A Report Card for 2006 on Efforts to Protect Children from Sexual Abuse

By MARCI HAMILTON

Thursday, Dec. 14, 2006

There is an emerging civil rights movement for children in the United States, which is to say that children are finally actually getting a seat at the public policy table. Moreover, looking back at the past year shows a significant amount of progress on that front. City and state child protective service agencies in various states, such as New York, have been under close and critical scrutiny when children have been brutally treated; there is an initiative to create conditions in the schools that will help to abate the child obesity epidemic; and there has been a legislative focus on children, at both the federal and state levels.

This is not to say, however, that 2006 exhibits an unmixed record when it comes to children's needs. We had both victories for children, and disheartening defeats.

Victories in the Movement for Children's Civil Rights

Here are some of the victories:

Charges of statutory rape in a polygamous community were taken seriously by public officials. Notorious polygamist Warren Jeffs, whom I discussed in a previous column, and who is accused of orchestrating "marriages" between underage girls and much older men, was apprehended by authorities and is being tried in Utah.

Pennsylvania passed useful legislation in the wake of the Philadelphia Archdiocese child abuse scandal. Following the Philadelphia District Attorney's Grand Jury Report on the cover-up of child abuse within the Philadelphia Archdiocese, which I discussed in a prior column, D.A. Lynn Abraham turned to the legislature to repair the holes in Pennsylvania law that had made it impossible for her office to go forward, despite copious evidence of the Archdiocese's culpability. Her proposals spanned both criminal and civil solutions, all of them likely to be effective in bringing greater safety to children, and less comfort to child predators and their facilitators.

On November 30, Governor Rendell signed into law a bill addressing some of the Grand Jury's proposals. After much hard work, a coalition of organizations, including children's groups, Voice of the Faithful, the D.A.'s Office, and others, succeeded. The primary impediment to their efforts had been the well-documented behind-the-scenes lobbying of the Pennsylvania Catholic Conference, which had publicly stated that it took a "no-opinion" position on the criminal bill, but sang a different tune when it thought no one was watching. Despite the Catholic Conference's secretive efforts, the bill, championed by Rep. Denny O'Brien, passed the Pennsylvania House and was unanimously approved in the Senate.

To summarize briefly, the Pennsylvania law extended the criminal statute of limitations for child abuse by twenty-five years, to the victim's fiftieth birthday, strengthened the mandatory child abuse reporting and the "endangering the welfare of children" laws, instituted mandatory background checks in some circumstances, and strengthened Pennsylvania's Megan's Law. These are all good steps forward for children. (The D.A.'s Office and others involved in this successful effort are dedicated to fighting for reform of the civil statutes of limitations in spring 2007. As the Report notes, such an extension is crucial if we are ever going to identify the 90% of child predators out there - including perpetrators of incest, clergy abuse, teacher abuse, and the much less common stranger abuse -- who remain unidentified.)

In Delaware, names of abusers were released. The Archdiocese of Wilmington released the names of diocese priests accused of sexually abusing children. The bishop also encouraged religious orders - the Norbertines and Oblates of St. Francis de Sales - to do the same. The list appears on the diocesan website at cdow.org.

In Portland, a bankruptcy settlement was reached. Several years ago, the Portland Archdiocese sought federal bankruptcy protection to protect its assets, on the eve of trial implicating numerous victims of clergy abuse. After wrangling for several years over whether the parishes are the property of the Archdiocese, the Church and the victims came to a settlement this week. It is not easy for victims to wait out such extended proceedings, and, they should be given credit for hanging in there.

The irony here is that the settlementwas paidcompletely out of insurance proceeds and the sale of property (as, indeed, the vast majority of settlements across the country, including the large settlements in Boston, have been). No parishes or school were affected by the settlement. In other words, the Archdiocese's wealth placed it in a position to settle with these victims from the very beginning, making the over $17 million it spent on professional fees seem hardly justified, and the bankruptcy filing nothing more than a delaying tactic. The settlement also laid to rest (once again) the hierarchy's oft-repeated argument that victims have driven dioceses to litigation the Church cannot afford without undermining its provision of essential services and its religious practices.

An Equivocal Development: The Adam Walsh Law

There was one development that is a partial victory at best: Congress passed the Adam Walsh Law. As I discussed in an earlier column, the bill offered some protections for children, but did not address the reform that is an absolute necessity if victims of childhood sexual abuse are to be favored over predators: the abolition of the statutes of limitations. This reform needs to take place on both the criminal and civil sides of the law. In the civil context, it needs to be both retrospective and forward-moving, and in the case of the criminal context, only forward-looking, because the Supreme Court held in Stogner v. California that retrospective extension of criminal statutes of limitations is unconstitutional. Without the legal action barred by overly short statutes of limitations, the identities of abusers are secret.

Despite the passage of the bill, this key problem remains: Even if crimes are re-defined and reporting of predator's identities improves, we are still only obtaining the identities of only about 10% of abusers. Thus, unless the statutes of limitations are abolished or dramatically lengthened, all the bells and whistles of a law like the Adam Walsh Law will do little to reduce the strong threat to children posed by predators who continue to be able to operate in the dark, essentially invisible to society.

Setbacks in the Movement for Children's Civil Rights

The Foley Report turned out to be toothless. Another large, powerful organization dominated by men - the House of Representatives -- rendered only a slap on the wrist when the world found out that one of its own, Mark Foley, had been preying on underage House pages. The good news is that Foley's low-life antics were revealed to the public. The bad news is that the Foley Report, issued by the House Ethics Committee, is the best recent example of how this culture favors predators over children.

According to the committee, though the House leadership and its staff knew about Foley's offensive activities for years and did nothing, its blatant inaction in the face of this misconduct violated no House rules. Some have called publicly for the end of the page program -- a tremendous opportunity for young people to learn about their government -- but that's not called for. What is called for is an outcry for a change in House rules to make Members accountable and responsible for the children they hire as part of the page program. The idea that having a page program is too great a moral hazard for Members is appalling; meaningful reform in the interest of children is much preferable to junking the program, but, of course, reform would mean accountability. The solution to the problem the House Ethics Committee could barely bring itself to identify is not to eliminate children from this wonderful opportunity, but to force adults to behave when children are present

Doubtless, the members of the House are just thankful that the committee was able to hold off on its report until after the election. What this shows is that the risk to children in this culture from predatory adults pervades society, and is definitely not the select province of religious organizations; rather, it has also infected the most directly representative branch of our government. Moreover, as noted above, Congress's passage of the Adam Walsh bill should do little to save either House from reprobation, when it comes to the plight of the victims of childhood sexual abuse.

Colorado legislation to protect children is killed. Archbishop Chaput of Denver managed to kill Colorado legislation that would have extended the criminal statute of limitations for childhood sexual abuse, and extended the civil statute of limitations both retrospectively and prospectively. Only the felony sexual assault statute of limitations was reformed, (which is all to the good, but constitutes quite a small portion of the sexual abuse crimes against children and, of course, does not begin to reach civil statutes of limitations.) Such reforms harm institutions with histories of employee child abuse, because they typically bring to light the identities of numerous child predators unknown to date. The statute of limitations in child abuse is a perverse legal instrument that permits the predator to gain peace of mind after a given period of time, as it rarely permits the victim to have either justice or peace of mind.

Chaput hired a pricey public relations firm that perpetuated the hierarchy's poverty propaganda - claims that are severely undermined by the Portland Archdiocese bankruptcy settlement which, as noted above, indicated that the Church can function quite well while also settling its cases.

Now, Chaput is publicly patting himself on the back for an inadequately-funded victims' "compensation" fund, and making public statements (obviously packaged by his P.R. firm) about how he has to consider the needs of his "innocent" current parishioners, as well as those of the victims. Of course, he does not begin to take the sort of responsibility the hierarchy ought to, for creating the very victims he is now trying to triangulate. Nor does he explain to his parishioners that the advantage of a fund is that it permits him to continue to conceal the identities of those clergy accused of childhood sexual abuse.

He seems incapable of grasping the fact that the vast majority of victims want public justice, not simply money for counseling. That is why only 1/3 of the victims have come forward in response to his "generous" offer.

He completely glosses over the fact that he has never issued a statement of the diocese's actual wealth (translate: land ownership not dedicated to religious use, which typically runs into the hundreds of millions of dollars in a city the size of Denver), which would very likely prove that he does not, in fact, have to make difficult choices between members and hierarchy-generated victims. This is not an either-or proposition --the victims can be compensated, justice can be done, and the Archdiocese can easily continue to operate as it had in the past.

An Overview - and A Suggestion for the Future

On balance, 2006 could have been better for our nation's children, but it could have been worse, as well. Recent studies indicate that at least 25% of children are, at one time or another, the victims of adult sexual behavior, which means that child sexual abuse is the most pervasive public health and criminal justice problem affecting children in the country -- far outstripping issues like childhood cancer, autism, or poverty.

This large cohort of our society that cannot vote, and therefore frequently sits on the bottom rung of the ladder of public priorities, deserves better. Those in the power elite must push child abuse victims' needs up that ladder. Children's health (and education) issues receive huge philanthropic support from the likes of the Bill and Melinda Gates Foundation, which has given enormous amounts for health and education issues around the world. The mind-boggling number of victims of childhood sexual abuse right here in this country -- past, present, and future -- also need A-list champions for this civil rights movement to flourish.


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. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).

FindLaw Career Center


      Post a Job  |  View More Jobs

    View More