Over the last decade, concern about childhood sexual abuse has grown.
Megan’s Laws — which put convicted sex offenders on public registers, so that parents can know if a neighbor has a record — have become popular. Child abuse reporting statutes that mandate that certain professionals contact the state with knowledge of child abuse have also been passed.
And of course – in the most high-profile development – suits against clergy and religious institutions for childhood sexual abuse have been filed, and their filing has sent shock waves through the Catholic Church and (as I will discuss below) other religious institutions.
Even the press – which was unforgivably lax in covering this issue — is starting to cover children’s issues as though they are an important part of public policy.
What are the reasons for this trend? One is that experience has shown that pedophiles are incurable. It is a sexual predisposition, not a treatable psychological condition.
Another is that society has come to recognize that children have a great deal of trouble telling others about their victimization, and that, later in life, they suffer serious ill-effects from abuse. The victim pays for life, and society pays in lost capacities and contributions.
It is crucial that the United States find ways to protect children from these predators, and to assist those whom its legal system has let down over the years.
Three states — Florida, Ohio, and California — are currently undergoing transformations in their statutory approaches to childhood sexual abuse. In this column, I will examine exactly what is happening on the ground in each of those states.
Unfortunately, my conclusion is that when religious entities enter the legislative mix, all too often the result is bad for childhood sex abuse victims — past, present, and future.
Florida: A Smart Law That Includes An Absurd Distinction
In March, nine-year-old Jessica Lunsford was murdered in Florida by a registered sex offender. In April, thirteen-year-old Sarah Lunde also was murdered in Florida by a registered sex offender.
These terrible crimes spurred the Florida legislature to take fast action. By May, the Jessica Lunsford Act was enacted into law. It states that for certain sex crimes committed against children under twelve, the perpetrator must serve a sentence of twenty-five-years-to-life, and, if freed, must wear a GPS tracking anklet for the rest of his life.
The speed of the enactment is a testimony to the fact that sexual predators of children do not have a powerful lobbying voice. There was no one to voice any meaningful opposition, making the law easy to pass in a moment of shared outrage.
The law itself is admirable, but its distinction between children under and over twelve is absurd. Under the law, if the victim is over twelve, the abuser’s sentence would be shorter, and he would only have to wear the anklet during probation.
What could possibly be the rationale for this distinction? Was Sarah Lunde’s murder less heinous than Jessica Lunsford’s murder? Of course not. It is a mystery why the Florida legislators thought adolescents suffer any less than children when sexually abused by adults.
The Florida experience underlines a sad truth: Sometimes it takes public outrage to shock legislators out of their usual inclination to jawbone and delay, but even then legislatures are still woefully uneducated on the actual impact of sexual abuse on adolescents, as well as young children.
But at least, here, some legislation aiding children was quickly passed, and is properly harsh – at least for victims under twelve.
California: Religious Entities Litigate to Get Reform Declared Unconstitutional
The situation is very different, however, when religious entities are implicated in childhood sexual abuse – for then, a powerful constituency does exercise its muscle to slow or stop legislative action.
Because of its size and its former public stature, the Catholic Church has been the focus of attention, when it comes to childhood sexual abuse, since the Boston Globe‘s breaking of the story in 2002. But the Catholic Church is hardly alone on this score. The Jehovah’s Witnesses and the Church of Jesus Christ of Latter-Day Saints have had their share of lawsuits.
Meanwhile, victims of the Family — a religious group that was founded in the 1960s on a belief in free-wheeling sex for all, children included — are now coming of age with all the torment childhood sexual abuse inflicts. Only recently, the designated “messiah” of the group shot his former “nanny” and then killed himself.
In addition, the nephew of a leader of the Fundamentalist Latter-Day Saints has alleged that he was repeatedly sodomized by his uncles.
Abuse within religious institutions knows no geographical boundaries. Ireland, Austria, and Australia have been rocked by revelations of sexual abuse by Catholic priests and nuns, and Chile is home to a religious commune where the leader regularly and repeatedly sodomized the young boys of the group.
Like murder and robbery, childhood sexual abuse by trusted clergy is apparently an integral part of the human condition. In light of the evidence, no civilized society can fail to take every effort possible to protect children when they are at their most vulnerable – in the presence of an adult they have been taught to revere and trust.
As I have discussed in a previous column, the statutes of limitations for childhood sexual abuse, in most states, are scandalously short – especially in light of the reality that children generally are not in a position to come forward while they are still children; often, it takes decades before they can begin to understand and then come to terms with the abuse.
California is the nation’s leader in trying to do something for children who grew up, were ready to seek justice, but found that the statute of limitations was an insuperable barrier. First, California tried to make the criminal statute of limitations for childhood sexual abuse retroactive — but the Supreme Court, in Stogner v. California, found that this violated the Constitution’s Ex Post Facto Clause.
California also made the procedural adjustment of suspending the statute of limitations in civil actions involving childhood sexual abuse, Sec. 340.1. The law lifted, for one calendar year, the statute of limitations on childhood sexual abuse for lawsuits against institutions that knowingly permitted their employees to work with children. The law applies to all childhood sexual abuse victims, whether familial or religious, and many did come forward. The California Catholic Archdioceses have claimed the law is unconstitutional on due process and First Amendment grounds, but courts have rightly held that it is not.
They also have tried to argue that it is unconstitutional on the theory that they were “targeted” by the legislation, even though the legislation is neutral and generally applicable. (When will the Church quit saying it is all about the Church??) That’s like saying a state can’t outlaw religiously motivated medical neglect just because it only knows about the death of children in one sect. The evil California sought to redress was the evil of child abuse by trusted adults, and the outrage and quick enactment were well justified on public policy grounds.
One might think that, both financially and public relations-wise, the Church might welcome 340.1. The law’s effect was to flush out a finite number of past victims – with whom the Church could settle. Then, the Church could amend its ways, as it claims to have already done, and move on into its pedophile-free future.
The California Archdioceses’ scorched earth litigation strategy has only underscored that what matters most here is money and keeping their secrets. They have not objected to settling with victims as a per se matter; what they are fighting in 340.1 is having to settle with victims who have legal leverage to obtain fair compensation for the injuries done to them.
Ohio: An Uphill Battle Against Religious Institutions’ Lobbyists
In Ohio, meanwhile, victims are fighting an uphill battle to follow California’s example against a legion of religious lobbyists.
In March, after a deeply moving floor debate, the Ohio Senate passed SB17. The law would extend the statute of limitations for all current and future childhood sexual abuse, and – like California’s law -would open a one-year window during which the statute of limitations does not apply. The law also would mandate that clergy – like others who come into contact with children in their jobs – must report childhood sexual abuse.
In a remarkable moment for clergy abuse victims, who have been invisible to the legal system for so long, those victims who were in the chambers received a standing ovation from the Senators. Then one Senator after another said what must be said: Churches must be held accountable when the issue is childhood sexual abuse.
Now the bill is mired in the Ohio House, because the Ohio Catholic Conference and the Ohio Bishops have called out the heavy artillery in an attempt to kill the window provision. The Bishops have importuned the most “influential” members of each parish to write or pressure personally their members in the Ohio House. And flyers have been distributed throughout the parishes, arguing that the law is unconstitutional and supposedly bad public policy.
As a result, though the constitutional argument here is weak – just as it is in the California context — various members of the House have suddenly become deeply devoted to constitutional principles. Of course, they are using these “principles” as a cover, to do what the Church has insisted must be done.
Parallel to the Bishops’ lobbying against the changes to the statute of limitations, there is the evangelical Christian churches’ lobbying against the mandatory reporting provision.
This provision ought to be a no-brainer. Professionals such as doctors, teachers, and psychologists, must report known child abuse. Like them, clergy are in a good position to observe signs of abuse, or hear about it.
The evangelicals’ argument, however, is that if a pastor must report known child abuse, then members won’t confide in him. In other words, let the children suffer so the pedophile can speak to his pastor worry-free.
If we knew a lot less about childhood sexual abuse than we do now, this concern might carry some weight. But the truth is that religious groups have been horrendous at addressing child abuse when they learn about it. The balance between making sure ministers hear everything their members want to say and rescuing the children enduring child abuse is a no-brainer. The Catholic Church’s infamous see-no-evil transfer-the-pedophile-elsewhere police is perhaps the most blatant example, but it is far from the only example, as new victims emerge on a regular basis.
There was a time when each religious institution stood for its individual beliefs in the public square, and fought what it believed was morally wrong – even if the moral wrong came from another religious institution. It seems that time is gone. One waits in vain for the religious institution that will stand up to either the Catholics or the evangelicals in these battles over much-needed changes to childhood sexual abuse laws. Their silence is deafening.
Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues – as well as other topics — can be found on this site. Her email address is hamilton02@aol.com. Professor Hamilton’s book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press, June 2005), catalogues the ways in which religious institutions have harmed the public good.
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 Reform2005-05-19 21:44:092013-08-19 21:46:29The Long and Difficult Road to Protecting Children from Sexual Abuse: A Tale of Three States, and How They Revised Their Statutes
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00solreformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgsolreform2004-09-09 00:00:032004-09-09 00:00:03An Award of Punitive Damages Against A Religious Institution
This is the Age of Entitlement. I do not mean entitlement only in the sense of the belief that one is entitled to a government handout. I also mean entitlement in the simpler sense of the belief that one deserves to get exactly what one wants – regardless of the law and despite the public good.
Four examples drawn from recent legal controversies illustrate this point. In each, the law made clear what the right thing to do was. But in each, the culprit insisted on doing something else – something they insisted that, illegal or not, they were entitled to do.
The “Entitlement” to Free Music
In my last column, I went to bat for the Recording Industry Association of America, applauding its decision to file copyright infringement suits against student infringers. I have not always been on RIAA’s side, but on this issue, they are doing the right thing. In response, I received numerous emails from individuals who hold the belief that they have an entitlement to free music on the web.
They argued that their lawbreaking and copyright infringement are justified because they believe the market is inefficient; or the RIAA and its members take too much money away from the artists (so therefore file sharers are entitled to take even more?); or that CDs are too expensive; or that copyright law is not properly structured to permit full technological innovation on the web – or all of the above. One student even argued that he needed to take the music because he does not have a credit card!
In sum, they offered one reason after another why they were entitled to their free music now. But they offered precious few plans to try to alter the system through legal channels–for example, by boycotting the elements of the industry they oppose, or by lobbying Congress.
File sharers may invoke policy arguments, but actions speak louder than words: They are not interested in the good of the system, but rather in their own selfish advantage. And so they feel they cannot be expected to wait for the system to change – or to work for that result. Calling this attitude a sense of entitlement may even be overly generous. Selfishness may be a better, and simpler, word.
The “Entitlement” to Have Religious Belief Dominate A Courthouse
Meanwhile – equally selfishly, and equally heedless of the law – Alabama Supreme Court Chief Justice Roy Moore and his followers have insisted on Justice Moore’s supposed entitlement to keep the huge, stone rendition of the Ten Commandments he personally had installed in his courthouse.
Pay no mind, they say, to the fact that a federal appellate court has ordered Moore to remove the statue. Forget, also, that Moore’s colleagues unanimously oppose him. And pay no mind that the court’s decision was plainly directed by relevant Establishment Clause precedents.
Meanwhile, while you’re at it, forget the fact that, under these precedents, the statue is an unconstitutional government endorsement of one religious tradition – and therefore has the capacity to make all other citizens feel disenfranchised, whether Hindu, Muslim, or atheist.
What really matters, according to Moore and his followers, is not what the federal appellate court ordered – or even what the U.S. Supreme Court has said. What matters is that he, Moore, believes that the Ten Commandments, and the Judeo-Christian tradition in general, are the bedrock of American law.
Apparently, his education excluded the Code of Hammurabi, the British common law, the actual history behind American law, and the text of the Establishment Clause. It may also have excluded a close reading of the Commandments themselves; the first four are plainly religious, not legal, directives. Anyone who attempts to argue that the Commandments are not drawn from a particular religious tradition has not read the first four, which mandate a monotheistic religion, and knows precious little about the actual range of religious beliefs in the world.
In other words, Justice Moore believes that he is entitled to impose his religious heritage on every citizen entering his courtroom and his courthouse. Like the file sharers, he has a strong sense of entitlement that allows lawbreaking.
Moreover, as with the file “sharers,” Justice Moore’s sense of entitlement is also a form of selfishness. If no one pays for music, there will be little music to enjoy. If every government official in every state and locality imposes his or her religious beliefs on every citizen, little religious freedom will remain.
The “Entitlement” To Special Treatment for Religious Institutions
Justice Moore has been called an extremist, but in truth, his position is simply part and parcel of the entitlement atmosphere of the times. For over a decade, religious entities have been lobbying in Congress and the states to obtain the right to trump every imaginable law – without any apparent concern for those that could be hurt by failure to enforce the law.
The discourse in the state legislatures and the Congress has been all about the entitlement of the religious believer. And that same discourse has fueled the Bush Administration’s push for federal funding of “faith-based” social services, or more accurately, religious mission. If secular services are receiving federal funds, then religious mission should have a cut of the pie as well, or so the reasoning goes. Again, the Establishment Clause is treated as if it did not exist.
Congress and the state legislatures–though they are charged by the federal and state constitutions with considering the public good–all too often have been swept into the entitlement talk, ignoring questions about the larger public good beyond the entitlement claims.
For example, when Congress considered the Religious Freedom Restoration Act (RFRA), which gave religious individuals special legal privileges against every law in the country, it failed to focus on whether anyone might be harmed by giving religious individuals such privileges. Similarly, when Congress considered whether to give religious landowners special privileges against zoning laws in the Religious Land Use and Institutionalized Persons Act (RLUIPA), it failed to focus on the impact on neighboring landowners.
The focus was consistently on the groups claiming an entitlement – and not on the common good. State legislators’ consideration of the state RFRAs has been equally barren of focus on, and discourse about, the public good. Indeed, these laws have been pushed through as silently and quickly as possible precisely so as to avoid such a discussion.
The Catholic Church’s “Entitlement” to Preserve Its Power and Prestige
Entitlement-think also fueled the Catholic Church’s current crisis. As I have argued in a series of previous columns on the Catholic Church abuse scandal, the Church’s cardinal mistake was to fail to report pedophiles to the authorities. Had the first pedophile been reported in each archdiocese, and the Church washed its hands of the perpetrator, the Church itself would not be in the disastrously weakened position it is today.
Instead, the Church operated from the position–fueled by Vatican documents threatening excommunication–that protection of the Church’s image was far more important than the welfare of children or the interests of justice. In an orchestrated manner, the Church shuffled pedophiles from parish to parish, because its leaders felt entitled to preserve its public image at all costs.
The media and the prosecutors bought into the entitlement-think, too, agreeing repeatedly to let the Church “take care of its own.” A sense of entitlement to power and prestige made the Church the focus of what was actually a criminal conspiracy that harmed thousands of children. The Church ended up at the very center of the problem of abuse that it could instead have contributed towards solving had it not been so determined to protect its image and to place itself above the law.
For decades, the Church was allowed to continue on in virtual solipsism – Ignoring the public good. And even now, entitlement dies hard.
It took thousands of victims, hundreds of lawsuits, and a rebel newspaper–the Boston Globe–to break the hold of the Church’s mass hypnosis. And even with its hold over the media and to some extent, over law enforcement, broken, the Church shamelessly continues to argue for the “church autonomy doctrine” in various court papers. The “church autonomy doctrine,” of course, is just another phrase for the Church’s supposed entitlement to ignore the law, regardless of the public good.
The End of Entitlement?
Fortunately, the Entitlement Era may be coming to a close. With more and more institutions inclined to call lawbreaking just what it is – from the RIAA’s willingness to call stealing stealing, to the Boston Globe‘s willingness to call abuse abuse – entitlement is under siege. Lawbreaking is lawbreaking no matter who the perpetrator is – whether a church, or a state Supreme Court justice, or a college student – and increasingly, some have come to insist on that very truth.
If we are lucky, in our lifetimes, we will see the end of entitlement, and the beginning of responsibility and accountability. For too long, we have lulled ourselves into believing it is possible to have whatever we want, legal or not, with no consequences. This generation needs to reverse this stance – or there will be more lawbreaking, more senseless defiance, and more victims.
Date: 8/23/2003
Author: Marci Hamilton
Source: FindLaw
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00solreformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgsolreform2003-08-23 00:00:472013-04-07 23:58:22The Era of Entitlement: What Alabama Judge Roy Moore, File "Sharers," and the Catholic Church Have in Common
Recently, in Phoenix, Arizona, Maricopa County Attorney Rick Romley entered into a settlement agree with Bishop Thomas O’Brien – yet another high-level cleric implicated in the cover-up of clergy abuse. Pursuant to the agreement, Bishop O’Brien admitted that he had failed to report clergy child abuse, and indeed, had covered it up for decades.
However, the Bishop did not concede that in so doing, he had committed a crime. And after signing the agreement, Bishop O’Brien apologized to the public, as it required. But he also declared that he had done nothing criminally wrong.
O’Brien’s statements show that the agreement was a terrible mistake on the part of Phoenix prosecutors. By comparison, New Hampshire prosecutors reached an agreement with Manchester’s Bishop John McCormack that did acknowledge criminal wrongdoing as part of the agreement. Moreover, it was accompanied by a scathing report that made it possible for the public to assess the criminal conduct, and understand its extent.
The gravity of Bishop O’Brien’s conduct demanded at least the same treatment – and, indeed, could have served as a basis to prosecute the Bishop. To see why, an analogy from outside the context of the Catholic Church is helpful.
An Analogy: Why Being a Bishop Should Not Preclude Criminal Charges
Suppose that, over the course of several decades, a highly regarded day care center operator was aware that at least 50 of her employees had sexually abused children. But each time she learned of such abuse, rather than firing the employee, she simply moved the employee to another classroom.
Meanwhile, when parents came in to complain to the day care center operator, she persuaded them that they should not report the abuse to authorities. Instead, she persuaded them, they should work with her to sustain the integrity of her very successful day care center.
Finally, a newspaper reporter discovers the story and reports it. What would happen next?
In this context, it seems obvious. The day care operator would become Public Enemy Number One. Her center would instantly be closed. The local prosecutor would righteously mount his public podium, and announce that he was leveling serious criminal charges against the perpetrators, the operator, and the center.
Given her choice to turn a blind eye to known sexual abuse, the operator could be targeted not only for obstructing justice by covering up the crimes, but perhaps even as an ongoing accomplice to them: It was she, after all, who ensured that the abuser could strike again, with a new classroom of unknowing, unwary children for the picking.
The operator might be offered a plea agreement, but only on the condition she would testify against her employees, and ensure their convictions, and turn over all relevant evidence. Even so, it would be very unlikely that the operator would, herself, avoid serving a substantial jail sentence.
Alter these facts just a bit – by replacing the day care center operator with Bishop O’Brien, and the center with the diocese. You now have the situation in Phoenix. At least 50 priests and parish employees sexually abused children in the last several decades. The Bishop knew about it. He shuffled the priests around, persuaded parents not to go to the authorities, and ignored Arizona’s mandatory reporting statute.
The net result in permanently harmed children is no different between the two scenarios. The only difference is the Roman collar.
The analogy to a secular context should make it plain that the settlement agreement Phoenix prosecutors offered Bishop O’Brien was a gift. It disserved both past victims, and the public interest that justice be done.
Maricopa County Attorney Rick Romley seems convinced he could have convicted O’Brien on charges of obstruction of justice. So why didn’t he pursue them? If he believed he was protecting the Church, he was dead wrong. The best thing for the Church would be a new bishop – one who complies with the law and one whose first instinct is to protect children from abuse.
Nor is this a matter of respect for the Church. Those who truly have respect, and high expectations, for the Church should favor prosecutions here. Those who recoil from the notion of bringing a man of the cloth to the defendants’ table, and potentially sending him to jail, should ask themselves, Would I favor prosecution for the identical acts if perpetrated by the day care center operator? And if so, shouldn’t society be able to expect more from respected members of the clergy, not less?
The Only Positive Facet of the Agreement: Church Reform in the Interest of Children
To be fair to Romley, while he should not have allowed such a lax settlement when it came to O’Brien’s criminal acts, he did at least extract some much-needed reform measures from the Church. Unfortunately, though, this amounts to protecting future children at the expense of ignoring the trauma abused children suffered in the past, for which Bishop O’Brien is culpable.
Romley was quoted in USA Today saying, “It’s not an easy call. But my primary consideration in this entire investigation is that I must assure that the abuse of innocent children stops and to make sure that it never happens again.” But why not both initiate a prosecution of the bishop, and make a negotiated deal with the next bishop that requires protection of children in the future?
After all, our hypothetical childcare center operator would have gotten no less. If her day care center had been allowed to continue to operate at all, it would have done so under new management and the watchful eye of the County Attorney.
At least the Church reforms that Romley has accepted, and the Bishop has promised, seem to be meaningful ones, even if they are no substitute for prosecution. According to the agreement, O’Brien must appoint a Moderator of the Curia – the equivalent of a chief of staff – who will have final authority over allegations of sexual child abuse and the policy to be applied in such instances. There will also be a Youth Protection Advocate (YPA), who will take responsibility for implementing and enforcing the diocese’s policy. The YPA will also be able to consult a special counsel, whose advice will be independent of anyone in the diocese. Finally, there will be a Victim Assistance Panel, composed of respected mental health professionals, which will clear requests from victims and their families for counseling.
In addition, the diocese will contribute $300,000 to the Maricopa County Attorney’s Victim Compensation Fund for victims of criminal sexual misconduct; set aside $300,000 for counseling of its victims; and pay $100,000 to cover the costs of the investigation.
Finally, the diocese and the County Attorney’s office will institute a training program to educate diocesan personnel on issues involving sexual misconduct and, within a year, will hold a joint summit on the issue.
These are all positive developments. But what of the decades of illegal activity, and the desert full of suffering, caused by the diocese?
A settlement agreement like this one simply cannot send the same message that a full-scale criminal prosecution, conviction, and sentence would have. Nor can it provide the public airing of evidence that is sorely needed here – particularly since this is a case in which a revered institution has used its privileged place to silence victims.
Had a trial been conducted (or at least a detailed report issued as in New Hampshire), the public could have reviewed the evidence for itself, and the victims would be allowed to have their claims vindicated publicly. Now this catharsis may never take place, unless victims succeed in overcoming statute of limitations issues with respect to civil suits, and even then, money does not buy justice.
Prosecutors Should Be Courageous In Prosecuting Church Higher-Ups
There is no question that it takes tremendous courage on the part of a prosecutor to empanel a grand jury to consider criminal charges against a Roman Catholic bishop or cardinal, and to prosecute those charges if the grand jury indicts.
The bishops and cardinals are, of course, part of the entrenched power elite of a community, with fervent supporters. If the prosecutor has political ambitions, this is not a step he or she will take lightly. Church members who do not want to believe that such elements exist in their Church may turn even the most credible accusations into claimed instances of “Catholic-bashing.”
Prosecutors should take courage, however, from the fact that there are scores of parishioners, especially those with children in affected parishes, who are rooting (even if silently) for the law. There are also plenty of priests who, themselves, want to see the bad elements within the Church excised. They, too, find the relentless, orderly shuffling of pedophile priests from parish to parish, state to state, and even country to country chilling.
The contrast between the cold calculations of the bishops, and the spiritual, emotional, and physical suffering of the victims is simply too great for any self-respecting law enforcement officer to be deterred by fear of bad political consequences. At some point, it is necessary to do the right thing, come what may. These are not the sorts of cases where prosecutorial discretion naturally disfavors prosecution. This is not borderline conduct. Rather, such prosecutions would be important impositions of accountability for premeditated, serial crime by those in power.
The Next Step: The First Prosecution of a Bishop or Cardinal
Phoenix and New Hampshire prosecutors have, at least, overcome their leeriness at even charging bishops or cardinals. Sooner or later, a prosecutor somewhere will dare to go further, and to actually prosecute the Church hierarchy for its knowing participation in the ongoing criminal sexual abuse of scores of children.
Would such a prosecution present a constitutional issue with respect to the Establishment or Free Exercise Clauses? Not at all. The Church does not believe, as part of its theology or mission, in the sexual abuse of children. Thus, typical problems that arise in true Establishment and Free Exercise cases would not arise here.
For one thing, there is no need for the court to interpret religious law, as might be the case, for instance, in an internal battle for power within the church. If a Bishop goes to jail, the Church, not the court, will choose a successor.
For another thing, there is no conflict here between religious belief and secular law, for no religious belief inspired these crimes or their cover up. Meanwhile, even if faith had played a role, that would provide no constitutional defense, as I have explained in an earlier column. Wisely, the Constitution – as interpreted in the Supreme Court’s current free exercise precedent – does not stand between religious entities and generally applicable, neutral criminal laws.
In short, from the perspective of the Religious Clauses, there is simply no constitutional issue here at all. In the end, prosecutors are facing the run-of-the-mill problem of having to apply a generally applicable rule of law to violators of that law.
That’s why the day care operator analogy works so well. Like the day care center operator, the Church erred grievously in fulfilling its duty – common to parents and caretakers, both secular and religious alike – to protect children from harm.
For this reason, prosecutors, grand juries, and courts addressing the clergy abuse scandal should be confident that the Constitution provides no impediment to their acting to serve the public interest by bringing religious individuals and entities to task for violating the criminal law. Now we will have to wait to see if any brave prosecutor, somewhere in this country, has the nerve to do so.
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00solreformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgsolreform2003-06-05 00:00:002015-02-03 06:27:03Pretending Decades of Covering Up Child Abuse Is Not a Crime
The U.S. National Conference of Bishops has now released its draft proposal for dealing with the child abuse scandal that has dogged the Church for months. The proposal includes an apology – one that has been deferred far too long.
It also includes a number of important policy changes for the church: All accusations of sexual abuse, it proposes, must be reported to law enforcement authorities. (This was the absolute minimum the Church needed to do to avoid schism or marginalization). It also proposes defrocking all future pedophiles (though it strangely protects past pedophiles who have “only” done it once), eschewing confidentiality agreements, and making full disclosure regarding transferred priests.
As readers of my prior columns on the Church scandal are well aware, I have called on the Church to do more than the minimum to acknowledge and redress the harms to children it has permitted. Accordingly, having reviewed the Conference’s proposal’s highlights, I must give the Church its due–these are constructive moves in the right direction.
Why the Church Needs to Go Further to Effectively Protect Children From Abuse
The Bishops’ draft proposal, well-meaning as it may be, still reads too much like a response to the public opinion polls that followed the scandal. Instead, it should reflect a reordering of the Church’s priorities – away from protecting itself and its reputation, and toward protecting children. The Church has now heard first-hand from hundreds of victims; it has a golden opportunity here to use what it has learned to improve the plight of children at the hands of trusted clergy abusers. What it does now in the public sphere can protect children of all denominations from the special terrors of clergy abuse. (The latest reports that the United Nuwaubian Nation of Moors’ leader allegedly abused dozens of children in Georgia remind us that this is not a problem peculiar to the Catholic Church.)
To those at the Vatican and here who have started to claim anti-Catholic bias in the massive reporting on this scandal, one can only respond that the focus on the Church is in no small part due to the Church’s own self-absorption. If it were itself to make children the focus, the news reporting may well follow suit.
Children need to come first, and so far, the proposal is not framed to ensure that will be the case. The Church must persuade both those who have been abused (too many) and those disgusted with the abuse (many, many, many) that it means to make children part of its healing mission.
Accordingly, as I noted in my previous column, the Church needs to lobby (just as it lobbies against abortion and the death penalty) for child abuse reporting requirements that work. The Church argues that the “unborn” are children deserving protection; the born now need its close attention.
The Church also needs to support, and lobby for, longer statutes of limitations for child abuse.
Neither of these measures appears in the Bishops’ draft.
Getting the Reporting Requirement Right: No Broad Confessional Exception
Several states – specifically, Massachusetts, New York, Colorado, and Connecticut – deserve credit for trying to amend their child abuse reporting laws to include the clergy. These are difficult waters for states, wary of church/state separation concerns, to enter into, but they should not hesitate to do so, for such concerns can be misplaced under these circumstances.
Children’s advocates have pushed for a straightforward amendment that would include clergy in the list of professionals who deal with children and who must report abuse. Such an across-the-board reporting requirement for all those dealing with children, irrespective of whether they hold secular or religious positions, would be constitutional under the First Amendment’s Free Exercise Clause. It would be general, neutral, and dedicated to children’s welfare – not to penalizing or promoting religion.
But those representing the Church have pushed for a different approach. They argue that because no priest may reveal what he has been told in the confessional, there must be a blanket exception to reporting for information learned in the confessional. In support of their position, they rely on an evidentiary rule called the “priest-penitent privilege” that bars a court from requiring a priest to testify regarding the contents of a confession.
This argument is seriously mistaken. It is easy to confuse the apples of reporting with the oranges of privilege. (Indeed, Colorado did just that.) And it is true that a priest has a rebuttable presumption against revealing in court what he has heard in the confessional. But that does not imply that the priest cannot report what he sees outside the confessional that confirms the confession.
Consider this situation: One priest hears a confession from another priest who tells the first that he has abused a child who attends the church. Then the former priest notices that the boy seems very upset, and avoids any contact with the latter priest – with whom he was formerly close. Certainly these signs of possible child abuse should still be reported. Indeed, it would be bizarre if they could not be reported precisely because the former priest knew (based on the confession) that they were likely true.
The confessional was not meant to produce priests who see no evil, hear no evil, and speak of no evil.
The Imminent Risk Test Respects Both Children and the Confessional
Connecticut’s requirement that clergy report abuse in circumstances where there is “imminent risk of serious harm,” regardless of whether the information came from inside or outside the confessional, is right on target.
The rule has not been that all information obtained through the confessional is absolutely protected from disclosure. Rather, courts across the country have found instances where the clergy member must report. There are times when there are compelling reasons for the state to require such disclosure, and imminent harm to a child clearly is one of them.
Details That Determine Whether the Bishops’ and the States’ Proposals Will Work
It will depend on the state whether law enforcement or child protective services is the entity most likely to ensure the best interests of the children. Thus, in every state legislature, a fact-based assessment, and a careful decision, as to who should receive the abuse report is crucial. Has the entity in the past been responsive to child abuse reports, or have they collaborated with the Church in covering them up? If they did aid in the cover-up, can we trust them to act on abuse reports in the future?
In addition to the important question of who receives the reports, other seemingly insignificant details can defang a proposal. Consider, for example, a New York bill that would penalize only those who “willfully fail to file the form” reporting child abuse. Both the willfulness requirement and the form requirement may make the system less effective.
What if a person loses the form, or never receives it, or negligently (but not willfully) forgets to file? The telephonic or oral reporting requirements in the Connecticut law do more for children. So do Connecticut’s short time frames for reporting – which must occur literally hours after the reporting person or institution becomes aware of the abuse.
There will be no perfect law that will solve every single case of clergy child abuse. Nevertheless, with many states trying to reform their systems to protect children, there will be many laboratories for experimentation and testing as to which laws do, and do not work. That is the strength of this federalist system.
The Bishops’ proposal – and the states themselves – should pay careful attention to all the alternatives and choose the ones that, based on logic and experience, seem to work the best. The ones that fail should be shelved quickly.
The Bishops should add to their draft proposal a draft law that they will support in the 50 states and that will protect children from harm, even when initial information came through the confession. Even when the information only comes through the confessional, if the child is in imminent harm, the Church has a social, moral, spiritual, and public obligation to ensure that the authorities are identified and the child rescued from harm.
The Catholic Church has been a voice for justice and the downtrodden around the world. It is time for the American Catholic Church to look to the downtrodden within its own borders, and throw its still considerable weight behind the children.
Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law. Her previous columns on the Catholic Church scandal and on church/state constitutional issues can be found on the archives of her column on this site. Her email is hamilton02@aol.com.
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 Reform2002-06-06 18:35:542014-06-01 20:18:33Professor Marci A. Hamilton, How The National Conference Of Bishops' Proposal On Handling Child Abuse Should Be Changed: The Devil Is In The Details
Should the Catholic Church be left to its own devices to “fix” the child abuse problem? Some are suggesting the answer is yes. They cite worries that interfering with a religious institution will jeopardize the Constitution’s separation of church and state, and concerns about insulting this otherwise venerated institution. The Church, however, has had at least eighteen years, and probably much longer, to clean house – after all, the Louisiana scandal broke in 1984.
Far from cleaning its mansion, the Church spent the 80’s and the 90’s shuttering its windows. It “solved” its priest’s sexual problems by transferring predatory priests – merely shifting them to prey upon a crop of fresh victims, trapped by faith and fear. When one of the victims or their families complained, they were intimidated and/or paid off.
A harsh characterization? Yes, but an accurate one – and a necessary one, if we are to combat the slowly emerging reasoning that the Church ought to be left alone or, worse, that it has a constitutional right to be let alone. In the midst of this scandal, such reasoning is scary stuff, and reminders of the real cost to children of letting the church alone are an important tonic.
There is no reason to treat the social response to this scandal as an either-or proposition – in which the government either virtually takes over the Catholic Church, or refuses to touch it. Both the Church and the government bear the responsibility now to ensure child abuse never happens again, or at a minimum is severely punished if it occurs. The Constitution provides no excuse for either to shirk this responsibility.
Religious Liberty, as the Framers Saw It, Had Limits In Criminal Law
Religious liberty does not require the government to back off in the face of irrefutable, weighty, and sickening evidence of a concerted enterprise to further criminal activity – especially when that activity is child abuse, perpetrated upon innocent, vulnerable victims without the power to protest or the ability to defend themselves.
At the time of the framing of the United States Constitution, religious leaders reiterated over and over again that religious liberty required the freedom to believe and to worship. However, they stressed equally passionately that when such belief broke out into overt acts injurious to others, the state could legitimately punish the wrongdoer. When the Constitution guaranteed religious freedom, no one believed it also provided a license to commit religiously-motivated crime.
This was true across a sweeping array of Christian denominations. Religious believers were not to be protected from the force of the law. Rather, they were expected to set an example for society; to try to serve the good of the whole by refraining from harming others in violation of the law. It was a given.
Over 200 years later, we have various entities wringing their hands about the imposition of government on the Catholic Church, as though the government should turn its sight away from the harm imposed. They just don’t get it. The only way to make this society cohesive and safe for everyone, is to impose criminal laws on religious believers along with everyone else.
If the imposition is so serious as to place a substantial burden on the religion, then let the religious believers argue to the state legislatures for accommodation–an exemption from the law. The legislature may then consider those requests, weighing them against the greater good, including the crucial interests of children.
When Religion and Children’s Welfare Are At Odds, Religion Wins Too Often
Why is it, in this society, that we have been so willing to accommodate religious institutions at the risk of children’s welfare? In legal clashes, before the Supreme Court and within our legislatures, religious institutions and religious parents tend to win even when it means that children lose.
For example, the clergy–the ones who should be serving the highest good–have been granted exemptions from state statutes that require other caretakers of children to report child abuse. The cost of this exemption is not just that child abuse may go unreported; the exemption also tends to destroy the chance it will be punished if it is later reported due to the unrealistic statutes of limitations in so many states.
For instance, this type of exemption allows the Catholic Church to raise the tissue-paper-thin but, to some, persuasive defense “the law did not require us to report,” as a reason the state should not intrude into church business. Yet, requiring reporting of child abuse allegations will enable the state to automatically get the information it needs from the church – without having to bear the unfair burden of first proving the very allegations it is seeking to investigate.
The undue latitude for religion where children are concerned does not stop with the Church – far from it. For example, Christian Science and Jehovah’s Witness parents have been given exemptions from medical neglect charges, even though their children have easily treated diseases and even though they suffer. And in the landmark case Wisconsin v. Yoder, the Supreme Court held that, despite Wisconsin’s compulsory education law, an Amish family had the right to end their children’s education at 8th grade for religious reasons.
Justice Douglas’s View: Children, Too, Have Rights and Interests
In Yoder, Justice Douglas wrote a particularly interesting partial dissent that raises important issues today. He argued that the Court should not have been so quick to treat the case as one between solely the Amish parents and the state. There was a third party, he noted: the child.
What if the child wanted to go to high school despite his or her parents’ wishes and religious beliefs? What if the seriously ill daughter of a faith-healing family wants to see a doctor despite her parents’ objection?
For Douglas, the child was not a pawn, but rather a person with rights. His message is worth our attention now that we discover so many children hurt by too many priests. Douglas pointed out how easily this society shelves children’s interests, and those interests are at risk amidst this emerging theory that the Church should be left to clean its own house.
There is a right way to handle this problem, and it is prescribed by the Constitution. Both government and Church need to get into the act.
The Church has broad latitude to clean house and it should do so immediately and for its own sake publicly – both because it is the right thing to do, and because if it does not, the government will have a basis for even more intrusion into church affairs than is currently warranted. But simultaneously, the government has the power and the obligation to prosecute child molesters and all those who assist such molestation by covering it up. (As I discussed in an earlier column, the legislature also has the power to eradicate the statutory exemptions to reporting requirements that have left the government and the public ignorant of this costly social issue. It should also lengthen or repeal the statute of limitations in such cases.)
If the Church’s housecleaning actually works this time, the government will have some spare time on its hands to devote to the others in this society who prey on children, and that is all to the good. In an ideal world, the Church would police itself and despite reporting requirements, would have nothing to report.
But that is not our world, yet. And if the Church does not begin to police itself far better than it has over the past decades, when it has known of abuse and done little or nothing, the government will and should be ready. Church and state were intended, in our Constitution and by the Framers, to be partners in achieving the public good. Sometimes that means the one must check the other when it veers off course.
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 Reform2002-03-22 06:27:452015-02-03 06:28:41SACRIFICIAL LAMBS?: Child Abuse, Religious Exemptions, And The Separation Of Church And State
The Long and Difficult Road to Protecting Children from Sexual Abuse: A Tale of Three States, and How They Revised Their Statutes
/in California /by SOL ReformThe Long and Difficult Road to Protecting Children from Sexual Abuse:
A Tale of Three States, and How They Revised Their Statutes
By MARCI HAMILTON
hamilton02@aol.com
—-
Over the last decade, concern about childhood sexual abuse has grown.
Megan’s Laws — which put convicted sex offenders on public registers, so that parents can know if a neighbor has a record — have become popular. Child abuse reporting statutes that mandate that certain professionals contact the state with knowledge of child abuse have also been passed.
And of course – in the most high-profile development – suits against clergy and religious institutions for childhood sexual abuse have been filed, and their filing has sent shock waves through the Catholic Church and (as I will discuss below) other religious institutions.
Even the press – which was unforgivably lax in covering this issue — is starting to cover children’s issues as though they are an important part of public policy.
What are the reasons for this trend? One is that experience has shown that pedophiles are incurable. It is a sexual predisposition, not a treatable psychological condition.
Another is that society has come to recognize that children have a great deal of trouble telling others about their victimization, and that, later in life, they suffer serious ill-effects from abuse. The victim pays for life, and society pays in lost capacities and contributions.
It is crucial that the United States find ways to protect children from these predators, and to assist those whom its legal system has let down over the years.
Three states — Florida, Ohio, and California — are currently undergoing transformations in their statutory approaches to childhood sexual abuse. In this column, I will examine exactly what is happening on the ground in each of those states.
Unfortunately, my conclusion is that when religious entities enter the legislative mix, all too often the result is bad for childhood sex abuse victims — past, present, and future.
Florida: A Smart Law That Includes An Absurd Distinction
In March, nine-year-old Jessica Lunsford was murdered in Florida by a registered sex offender. In April, thirteen-year-old Sarah Lunde also was murdered in Florida by a registered sex offender.
These terrible crimes spurred the Florida legislature to take fast action. By May, the Jessica Lunsford Act was enacted into law. It states that for certain sex crimes committed against children under twelve, the perpetrator must serve a sentence of twenty-five-years-to-life, and, if freed, must wear a GPS tracking anklet for the rest of his life.
The speed of the enactment is a testimony to the fact that sexual predators of children do not have a powerful lobbying voice. There was no one to voice any meaningful opposition, making the law easy to pass in a moment of shared outrage.
The law itself is admirable, but its distinction between children under and over twelve is absurd. Under the law, if the victim is over twelve, the abuser’s sentence would be shorter, and he would only have to wear the anklet during probation.
What could possibly be the rationale for this distinction? Was Sarah Lunde’s murder less heinous than Jessica Lunsford’s murder? Of course not. It is a mystery why the Florida legislators thought adolescents suffer any less than children when sexually abused by adults.
The Florida experience underlines a sad truth: Sometimes it takes public outrage to shock legislators out of their usual inclination to jawbone and delay, but even then legislatures are still woefully uneducated on the actual impact of sexual abuse on adolescents, as well as young children.
But at least, here, some legislation aiding children was quickly passed, and is properly harsh – at least for victims under twelve.
California: Religious Entities Litigate to Get Reform Declared Unconstitutional
The situation is very different, however, when religious entities are implicated in childhood sexual abuse – for then, a powerful constituency does exercise its muscle to slow or stop legislative action.
Because of its size and its former public stature, the Catholic Church has been the focus of attention, when it comes to childhood sexual abuse, since the Boston Globe‘s breaking of the story in 2002. But the Catholic Church is hardly alone on this score. The Jehovah’s Witnesses and the Church of Jesus Christ of Latter-Day Saints have had their share of lawsuits.
Meanwhile, victims of the Family — a religious group that was founded in the 1960s on a belief in free-wheeling sex for all, children included — are now coming of age with all the torment childhood sexual abuse inflicts. Only recently, the designated “messiah” of the group shot his former “nanny” and then killed himself.
In addition, the nephew of a leader of the Fundamentalist Latter-Day Saints has alleged that he was repeatedly sodomized by his uncles.
Abuse within religious institutions knows no geographical boundaries. Ireland, Austria, and Australia have been rocked by revelations of sexual abuse by Catholic priests and nuns, and Chile is home to a religious commune where the leader regularly and repeatedly sodomized the young boys of the group.
Like murder and robbery, childhood sexual abuse by trusted clergy is apparently an integral part of the human condition. In light of the evidence, no civilized society can fail to take every effort possible to protect children when they are at their most vulnerable – in the presence of an adult they have been taught to revere and trust.
As I have discussed in a previous column, the statutes of limitations for childhood sexual abuse, in most states, are scandalously short – especially in light of the reality that children generally are not in a position to come forward while they are still children; often, it takes decades before they can begin to understand and then come to terms with the abuse.
California is the nation’s leader in trying to do something for children who grew up, were ready to seek justice, but found that the statute of limitations was an insuperable barrier. First, California tried to make the criminal statute of limitations for childhood sexual abuse retroactive — but the Supreme Court, in Stogner v. California, found that this violated the Constitution’s Ex Post Facto Clause.
California also made the procedural adjustment of suspending the statute of limitations in civil actions involving childhood sexual abuse, Sec. 340.1. The law lifted, for one calendar year, the statute of limitations on childhood sexual abuse for lawsuits against institutions that knowingly permitted their employees to work with children. The law applies to all childhood sexual abuse victims, whether familial or religious, and many did come forward. The California Catholic Archdioceses have claimed the law is unconstitutional on due process and First Amendment grounds, but courts have rightly held that it is not.
They also have tried to argue that it is unconstitutional on the theory that they were “targeted” by the legislation, even though the legislation is neutral and generally applicable. (When will the Church quit saying it is all about the Church??) That’s like saying a state can’t outlaw religiously motivated medical neglect just because it only knows about the death of children in one sect. The evil California sought to redress was the evil of child abuse by trusted adults, and the outrage and quick enactment were well justified on public policy grounds.
One might think that, both financially and public relations-wise, the Church might welcome 340.1. The law’s effect was to flush out a finite number of past victims – with whom the Church could settle. Then, the Church could amend its ways, as it claims to have already done, and move on into its pedophile-free future.
The California Archdioceses’ scorched earth litigation strategy has only underscored that what matters most here is money and keeping their secrets. They have not objected to settling with victims as a per se matter; what they are fighting in 340.1 is having to settle with victims who have legal leverage to obtain fair compensation for the injuries done to them.
Ohio: An Uphill Battle Against Religious Institutions’ Lobbyists
In Ohio, meanwhile, victims are fighting an uphill battle to follow California’s example against a legion of religious lobbyists.
In March, after a deeply moving floor debate, the Ohio Senate passed SB17. The law would extend the statute of limitations for all current and future childhood sexual abuse, and – like California’s law -would open a one-year window during which the statute of limitations does not apply. The law also would mandate that clergy – like others who come into contact with children in their jobs – must report childhood sexual abuse.
In a remarkable moment for clergy abuse victims, who have been invisible to the legal system for so long, those victims who were in the chambers received a standing ovation from the Senators. Then one Senator after another said what must be said: Churches must be held accountable when the issue is childhood sexual abuse.
Now the bill is mired in the Ohio House, because the Ohio Catholic Conference and the Ohio Bishops have called out the heavy artillery in an attempt to kill the window provision. The Bishops have importuned the most “influential” members of each parish to write or pressure personally their members in the Ohio House. And flyers have been distributed throughout the parishes, arguing that the law is unconstitutional and supposedly bad public policy.
As a result, though the constitutional argument here is weak – just as it is in the California context — various members of the House have suddenly become deeply devoted to constitutional principles. Of course, they are using these “principles” as a cover, to do what the Church has insisted must be done.
Parallel to the Bishops’ lobbying against the changes to the statute of limitations, there is the evangelical Christian churches’ lobbying against the mandatory reporting provision.
This provision ought to be a no-brainer. Professionals such as doctors, teachers, and psychologists, must report known child abuse. Like them, clergy are in a good position to observe signs of abuse, or hear about it.
The evangelicals’ argument, however, is that if a pastor must report known child abuse, then members won’t confide in him. In other words, let the children suffer so the pedophile can speak to his pastor worry-free.
If we knew a lot less about childhood sexual abuse than we do now, this concern might carry some weight. But the truth is that religious groups have been horrendous at addressing child abuse when they learn about it. The balance between making sure ministers hear everything their members want to say and rescuing the children enduring child abuse is a no-brainer. The Catholic Church’s infamous see-no-evil transfer-the-pedophile-elsewhere police is perhaps the most blatant example, but it is far from the only example, as new victims emerge on a regular basis.
There was a time when each religious institution stood for its individual beliefs in the public square, and fought what it believed was morally wrong – even if the moral wrong came from another religious institution. It seems that time is gone. One waits in vain for the religious institution that will stand up to either the Catholics or the evangelicals in these battles over much-needed changes to childhood sexual abuse laws. Their silence is deafening.
Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues – as well as other topics — can be found on this site. Her email address is hamilton02@aol.com. Professor Hamilton’s book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press, June 2005), catalogues the ways in which religious institutions have harmed the public good.
View as PDF: http://sol-reform.com/Find_Law_2005_Hamilton/Findlaw.The%20Long%20and%20Difficult%20Road%20to%20Protecting%20Children%20from%20Sexual%20Abuse.051905.pdf
An Award of Punitive Damages Against A Religious Institution
/in Arizona /by solreform.
The Era of Entitlement: What Alabama Judge Roy Moore, File “Sharers,” and the Catholic Church Have in Common
/in Alabama /by solreformThe Era of Entitlement: What Alabama Judge Roy Moore, File “Sharers,” and the Catholic Church Have in Common.
This is the Age of Entitlement. I do not mean entitlement only in the sense of the belief that one is entitled to a government handout. I also mean entitlement in the simpler sense of the belief that one deserves to get exactly what one wants – regardless of the law and despite the public good.
Four examples drawn from recent legal controversies illustrate this point. In each, the law made clear what the right thing to do was. But in each, the culprit insisted on doing something else – something they insisted that, illegal or not, they were entitled to do.
The “Entitlement” to Free Music
In my last column, I went to bat for the Recording Industry Association of America, applauding its decision to file copyright infringement suits against student infringers. I have not always been on RIAA’s side, but on this issue, they are doing the right thing. In response, I received numerous emails from individuals who hold the belief that they have an entitlement to free music on the web.
They argued that their lawbreaking and copyright infringement are justified because they believe the market is inefficient; or the RIAA and its members take too much money away from the artists (so therefore file sharers are entitled to take even more?); or that CDs are too expensive; or that copyright law is not properly structured to permit full technological innovation on the web – or all of the above. One student even argued that he needed to take the music because he does not have a credit card!
In sum, they offered one reason after another why they were entitled to their free music now. But they offered precious few plans to try to alter the system through legal channels–for example, by boycotting the elements of the industry they oppose, or by lobbying Congress.
File sharers may invoke policy arguments, but actions speak louder than words: They are not interested in the good of the system, but rather in their own selfish advantage. And so they feel they cannot be expected to wait for the system to change – or to work for that result. Calling this attitude a sense of entitlement may even be overly generous. Selfishness may be a better, and simpler, word.
The “Entitlement” to Have Religious Belief Dominate A Courthouse
Meanwhile – equally selfishly, and equally heedless of the law – Alabama Supreme Court Chief Justice Roy Moore and his followers have insisted on Justice Moore’s supposed entitlement to keep the huge, stone rendition of the Ten Commandments he personally had installed in his courthouse.
Pay no mind, they say, to the fact that a federal appellate court has ordered Moore to remove the statue. Forget, also, that Moore’s colleagues unanimously oppose him. And pay no mind that the court’s decision was plainly directed by relevant Establishment Clause precedents.
Meanwhile, while you’re at it, forget the fact that, under these precedents, the statue is an unconstitutional government endorsement of one religious tradition – and therefore has the capacity to make all other citizens feel disenfranchised, whether Hindu, Muslim, or atheist.
What really matters, according to Moore and his followers, is not what the federal appellate court ordered – or even what the U.S. Supreme Court has said. What matters is that he, Moore, believes that the Ten Commandments, and the Judeo-Christian tradition in general, are the bedrock of American law.
Apparently, his education excluded the Code of Hammurabi, the British common law, the actual history behind American law, and the text of the Establishment Clause. It may also have excluded a close reading of the Commandments themselves; the first four are plainly religious, not legal, directives. Anyone who attempts to argue that the Commandments are not drawn from a particular religious tradition has not read the first four, which mandate a monotheistic religion, and knows precious little about the actual range of religious beliefs in the world.
In other words, Justice Moore believes that he is entitled to impose his religious heritage on every citizen entering his courtroom and his courthouse. Like the file sharers, he has a strong sense of entitlement that allows lawbreaking.
Moreover, as with the file “sharers,” Justice Moore’s sense of entitlement is also a form of selfishness. If no one pays for music, there will be little music to enjoy. If every government official in every state and locality imposes his or her religious beliefs on every citizen, little religious freedom will remain.
The “Entitlement” To Special Treatment for Religious Institutions
Justice Moore has been called an extremist, but in truth, his position is simply part and parcel of the entitlement atmosphere of the times. For over a decade, religious entities have been lobbying in Congress and the states to obtain the right to trump every imaginable law – without any apparent concern for those that could be hurt by failure to enforce the law.
The discourse in the state legislatures and the Congress has been all about the entitlement of the religious believer. And that same discourse has fueled the Bush Administration’s push for federal funding of “faith-based” social services, or more accurately, religious mission. If secular services are receiving federal funds, then religious mission should have a cut of the pie as well, or so the reasoning goes. Again, the Establishment Clause is treated as if it did not exist.
Congress and the state legislatures–though they are charged by the federal and state constitutions with considering the public good–all too often have been swept into the entitlement talk, ignoring questions about the larger public good beyond the entitlement claims.
For example, when Congress considered the Religious Freedom Restoration Act (RFRA), which gave religious individuals special legal privileges against every law in the country, it failed to focus on whether anyone might be harmed by giving religious individuals such privileges. Similarly, when Congress considered whether to give religious landowners special privileges against zoning laws in the Religious Land Use and Institutionalized Persons Act (RLUIPA), it failed to focus on the impact on neighboring landowners.
The focus was consistently on the groups claiming an entitlement – and not on the common good. State legislators’ consideration of the state RFRAs has been equally barren of focus on, and discourse about, the public good. Indeed, these laws have been pushed through as silently and quickly as possible precisely so as to avoid such a discussion.
The Catholic Church’s “Entitlement” to Preserve Its Power and Prestige
Entitlement-think also fueled the Catholic Church’s current crisis. As I have argued in a series of previous columns on the Catholic Church abuse scandal, the Church’s cardinal mistake was to fail to report pedophiles to the authorities. Had the first pedophile been reported in each archdiocese, and the Church washed its hands of the perpetrator, the Church itself would not be in the disastrously weakened position it is today.
Instead, the Church operated from the position–fueled by Vatican documents threatening excommunication–that protection of the Church’s image was far more important than the welfare of children or the interests of justice. In an orchestrated manner, the Church shuffled pedophiles from parish to parish, because its leaders felt entitled to preserve its public image at all costs.
The media and the prosecutors bought into the entitlement-think, too, agreeing repeatedly to let the Church “take care of its own.” A sense of entitlement to power and prestige made the Church the focus of what was actually a criminal conspiracy that harmed thousands of children. The Church ended up at the very center of the problem of abuse that it could instead have contributed towards solving had it not been so determined to protect its image and to place itself above the law.
For decades, the Church was allowed to continue on in virtual solipsism – Ignoring the public good. And even now, entitlement dies hard.
It took thousands of victims, hundreds of lawsuits, and a rebel newspaper–the Boston Globe–to break the hold of the Church’s mass hypnosis. And even with its hold over the media and to some extent, over law enforcement, broken, the Church shamelessly continues to argue for the “church autonomy doctrine” in various court papers. The “church autonomy doctrine,” of course, is just another phrase for the Church’s supposed entitlement to ignore the law, regardless of the public good.
The End of Entitlement?
Fortunately, the Entitlement Era may be coming to a close. With more and more institutions inclined to call lawbreaking just what it is – from the RIAA’s willingness to call stealing stealing, to the Boston Globe‘s willingness to call abuse abuse – entitlement is under siege. Lawbreaking is lawbreaking no matter who the perpetrator is – whether a church, or a state Supreme Court justice, or a college student – and increasingly, some have come to insist on that very truth.
If we are lucky, in our lifetimes, we will see the end of entitlement, and the beginning of responsibility and accountability. For too long, we have lulled ourselves into believing it is possible to have whatever we want, legal or not, with no consequences. This generation needs to reverse this stance – or there will be more lawbreaking, more senseless defiance, and more victims.
Date: 8/23/2003
Author: Marci Hamilton
Source: FindLaw
Pretending Decades of Covering Up Child Abuse Is Not a Crime
/in Arizona, Child Sex Abuse Cover-up, Child Sex Abuse Settlement, Clergy Abuse Settlement, FindLaw /by solreformFindLaw’s Writ – Hamilton: Pretending Decades of Covering Up Child Abuse Is Not a Crime.
Recently, in Phoenix, Arizona, Maricopa County Attorney Rick Romley entered into a settlement agree with Bishop Thomas O’Brien – yet another high-level cleric implicated in the cover-up of clergy abuse. Pursuant to the agreement, Bishop O’Brien admitted that he had failed to report clergy child abuse, and indeed, had covered it up for decades.
However, the Bishop did not concede that in so doing, he had committed a crime. And after signing the agreement, Bishop O’Brien apologized to the public, as it required. But he also declared that he had done nothing criminally wrong.
O’Brien’s statements show that the agreement was a terrible mistake on the part of Phoenix prosecutors. By comparison, New Hampshire prosecutors reached an agreement with Manchester’s Bishop John McCormack that did acknowledge criminal wrongdoing as part of the agreement. Moreover, it was accompanied by a scathing report that made it possible for the public to assess the criminal conduct, and understand its extent.
The gravity of Bishop O’Brien’s conduct demanded at least the same treatment – and, indeed, could have served as a basis to prosecute the Bishop. To see why, an analogy from outside the context of the Catholic Church is helpful.
An Analogy: Why Being a Bishop Should Not Preclude Criminal Charges
Suppose that, over the course of several decades, a highly regarded day care center operator was aware that at least 50 of her employees had sexually abused children. But each time she learned of such abuse, rather than firing the employee, she simply moved the employee to another classroom.
Meanwhile, when parents came in to complain to the day care center operator, she persuaded them that they should not report the abuse to authorities. Instead, she persuaded them, they should work with her to sustain the integrity of her very successful day care center.
Finally, a newspaper reporter discovers the story and reports it. What would happen next?
In this context, it seems obvious. The day care operator would become Public Enemy Number One. Her center would instantly be closed. The local prosecutor would righteously mount his public podium, and announce that he was leveling serious criminal charges against the perpetrators, the operator, and the center.
Given her choice to turn a blind eye to known sexual abuse, the operator could be targeted not only for obstructing justice by covering up the crimes, but perhaps even as an ongoing accomplice to them: It was she, after all, who ensured that the abuser could strike again, with a new classroom of unknowing, unwary children for the picking.
The operator might be offered a plea agreement, but only on the condition she would testify against her employees, and ensure their convictions, and turn over all relevant evidence. Even so, it would be very unlikely that the operator would, herself, avoid serving a substantial jail sentence.
Alter these facts just a bit – by replacing the day care center operator with Bishop O’Brien, and the center with the diocese. You now have the situation in Phoenix. At least 50 priests and parish employees sexually abused children in the last several decades. The Bishop knew about it. He shuffled the priests around, persuaded parents not to go to the authorities, and ignored Arizona’s mandatory reporting statute.
The net result in permanently harmed children is no different between the two scenarios. The only difference is the Roman collar.
The analogy to a secular context should make it plain that the settlement agreement Phoenix prosecutors offered Bishop O’Brien was a gift. It disserved both past victims, and the public interest that justice be done.
Maricopa County Attorney Rick Romley seems convinced he could have convicted O’Brien on charges of obstruction of justice. So why didn’t he pursue them? If he believed he was protecting the Church, he was dead wrong. The best thing for the Church would be a new bishop – one who complies with the law and one whose first instinct is to protect children from abuse.
Nor is this a matter of respect for the Church. Those who truly have respect, and high expectations, for the Church should favor prosecutions here. Those who recoil from the notion of bringing a man of the cloth to the defendants’ table, and potentially sending him to jail, should ask themselves, Would I favor prosecution for the identical acts if perpetrated by the day care center operator? And if so, shouldn’t society be able to expect more from respected members of the clergy, not less?
The Only Positive Facet of the Agreement: Church Reform in the Interest of Children
To be fair to Romley, while he should not have allowed such a lax settlement when it came to O’Brien’s criminal acts, he did at least extract some much-needed reform measures from the Church. Unfortunately, though, this amounts to protecting future children at the expense of ignoring the trauma abused children suffered in the past, for which Bishop O’Brien is culpable.
Romley was quoted in USA Today saying, “It’s not an easy call. But my primary consideration in this entire investigation is that I must assure that the abuse of innocent children stops and to make sure that it never happens again.” But why not both initiate a prosecution of the bishop, and make a negotiated deal with the next bishop that requires protection of children in the future?
After all, our hypothetical childcare center operator would have gotten no less. If her day care center had been allowed to continue to operate at all, it would have done so under new management and the watchful eye of the County Attorney.
At least the Church reforms that Romley has accepted, and the Bishop has promised, seem to be meaningful ones, even if they are no substitute for prosecution. According to the agreement, O’Brien must appoint a Moderator of the Curia – the equivalent of a chief of staff – who will have final authority over allegations of sexual child abuse and the policy to be applied in such instances. There will also be a Youth Protection Advocate (YPA), who will take responsibility for implementing and enforcing the diocese’s policy. The YPA will also be able to consult a special counsel, whose advice will be independent of anyone in the diocese. Finally, there will be a Victim Assistance Panel, composed of respected mental health professionals, which will clear requests from victims and their families for counseling.
In addition, the diocese will contribute $300,000 to the Maricopa County Attorney’s Victim Compensation Fund for victims of criminal sexual misconduct; set aside $300,000 for counseling of its victims; and pay $100,000 to cover the costs of the investigation.
Finally, the diocese and the County Attorney’s office will institute a training program to educate diocesan personnel on issues involving sexual misconduct and, within a year, will hold a joint summit on the issue.
These are all positive developments. But what of the decades of illegal activity, and the desert full of suffering, caused by the diocese?
A settlement agreement like this one simply cannot send the same message that a full-scale criminal prosecution, conviction, and sentence would have. Nor can it provide the public airing of evidence that is sorely needed here – particularly since this is a case in which a revered institution has used its privileged place to silence victims.
Had a trial been conducted (or at least a detailed report issued as in New Hampshire), the public could have reviewed the evidence for itself, and the victims would be allowed to have their claims vindicated publicly. Now this catharsis may never take place, unless victims succeed in overcoming statute of limitations issues with respect to civil suits, and even then, money does not buy justice.
Prosecutors Should Be Courageous In Prosecuting Church Higher-Ups
There is no question that it takes tremendous courage on the part of a prosecutor to empanel a grand jury to consider criminal charges against a Roman Catholic bishop or cardinal, and to prosecute those charges if the grand jury indicts.
The bishops and cardinals are, of course, part of the entrenched power elite of a community, with fervent supporters. If the prosecutor has political ambitions, this is not a step he or she will take lightly. Church members who do not want to believe that such elements exist in their Church may turn even the most credible accusations into claimed instances of “Catholic-bashing.”
Prosecutors should take courage, however, from the fact that there are scores of parishioners, especially those with children in affected parishes, who are rooting (even if silently) for the law. There are also plenty of priests who, themselves, want to see the bad elements within the Church excised. They, too, find the relentless, orderly shuffling of pedophile priests from parish to parish, state to state, and even country to country chilling.
The contrast between the cold calculations of the bishops, and the spiritual, emotional, and physical suffering of the victims is simply too great for any self-respecting law enforcement officer to be deterred by fear of bad political consequences. At some point, it is necessary to do the right thing, come what may. These are not the sorts of cases where prosecutorial discretion naturally disfavors prosecution. This is not borderline conduct. Rather, such prosecutions would be important impositions of accountability for premeditated, serial crime by those in power.
The Next Step: The First Prosecution of a Bishop or Cardinal
Phoenix and New Hampshire prosecutors have, at least, overcome their leeriness at even charging bishops or cardinals. Sooner or later, a prosecutor somewhere will dare to go further, and to actually prosecute the Church hierarchy for its knowing participation in the ongoing criminal sexual abuse of scores of children.
Would such a prosecution present a constitutional issue with respect to the Establishment or Free Exercise Clauses? Not at all. The Church does not believe, as part of its theology or mission, in the sexual abuse of children. Thus, typical problems that arise in true Establishment and Free Exercise cases would not arise here.
For one thing, there is no need for the court to interpret religious law, as might be the case, for instance, in an internal battle for power within the church. If a Bishop goes to jail, the Church, not the court, will choose a successor.
For another thing, there is no conflict here between religious belief and secular law, for no religious belief inspired these crimes or their cover up. Meanwhile, even if faith had played a role, that would provide no constitutional defense, as I have explained in an earlier column. Wisely, the Constitution – as interpreted in the Supreme Court’s current free exercise precedent – does not stand between religious entities and generally applicable, neutral criminal laws.
In short, from the perspective of the Religious Clauses, there is simply no constitutional issue here at all. In the end, prosecutors are facing the run-of-the-mill problem of having to apply a generally applicable rule of law to violators of that law.
That’s why the day care operator analogy works so well. Like the day care center operator, the Church erred grievously in fulfilling its duty – common to parents and caretakers, both secular and religious alike – to protect children from harm.
For this reason, prosecutors, grand juries, and courts addressing the clergy abuse scandal should be confident that the Constitution provides no impediment to their acting to serve the public interest by bringing religious individuals and entities to task for violating the criminal law. Now we will have to wait to see if any brave prosecutor, somewhere in this country, has the nerve to do so.
Professor Marci A. Hamilton, How The National Conference Of Bishops’ Proposal On Handling Child Abuse Should Be Changed: The Devil Is In The Details
/in Colorado, Connecticut /by SOL ReformThe U.S. National Conference of Bishops has now released its draft proposal for dealing with the child abuse scandal that has dogged the Church for months. The proposal includes an apology – one that has been deferred far too long.
It also includes a number of important policy changes for the church: All accusations of sexual abuse, it proposes, must be reported to law enforcement authorities. (This was the absolute minimum the Church needed to do to avoid schism or marginalization). It also proposes defrocking all future pedophiles (though it strangely protects past pedophiles who have “only” done it once), eschewing confidentiality agreements, and making full disclosure regarding transferred priests.
As readers of my prior columns on the Church scandal are well aware, I have called on the Church to do more than the minimum to acknowledge and redress the harms to children it has permitted. Accordingly, having reviewed the Conference’s proposal’s highlights, I must give the Church its due–these are constructive moves in the right direction.
Why the Church Needs to Go Further to Effectively Protect Children From Abuse
The Bishops’ draft proposal, well-meaning as it may be, still reads too much like a response to the public opinion polls that followed the scandal. Instead, it should reflect a reordering of the Church’s priorities – away from protecting itself and its reputation, and toward protecting children. The Church has now heard first-hand from hundreds of victims; it has a golden opportunity here to use what it has learned to improve the plight of children at the hands of trusted clergy abusers. What it does now in the public sphere can protect children of all denominations from the special terrors of clergy abuse. (The latest reports that the United Nuwaubian Nation of Moors’ leader allegedly abused dozens of children in Georgia remind us that this is not a problem peculiar to the Catholic Church.)
To those at the Vatican and here who have started to claim anti-Catholic bias in the massive reporting on this scandal, one can only respond that the focus on the Church is in no small part due to the Church’s own self-absorption. If it were itself to make children the focus, the news reporting may well follow suit.
Children need to come first, and so far, the proposal is not framed to ensure that will be the case. The Church must persuade both those who have been abused (too many) and those disgusted with the abuse (many, many, many) that it means to make children part of its healing mission.
Accordingly, as I noted in my previous column, the Church needs to lobby (just as it lobbies against abortion and the death penalty) for child abuse reporting requirements that work. The Church argues that the “unborn” are children deserving protection; the born now need its close attention.
The Church also needs to support, and lobby for, longer statutes of limitations for child abuse.
Neither of these measures appears in the Bishops’ draft.
Getting the Reporting Requirement Right: No Broad Confessional Exception
Several states – specifically, Massachusetts, New York, Colorado, and Connecticut – deserve credit for trying to amend their child abuse reporting laws to include the clergy. These are difficult waters for states, wary of church/state separation concerns, to enter into, but they should not hesitate to do so, for such concerns can be misplaced under these circumstances.
Children’s advocates have pushed for a straightforward amendment that would include clergy in the list of professionals who deal with children and who must report abuse. Such an across-the-board reporting requirement for all those dealing with children, irrespective of whether they hold secular or religious positions, would be constitutional under the First Amendment’s Free Exercise Clause. It would be general, neutral, and dedicated to children’s welfare – not to penalizing or promoting religion.
But those representing the Church have pushed for a different approach. They argue that because no priest may reveal what he has been told in the confessional, there must be a blanket exception to reporting for information learned in the confessional. In support of their position, they rely on an evidentiary rule called the “priest-penitent privilege” that bars a court from requiring a priest to testify regarding the contents of a confession.
This argument is seriously mistaken. It is easy to confuse the apples of reporting with the oranges of privilege. (Indeed, Colorado did just that.) And it is true that a priest has a rebuttable presumption against revealing in court what he has heard in the confessional. But that does not imply that the priest cannot report what he sees outside the confessional that confirms the confession.
Consider this situation: One priest hears a confession from another priest who tells the first that he has abused a child who attends the church. Then the former priest notices that the boy seems very upset, and avoids any contact with the latter priest – with whom he was formerly close. Certainly these signs of possible child abuse should still be reported. Indeed, it would be bizarre if they could not be reported precisely because the former priest knew (based on the confession) that they were likely true.
The confessional was not meant to produce priests who see no evil, hear no evil, and speak of no evil.
The Imminent Risk Test Respects Both Children and the Confessional
Connecticut’s requirement that clergy report abuse in circumstances where there is “imminent risk of serious harm,” regardless of whether the information came from inside or outside the confessional, is right on target.
The rule has not been that all information obtained through the confessional is absolutely protected from disclosure. Rather, courts across the country have found instances where the clergy member must report. There are times when there are compelling reasons for the state to require such disclosure, and imminent harm to a child clearly is one of them.
Details That Determine Whether the Bishops’ and the States’ Proposals Will Work
It will depend on the state whether law enforcement or child protective services is the entity most likely to ensure the best interests of the children. Thus, in every state legislature, a fact-based assessment, and a careful decision, as to who should receive the abuse report is crucial. Has the entity in the past been responsive to child abuse reports, or have they collaborated with the Church in covering them up? If they did aid in the cover-up, can we trust them to act on abuse reports in the future?
In addition to the important question of who receives the reports, other seemingly insignificant details can defang a proposal. Consider, for example, a New York bill that would penalize only those who “willfully fail to file the form” reporting child abuse. Both the willfulness requirement and the form requirement may make the system less effective.
What if a person loses the form, or never receives it, or negligently (but not willfully) forgets to file? The telephonic or oral reporting requirements in the Connecticut law do more for children. So do Connecticut’s short time frames for reporting – which must occur literally hours after the reporting person or institution becomes aware of the abuse.
There will be no perfect law that will solve every single case of clergy child abuse. Nevertheless, with many states trying to reform their systems to protect children, there will be many laboratories for experimentation and testing as to which laws do, and do not work. That is the strength of this federalist system.
The Bishops’ proposal – and the states themselves – should pay careful attention to all the alternatives and choose the ones that, based on logic and experience, seem to work the best. The ones that fail should be shelved quickly.
The Bishops should add to their draft proposal a draft law that they will support in the 50 states and that will protect children from harm, even when initial information came through the confession. Even when the information only comes through the confessional, if the child is in imminent harm, the Church has a social, moral, spiritual, and public obligation to ensure that the authorities are identified and the child rescued from harm.
The Catholic Church has been a voice for justice and the downtrodden around the world. It is time for the American Catholic Church to look to the downtrodden within its own borders, and throw its still considerable weight behind the children.
Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law. Her previous columns on the Catholic Church scandal and on church/state constitutional issues can be found on the archives of her column on this site. Her email is hamilton02@aol.com.
SACRIFICIAL LAMBS?: Child Abuse, Religious Exemptions, And The Separation Of Church And State
/in Religious Exemptions /by SOL ReformSACRIFICIAL LAMBS?:
Child Abuse, Religious Exemptions, And The Separation Of Church And State
hamilton02@aol.com
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Should the Catholic Church be left to its own devices to “fix” the child abuse problem? Some are suggesting the answer is yes. They cite worries that interfering with a religious institution will jeopardize the Constitution’s separation of church and state, and concerns about insulting this otherwise venerated institution. The Church, however, has had at least eighteen years, and probably much longer, to clean house – after all, the Louisiana scandal broke in 1984.
Far from cleaning its mansion, the Church spent the 80’s and the 90’s shuttering its windows. It “solved” its priest’s sexual problems by transferring predatory priests – merely shifting them to prey upon a crop of fresh victims, trapped by faith and fear. When one of the victims or their families complained, they were intimidated and/or paid off.
A harsh characterization? Yes, but an accurate one – and a necessary one, if we are to combat the slowly emerging reasoning that the Church ought to be left alone or, worse, that it has a constitutional right to be let alone. In the midst of this scandal, such reasoning is scary stuff, and reminders of the real cost to children of letting the church alone are an important tonic.
There is no reason to treat the social response to this scandal as an either-or proposition – in which the government either virtually takes over the Catholic Church, or refuses to touch it. Both the Church and the government bear the responsibility now to ensure child abuse never happens again, or at a minimum is severely punished if it occurs. The Constitution provides no excuse for either to shirk this responsibility.
Religious Liberty, as the Framers Saw It, Had Limits In Criminal Law
Religious liberty does not require the government to back off in the face of irrefutable, weighty, and sickening evidence of a concerted enterprise to further criminal activity – especially when that activity is child abuse, perpetrated upon innocent, vulnerable victims without the power to protest or the ability to defend themselves.
At the time of the framing of the United States Constitution, religious leaders reiterated over and over again that religious liberty required the freedom to believe and to worship. However, they stressed equally passionately that when such belief broke out into overt acts injurious to others, the state could legitimately punish the wrongdoer. When the Constitution guaranteed religious freedom, no one believed it also provided a license to commit religiously-motivated crime.
This was true across a sweeping array of Christian denominations. Religious believers were not to be protected from the force of the law. Rather, they were expected to set an example for society; to try to serve the good of the whole by refraining from harming others in violation of the law. It was a given.
Over 200 years later, we have various entities wringing their hands about the imposition of government on the Catholic Church, as though the government should turn its sight away from the harm imposed. They just don’t get it. The only way to make this society cohesive and safe for everyone, is to impose criminal laws on religious believers along with everyone else.
If the imposition is so serious as to place a substantial burden on the religion, then let the religious believers argue to the state legislatures for accommodation–an exemption from the law. The legislature may then consider those requests, weighing them against the greater good, including the crucial interests of children.
When Religion and Children’s Welfare Are At Odds, Religion Wins Too Often
Why is it, in this society, that we have been so willing to accommodate religious institutions at the risk of children’s welfare? In legal clashes, before the Supreme Court and within our legislatures, religious institutions and religious parents tend to win even when it means that children lose.
For example, the clergy–the ones who should be serving the highest good–have been granted exemptions from state statutes that require other caretakers of children to report child abuse. The cost of this exemption is not just that child abuse may go unreported; the exemption also tends to destroy the chance it will be punished if it is later reported due to the unrealistic statutes of limitations in so many states.
For instance, this type of exemption allows the Catholic Church to raise the tissue-paper-thin but, to some, persuasive defense “the law did not require us to report,” as a reason the state should not intrude into church business. Yet, requiring reporting of child abuse allegations will enable the state to automatically get the information it needs from the church – without having to bear the unfair burden of first proving the very allegations it is seeking to investigate.
The undue latitude for religion where children are concerned does not stop with the Church – far from it. For example, Christian Science and Jehovah’s Witness parents have been given exemptions from medical neglect charges, even though their children have easily treated diseases and even though they suffer. And in the landmark case Wisconsin v. Yoder, the Supreme Court held that, despite Wisconsin’s compulsory education law, an Amish family had the right to end their children’s education at 8th grade for religious reasons.
Justice Douglas’s View: Children, Too, Have Rights and Interests
In Yoder, Justice Douglas wrote a particularly interesting partial dissent that raises important issues today. He argued that the Court should not have been so quick to treat the case as one between solely the Amish parents and the state. There was a third party, he noted: the child.
What if the child wanted to go to high school despite his or her parents’ wishes and religious beliefs? What if the seriously ill daughter of a faith-healing family wants to see a doctor despite her parents’ objection?
For Douglas, the child was not a pawn, but rather a person with rights. His message is worth our attention now that we discover so many children hurt by too many priests. Douglas pointed out how easily this society shelves children’s interests, and those interests are at risk amidst this emerging theory that the Church should be left to clean its own house.
There is a right way to handle this problem, and it is prescribed by the Constitution. Both government and Church need to get into the act.
The Church has broad latitude to clean house and it should do so immediately and for its own sake publicly – both because it is the right thing to do, and because if it does not, the government will have a basis for even more intrusion into church affairs than is currently warranted. But simultaneously, the government has the power and the obligation to prosecute child molesters and all those who assist such molestation by covering it up. (As I discussed in an earlier column, the legislature also has the power to eradicate the statutory exemptions to reporting requirements that have left the government and the public ignorant of this costly social issue. It should also lengthen or repeal the statute of limitations in such cases.)
If the Church’s housecleaning actually works this time, the government will have some spare time on its hands to devote to the others in this society who prey on children, and that is all to the good. In an ideal world, the Church would police itself and despite reporting requirements, would have nothing to report.
But that is not our world, yet. And if the Church does not begin to police itself far better than it has over the past decades, when it has known of abuse and done little or nothing, the government will and should be ready. Church and state were intended, in our Constitution and by the Framers, to be partners in achieving the public good. Sometimes that means the one must check the other when it veers off course.