislative choice in these matters as follows: “legislation has come to supply the dominant means of legal ordering, and circumspection has given way to greater deference to legislative judgments.” Landgraf, 511 U.S. at 272. The Court went on to observe that “the constitutional impediments to retroactive civil legislation are now modest. . . . Requiring clear intent [of retroactive application] assures that [the legislature] itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.” Id. at 272-73. To be sure, there is an “antiretroactivity presumption” but this presumption can be readily overcome by express legislative language. See Republic of Austria v. Altmann, 541 U.S. 677, 692-93 (2004); see alsoLandgraf, 511 U.S. at 267-68; Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 311-12 (1945). Stogner v. California, 539 U.S. 607 (2003), dealt specifically and only with the retroactive application of criminal SOLs. Under the federal Constitution, retroactive civil legislation is constitutional if the legislative intent is clear and the change is procedural.
Misguided Argument 2:Some mistakenly claim—without citing relevant precedent, and while relying on the outdated reasoning that statutes of limitation must provide finality to old claims—that California courts would forbid the revival of a previously procedurally time-barred claim in child sex abuse cases.
Answer 2: This is simply not true in California. California’s previous one-year retroactive civil window, enacted in 2003, was held constitutional.SeeDeutsch v. Masonic Homes of California, Inc., 80 Cal. Rptr. 3d 368, 378 (Cal. Ct. App. 2008). A similar window was upheld in Delaware as well. Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247 (Del. 2011).
The child sex abuse window is not a novelty. It has been modeled on other retroactive revival statutes that provided access to justice for victims who also were excluded from justice by unfairly short SOLs, including victims of the Northridge earthquake, Vu v. Prudential Prop. & Cas. Ins. Co., 33 P.3d 487, 113 Cal. Rptr. 2d 70 (Cal. 2001); birth defects caused by the pregnancy drug diethylstilbestrol (DES), Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989); asbestos exposure, City of Boston v. Keene Corp., 406 Mass. 301, 547 N.E.2d 328 (Mass. 1989); HIV-contaminated blood via tranfusion, D.J.L v. Armour Pharmaceutical Company, 704 A.2d 104 (N.J. Super. Ct. Law Div. 1997); and agent orange exposure, In Re Agent Orange Product Liability Litigation, 597 F.Supp. 740 (E.D.N.Y. 1984).
For the calendar year 2003, over 1000 survivors of child sex abuse filed civil lawsuits and alerted the public to the identities of over 300 child predators previously unidentified. Deutsch, is a post-Stogner decision, and reflects the current law as to retroactive application of civil SOLs in the state of California. Further, the California Supreme Court has long allowed for retroactive application of merely procedural aspects of civil statutes. Mudd v. McColgan, 183 P.2d 10, 13 (Cal. 1947) (holding retroactive extension of statute of limitations in tax case permissible). As under federal law, where the retroactive intent is plain, and the statute applies to a civil, procedural matter rather than a crime, a retroactive statute passes constitutional muster. California follows the same reasoning as the Supreme Court and has permitted the retroactive application of civil statutes.California is in the majority of states, which has NOT found a vested right in the running of SOLs, because they are procedural. Liebig v. Superior Court, 257 Cal. Rptr. 574, 577 (Ct. App. 3d 1989) (affirming constitutionality of child sexual abuse statute’s revival of expired claims).
Misguided Argument 3: S.B. 131 does not cover public institutions, and thus should not become law solely because it does not cover all possible instances of abuse and institutions.
Answer 3: Public institutions and private institutions need to be held accountable, but the issues are distinct and should be dealt with in separate bills. Unlike private institutions, public institutions must be addressed in legislation which waives their sovereign immunity in order to consent to suit. Also, as to sovereign immunity, there is generally a damages cap issue which would need to be addressed in all cases of sovereign immunity waiver in the state of California.
Still, abuse in private institutions needs to be further addressed in California, despite the 2003 window. Many victims were not aware of the 2003 window and still deserve justice. It makes sense to pass S.B. 131 into law and then to also take up and pass another bill which addresses public institution liability, as overall, SOL reform will save the taxpayers of California. Currently, California pays the price of abuse in several ways. First, the state suffers from reduced productivity from victims, because they have been disabled by the abuse. To the extent that they are not made whole, they are producing less tax-generating income. The fact that California shuts off claims before victims are ready to come forward means that many victims have no chance to achieve justice and, therefore, are more likely to suffer serious depression and illness. Second, California bears the cost of divorces, broken homes, and suffering children, which are a sadly prevalent fact in many survivors’ lives. This creates a drag on local school districts that must provide counseling and guidance for troubled youth, the state agencies that deal with troubled families, and local authorities. Third, the survivors’ medical bills generated by the abuse, whether it is psychological or physical treatment, are likely to have to be subsidized by state and federal medical programs and funds.
SOL reform has very few detractors other than the Catholic bishops, who have misleadingly argued that window legislation is unconstitutional on the theory that it “targets” the Church. Window legislation does not target any particular perpetrator or organization. Indeed, many of these victims are victims of incest, and others are victims who were subjected to abuse at universities, in day care centers, and anywhere a child can be found. A federal trial court in the Ninth Circuit persuasively upheld the first California window against such an argument. See Melanie H. v. Defendant Doe, No. 04-1596-WQH-(WMc), slip op. (S.D. Cal. Dec. 20, 2005).
Misguided Argument 4: Retroactive legislation will bankrupt the Catholic Church or other private institutions.
Answer 4: Any claim that window legislation leads to bankruptcy of institutions is irresponsible. First, only two bankruptcies have followed window legislation, one in San Diego and the other in Wilmington. All of the other diocesan bankruptcies were unrelated to SOL reform, including Davenport, Fairbanks, Portland, Spokane, and Tucson.
Second, only the Wilmington bankruptcy ran a full course. In both cases, the bankruptcy was a voluntary bankruptcy, which was intended to protect assets and avoid trials that would have revealed the Roman Catholic bishop’s secrets regarding their role in endangering children. These bankruptcies were not filed because the dioceses were actually indigent. For a fact-based analysis of how American Catholic dioceses have dealt with their finances and their wealth, see http://www.economist.com/node/21560536.
In San Diego, the bankruptcy court publicly stated that the diocese was not honest about its actual wealth and that there was no justification for the bankruptcy filing. The Wilmington bankruptcy settled, and the settlement includes remuneration for victims for the Diocese’s cover up of child sex abuse predators, and just as important, an agreement to release the identities of those priests who have been accused of abuse and to implement better child protective policies. Bishop Malooly Issues Statement on the Filing of the Amended Plan of Reorganization, http://www.cdowreorganization.com/ (last visited Mar. 4, 2013).
Misguided Argument 5: Insurers will challenge the insurance liability coverage, so there will be no insurance coverage for the claims arising out of reform.
Answer 5: Insurance companies challenge their liability in nearly every single case arising out of institutional abuse. In the case of the claims during the 2003 California window, insurance funds paid for about half of all settlements. That is true across the country. Even if they challenge coverage, they typically coverage a significant portion of a settlement. That is only fair given the premiums collected during the decades when the issue was kept secret and, therefore, they had few claims to pay.
In any event, the insurance industry should be the leader on child protection. It is the reason our kids wear seatbelts. They need to play a similar role with respect to child sex abuse.
Misguided Argument 6: Some claim that as time passes there is a higher risk of false claims and thus they serve an important role in protecting the rights of innocent persons.
Answer 6: There are very few false claims regarding sexual abuse.See, Delphine Collin-Vezina, et al., Lessons Learned from Child Sexual Abuse Research: Prevalence, Outcomes, and Preventive Strategies, Child & Adolesc. Psych. & Mental Health (2013); Merrilyn McDonald, The Myth of Epidemic False Allegations of Sexual Abuse in Divorce Cases, Court Review (Spring 1998), available athttp://www.omsys.com/mmcd/courtrev.htm#Rcr2023; E. Olafson, et al., Modern History of Child Sexual Abuse Awareness: cycles of Discovery and Suppression, 17 Child Abuse Negl. 1, 7-24 (1993).
The plaintiff bears the initial burden of proof, and if he or she lacks evidence, the case does not go forward. No plaintiff can succeed in a claim brought through civil legislation without having the evidence to establish a prima facie case.
Victims of child sex abuse rarely make false claims, as we learned when windows were open in California and Delaware. In cases brought under California’s last window there were a total of about 5 false claims in over 1000. False claims in the area of child sex abuse are statistically insignificant.
There is an extensive and persuasive body of scientific evidence establishing that child sex abuse victims are harmed in a way that makes it extremely difficult to come forward and, therefore, victims typically need decades to do so. Rebecca Campbell, Ph.D., “Neurobiology of Sexual Assault: Explaining Effects on the Brain,” National Institute of Justice (2012); R.L. v. Voytac, 199 N.J. 285, 971 A.2d 1074 (N.J. 2009); Bessel A. van der Kolk M.D., et al., Traumatic Stress: The Effects of Overwhelming Experience on Mind, Body, and Society (2006). See also, Elliot Nelson, et al., Association Between Self-reported Childhood Sexual Abuse and Adverse Psychosocial Outcomes: Results From a Twin Study, 59(2) Archives of General Psychiatry,139-45 (2002); Mic Hunter, Psy.D., Abused Boys (1991); R.C. Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse Negl. 2, 177-93 (1983).
Importantly, civil tort claims are often the only way victims can obtain access to justice. In the context of clergy abuse for example, Professor Timothy Lytton has shown that civil tort claims have been the only means by which survivors have been able to obtain any justice. Timothy Lytton, Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Sexual Abuse (Harvard University Press, 2008).
Every Californian needs to understand there are few who are opposed to granting sex abuse survivors access to justice. Sadly, the Catholic Bishops are sinking millions of their parishioners’ donations into lobbying tactics designed to keep victims out of court. Some members of this legislature have apparently accepted verbatim the substance of the Catholic Bishops’ playbook designed to shield them from liability, and have even repeated these stock arguments on the record as their own. In truth, there are no legal or constitutional impediments to victims’ access to civil justice. On this issue, the Catholic bishops and their lobbyists have earned no deference.
California does provide for an eight-year (8) statute of limitations, but victims typically have a difficult time dealing with many issues, particularly such as repressed memories. Eight years is a very short period of time within which to process the information, obtain the needed counseling to be ready to go to court, and then to find an attorney and proceed to the judicial process. The window would help them as well as the vast majority of victims, who do not have repressed memories; but did not know about California’s 2003 window and simply could not get to court before the statute of limitations expired. This was a dramatic improvement in child safety in California, but once the window closed, the existing SOLs blocked many survivors from going forward. I heard from numerous Buddhist and family incest abuse survivors in the years following, who had missed the window and were finally ready, but whose SOLs had expired.
California’s children deserve the passage of civil SOL reform to protect children today and in the future, and to provide access to justice for the many victims suffering in silence. If passed, SB 131 would be a huge step forward for California’s children. I encourage the California Legislature to fulfill its duty to the children of California and pass S.B. 131, with the civil window.
Sincerely,
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2013-08-06 15:05:422013-08-06 15:05:42The Constitutionality of S.B. 131, An Act Relating to Damages: childhood sexual abuse: statute of limitations
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2013-08-01 19:30:352015-01-01 19:33:08Diwakar Vadapalli and Virgene Hanna, Trends in Allegations and Investigations of Child Abuse and Neglect in Alaska, Institute of Social and Economic Research University of Alaska Anchorage
The California Catholic Bishops Fight Access to Justice for Child Sex Abuse Victims
/in California, Justia Columns /by SOL ReformThe 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:
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:
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.
YU relies on SOL– lucky to be in NY
/in New York /by SOL Reform12 more join $380 million molestation suit against Yeshiva University High School
number of claims against the school to 31. The $380 million lawsuit was filed by students who said they were molested by staffers and that officials covered up the dirty deeds.
BY THOMAS TRACY / NEW YORK DAILY NEWS
WEDNESDAY, AUGUST 7, 2013, 12:19 AM
Former principal George Finkelstein (left) and ex-teacher Rabbi Macy Gordon (right) in 1970. The two are accused of covering up decades of sexual abuse at the Yeshiva University High School.
A dozen former Yeshiva University High School students have joined a bombshell $380 million lawsuit, claiming they were molested by staffers, an attorney for the plaintiffs said Tuesday.
The number of alleged victims in the suit against the prestigious Manhattan school now stands at 31 — up from the initial 19, said attorney Kevin Mulhearn.
31 former students of Yeshiva University High School are suing for $380 million.
Former students said in the initial claim filed last month that officials covered up decades of sexual abuse by Rabbi George Finkelstein, the school’s former principal, and Rabbi Macy Gordon, a former Judaic studies teacher. The accusers come from all over the country and at least one was abused in the early 1970s, Mulhearn said.
Attorneys for Yeshiva University asked the court to dismiss the suit because the allegations “occurred between 42 and 25 years ago.”
“In all candor (the suit), is a very old case,” defense attorney Karen Bitar told Manhattan Federal Court Judge John Koeltl on Tuesday.
Read more: http://www.nydailynews.com/new-york/12-join-molestation-suit-yeshiva-university-high-school-article-1.1419666#ixzz2bHSgtVi
F
SOL propaganda from CA bishops.
/in California /by SOL ReformThis is progress on SOLs.
/in New Jersey /by SOL ReformCamden priest-abuse suit to proceed despite ‘recovered memory’ controversy.
Alleged victim says he recalled it only recently
CAMDEN — A Camden man who claims he was molested as a child by a South Jersey priest can argue in court he repressed memories of the abuse for more than 40 years, a federal judge has ruled.
Mark Bryson contends he was repeatedly assaulted in the late 1960s by the Rev. Joseph Shannon at St. Anthony of Padua Parish in Camden. But Bryson also says he only remembered the abuse in February 2010 — an assertion key to a lawsuit he filed last year against the Diocese of Camden.
Bryson’s awareness of any alleged abuse could affect the two-year statute of limitations for his lawsuit. Bryson, who now lives in Ohio, contends the 24-month period began when his memory returned.
In contrast, the diocese contends the deadline passed two years after Bryson’s 18th birthday.
“There’s controversy over the issue of recovered memory,” Peter Feuerherd, a diocesan spokesman, said Friday. “We dispute the issue of recovered memory in this particular case.”
U.S. District Judge Jerome Simandle Thursday said he will hold a hearing in his Camden courtroom to address the statute of limitations issue. The session, known as a Lopez hearing, will be held Oct. 15 and 16.
Simandle rejected requests by the diocese to dismiss Bryson’s case and strike the testimony of his proposed expert witness.
Bryson, who was born in 1961, claims he was molested as a first-grade student at his parish school in the Cramer Hill neighborhood. He asserts his memories were suppressed by “traumatic amnesia” until an incident in February 2010.
According to the ruling, Bryson was living in Florida when his wife “accessed a website listing sex offenders living in their police district.”
“One offender lived on their street, often wore black and resembled a priest,” Simandle’s decision said.
When Bryson realized his neighbor was a sex offender, the opinion continues, “the memories of abuse by Shannon flooded back in.”
According to a report from Bryson’s expert witness, sex-abuse counselor Mary Gail Frawley-O’Dea of Charlotte, N.C., “it is not unusual for sexual abuse victims to dissociate those experiences, having amnesia for the memories until some environmental cue triggers them into consciousness.”
She said Bryson’s description of how his memories returned “is not unusual among adult survivors of childhood sexual abuse.” According to the opinion, Bryson said he “cried and wailed” as he first recalled the alleged abuse.
But Frawley-O’Dea produced her findings in two reports, and the second came several months after a court-ordered deadline. As a result, Simandle ruled, the diocese’s attorney could depose, or question, Frawley-O’Dea in advance of the hearing.
The judge also ordered Bryson to cover the cost of bringing his witness to South Jersey for that deposition.
Simandle also noted the diocese “may choose to rebut her testimony at the (upcoming) hearing with other expert witness testimony.” He observed, too, that the diocese has indicated “future plans to challenge the scientific validity of memory repression theory.”
The judge also noted he must assess the “extent of prejudice” to the diocese, “which depends in part on the credibility of (Bryson’s) memories and the memories of other living witnesses.”
Original link: http://www.courierpostonline.com/article/20130805/NEWS01/308050013/
Written by Jim Walsh, Courier-Post Staff
The Constitutionality of S.B. 131, An Act Relating to Damages: childhood sexual abuse: statute of limitations
/in California /by SOL ReformTO: The Members of the California Legislature
RE: The Constitutionality of S.B. 131, An Act Relating to Damages: childhood sexual abuse: statute of limitations
DATE: August 2, 2013
By way of introduction, my name is Marci A. Hamilton, one of the leading church/state scholars in the United States. For the past twenty years, I have been a full-time faculty member at Benjamin N. Cardozo School of Law, Yeshiva University, New York, NY, where I currently hold the title of Paul R. Verkuil Chair in Public Law. My book, Justice Denied: What America Must Do to Protect Its Children (Cambridge University Press 2008, 2012), and website, www.sol-reform.com are the leading resources in the field of legislation to protect child sex abuse victims. As an expert in this arena—who has researched, written, and testified regarding the inadequacy of the current statutes of limitations (“SOLs”) to deal with child sex abuse in the United States, and abroad—I feel compelled to write an explanation as to why amending and extending the SOLs for child sex abuse is a necessary tool to provide access to justice for child sex abuse victims and to protect our children.
I write specifically to explain why S.B. 131, relating to childhood sexual abuse SOLs, is constitutional. I will recite several misguided arguments commonly used against such legislation, and provide responses to each.
S.B. 131 contains three key elements: (1) it would prospectively eliminate the SOL for civil actions brought by victims of childhood sexual abuse; (2) extend for thirty (30) years some previously lapsed claims; and (3) retroactively revive for a period of one (1) year all other actions for which the statute of limitations (“SOL”) had previously lapsed. The retroactive revival of an SOL is often called a “window.”
Misguided Argument 1: All retroactive SOL legislation is unconstitutional.
Answer 1: In reality, while the United States Supreme Court has closed the door on retroactive criminal SOLs, it has found retroactive civil legislation constitutional. Compare Landgraf v. USI Film Prods., 511 U.S. 244, 267 (1994), with Stogner v. California, 539 U.S. 607, 610 (2003) (striking retroactive revival of criminal SOL). Under the federal Constitution, retroactive civil legislation is constitutional if the legislative intent is clear and the change is procedural. The Supreme Court in Landgraf explained the duty of judicial deference to legislative choice in these matters as follows: “legislation has come to supply the dominant means of legal ordering, and circumspection has given way to greater deference to legislative judgments.” Landgraf, 511 U.S. at 272. The Court went on to observe that “the constitutional impediments to retroactive civil legislation are now modest. . . . Requiring clear intent [of retroactive application] assures that [the legislature] itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.” Id. at 272-73. To be sure, there is an “antiretroactivity presumption” but this presumption can be readily overcome by express legislative language. See Republic of Austria v. Altmann, 541 U.S. 677, 692-93 (2004); see also Landgraf, 511 U.S. at 267-68; Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 311-12 (1945). Stogner v. California, 539 U.S. 607 (2003), dealt specifically and only with the retroactive application of criminal SOLs. Under the federal Constitution, retroactive civil legislation is constitutional if the legislative intent is clear and the change is procedural.
Misguided Argument 2: Some mistakenly claim—without citing relevant precedent, and while relying on the outdated reasoning that statutes of limitation must provide finality to old claims—that California courts would forbid the revival of a previously procedurally time-barred claim in child sex abuse cases.
Answer 2: This is simply not true in California. California’s previous one-year retroactive civil window, enacted in 2003, was held constitutional. See Deutsch v. Masonic Homes of California, Inc., 80 Cal. Rptr. 3d 368, 378 (Cal. Ct. App. 2008). A similar window was upheld in Delaware as well. Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247 (Del. 2011).
The child sex abuse window is not a novelty. It has been modeled on other retroactive revival statutes that provided access to justice for victims who also were excluded from justice by unfairly short SOLs, including victims of the Northridge earthquake, Vu v. Prudential Prop. & Cas. Ins. Co., 33 P.3d 487, 113 Cal. Rptr. 2d 70 (Cal. 2001); birth defects caused by the pregnancy drug diethylstilbestrol (DES), Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989); asbestos exposure, City of Boston v. Keene Corp., 406 Mass. 301, 547 N.E.2d 328 (Mass. 1989); HIV-contaminated blood via tranfusion, D.J.L v. Armour Pharmaceutical Company, 704 A.2d 104 (N.J. Super. Ct. Law Div. 1997); and agent orange exposure, In Re Agent Orange Product Liability Litigation, 597 F.Supp. 740 (E.D.N.Y. 1984).
For the calendar year 2003, over 1000 survivors of child sex abuse filed civil lawsuits and alerted the public to the identities of over 300 child predators previously unidentified. Deutsch, is a post-Stogner decision, and reflects the current law as to retroactive application of civil SOLs in the state of California. Further, the California Supreme Court has long allowed for retroactive application of merely procedural aspects of civil statutes. Mudd v. McColgan, 183 P.2d 10, 13 (Cal. 1947) (holding retroactive extension of statute of limitations in tax case permissible). As under federal law, where the retroactive intent is plain, and the statute applies to a civil, procedural matter rather than a crime, a retroactive statute passes constitutional muster. California follows the same reasoning as the Supreme Court and has permitted the retroactive application of civil statutes. California is in the majority of states, which has NOT found a vested right in the running of SOLs, because they are procedural. Liebig v. Superior Court, 257 Cal. Rptr. 574, 577 (Ct. App. 3d 1989) (affirming constitutionality of child sexual abuse statute’s revival of expired claims).
Misguided Argument 3: S.B. 131 does not cover public institutions, and thus should not become law solely because it does not cover all possible instances of abuse and institutions.
Answer 3: Public institutions and private institutions need to be held accountable, but the issues are distinct and should be dealt with in separate bills. Unlike private institutions, public institutions must be addressed in legislation which waives their sovereign immunity in order to consent to suit. Also, as to sovereign immunity, there is generally a damages cap issue which would need to be addressed in all cases of sovereign immunity waiver in the state of California.
Still, abuse in private institutions needs to be further addressed in California, despite the 2003 window. Many victims were not aware of the 2003 window and still deserve justice. It makes sense to pass S.B. 131 into law and then to also take up and pass another bill which addresses public institution liability, as overall, SOL reform will save the taxpayers of California. Currently, California pays the price of abuse in several ways. First, the state suffers from reduced productivity from victims, because they have been disabled by the abuse. To the extent that they are not made whole, they are producing less tax-generating income. The fact that California shuts off claims before victims are ready to come forward means that many victims have no chance to achieve justice and, therefore, are more likely to suffer serious depression and illness. Second, California bears the cost of divorces, broken homes, and suffering children, which are a sadly prevalent fact in many survivors’ lives. This creates a drag on local school districts that must provide counseling and guidance for troubled youth, the state agencies that deal with troubled families, and local authorities. Third, the survivors’ medical bills generated by the abuse, whether it is psychological or physical treatment, are likely to have to be subsidized by state and federal medical programs and funds.
SOL reform has very few detractors other than the Catholic bishops, who have misleadingly argued that window legislation is unconstitutional on the theory that it “targets” the Church. Window legislation does not target any particular perpetrator or organization. Indeed, many of these victims are victims of incest, and others are victims who were subjected to abuse at universities, in day care centers, and anywhere a child can be found. A federal trial court in the Ninth Circuit persuasively upheld the first California window against such an argument. See Melanie H. v. Defendant Doe, No. 04-1596-WQH-(WMc), slip op. (S.D. Cal. Dec. 20, 2005).
Misguided Argument 4: Retroactive legislation will bankrupt the Catholic Church or other private institutions.
Answer 4: Any claim that window legislation leads to bankruptcy of institutions is irresponsible. First, only two bankruptcies have followed window legislation, one in San Diego and the other in Wilmington. All of the other diocesan bankruptcies were unrelated to SOL reform, including Davenport, Fairbanks, Portland, Spokane, and Tucson.
Second, only the Wilmington bankruptcy ran a full course. In both cases, the bankruptcy was a voluntary bankruptcy, which was intended to protect assets and avoid trials that would have revealed the Roman Catholic bishop’s secrets regarding their role in endangering children. These bankruptcies were not filed because the dioceses were actually indigent. For a fact-based analysis of how American Catholic dioceses have dealt with their finances and their wealth, see http://www.economist.com/node/21560536.
In San Diego, the bankruptcy court publicly stated that the diocese was not honest about its actual wealth and that there was no justification for the bankruptcy filing. The Wilmington bankruptcy settled, and the settlement includes remuneration for victims for the Diocese’s cover up of child sex abuse predators, and just as important, an agreement to release the identities of those priests who have been accused of abuse and to implement better child protective policies. Bishop Malooly Issues Statement on the Filing of the Amended Plan of Reorganization, http://www.cdowreorganization.com/ (last visited Mar. 4, 2013).
Misguided Argument 5: Insurers will challenge the insurance liability coverage, so there will be no insurance coverage for the claims arising out of reform.
Answer 5: Insurance companies challenge their liability in nearly every single case arising out of institutional abuse. In the case of the claims during the 2003 California window, insurance funds paid for about half of all settlements. That is true across the country. Even if they challenge coverage, they typically coverage a significant portion of a settlement. That is only fair given the premiums collected during the decades when the issue was kept secret and, therefore, they had few claims to pay.
In any event, the insurance industry should be the leader on child protection. It is the reason our kids wear seatbelts. They need to play a similar role with respect to child sex abuse.
Misguided Argument 6: Some claim that as time passes there is a higher risk of false claims and thus they serve an important role in protecting the rights of innocent persons.
Answer 6: There are very few false claims regarding sexual abuse. See, Delphine Collin-Vezina, et al., Lessons Learned from Child Sexual Abuse Research: Prevalence, Outcomes, and Preventive Strategies, Child & Adolesc. Psych. & Mental Health (2013); Merrilyn McDonald, The Myth of Epidemic False Allegations of Sexual Abuse in Divorce Cases, Court Review (Spring 1998), available at http://www.omsys.com/mmcd/courtrev.htm#Rcr2023; E. Olafson, et al., Modern History of Child Sexual Abuse Awareness: cycles of Discovery and Suppression, 17 Child Abuse Negl. 1, 7-24 (1993).
The plaintiff bears the initial burden of proof, and if he or she lacks evidence, the case does not go forward. No plaintiff can succeed in a claim brought through civil legislation without having the evidence to establish a prima facie case.
Victims of child sex abuse rarely make false claims, as we learned when windows were open in California and Delaware. In cases brought under California’s last window there were a total of about 5 false claims in over 1000. False claims in the area of child sex abuse are statistically insignificant.
There is an extensive and persuasive body of scientific evidence establishing that child sex abuse victims are harmed in a way that makes it extremely difficult to come forward and, therefore, victims typically need decades to do so. Rebecca Campbell, Ph.D., “Neurobiology of Sexual Assault: Explaining Effects on the Brain,” National Institute of Justice (2012); R.L. v. Voytac, 199 N.J. 285, 971 A.2d 1074 (N.J. 2009); Bessel A. van der Kolk M.D., et al., Traumatic Stress: The Effects of Overwhelming Experience on Mind, Body, and Society (2006). See also, Elliot Nelson, et al., Association Between Self-reported Childhood Sexual Abuse and Adverse Psychosocial Outcomes: Results From a Twin Study, 59(2) Archives of General Psychiatry,139-45 (2002); Mic Hunter, Psy.D., Abused Boys (1991); R.C. Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse Negl. 2, 177-93 (1983).
Importantly, civil tort claims are often the only way victims can obtain access to justice. In the context of clergy abuse for example, Professor Timothy Lytton has shown that civil tort claims have been the only means by which survivors have been able to obtain any justice. Timothy Lytton, Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Sexual Abuse (Harvard University Press, 2008).
Every Californian needs to understand there are few who are opposed to granting sex abuse survivors access to justice. Sadly, the Catholic Bishops are sinking millions of their parishioners’ donations into lobbying tactics designed to keep victims out of court. Some members of this legislature have apparently accepted verbatim the substance of the Catholic Bishops’ playbook designed to shield them from liability, and have even repeated these stock arguments on the record as their own. In truth, there are no legal or constitutional impediments to victims’ access to civil justice. On this issue, the Catholic bishops and their lobbyists have earned no deference.
California does provide for an eight-year (8) statute of limitations, but victims typically have a difficult time dealing with many issues, particularly such as repressed memories. Eight years is a very short period of time within which to process the information, obtain the needed counseling to be ready to go to court, and then to find an attorney and proceed to the judicial process. The window would help them as well as the vast majority of victims, who do not have repressed memories; but did not know about California’s 2003 window and simply could not get to court before the statute of limitations expired. This was a dramatic improvement in child safety in California, but once the window closed, the existing SOLs blocked many survivors from going forward. I heard from numerous Buddhist and family incest abuse survivors in the years following, who had missed the window and were finally ready, but whose SOLs had expired.
California’s children deserve the passage of civil SOL reform to protect children today and in the future, and to provide access to justice for the many victims suffering in silence. If passed, SB 131 would be a huge step forward for California’s children. I encourage the California Legislature to fulfill its duty to the children of California and pass S.B. 131, with the civil window.
Sincerely,
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law
Diwakar Vadapalli and Virgene Hanna, Trends in Allegations and Investigations of Child Abuse and Neglect in Alaska, Institute of Social and Economic Research University of Alaska Anchorage
/in Alaska /by SOL ReformDiwakar Vadapalli and Virgene Hanna, Trends in Allegations and Investigations of Child Abuse and Neglect in Alaska, Institute of Social and Economic Research University of Alaska Anchorage