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SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2012-07-31 17:22:222012-07-31 17:22:22Nunc Tincidunt Elit Cursus
If you have even glanced at a headline, television screen, or the Internet this summer, you cannot have missed the multitude of stories about child sex abuse and the justice system. The fight against such abuse has taken a laudable turn, for the benefit of victims. And all of these developments have occurred in one state: Pennsylvania. By dint of geography, it has been impossible to avoid comparisons between the institutional cover-ups of abuse at Pennsylvania State University, and in the Roman Catholic Archdiocese of Philadelphia. To put it mildly, neither institution emerges smelling like a rose.
There is so much that is happening, on so many fronts, it is as though a tsunami of justice has been released. We have been drowning in stories, data, coverage, and new revelations. Indeed, there is so much breaking news about the child-sex-abuse scandals that some reporters have been driven to specialize in either one institutional cover-up or the other.
The trial of the Philadelphia Archdiocese’s Monsignor Lynn ended in a verdict of child endangerment against him, and a sentence of 3-6 years. The trial of former defensive Penn State football coach Jerry Sandusky resulted in guilty verdicts against him on 45 out of 48 charges, with sentencing still to be scheduled; and former FBI Director Louis Freeh recently released his scathing reporton how child sex abuse by Sandusky was covered up by Penn State from 1998 to the present. The Freeh Report, in turn, formed the foundation for the NCAA to issue history-making sanctionsagainst the Penn State football program.
And it is not over. Trials await against the Philadelphia Archdiocese’s lay teacher Bernard Shero and Fr. Charles Englehardt, as well as against Penn State’s former Vice President Gary Schultz and Athletic Director Tim Curley. Meanwhile, grand juries are likely busy in both central Pennsylvania and Philadelphia. There is reasonable certainty that former Penn State President Graham Spanier will face criminal charges, and that Sandusky will face more charges. And it is possible that past officials of the Philadelphia Archdiocese may face additional charges as well.
In the midst of this whirlwind of details, it is worthwhile to take a moment to ask how we are doing. There are two separate paths of investigation and punishment: private and public, and I will consider each in turn.
Private Sanctions: The Philadelphia Archdiocese’s Internal Investigation and the NCAA
Private justice is often incomplete. Private parties lack the subpoena powers of the prosecutors, and are not responsible to the people in the way that prosecutors are. Self-interest has a way of turning private investigations into self-serving public relations projects, rather than paths to authentic justice.
This is definitely true with respect to the private investigations by the Philadelphia Archdiocese. As I discussed in another column for Justia’s Verdict, the investigation of the Philadelphia Archdiocese by Gina Maisto Smith has fallen far short of transparency, which is critical to full justice. Smith has been charged with determining not guilt or innocence, but rather “suitability,” yet another weasel-word in the lexicon of religious organizations that are substituting private investigation for the civil justice system. Many in Philadelphia are still shaking their heads over the return to ministry of Msgr. Close, who was credibly accused by two different men. It is inexplicable. And that means it is not justice.
Louis Freeh, a former Director of the FBI, investigated Penn State and brought to the table extraordinary credentials. The problem with his Report, though, was that it did not extend beyond the dates of abuse that were already part of the public record. Sandusky had access to children for over two decades before the Freeh Report came down, so although the Penn State Report is stronger and more credible than anything the bishops have done, it was nevertheless truncated, as it did not cover all the dates when Sandusky, now a convicted serial abuser, could have struck, and likely did.
Even so, the Freeh Report castigated and blamed Penn State higher-ups in terms that no internal report of the Roman Catholic Church ever has rendered against a bishop. And its conclusions, when combined with the evidence at the Sandusky trial, and the Sandusky grand jury report, gave the NCAA fodder to issue the most extreme sanctions against a football program ever. At least with Penn State, there is a separate, private institution like the NCAA that can credibly render punishment, because it is not solely self-dealing. And punish it did: $60 million; no bowl or championship games for 4 years; and a reduction in scholarships. Most innovative was the NCAA’s decision to turn back the clock and deprive Joe Paterno of having his wins since 1998 in the record books. That means he is no longer the winningest cost in college football history. As Jordan Walsh has pointed out, the retroactive removal of Paterno’s record was a powerful punishment.
The Penn State internal system has been better than the Philadelphia Archdiocese’s, but it still has not probed the full scope of the history of the cover up or reached far enough. The legal system has done a better job of investigating, punishing, and responding to the problem.
State Legislatures, Taking Heed of What Happened at Penn State and the Philadelphia Archdiocese, Are Now Expanding Mandatory Reporting Laws
At the same time, the simultaneous scandals in Pennsylvania have led some state legislatures to enact laws that are intended to prevent what happened in Pennsylvania from happening there. Penn State and the Roman Catholic Church can fix their own systems, and purportedly have, but they are not capable of changing other private institutions. That is where the state legislatures come in.
Since the Penn State scandal broke into the headlines, a number of states are considering adding college and university personnel and coaches to their mandatory reporting laws. Thus far, these states include the District of Columbia, Delaware, California, Kansas, New Jersey, New York, Pennsylvania, and South Carolina. One can understand why colleges and universities were not originally thought to need a mandatory reporting statute, but, in fact, they increasingly need such motivation. Not only do we now know, thanks to Jerry Sandusky, that campus sports facilities can be turned into host sites for victims year-round, but we also know that colleges and universities today have an increasing number of summer sports camps, where oversight is often less than adequate, while hundreds of kids stay in the dorms and spend days at a time on campus. Plus, a significant number of professors and university research facilities study children.
A few states have already passed such legislation, on a very short time frame. Those states include Connecticut, Florida, Illinois, Indiana, Iowa, Louisiana, Nebraska, Oregon, Vermont, Virginia, Washington, West Virginia, and Wisconsin. Ironically, Pennsylvania itself has been slow to pass such legislation. Although bills are introduced in Pennsylvania, they are routinely referred to a committee where they are “buried,” never to be brought for a full floor vote. Such is the case with PA HB 1990, which would add “school staff member, school faculty, coach to the list of persons required to report suspected child abuse.” It was referred to the House Judiciary committee on November 15, 2011—a mere six days after Joe Paterno’s firing—and has not been moved since. A key reason for the delay is that Pennsylvania forced the drive to reform the laws into the hands of a task force, and such a procedural move carries with it inevitable delays.
Public Sanctions: Laudably, Prosecutors and Courts Are Now Demanding Justice Even From Once-Hallowed Institutions That in the Past Had Largely Been Left Alone
In the Philadelphia Archdiocese context, the prospect of a criminal trial did more for the public than any private initiative has. After two Grand Jury investigations and lengthy reports, and with the Lynn trial pending, suddenly new, smoking gun evidence came to light. The Archdiocese, with its Monsignor facing trial, finally disclosed the existence of a list of pedophile priests that had been prepared by Lynn and was known of by several in the higher reaches of the Archdiocese.
Perhaps the greatest changes of all, when it comes to child sex abuse, can be seen in the judicial system. At one time, prosecutors and even judges gave esteemed institutions a wide berth, while the culture as a whole discounted reports of child sex abuse, unable to conceive that those in positions of power would knowingly permit child predators the latitude to pursue one child after another. Those days, fortunately, are behind us now.
This week, Monsignor Lynn was sentenced to prison for child endangerment, which in and of itself was remarkable. What was even more stunning, however, were the words that Judge Teresa Sarmina, in Philadelphia, chose to explain why she had sentenced him to 3-to-6 years in prison. Judge Sarmina acknowledged what many letters that were addressed to her, regarding Msgr. Lynn, had observed: Lynn was a good priest, at least in his last assignment. Parishioners and family found him kind, compassionate, and charitable. She pointed out that it is easy to be a “good priest” when your values are not challenged to the core.
Thus, Judge Sarmina drew a line between the Lynn whom his family and parishioners described, and the Lynn who was “callous” and “hardhearted” when he was Secretary of the Clergy and responded to reports of abuse by simply shuttling abusing priests from one parish to another. She also made it clear that the suffering of the victims (suffering that Lynn had a role in creating) far outweighed the calls for leniency for Lynn.
In a jaw-dropping moment, Judge Sarmina also quoted the sitting Philadelphia Archbishop Charles Chaput, who had said on Good Friday 2012, “Sooner or later evil undoes itself.” Yes, she called the beloved Lynn—whose family filled the courtroom and whose parishioners and lawyers demanded no jail time at all—“evil.”
That is where we are today, and as Summer 2012 melts into Fall 2012, I have no doubt that we will hear more jurists label those who aid child predators in terms that, like Judge Sarmina’s, would have been unthinkable just a decade ago. And more guilty verdicts and sentences will ensue as the justice system holds those in power to account for imperiling the vulnerable.
Lady Justice is blindfolded, but as Judge Sarmina pointed out, not blind, and as prosecutor Pat Blessington noted, she carries not only the scales of justice but also a sword.
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00solreformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgsolreform2012-07-26 00:00:382013-04-06 05:08:13Why the Summer of 2012 Will Go Down in History as the Breakthrough Summer for Child Sex Abuse Victims
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“It was a sad day,” said Mary Jane Wanna, Sisseton Wahpeton Oyate, of the South Dakota House Judiciary Committee killing a bill to remove the statute of limitations for lawsuits alleging childhood sexual abuse. The measure was presented on February 6, by Representative Steve Hickey, Republican from Minnehaha County, and co-sponsored by lawmakers on both sides of the aisle.
Proponents, opponents and spectators packing the committee room heard emotional testimony from victims, who recounted sex trafficking as well as brutal serial sexual assaults. Afterward, abuse survivors wept openly in the hallway.
Hickey’s new bill had proposed eliminating the statute of limitations for childhood-sexual-abuse complaints in the state. It was intended to remedy a 2010 measure that added restrictions to such suits, banning victims over age 40 from suing institutions (such as churches and schools). The 2010 law was written as a “constituent bill” by Steve Smith, an attorney representing an institution—Congregation of Priests of the Sacred Heart, which runs St. Joseph’s Indian School, in Chamberlain—and defending about a dozen such cases.
During Smith’s 2010 testimony to the legislature, the transcript shows he told the group that the perpetrators in such cases were typically “long dead” and “can’t defend themselves,” but neglected to say that his cases in fact included living alleged perpetrators, including Brother Matthew Miles (who had already told a South Dakota court he had pled guilty to sodomizing young boys in another jurisdiction), John Donadio, Father Thomas Lind and Father William Pitcavage. About 10 other living persons have been accused in current South Dakota-related childhood-sexual-abuse cases.
Smith’s 2010 bill has been called a way to sweep his cases, and others, from the system, particularly since a South Dakota judge has been applying the statute retroactively, projecting it back in time to dismiss already-filed lawsuits. Smith’s bill was written and enacted after about 100 Native Americans filed childhood-sexual abuse complaints against Smith’s clients and other Catholic entities that had run the notorious boarding schools American Indians were compelled to attend until the 1970s. As a result, said a witness who testified by telephone, law professor Marci Hamilton of Benjamin N. Cardozo School of Law in New York, the Justice Department is eyeing the 2010 statute as a possible civil-rights violation.
Though the legislature’s discussion focused on cases with Native plaintiffs in both 2010 and 2012, one of South Dakota’s most notorious perpetrators is Father Bruce MacArthur. A Catholic priest who abused children in several white parishes, he was eventually transferred out of the state, whereupon he embarked on a multi-state trail of sexual assaults of children and hospital and nursing-home patients, for which he was convicted in 1978 and again in 2008.
Professor Hamilton also noted in her testimony that the trend in the country is to make it easier to expose pedophiles, not harder, as South Dakota has done: In court, she said, “anyone abused can name the perpetrators, and South Dakota would know where the trouble spots are.”
Robert Brancato—head of South Dakota’s chapter of SNAP (Survivors Network of Those Abused by Priests) and an abuse survivor who testified during the meeting—vowed to press forward. “I’ll be lobbying for a measure in next year’s session, and I’ll be working to unseat those who voted against this one,” he said.
Despite the thumbs-down vote, Representative Kevin Killer, Oglala Lakota, was hopeful. Killer, a Democrat from Shannon and other counties encompassing the Pine Ridge Indian Reservation, said the silver lining was the bill’s bipartisan support. During the past year, the state legislature’s polarized stance has softened, Killer said, pointing to Republican support for proposals to enhance Indian child welfare and to provide additional funding for education on the Pine Ridge and Rosebud reservations.
During the Judiciary Committee meeting, members and witnesses offered varied reasons for support or opposition to Hickey’s bill. An insurance-industry trade group’s representative warned insurance premiums might increase. Smith defended his 2010 statute. Representative Gene Abdallah, Republican of Lincoln and Minnehaha counties, said that as a Catholic, he was offended by the bill and claimed any abuse was mitigated by the good done in Native communities by the Catholic Church.
More criticism of Hickey’s proposal came from a lobbyist for the Evangelical Lutheran Church of America, which was sued in 2007 by multiple victims from multiple South Dakota congregations. The lobbyist said making sexual-abuse lawsuits easier to bring was unfair to current-day church members, who would be “negatively affected.”
Killer said he was disappointed some Judiciary Committee members didn’t separate the protections the new bill would have offered victims from the happenstance that some lawsuits might involve religious institutions. He pointed to the Penn State scandal as comparable, though not involving a church. “We are a judiciary committee after all. We should be able to make the distinction,” he said.
“It came down to money,” said Hickey. “What’s at issue here are civil lawsuits, and that means financial liability. The opponents of my bill wanted to tamp down scandal and avoid paying money. They were not thinking about the victims.”
Hickey reiterated law professor Hamilton’s point that the state is potentially liable for civil rights violations: “A U.S. Department of Justice official confirmed to me that the agency was watching the outcome [of the Judiciary Committee meeting].”
“I do hope people fight on,” said Killer. “I’m disappointed this bill died in committee. It had enough sponsors and supporters to warrant a hearing before the full House.”
Hickey noted the victims were able to tell their stories: “That was an important goal. Now we’ll figure out what we want to do long-term.”
No matter what the legislature does, there are other options, said Wanna, who is a survivor of abuse at Tekakwitha Orphanage, run by the Catholic Church on her reservation. “A spectator at the committee meeting said her reservation wants to do what we at Sisseton Wahpeton have already done, and that is pass our own civil statute, so we can sue in tribal court. I told her, ‘Call me. We’ll do anything we can to help you pass such a law for your people.’”
All the Judiciary Committee did was encourage tribal members to pass their own civil childhood-sexual-abuse laws, said Ken Bear Chief, a paralegal with Tamaki Law Firm, in Washington state. “In fact, anyone who suffered abuse on a reservation—white or Indian—has this option. White children did go to schools run ostensibly for Indians. Perhaps their parents worked on the reservation. If they were harmed, they, like tribal members, have a civil claim and can bring it in tribal court.”
Funding for this story was provided by the George Polk Program for Investigative Reporting.
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 Reform2012-02-06 22:20:182015-02-25 03:20:25Testimony Before South Dakota House Judiciary Committee, on H.B. 1218, Rescinding the Statute of Limitations for Civil Actions Involving Child Sex Abuse
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 Reform2012-02-03 23:01:402014-02-11 23:05:4202/03/10: Testimony Before Hawaii Senate Committee on Judiciary and Labor on S.B. 2588
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Why the Summer of 2012 Will Go Down in History as the Breakthrough Summer for Child Sex Abuse Victims
/in Pennsylvania /by solreformIf you have even glanced at a headline, television screen, or the Internet this summer, you cannot have missed the multitude of stories about child sex abuse and the justice system. The fight against such abuse has taken a laudable turn, for the benefit of victims. And all of these developments have occurred in one state: Pennsylvania. By dint of geography, it has been impossible to avoid comparisons between the institutional cover-ups of abuse at Pennsylvania State University, and in the Roman Catholic Archdiocese of Philadelphia. To put it mildly, neither institution emerges smelling like a rose.
There is so much that is happening, on so many fronts, it is as though a tsunami of justice has been released. We have been drowning in stories, data, coverage, and new revelations. Indeed, there is so much breaking news about the child-sex-abuse scandals that some reporters have been driven to specialize in either one institutional cover-up or the other.
The trial of the Philadelphia Archdiocese’s Monsignor Lynn ended in a verdict of child endangerment against him, and a sentence of 3-6 years. The trial of former defensive Penn State football coach Jerry Sandusky resulted in guilty verdicts against him on 45 out of 48 charges, with sentencing still to be scheduled; and former FBI Director Louis Freeh recently released his scathing report on how child sex abuse by Sandusky was covered up by Penn State from 1998 to the present. The Freeh Report, in turn, formed the foundation for the NCAA to issue history-making sanctions against the Penn State football program.
And it is not over. Trials await against the Philadelphia Archdiocese’s lay teacher Bernard Shero and Fr. Charles Englehardt, as well as against Penn State’s former Vice President Gary Schultz and Athletic Director Tim Curley. Meanwhile, grand juries are likely busy in both central Pennsylvania and Philadelphia. There is reasonable certainty that former Penn State President Graham Spanier will face criminal charges, and that Sandusky will face more charges. And it is possible that past officials of the Philadelphia Archdiocese may face additional charges as well.
In the midst of this whirlwind of details, it is worthwhile to take a moment to ask how we are doing. There are two separate paths of investigation and punishment: private and public, and I will consider each in turn.
Private Sanctions: The Philadelphia Archdiocese’s Internal Investigation and the NCAA
Private justice is often incomplete. Private parties lack the subpoena powers of the prosecutors, and are not responsible to the people in the way that prosecutors are. Self-interest has a way of turning private investigations into self-serving public relations projects, rather than paths to authentic justice.
This is definitely true with respect to the private investigations by the Philadelphia Archdiocese. As I discussed in another column for Justia’s Verdict, the investigation of the Philadelphia Archdiocese by Gina Maisto Smith has fallen far short of transparency, which is critical to full justice. Smith has been charged with determining not guilt or innocence, but rather “suitability,” yet another weasel-word in the lexicon of religious organizations that are substituting private investigation for the civil justice system. Many in Philadelphia are still shaking their heads over the return to ministry of Msgr. Close, who was credibly accused by two different men. It is inexplicable. And that means it is not justice.
Louis Freeh, a former Director of the FBI, investigated Penn State and brought to the table extraordinary credentials. The problem with his Report, though, was that it did not extend beyond the dates of abuse that were already part of the public record. Sandusky had access to children for over two decades before the Freeh Report came down, so although the Penn State Report is stronger and more credible than anything the bishops have done, it was nevertheless truncated, as it did not cover all the dates when Sandusky, now a convicted serial abuser, could have struck, and likely did.
Even so, the Freeh Report castigated and blamed Penn State higher-ups in terms that no internal report of the Roman Catholic Church ever has rendered against a bishop. And its conclusions, when combined with the evidence at the Sandusky trial, and the Sandusky grand jury report, gave the NCAA fodder to issue the most extreme sanctions against a football program ever. At least with Penn State, there is a separate, private institution like the NCAA that can credibly render punishment, because it is not solely self-dealing. And punish it did: $60 million; no bowl or championship games for 4 years; and a reduction in scholarships. Most innovative was the NCAA’s decision to turn back the clock and deprive Joe Paterno of having his wins since 1998 in the record books. That means he is no longer the winningest cost in college football history. As Jordan Walsh has pointed out, the retroactive removal of Paterno’s record was a powerful punishment.
The Penn State internal system has been better than the Philadelphia Archdiocese’s, but it still has not probed the full scope of the history of the cover up or reached far enough. The legal system has done a better job of investigating, punishing, and responding to the problem.
State Legislatures, Taking Heed of What Happened at Penn State and the Philadelphia Archdiocese, Are Now Expanding Mandatory Reporting Laws
At the same time, the simultaneous scandals in Pennsylvania have led some state legislatures to enact laws that are intended to prevent what happened in Pennsylvania from happening there. Penn State and the Roman Catholic Church can fix their own systems, and purportedly have, but they are not capable of changing other private institutions. That is where the state legislatures come in.
A few states have already passed such legislation, on a very short time frame. Those states include Connecticut, Florida, Illinois, Indiana, Iowa, Louisiana, Nebraska, Oregon, Vermont, Virginia, Washington, West Virginia, and Wisconsin. Ironically, Pennsylvania itself has been slow to pass such legislation. Although bills are introduced in Pennsylvania, they are routinely referred to a committee where they are “buried,” never to be brought for a full floor vote. Such is the case with PA HB 1990, which would add “school staff member, school faculty, coach to the list of persons required to report suspected child abuse.” It was referred to the House Judiciary committee on November 15, 2011—a mere six days after Joe Paterno’s firing—and has not been moved since. A key reason for the delay is that Pennsylvania forced the drive to reform the laws into the hands of a task force, and such a procedural move carries with it inevitable delays.
Public Sanctions: Laudably, Prosecutors and Courts Are Now Demanding Justice Even From Once-Hallowed Institutions That in the Past Had Largely Been Left Alone
In the Philadelphia Archdiocese context, the prospect of a criminal trial did more for the public than any private initiative has. After two Grand Jury investigations and lengthy reports, and with the Lynn trial pending, suddenly new, smoking gun evidence came to light. The Archdiocese, with its Monsignor facing trial, finally disclosed the existence of a list of pedophile priests that had been prepared by Lynn and was known of by several in the higher reaches of the Archdiocese.
Perhaps the greatest changes of all, when it comes to child sex abuse, can be seen in the judicial system. At one time, prosecutors and even judges gave esteemed institutions a wide berth, while the culture as a whole discounted reports of child sex abuse, unable to conceive that those in positions of power would knowingly permit child predators the latitude to pursue one child after another. Those days, fortunately, are behind us now.
This week, Monsignor Lynn was sentenced to prison for child endangerment, which in and of itself was remarkable. What was even more stunning, however, were the words that Judge Teresa Sarmina, in Philadelphia, chose to explain why she had sentenced him to 3-to-6 years in prison. Judge Sarmina acknowledged what many letters that were addressed to her, regarding Msgr. Lynn, had observed: Lynn was a good priest, at least in his last assignment. Parishioners and family found him kind, compassionate, and charitable. She pointed out that it is easy to be a “good priest” when your values are not challenged to the core.
Thus, Judge Sarmina drew a line between the Lynn whom his family and parishioners described, and the Lynn who was “callous” and “hardhearted” when he was Secretary of the Clergy and responded to reports of abuse by simply shuttling abusing priests from one parish to another. She also made it clear that the suffering of the victims (suffering that Lynn had a role in creating) far outweighed the calls for leniency for Lynn.
In a jaw-dropping moment, Judge Sarmina also quoted the sitting Philadelphia Archbishop Charles Chaput, who had said on Good Friday 2012, “Sooner or later evil undoes itself.” Yes, she called the beloved Lynn—whose family filled the courtroom and whose parishioners and lawyers demanded no jail time at all—“evil.”
That is where we are today, and as Summer 2012 melts into Fall 2012, I have no doubt that we will hear more jurists label those who aid child predators in terms that, like Judge Sarmina’s, would have been unthinkable just a decade ago. And more guilty verdicts and sentences will ensue as the justice system holds those in power to account for imperiling the vulnerable.
Lady Justice is blindfolded, but as Judge Sarmina pointed out, not blind, and as prosecutor Pat Blessington noted, she carries not only the scales of justice but also a sword.
Why the Summer of 2012 Will Go Down in History Child Sex Abuse Victims
Author: Marci Hamilton
Source: Justia
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South Dakota Legislature Quashes New Childhood-Sexual-Abuse Bill
/in South Dakota /by SOL ReformSouth Dakota Legislature Quashes New Childhood-Sexual-Abuse Bill
“It was a sad day,” said Mary Jane Wanna, Sisseton Wahpeton Oyate, of the South Dakota House Judiciary Committee killing a bill to remove the statute of limitations for lawsuits alleging childhood sexual abuse. The measure was presented on February 6, by Representative Steve Hickey, Republican from Minnehaha County, and co-sponsored by lawmakers on both sides of the aisle.
Proponents, opponents and spectators packing the committee room heard emotional testimony from victims, who recounted sex trafficking as well as brutal serial sexual assaults. Afterward, abuse survivors wept openly in the hallway.
Hickey’s new bill had proposed eliminating the statute of limitations for childhood-sexual-abuse complaints in the state. It was intended to remedy a 2010 measure that added restrictions to such suits, banning victims over age 40 from suing institutions (such as churches and schools). The 2010 law was written as a “constituent bill” by Steve Smith, an attorney representing an institution—Congregation of Priests of the Sacred Heart, which runs St. Joseph’s Indian School, in Chamberlain—and defending about a dozen such cases.
During Smith’s 2010 testimony to the legislature, the transcript shows he told the group that the perpetrators in such cases were typically “long dead” and “can’t defend themselves,” but neglected to say that his cases in fact included living alleged perpetrators, including Brother Matthew Miles (who had already told a South Dakota court he had pled guilty to sodomizing young boys in another jurisdiction), John Donadio, Father Thomas Lind and Father William Pitcavage. About 10 other living persons have been accused in current South Dakota-related childhood-sexual-abuse cases.
Smith’s 2010 bill has been called a way to sweep his cases, and others, from the system, particularly since a South Dakota judge has been applying the statute retroactively, projecting it back in time to dismiss already-filed lawsuits. Smith’s bill was written and enacted after about 100 Native Americans filed childhood-sexual abuse complaints against Smith’s clients and other Catholic entities that had run the notorious boarding schools American Indians were compelled to attend until the 1970s. As a result, said a witness who testified by telephone, law professor Marci Hamilton of Benjamin N. Cardozo School of Law in New York, the Justice Department is eyeing the 2010 statute as a possible civil-rights violation.
Though the legislature’s discussion focused on cases with Native plaintiffs in both 2010 and 2012, one of South Dakota’s most notorious perpetrators is Father Bruce MacArthur. A Catholic priest who abused children in several white parishes, he was eventually transferred out of the state, whereupon he embarked on a multi-state trail of sexual assaults of children and hospital and nursing-home patients, for which he was convicted in 1978 and again in 2008.
Professor Hamilton also noted in her testimony that the trend in the country is to make it easier to expose pedophiles, not harder, as South Dakota has done: In court, she said, “anyone abused can name the perpetrators, and South Dakota would know where the trouble spots are.”
Robert Brancato—head of South Dakota’s chapter of SNAP (Survivors Network of Those Abused by Priests) and an abuse survivor who testified during the meeting—vowed to press forward. “I’ll be lobbying for a measure in next year’s session, and I’ll be working to unseat those who voted against this one,” he said.
Despite the thumbs-down vote, Representative Kevin Killer, Oglala Lakota, was hopeful. Killer, a Democrat from Shannon and other counties encompassing the Pine Ridge Indian Reservation, said the silver lining was the bill’s bipartisan support. During the past year, the state legislature’s polarized stance has softened, Killer said, pointing to Republican support for proposals to enhance Indian child welfare and to provide additional funding for education on the Pine Ridge and Rosebud reservations.
During the Judiciary Committee meeting, members and witnesses offered varied reasons for support or opposition to Hickey’s bill. An insurance-industry trade group’s representative warned insurance premiums might increase. Smith defended his 2010 statute. Representative Gene Abdallah, Republican of Lincoln and Minnehaha counties, said that as a Catholic, he was offended by the bill and claimed any abuse was mitigated by the good done in Native communities by the Catholic Church.
More criticism of Hickey’s proposal came from a lobbyist for the Evangelical Lutheran Church of America, which was sued in 2007 by multiple victims from multiple South Dakota congregations. The lobbyist said making sexual-abuse lawsuits easier to bring was unfair to current-day church members, who would be “negatively affected.”
Killer said he was disappointed some Judiciary Committee members didn’t separate the protections the new bill would have offered victims from the happenstance that some lawsuits might involve religious institutions. He pointed to the Penn State scandal as comparable, though not involving a church. “We are a judiciary committee after all. We should be able to make the distinction,” he said.
“It came down to money,” said Hickey. “What’s at issue here are civil lawsuits, and that means financial liability. The opponents of my bill wanted to tamp down scandal and avoid paying money. They were not thinking about the victims.”
Hickey reiterated law professor Hamilton’s point that the state is potentially liable for civil rights violations: “A U.S. Department of Justice official confirmed to me that the agency was watching the outcome [of the Judiciary Committee meeting].”
“I do hope people fight on,” said Killer. “I’m disappointed this bill died in committee. It had enough sponsors and supporters to warrant a hearing before the full House.”
Hickey noted the victims were able to tell their stories: “That was an important goal. Now we’ll figure out what we want to do long-term.”
No matter what the legislature does, there are other options, said Wanna, who is a survivor of abuse at Tekakwitha Orphanage, run by the Catholic Church on her reservation. “A spectator at the committee meeting said her reservation wants to do what we at Sisseton Wahpeton have already done, and that is pass our own civil statute, so we can sue in tribal court. I told her, ‘Call me. We’ll do anything we can to help you pass such a law for your people.’”
All the Judiciary Committee did was encourage tribal members to pass their own civil childhood-sexual-abuse laws, said Ken Bear Chief, a paralegal with Tamaki Law Firm, in Washington state. “In fact, anyone who suffered abuse on a reservation—white or Indian—has this option. White children did go to schools run ostensibly for Indians. Perhaps their parents worked on the reservation. If they were harmed, they, like tribal members, have a civil claim and can bring it in tribal court.”
Funding for this story was provided by the George Polk Program for Investigative Reporting.
Testimony Before South Dakota House Judiciary Committee, on H.B. 1218, Rescinding the Statute of Limitations for Civil Actions Involving Child Sex Abuse
/in Testimony, Testimony: Civil Elimination, Testimony: South Dakota /by SOL ReformTestimony Before South Dakota House Judiciary Committee, on H.B. 1218,
Rescinding the Statute of Limitations for Civil Actions Involving Child Sex Abuse
02/03/10: Testimony Before Hawaii Senate Committee on Judiciary and Labor on S.B. 2588
/in Hawaii Testimony /by SOL ReformTestimony Before Hawaii Senate Committee on Judiciary and Labor on S.B. 2588