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 Reform2012-02-02 00:09:382014-02-12 00:10:0302/02/12: Testimony Before the New York City Council, Committee on Education,
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As of this writing, three (maybe four) men have come forward to allege that, as boys, they were sexually abused by Syracuse associate head basketball coach Bernie Fine. At first, Fine’s boss, the legendary Jim Boeheim, stood by Fine and attacked the first two men, Bobby Davis and Mike Lang, claiming that they were just doing it for the money.
How wrong he was. Boeheim was smart to back off after a third man, Zach Tomaselli, came forward—for it is virtually certain that Davis and Lang were not doing it for the money; for those two, there appears to be little or none to be had.
New York’s Too Short Statutes of Limitations for Abuse Cases Would Likely Cut Off All Recovery of Damages by Davis and Lang
Davis, 39, and Lang, 45, cannot bring civil lawsuits in New York or pursue prosecution under New York’s state law, because New York has some of the worst statutes of limitations in the United States. They are positively barbaric.
In New York, for anything other than a first-degree felony sexual assault occurring after 2006, the statute of limitations (“SOL”) cuts off prosecution when the victim is 23, at the latest. For civil claims, too, a victim would have had to file his suit by age 23 at the very latest, and likely much earlier than that. Thus, Davis’s and Lang’s ages alone prove that they simply can’t be in this “for the money.” All appearances suggest that all they are “in it” for is justice.
Pennsylvania Law May Allow Tomaselli to File Civil Claims, and May Also Allow a Criminal Prosecution
The third alleged victim, Zach Tomaselli, is now 23, but even he likely has no recourse under New York law. His civil claims expired on his 23rd birthday. And it is unclear if his criminal case could be pursued now, either, because we don’t know exactly how severe the abuse was. A prosecution for the most severe sexual assault felonies might be possible, but if the abuse was anything lesser, the SOL has already expired.
However, Tomaselli reports that the abuse he suffered occurred in Pittsburgh, which means it is worthwhile for him to investigate Pennsylvania law, and the possible prospect of filing a complaint in the Pennsylvania courts, or convincing prosecutors to initiate a criminal case.
Until 2002, Pennsylvania was as bad as New York regarding child sexual abuse SOLs. Once you turned 20, you were shut out of court. But in August 2002, the state extended the civil SOL to the victim’s 30th birthday. Then, in 2005, it extended the criminal SOL to the victim’s 50th birthday. Neither extension, however, was retroactive, which means that if someone turned 20 before August 2002, he or she would not get the benefit of the 10-year civil extension without putting forward a legal theory alleging misrepresentation, fraud, or conspiracy. If someone turned 50 before 2005, he or she did not get the benefit of the 2005 extension, as it seems Tomaselli should.
But the Tomaselli case seems to have a problem—not a legal problem, but a possible problem with convincing prosecutors to go forward, and convincing a civil jury to grant him an award. The problem is this: Tomaselli himself is currently facing charges for committing child sexual abuse in Maine. Thus, would-be prosecutors and civil case attorneys and jurors many not find Tomaselli a sympathetic victim.
In many ways, though, it is unfair to lose all sympathy for abuse victims who go on to commit abuse themselves. Those who have been sexually abused have a higher likelihood than others to commit child sex abuse as adults. Of course, not all victims do so, but empirically, the likelihood is higher.
Tomaselli also alleged on Anderson Cooper’s show that he was abused by his father before he was abused by Fine, which is another not unusual situation. Somehow, child predators sense which children might have weaker defenses than others. Why shouldn’t someone like Tomaselli be able to file charges against, and successfully sue a child predator who ruined his life?
Our States’ Crazy Quilt of Widely Varying Child Sexual Abuse SOLs
This simple comparison of child sexual abuse SOLs in two contiguous states, New York and Pennsylvania, should give readers an idea of the confusion and complexity when we widen the lens to take in all 50 states.
I have a website, www.sol-reform.com, for which I regularly update a 50-state survey of criminal and civil SOLs for child sexual abuse. It is a Herculean task that takes a large team of students to accomplish. Not only must the law in 50 states be kept current, but updates are constantly occurring, as the law is in constant flux.
Whatever limitation is set in a particular state, eventually a case of heinous abuse is discovered that is time-barred—leading to a grave injustice. Then the state extends the SOL so the next equally heinous case will be covered. But unless the SOLs are eliminated, there will always be the next awful case.
Because of this dynamic, most states’ SOLs have been evolving and lengthening gradually. Many had initially set the SOL to begin running only 2 years past the act of abuse (Alabama has not evolved very far from that rule, nor has Tennessee). Much more encouragingly, some states, such as Delaware and Florida, now have eliminated child sexual abuse SOLs completely.
Between the state-by-state variations and the constant flux, many survivors—especially those who are not yet at the point where they feel comfortable revealing their abuse to anyone, let alone an attorney—must be confused about when (and where, if the abuse occurred in more than one state) they can or cannot bring a lawsuit or seek the initiation of a prosecution. Indeed, I’ve noticed that even reporters and legislators often don’t have a clear understanding of the SOL rules. Who can blame them?
Moreover, the patchwork of SOLs creates perverse incentives. For instance, perpetrators may seek out states where the SOLs will be most friendly to them. Last year, South Dakota made the highly unusual move of reducing its child sexual abuse SOL so as to short-circuit child-sex-abuse claims by Native American victims against Catholic priests. Sadly, I’ve heard it said that South Dakota has, as a result, now become a mecca for abusers. I don’t know how one would prove that, but it would make perfect sense.
Child predators naturally seek out the best situations for finding one child after another—vocations like priest, rabbi, and teacher, and avocations like Boy Scout troop leader and coach. Short SOLs are predator’s friends, as are institutions that value and enforce secrecy.
Many states—like Pennsylvania—have engaged in piecemeal extensions of their SOLs. The result is a crazy quilt of limitations designed, unintentionally, to flummox victims and perplex the lawyers who are trying to help them.
It’s High Time to Standardize Civil and Criminal Child Sex Abuse SOLs Nationwide, and to Create SOL Windows to Allow Civil Claims From Earlier Years to Be Brought
The impulse to set SOLs defensively and reactively is understandable, but the time has come to standardize SOLs for child sex abuse across the country in order to better protect children. Perpetrators take their victims across state lines all the time, and no state should be effectively inviting these perpetrators in, by dangling in front of them the incentive of short SOLs, with all of their welcome secrecy and anonymity.
Let’s face it, sexual predators don’t deserve the peace of mind that comes from an expired statute of limitations. Given the compulsive quality of the disorder, and the fact that abusers rarely grow out of their penchant for abuse (some even abuse in their 80s), SOLs for child sexual abuse are just plain perverse. They help no one who is deserving of help, while they directly endanger the next child who is the “right age” for the perpetrators’ sick desires.
Striking the right balance would mean eliminating childhood sexual abuse SOLs in every state, and enacting an SOL “window.” Such a window would permit those who suffered abuse but whose SOLs had already expired to bring civil claims despite the expiration (though, due to a Supreme Court constitutional-law precedent—Stogner v. California—on criminal law and retroactivity, no expired criminal SOL can be revived).
This approach may sound extreme to some readers, and it would be for most crimes, but for child sex abuse, along with murder, SOLs simply make no sense. Imagine the spoken truth that would roll through the courts if the SOLs in each state were removed and SOL windows put in place instead! Predators right now are successfully grooming our children — because none of their victims have yet made it to the courts on time. Just think of all those years that alleged perpetrators Jerry Sandusky and Bernie Fine had with children before someone blew the whistle. You can’t give those years back to the victims, but you can make sure that more recent victims have more opportunities to stop abusers than those who preceded them.
With an SOL window, these perpetrators would be exposed and the children who otherwise would have been their victims would be protected.
The Federal Government Could Do Much to Address Child Sexual Abuse By Withholding Funds From States that Do Not Suitably Address the Problem
This is not an arena, though, where the federal government can unilaterally force the states to alter their criminal and civil laws. Instead, the federal government can create incentives for the states to fix their SOLs or punish those states that refuse.
How? The way the federal government very often convinces the states to act—through the power of the federal purse. The federal government ought to condition the receipt of state funds on improvement in criminal and civil child sex abuse SOLs. Indeed, the federal government ought to threaten to take future funds away if the SOLs remain as backward as they are in, say, New York, Tennessee, South Dakota, and Alabama—to name a few of the worst.
SOL windows would help Bobby Davis and Mike Lang, and the millions of victims who are now middle-aged, and have not yet come forward. There will be many more of them, as it seems the tipping point has now been reached; we seem to be able now to put the shame where it belongs—squarely on the shoulders of the abusers. In the past, victims felt too ashamed to come forward. That seems to be less often the case now.
Our problem is not just the Roman Catholic Church’s hierarchy, or the Fundamentalist Mormon Church’s prophets, or any one big college football program. It is men in positions of power—the Masters of the Universe, to draw from Bonfire of the Vanities—who rule their domains with too few around them who are capable of challenging them. It is long past time to empower the victims to level the truth at the institutions that have benefited too long from their imposed silence. For that, SOL windows, and reforms, are the perfect tools. And if states won’t adopt these reforms, the federal government ought to attach steep costs to their unconscionable refusal.
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 Reform2011-12-19 19:49:402013-07-06 19:55:04A Tale of Two States and Three Survivors: The Legal Obstacles Relating to Syracuse University’s Sex Abuse Scandal by Marci A. Hamilton
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*1 The Knights of Columbus (“Knights”) moves to dismiss Jim Dennany’s complaint, which alleges that Knights is liable in negligence for the sexual abuse Dennany experienced in the mid1970s as a participant in the Columbian Squires (the “Squires”), Knights’ youth program. Because Dennany’s claims are barred by the statute of limitations, Knights’ motion to dismiss is granted.
I. Background
The following facts are drawn from the complaint and are assumed to be true for the purposes of this motion. Dennany, the plaintiff, was born in 1961 in Texas, where he continues to reside to this day. Knights, the defendant, is a Connecticut corporation operating as a Catholic fraternal benefit organization. Knights’ members are Roman Catholic men over the age of 18, although Knights offers a youth program, the Squires, which provides services to boys between the ages of 10 and 18. Each local chapter of the Squires is overseen by a Knights member.
Dennany began participating in the Brownsville, Texas Squires chapter in 1973, when he was 12 years old. Dennany’s adult supervisor was Julian Rivera. On a Squires trip to Houston, Texas in 1973, Rivera forced Dennany to sleep in his hotel bed. During that same trip, Rivera provided Dennany and other children intoxicating amounts of alcohol. Until approximately 1977, while Dennany was between the ages of 12 and 16, Rivera supplied Dennany with pornography, including depictions of homosexual activity. On one of those occasions, when Dennany was 14, Rivera sexually abused Dennany by making Dennany fondle him. The complaint also generally alleges that “[o]n multiple occasions afterward, [Dennany] was sexually abused by Rivera. The abuse eventually ended when [Dennany] was approximately 16 years old.” Cmplt. ¶ 15 (doc. # 1).
Dennany alleges, based on information and belief, that before and during his abuse, Knights was aware that adult supervisors of the Squires were in a position where they could sexually abuse children and, moreover, that Rivera had a “history of sexual perversity and inappropriate contacts with children … [and], after finding out that Rivera was a sexual predator, the Knights of Columbus actively took steps to conceal its knowledge of Rivera’s sexual propensities to protect itself from civil liability and scandal.” Id. ¶ 17. The complaint continues that, in 1986, Knights became aware that Rivera had sexually abused another boy, but concealed that information and intimidated the victim from making his allegations of abuse public. Id. ¶ 19.
Rivera remained active with the Squires until 2009. Id. According to the complaint, “[u]ntil 2010, [Dennay] was unaware that he had any cause of action for negligence against the Knights of Columbus.” Id. Knights purportedly had a fiduciary duty to Dennany while he was a member of the Squires, and that duty required Knights to investigate and warn Dennany that Rivera might harm him. Dennany alleges that Knights was negligent and breached that fiduciary duty when it failed to investigate and warn Dennany about Rivera’s pedophilia, created an “environment which fostered child sexual abuse,” and failed to implement adequate policies and procedures to protect children under its supervision.Id. ¶¶ 27–33.
Under Twombly, “[f]actual allegations must be enough to raise a right to relief above the speculative level,” and assert a cause of action with enough heft to show entitlement to relief and “enough facts to state a claim to relief that is plausible on its face.” 550 U.S. at 555, 570;see also Iqbal, 129 S.Ct. at 1940 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). The plausibility standard set forth inTwombly and Iqbal obligates the plaintiff to “provide the grounds of his entitlement to relief” through more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (quotation marks omitted). Plausibility at the pleading stage is nonetheless distinct from probability, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and … recovery is very remote and unlikely.” Id. at 556 (quotation marks omitted).
III. Discussion
Knights makes two arguments for dismissal of this case. First, Knights argues that Dennany’s negligence action is barred by both Texas’s and Connecticut’s statute of limitations. And, second, the organization maintains that, when the conclusory statements are stripped from Dennany’s complaint, Dennany has failed to come forward with plausible allegations establishing a claim on which relief can be granted. Because Dennany has failed to plead facts showing that his negligence claim is timely, which justifies granting Knights’ motion, I only address the defendant’s first argument for dismissal.
The court has diversity jurisdiction in this case and, therefore, applies the choice-of-law rules of Connecticut, the forum in which it sits. Schwartz v. Liberty Mut. Ins. Co., 539 F.3d 135, 147 (2d Cir.2008) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496–97 (1941)). Connecticut applies the substantive law of the state with the most significant relationship to the lawsuit. Jaiguay v. Vasquez, 287 Conn. 323, 349 (2008). Here, it is uncontested that Texas has the most significant relationship: the plaintiff is a Texas resident, the abuse allegedly occurred in Texas, and the plaintiff and defendant’s relationship has been based entirely in Texas. See id. at 352 (“ ‘Contacts to be taken into account … to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.’ “ (quoting Restatement (Second) of Conflict of Laws § 145(2))). By contrast, the only connection that Connecticut appears to have to this case is the defendant’s place of incorporation.
*3 Although it is clear that Texas law governs this case, it remains disputed whether Texas law controls the applicable statute of limitations. Statutes of limitations are deemed “procedural” under Connecticut law and, therefore, Connecticut courts traditionally apply Connecticut’s statute of limitations when the plaintiff is pursuing a common-law cause of action. Stuart & Sons, L.P. v. Curtis Pub. Co., 456 F.Supp.2d 336, 343 (D.Conn.2006). Nevertheless, there have been several recent district court decisions rejecting the traditional approach and instead applying the statute of limitations of the state with the most significant relationship to the suit, consistent with the Restatement (Second) of Conflict of Laws.See Phillips v. Scott, 446 F.Supp.2d 70, 83 n. 25 (D.Conn.2006) (noting “emerging trend” for courts to apply statute of limitations of state with most significant relationship and applying California’s shorter statute of limitations, but concluding that the plaintiff’s claim would be barred under either California’s or Connecticut’s limitations period);Benefits Concepts N.Y., Inc. v. New England Life Ins. Co., No. 3:03cv1456 (DJS), 2004 WL 1737452 (D.Conn. July 30, 2004) (applying New York’s statute of limitations without discussing traditional rule of applying Connecticut’s statute of limitations in common law actions).
The parties argue at length whether the Connecticut or Texas statute of limitations applies. In the end, however, that debate is inconsequential because Dennany’s negligence claim is barred by both states’ statutes of limitations. Texas imposes a five-year statute of limitations for personal injury claims arising from intentional sexual abuse. Tex. Civ. Prac. & Rem.Code Ann. § 16.0045. Other personal injury claims, including those premised on the defendant’s negligence, are subject to a two-year statute of limitations. Id. § 16.003(a); Valverde v. Biela’s Glass & Aluminum Prods., Inc., 293 S.W.3d 751, 753 (Tex.App.2009). Recently, in a case of first impression and on facts similar to those Dennany alleges, the Texas Court of Appeals held that the state’s five-year limitations period applied in an action against a third party for negligently permitting an employee to sexually assault the plaintiff.1Stephanie M. v. Coptic Orthodox Partriarche Diocese of S. U.S., 362 S.W.3d 656, 2011 WL 1761353, at *4 (Tex.App. Mar. 17, 2011). By contrast, Connecticut has a 30–year statute of limitations for personal injuries relating to sexual abuse, including negligence claims against third parties. Conn. Gen.Stat. § 52–577d. Both the Texas and Connecticut statutes of limitations do not begin to run—or, phrased differently, a plaintiff’s injury does not accrue—until the plaintiff has reached the age of majority. See id. (“[N]o action to recover damages for personal injury to a minor … caused by sexual abuse … may be brought by such person later than thirty years from the date such person attains the age of majority.”); Tex. Civ. Prac. & Rem.Code Ann. § 16.001 (defining minors as being “under a legal disability” and mandating that “[i]f a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period”).
*4 Under both states’ statutes of limitations, Dennany’s claims are time-barred. Dennany alleges that his abuse ended when he was 16, or in approximately 1977. He turned 18 in 1979, at which point his statute of limitations period commenced. This lawsuit was filed in 2010—or 31 years later. Under Texas law, Dennany’s limitations period expired in 1984, and under Connecticut law, Dennany’s limitations period expired in 2009. Regardless of which statute applies, therefore, Dennany’s suit must be dismissed unless there is a basis for tolling the limitations period.
Dennany argues that the limitations period should be tolled because Knights fraudulently concealed its negligence. Texas and Connecticut both recognize fraudulent concealment as a basis for tolling statutes of limitations. Under Texas law:
Fraudulent concealment is based upon the doctrine of equitable estoppel. In the proper case, invocation of fraudulent concealment estops a defendant from relying on the statute of limitations as an affirmative defense to plaintiff’s claim. Where a defendant is under a duty to make disclosure but fraudulently conceals the existence of a cause of action from the party to whom it belongs, the defendant is estopped from relying on the defense of limitations until the party learns of the right of action or should have learned thereof through the exercise of reasonable diligence.
Connecticut has defined its fraudulent concealment doctrine in comparable terms. The state’s fraudulent concealment statute provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.” Conn. Gen.Stat. § 52–595.
[I]n order to benefit from the § 52–595 tolling provision, a plaintiff must demonstrate: “(1) a defendant’s actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiffs’ cause of action; (2) that [sic] defendant’s intentional concealment of these facts from the plaintiffs; and (3) that [sic] defendant’s concealment of the facts for the purpose of obtaining delay on the plaintiffs’ part in filing a complaint on their cause of action.”
Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 419 (2d Cir.1999) (quoting Bartone v. Robert L. Day Co., 232 Conn. 527, 533 (1995)). A twist in Connecticut law that does not appear to be present in Texas’s fraudulent concealment doctrine arises when the defendant owes a fiduciary duty to the plaintiff. Under Connecticut law, once the plaintiff demonstrates that the defendant was a fiduciary the burden shifts to the defendant to disprove that one of the three elements of fraudulent concealment is present. Id. at 420. But, although the burden of proof may shift, there is nothing in Connecticut caselaw to suggest that the initial burden of pleading fraudulent concealment rests with any party other than the plaintiff. See Chien v. Skystar Bio Pharm. Co., 623 F.Supp.2d 255, 265 (D.Conn .2009), aff’d, 378 F. App’x 109 (2d Cir. May 26, 2010) (summary order) (holding that plaintiff had burden to plead fraudulent concealment in case where the defendant allegedly owed a fiduciary duty).
*5 What Texas and Connecticut further have in common is that, in order to toll a statute of limitations for fraudulent concealment, the plaintiff must prove that he did not know the facts supporting his cause of action. In other words, the plaintiff cannot toll a limitations period based on the defendant’s fraudulent concealment if the plaintiff already discovered the facts establishing the defendant’s liability. See Martinelli, 196 F.3d at 427 (“Although [Conn. Gen.Stat.] § 52–595 does not explicitly say so, it clearly implies that plaintiff’s ignorance of the facts is a necessary element of tolling under the statute. A statute that tolls a limitations period because of the defendant’s fraudulent concealment of a fact or facts obviously operates for the benefit of those—and we think only those—who are not aware of the facts that have been concealed.”); Borderlon, 661 S.W.2d at 909 (“The estoppel effect of fraudulent concealment ends when a party learns of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry, which, if pursued, would lead to the discovery of the concealed cause of action. Knowledge of such facts is in law equivalent to knowledge of the cause of action.”). Once a plaintiff is aware of facts that the defendant allegedly concealed, the limitations period begins to run.
Dennany has not pled sufficient facts to toll the statute of limitations under either Texas or Connecticut law. Dennany’s shortcoming is that he has not pled that he was unaware of the facts giving rise to his negligence claim against Knights. All that Dennany has asserted is that “[u]ntil 2010, Plaintiff was unaware that he had any cause of action for negligence against the Knights of Columbus.” Cmplt. ¶ 19. That statement is, at best, conclusory and “not entitled to the assumption of truth.” Iqbal, 129 S.Ct. at 1950;accord Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010). At worst, it is belied by the other facts in the complaint. See Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1095 (2d Cir.1995)(holding that plaintiff’s general allegations are not accepted as true when “contradicted … by more specific allegations in the Complaint”).
Dennany alleges that he was the victim of abuse between 1973 and 1977, and that Knights, both at that time and certainly as of 1986, was aware that Rivera posed a risk to boys under his supervision. But Dennany does not allege that he did not know he was the victim of abuse at the time he was abused or in the subsequent years. Dennany’s action is therefore unlike other fraudulent concealment cases in which a plaintiff has demonstrated that, because of his youth and the abuse he suffered, the plaintiff repressed all memory of the facts supporting his claim. Cf. Martinelli, 196 F.3d at 415, 428 (describing plaintiff’s claim that “he had no recollection of the abuse he suffered … until a conversation with a childhood friend in October 1991 sparked his memory of events,” and remanding to district court for new trial in which the plaintiff had the burden of proving his ignorance). In fact, under Texas law, it appears that merely suppressing memories is insufficient to demonstrate a plaintiff’s lack of knowledge for the purposes of fraudulent concealment. A plaintiff like Dennany, rather, must prove that his ignorance was the product of the defendant’s deception. See S.V. v. R. V., 933 S.W.2d 1, 8 (Tex.1996) (noting that plaintiff could not toll statute of limitations based on fraudulent concealment because she “was not deceived into thinking that she was not being abused when she was,” but had been “fully aware of the episodes of abuse, so painfully so that she repressed all memory of them for years”);accord Doe v. Catholic Soc’y of Religious & Literary Educ., Civ. No. H–09–1059, 2010 WL 345926, at *19 (S.D.Tex. Jan. 22, 2010) (holding that plaintiff could not toll statute of limitations based on defendant’s fraudulent concealment because he did “not allege that he was deceived into thinking that he was not abused”).
*6 Dennany counters that, although he was aware of his own abuse, he did not know that Rivera’s misconduct was reasonably foreseeable to Knights. In other words, he maintains that, although he knew facts establishing Rivera’s personal liability, he was unaware of those facts giving rise to Knights’ third-party liability for negligently supervising Rivera. That argument, however, is not adequately supported by the pleadings. The complaint includes no factual statements explaining what Dennany subsequently learned with respect to Knights’ negligence between 1973 and 1977, the period of his abuse, that he did not already know or could not have previously pled based on information and belief. Indeed, had Dennany commenced this lawsuit based on what he knew in 1979, when his cause of action accrued, his complaint would have looked virtually identical to the document he filed 31 years later.
The only new fact that Dennany claims to have learned since 1979 is that, in 1986, Knights was informed of another incident of sexual abuse involving Rivera, which Knights concealed from the public. Cmplt. ¶ 19. That information, however, is irrelevant to Dennany’s claim of negligence against Knights. What Knights learned in 1986 does not establish that Knights was negligent under Texas law with respect to Dennany between 1973 and 1977 because information Knights acquired about Rivera in 1986 does not bear on its negligent supervision of Rivera beforehand.See Catholic Soc’y, 2010 WL 345926, at *9 (“Absent any evidence of a known or reasonably foreseeable risk, a defendant as a matter of law cannot be liable for negligently failing to take reasonable precautions to protect against that risk.”); Zarzana v. Ashley, 218 S.W.3d 152, 158 (Tex.App.2007) (holding that, in negligent supervision case, “sufficient evidence must exist indicating that the defendant knew or should have known of the employee’s incompetence or potential for causing harm” in order to establish that “negligence in supervising the employee is the proximate cause of the injuries to the plaintiff”). Put differently, even assuming that Knights withheld information regarding Rivera’s abuse of another boy in 1986, Dennany could still have filed this same lawsuit at an earlier point in time. Dennany did not need the 1986 information to file his current negligence claim against Knights.
Dennany has insufficiently pled that, before he filed his complaint, he was ignorant of facts establishing the cause of action that Knights negligently supervised Rivera at the time of Dennany’s sexual abuse. On the contrary, the complaint posits that, since 1979, Dennany has known that Rivera abused him, that Rivera was associated with Knights and was trusted with supervising members of the Brownsville, Texas Squires, and that Knights owed Dennany a fiduciary duty. The sum of those facts was sufficient for Dennany to file his negligence claim, based on information and belief, when he turned 18 and his injury accrued. Under both Texas and Connecticut law, Dennany’s negligence claim is untimely.
*7 In addition, Knights’ motion must be granted because Dennany’s complaint lacks the particularity required by the Federal Rules of Civil Procedure to toll the statute of limitations based on Knights’ fraudulent concealment. “[A] claim of fraudulent concealment must meet the heightened pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure.” Chien, 623 F.Supp.2d at 265;see generally Yess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir.2003) (“It is established law, in this circuit and elsewhere, that Rule 9(b)‘s particularity requirement applies to state-law causes of action. ‘While a federal court will examine state law to determine whether the elements of fraud have been pled sufficiently to state a cause of action, the Rule 9(b) requirement that the circumstances of the fraud must be stated with particularity is a federally imposed rule.’ “ (quoting Hayduk v. Lana, 775 F.2d 441, 443 (1st Cir.1985))). Rule 9(b) provides that, “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.”Fed.R.Civ.P. 9(b).
Dennany’s theory for tolling the statute of limitations is that Knights was a fiduciary to Dennany and had a corresponding duty to inform him of the facts of its own wrongdoing—a duty that Knights breached by fraudulently concealing its negligence. See Martinelli, 196 F.3d at 422 (“Indeed, the possible concealment of a fiduciary’s own wrongdoing egregious enough to give rise to a legal claim seems particularly the type of behavior that the law requires the fiduciary to explain.”). But Rule 9(b) obligates Dennany to “(1) detail the statements (or omissions) [he] contends are fraudulent, (2) identify the speaker, (3) state where and when the statements (or omissions) were made, and (4) explain why the statements (or omissions) are fraudulent.” Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 187 (2d Cir.2004) (quotation omitted). Dennany has not met that heightened pleading standard.
Dennany offers only conclusory allegations that Knights intentionally and fraudulently concealed its knowledge of Rivera’s pedophilia. In the complaint, Dennany alleges that, before he was abused, Knights was “aware that adult leaders used the Columbian Squires to gain access to boys for purposes of pedophilia” and was “familiar with the specific characteristics, patterns of behavior and ‘red flags’ that suggested an adult leader had a sexual interest in boys,” Cmplt. 16; and “[u]pon information and belief, at all relevant times, the Knights of Columbus had knowledge of Rivera’s history of sexual perversity and inappropriate contacts with children … [and] actively took steps to conceal its knowledge of Rivera’s sexual propensities to protect itself from civil liability and scandal,” id. ¶ 17.
*8 Those statements, however, do not offer articulable facts that Knights knew and concealed from Dennany. They are, instead, legal conclusions. For example, the naked assertion that Knights was aware of Rivera’s “red flags” does not tell the court what those red flags were, when Knights knew of them, when Dennany learned of them, and how Dennany did so. Such conclusory statements are insufficient for the purposes of Rule 9(b). See OBG Technical Servs., Inc. v. Northrop Grumman Space & Mission Sys. Corp., 503 F.Supp.2d 490, 508 (D.Conn.2007) (holding that a complaint’s recitation “in a conclusory manner the legal conclusion” that the defendant had fraudulently concealed information from the plaintiff did not satisfy either Twombly’s plausibility threshold or “the heightened standards of Rule 9(b)”).
Finally, to the extent Dennany relies on Knights’ purported concealment of what it learned in 1986 in order to satisfyRule 9(b), his complaint should still be dismissed. Dennany cites Martinelli for the proposition that the statute of limitations must be tolled if the defendant “concealed actual awareness of facts that created a likely potential for harm,especially if the defendant was a fiduciary for the likely victim.” 196 F.3d at 426 (emphasis in original). The MartinelliCourt concluded that an alleged fiduciary, such as Knights, “has a duty to investigate and to warn possible past and future victims of the harm” once it becomes aware that a person in its employ previously assaulted another individual in its care. Id. (emphasis added). In Martinelli, the Court of Appeals held that a past victim of sexual abuse, such as Dennany, faced the potential harm of being “prevented … from receiving the treatment he required, thereby exacerbating his injury,” thus giving rise to the fiduciary duty to inform. Id.
In this case, however, Dennany has not pled that Knights’ failure to disclose what it knew in 1986 exacerbated his injury by preventing him from obtaining treatment. On the contrary, Dennany has known since he was abused by Rivera that he experienced serious harm that could require counseling and other treatment. Not only is what Knights learned in 1986 irrelevant to Dennany’s claim of negligence; it is also irrelevant to Dennany’s claim of fraudulent concealment because he knew all along the facts necessary to file this suit and otherwise obtain the treatment he needs. As theMartinelli Court held, “there can plainly be no effective tolling for a plaintiff who was aware of the existence of his or her cause of action from the time the claim originally accrued.” Id. at 427. Dennany’s complaint therefore does meet Rule 9(b)‘s pleading standard: his allegations of fraudulent concealment are either not particular enough or are inconsequential because he has known of his injuries since the abuse occurred.
IV. Conclusion
Even accepting that Dennany was the victim of Rivera’s abuse, Dennany has never been the victim of Knights’ fraudulent concealment. For that reason, his negligence claim against Knights is untimely. Dennany’s complaint fails to state a plausible set of facts showing he was ignorant of his abuse and the likelihood that Knights’ negligence was responsible for his injury. Rather, Dennany could have filed a nearly identical complaint at any point after 1979, the date his injury accrued. In the alternative, Dennany’s complaint lacks the particularity required by Rule 9(b) for a claim of fraudulent concealment, and he is not entitled to a tolling of the statute of limitations. The court declines to permit Dennany leave to re-plead, as generally allowed for dismissal under Rule 9(b), see ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 108 (2d Cir.2007), because “amendment would be futile,” In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 220 (2d Cir.2006).
*9 The motion to dismiss (doc. # 15) is GRANTED. The clerk shall close this file.
The parties in this litigation agreed that Texas would apply its general two-year statute of limitations to this case. Stephanie M. indicates that Dennany would be entitled to the fiveyear 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 Reform2011-08-10 06:05:432014-01-09 06:12:36Dennany v. Knights of Columbus, No. ___, 2011 WL 3490039 (D. Conn. Aug. 10, 2011)
At first glance, the news that Massachusetts is considering a bill that would require clergy members to report child abuse might seem shocking. Of all the people in our culture who we would think would be operating in children’s best interests, it would be the clergy. We assume not only that they are protecting children, but also that no law is needed to force them to do so.
But the truth behind the law is less comforting. Reports indicate that a priest who allegedly abused dozens of children in Boston was not relieved of his duties, but rather shifted from church to church. The switch, it is claimed, only gave him in effect a fresh crop of children to abuse.
Furthermore, this is not the only recent story of clergy abuse. In recent months, other clergy and youth ministers, too, have been in the headlines for their seriatim abuse of children under their care. Given these incidents, the Massachusetts law begins to look not shocking, but necessary.
The Churches’ Own Solutions to Abuse
The practice of transferring abusers within the church has been going on in many churches for ages. The idea is that if the abuser is separated from his victim, and receives church counseling, the abuse will not recur. Yet religious organizations are coming to acknowledge the latest medical evidence that indicates that recidivism rates for pedophiles are extremely high — meaning that transfers are no solution (and may only multiply the misery).
Admitting that their past practice of prayer and transfer is ineffective is a difficult step for these organizations to take. They have not intended for children to be hurt. Rather, they have believed fervently in the power of prayer and the community of the church to stop the abuse. Yet, children have suffered.
So what is society — increasingly trying to find ways to protect its children even in contexts, such as church and daycare, that seemed safe — to do? It has turned to the law, apparently unwilling to permit the churches to take more time to treat their own.
The Churches’ Schizophrenic Position
At first, the Catholic Church opposed the Massachusetts proposal, on the ground that it would violate the privacy of the confessional. But lawmakers have assured the church that they are working to try to keep the confessional sacred and privileged; the law requires reporting only of information about child abuse obtainedoutside the confessional. With those assurances, and under the pressure of massive press coverage, the Church has now become a supporter of the law, making its passage much more likely.
The churches have exhibited schizophrenia over the problem, however. Although the Catholic Church now supports an obligation to report child abuse in Massachusetts, in Colorado it has supported a “no fiduciary duty” bill that would make churches immune from damage awards in cases where they knew of the clergy malpractice and child abuse.
The Presbyterian Church also has supported the Colorado bill. The bill has yet to be passed, however, in part because of the work of child advocates.
Here we have the specter of two mainline, powerful churches intent on protecting their coffers when one of their own abuses a member. They are asking the legislature to remove an extraordinarily strong deterrent to hiding abuse: legal and financial liability.
Why Churches’ Cooperation Is Necessary
The Massachusetts and Colorado legislative scenarios make clear that ending child abuse by the clergy — whom children are taught by and are naturally inclined to trust — will take more than an acknowledgment of the latest medical knowledge, and more than press coverage of a problem so long left unreported. It will also require the cooperation of the religious denominations themselves.
In this day and age, legislators–whether Republicans or Democrats–do not turn down requests by religious lobbyists easily. To the contrary, there is an open door policy for religious requests that we have never seen before, a lawmaking environment avidly encouraged by President Clinton and continued by President Bush.
Law that can create a climate of safety for children will not be passed so long as the powerful religious lobbies resist disclosure of child abuse within the church, and seek to reduce liability for that abuse when it occurs. With the Colorado and the Massachusetts legislative stories simultaneously in play, the future for protecting children from clergy abuse is hard to predict.
Marci Hamilton is Thomas H. Lee Chair in Public Law at Benjamin N. Cardozo School of Law. Her e-mail address is Hamilton02@aol.com. Her prior columns on church/state issues may be found in the archive of her pieces on this site.
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 Reform2011-08-07 20:09:592013-07-27 20:10:33CHILDREN, CHURCHES, AND THE LAW: Massachusetts' Proposal To Require Clergy To Report Child Abuse
02/02/12: Testimony Before the New York City Council, Committee on Education,
/in New York, New York Testimony, Testimony /by SOL ReformTestimony Before the New York City Council, Committee on Education,
• Relative to NYC Council Res. 1155-2011
01/30/12: Testimony Before Hawaii House of Rep. Committee on Human Services on H.B.1933
/in Hawaii Testimony /by SOL ReformTestimony Before Hawaii House of Rep. Committee on Human Services on H.B.1933
A Tale of Two States and Three Survivors: The Legal Obstacles Relating to Syracuse University’s Sex Abuse Scandal by Marci A. Hamilton
/in New York, South Dakota /by SOL ReformAs of this writing, three (maybe four) men have come forward to allege that, as boys, they were sexually abused by Syracuse associate head basketball coach Bernie Fine. At first, Fine’s boss, the legendary Jim Boeheim, stood by Fine and attacked the first two men, Bobby Davis and Mike Lang, claiming that they were just doing it for the money.
How wrong he was. Boeheim was smart to back off after a third man, Zach Tomaselli, came forward—for it is virtually certain that Davis and Lang were not doing it for the money; for those two, there appears to be little or none to be had.
New York’s Too Short Statutes of Limitations for Abuse Cases Would Likely Cut Off All Recovery of Damages by Davis and Lang
Davis, 39, and Lang, 45, cannot bring civil lawsuits in New York or pursue prosecution under New York’s state law, because New York has some of the worst statutes of limitations in the United States. They are positively barbaric.
In New York, for anything other than a first-degree felony sexual assault occurring after 2006, the statute of limitations (“SOL”) cuts off prosecution when the victim is 23, at the latest. For civil claims, too, a victim would have had to file his suit by age 23 at the very latest, and likely much earlier than that. Thus, Davis’s and Lang’s ages alone prove that they simply can’t be in this “for the money.” All appearances suggest that all they are “in it” for is justice.
Pennsylvania Law May Allow Tomaselli to File Civil Claims, and May Also Allow a Criminal Prosecution
The third alleged victim, Zach Tomaselli, is now 23, but even he likely has no recourse under New York law. His civil claims expired on his 23rd birthday. And it is unclear if his criminal case could be pursued now, either, because we don’t know exactly how severe the abuse was. A prosecution for the most severe sexual assault felonies might be possible, but if the abuse was anything lesser, the SOL has already expired.
However, Tomaselli reports that the abuse he suffered occurred in Pittsburgh, which means it is worthwhile for him to investigate Pennsylvania law, and the possible prospect of filing a complaint in the Pennsylvania courts, or convincing prosecutors to initiate a criminal case.
Until 2002, Pennsylvania was as bad as New York regarding child sexual abuse SOLs. Once you turned 20, you were shut out of court. But in August 2002, the state extended the civil SOL to the victim’s 30th birthday. Then, in 2005, it extended the criminal SOL to the victim’s 50th birthday. Neither extension, however, was retroactive, which means that if someone turned 20 before August 2002, he or she would not get the benefit of the 10-year civil extension without putting forward a legal theory alleging misrepresentation, fraud, or conspiracy. If someone turned 50 before 2005, he or she did not get the benefit of the 2005 extension, as it seems Tomaselli should.
But the Tomaselli case seems to have a problem—not a legal problem, but a possible problem with convincing prosecutors to go forward, and convincing a civil jury to grant him an award. The problem is this: Tomaselli himself is currently facing charges for committing child sexual abuse in Maine. Thus, would-be prosecutors and civil case attorneys and jurors many not find Tomaselli a sympathetic victim.
In many ways, though, it is unfair to lose all sympathy for abuse victims who go on to commit abuse themselves. Those who have been sexually abused have a higher likelihood than others to commit child sex abuse as adults. Of course, not all victims do so, but empirically, the likelihood is higher.
Tomaselli also alleged on Anderson Cooper’s show that he was abused by his father before he was abused by Fine, which is another not unusual situation. Somehow, child predators sense which children might have weaker defenses than others. Why shouldn’t someone like Tomaselli be able to file charges against, and successfully sue a child predator who ruined his life?
Our States’ Crazy Quilt of Widely Varying Child Sexual Abuse SOLs
This simple comparison of child sexual abuse SOLs in two contiguous states, New York and Pennsylvania, should give readers an idea of the confusion and complexity when we widen the lens to take in all 50 states.
I have a website, www.sol-reform.com, for which I regularly update a 50-state survey of criminal and civil SOLs for child sexual abuse. It is a Herculean task that takes a large team of students to accomplish. Not only must the law in 50 states be kept current, but updates are constantly occurring, as the law is in constant flux.
Whatever limitation is set in a particular state, eventually a case of heinous abuse is discovered that is time-barred—leading to a grave injustice. Then the state extends the SOL so the next equally heinous case will be covered. But unless the SOLs are eliminated, there will always be the next awful case.
Because of this dynamic, most states’ SOLs have been evolving and lengthening gradually. Many had initially set the SOL to begin running only 2 years past the act of abuse (Alabama has not evolved very far from that rule, nor has Tennessee). Much more encouragingly, some states, such as Delaware and Florida, now have eliminated child sexual abuse SOLs completely.
Between the state-by-state variations and the constant flux, many survivors—especially those who are not yet at the point where they feel comfortable revealing their abuse to anyone, let alone an attorney—must be confused about when (and where, if the abuse occurred in more than one state) they can or cannot bring a lawsuit or seek the initiation of a prosecution. Indeed, I’ve noticed that even reporters and legislators often don’t have a clear understanding of the SOL rules. Who can blame them?
Moreover, the patchwork of SOLs creates perverse incentives. For instance, perpetrators may seek out states where the SOLs will be most friendly to them. Last year, South Dakota made the highly unusual move of reducing its child sexual abuse SOL so as to short-circuit child-sex-abuse claims by Native American victims against Catholic priests. Sadly, I’ve heard it said that South Dakota has, as a result, now become a mecca for abusers. I don’t know how one would prove that, but it would make perfect sense.
Child predators naturally seek out the best situations for finding one child after another—vocations like priest, rabbi, and teacher, and avocations like Boy Scout troop leader and coach. Short SOLs are predator’s friends, as are institutions that value and enforce secrecy.
Many states—like Pennsylvania—have engaged in piecemeal extensions of their SOLs. The result is a crazy quilt of limitations designed, unintentionally, to flummox victims and perplex the lawyers who are trying to help them.
It’s High Time to Standardize Civil and Criminal Child Sex Abuse SOLs Nationwide, and to Create SOL Windows to Allow Civil Claims From Earlier Years to Be Brought
The impulse to set SOLs defensively and reactively is understandable, but the time has come to standardize SOLs for child sex abuse across the country in order to better protect children. Perpetrators take their victims across state lines all the time, and no state should be effectively inviting these perpetrators in, by dangling in front of them the incentive of short SOLs, with all of their welcome secrecy and anonymity.
Let’s face it, sexual predators don’t deserve the peace of mind that comes from an expired statute of limitations. Given the compulsive quality of the disorder, and the fact that abusers rarely grow out of their penchant for abuse (some even abuse in their 80s), SOLs for child sexual abuse are just plain perverse. They help no one who is deserving of help, while they directly endanger the next child who is the “right age” for the perpetrators’ sick desires.
Striking the right balance would mean eliminating childhood sexual abuse SOLs in every state, and enacting an SOL “window.” Such a window would permit those who suffered abuse but whose SOLs had already expired to bring civil claims despite the expiration (though, due to a Supreme Court constitutional-law precedent—Stogner v. California—on criminal law and retroactivity, no expired criminal SOL can be revived).
This approach may sound extreme to some readers, and it would be for most crimes, but for child sex abuse, along with murder, SOLs simply make no sense. Imagine the spoken truth that would roll through the courts if the SOLs in each state were removed and SOL windows put in place instead! Predators right now are successfully grooming our children — because none of their victims have yet made it to the courts on time. Just think of all those years that alleged perpetrators Jerry Sandusky and Bernie Fine had with children before someone blew the whistle. You can’t give those years back to the victims, but you can make sure that more recent victims have more opportunities to stop abusers than those who preceded them.
With an SOL window, these perpetrators would be exposed and the children who otherwise would have been their victims would be protected.
The Federal Government Could Do Much to Address Child Sexual Abuse By Withholding Funds From States that Do Not Suitably Address the Problem
This is not an arena, though, where the federal government can unilaterally force the states to alter their criminal and civil laws. Instead, the federal government can create incentives for the states to fix their SOLs or punish those states that refuse.
How? The way the federal government very often convinces the states to act—through the power of the federal purse. The federal government ought to condition the receipt of state funds on improvement in criminal and civil child sex abuse SOLs. Indeed, the federal government ought to threaten to take future funds away if the SOLs remain as backward as they are in, say, New York, Tennessee, South Dakota, and Alabama—to name a few of the worst.
SOL windows would help Bobby Davis and Mike Lang, and the millions of victims who are now middle-aged, and have not yet come forward. There will be many more of them, as it seems the tipping point has now been reached; we seem to be able now to put the shame where it belongs—squarely on the shoulders of the abusers. In the past, victims felt too ashamed to come forward. That seems to be less often the case now.
Our problem is not just the Roman Catholic Church’s hierarchy, or the Fundamentalist Mormon Church’s prophets, or any one big college football program. It is men in positions of power—the Masters of the Universe, to draw from Bonfire of the Vanities—who rule their domains with too few around them who are capable of challenging them. It is long past time to empower the victims to level the truth at the institutions that have benefited too long from their imposed silence. For that, SOL windows, and reforms, are the perfect tools. And if states won’t adopt these reforms, the federal government ought to attach steep costs to their unconscionable refusal.
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12/05/11: Testimony Before the Pennsylvania Assembly Committee on Children and Youth Hearing
/in Pennsylvania, Testimony /by SOL ReformTestimony Before the Pennsylvania Assembly Committee on Children and Youth Hearing
• Relative to Statute of Limitations Reform
Dennany v. Knights of Columbus, No. ___, 2011 WL 3490039 (D. Conn. Aug. 10, 2011)
/in Cases (CT), Connecticut /by SOL ReformD. Connecticut.
Attorneys and Law Firms
Opinion
Footnotes
CHILDREN, CHURCHES, AND THE LAW: Massachusetts’ Proposal To Require Clergy To Report Child Abuse
/in Massachusetts /by SOL ReformAt first glance, the news that Massachusetts is considering a bill that would require clergy members to report child abuse might seem shocking. Of all the people in our culture who we would think would be operating in children’s best interests, it would be the clergy. We assume not only that they are protecting children, but also that no law is needed to force them to do so.
But the truth behind the law is less comforting. Reports indicate that a priest who allegedly abused dozens of children in Boston was not relieved of his duties, but rather shifted from church to church. The switch, it is claimed, only gave him in effect a fresh crop of children to abuse.
Furthermore, this is not the only recent story of clergy abuse. In recent months, other clergy and youth ministers, too, have been in the headlines for their seriatim abuse of children under their care. Given these incidents, the Massachusetts law begins to look not shocking, but necessary.
The Churches’ Own Solutions to Abuse
The practice of transferring abusers within the church has been going on in many churches for ages. The idea is that if the abuser is separated from his victim, and receives church counseling, the abuse will not recur. Yet religious organizations are coming to acknowledge the latest medical evidence that indicates that recidivism rates for pedophiles are extremely high — meaning that transfers are no solution (and may only multiply the misery).
Admitting that their past practice of prayer and transfer is ineffective is a difficult step for these organizations to take. They have not intended for children to be hurt. Rather, they have believed fervently in the power of prayer and the community of the church to stop the abuse. Yet, children have suffered.
So what is society — increasingly trying to find ways to protect its children even in contexts, such as church and daycare, that seemed safe — to do? It has turned to the law, apparently unwilling to permit the churches to take more time to treat their own.
The Churches’ Schizophrenic Position
At first, the Catholic Church opposed the Massachusetts proposal, on the ground that it would violate the privacy of the confessional. But lawmakers have assured the church that they are working to try to keep the confessional sacred and privileged; the law requires reporting only of information about child abuse obtainedoutside the confessional. With those assurances, and under the pressure of massive press coverage, the Church has now become a supporter of the law, making its passage much more likely.
The churches have exhibited schizophrenia over the problem, however. Although the Catholic Church now supports an obligation to report child abuse in Massachusetts, in Colorado it has supported a “no fiduciary duty” bill that would make churches immune from damage awards in cases where they knew of the clergy malpractice and child abuse.
The Presbyterian Church also has supported the Colorado bill. The bill has yet to be passed, however, in part because of the work of child advocates.
Here we have the specter of two mainline, powerful churches intent on protecting their coffers when one of their own abuses a member. They are asking the legislature to remove an extraordinarily strong deterrent to hiding abuse: legal and financial liability.
Why Churches’ Cooperation Is Necessary
The Massachusetts and Colorado legislative scenarios make clear that ending child abuse by the clergy — whom children are taught by and are naturally inclined to trust — will take more than an acknowledgment of the latest medical knowledge, and more than press coverage of a problem so long left unreported. It will also require the cooperation of the religious denominations themselves.
In this day and age, legislators–whether Republicans or Democrats–do not turn down requests by religious lobbyists easily. To the contrary, there is an open door policy for religious requests that we have never seen before, a lawmaking environment avidly encouraged by President Clinton and continued by President Bush.
Law that can create a climate of safety for children will not be passed so long as the powerful religious lobbies resist disclosure of child abuse within the church, and seek to reduce liability for that abuse when it occurs. With the Colorado and the Massachusetts legislative stories simultaneously in play, the future for protecting children from clergy abuse is hard to predict.
Marci Hamilton is Thomas H. Lee Chair in Public Law at Benjamin N. Cardozo School of Law. Her e-mail address is Hamilton02@aol.com. Her prior columns on church/state issues may be found in the archive of her pieces on this site.