The Catholic Church Is Not the Only Culprit in the Abuse Scandal:
Why Society Must Insist on Legal Reform

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Sep. 25, 2003

In a series of columns for this site, I have argued that the Catholic Church and its leaders should be held responsible for their role in the clergy child abuse scandal. My intent in so arguing has not been to attack Catholicism, or the Church. Rather, it has been to try to ensure that both survive, and thrive, in this country.

Indeed, my own family is Catholic--my husband, my daughter, and my son. And for my own part, I'm an incorrigible Presbyterian, but I attend Catholic mass every week. Thus, I have every hope that the Church can reform itself enough to continue on, and win back the trust of its faithful.

In this column, I will explain some of the ways in which the Church should reform itself. But there are other, equally responsible culprits in the scandal who must also reform.

The blame for the victims' suffering is society-wide. The newspaper editors who agreed not to air the Church's dirty linen failed the victims. The prosecutors who let the Church take care of its dirty linen failed the victims. The legislators who did not require clergy members to report child abuse, and who set shamefully short statutes of limitations for child sexual abuse, failed the victims.

This society's whitewashing of religious leaders--as though they can do no wrong--that Pollyanna attitude also failed the victims. For some of the victims, even their parents failed them. Every power on which those children relied for their well-being let them down.

Chief among the powers that betrayed these children is the legal system, the legislators who exempted clergy members from the duty to report child sexual abuse - and who set shamefully short statutes of limitations for such abuse, and the prosecutors who closed their eyes to obvious crimes.

Society must now reform state child abuse laws and then demand enforcement. If it does not, clergy abuse will continue to go unpunished, and history will judge the United States even more harshly.

The Catholic Church Must Be Reformed to Respect the Rule of Law

The primary reform the Church must undertake is to instill in its leaders a respect for the rule of law. It is a fundamental American principle that the law applies to every citizen - even the President, as Clinton v. Jones made clear - and to the religious and the secular alike, as Employment Division v. Smith made clear. There, the Supreme Court declared that general laws apply to everyone, even those who say they are breaking the law for religious reasons.

In many of the clergy abuse cases, the Catholic Church has argued for a so-called "Church Autonomy Doctrine." But as I have argued in a previous column, U.S. law contains no such doctrine - and, as I have noted in another column, it would have been anathema to the Framers. On the contrary, since the Founding, religious entities and individuals have been bound by the law just as all other entities and individuals are.

The Constitution's Establishment Clause and Free Exercise Clause protect religious freedom - but not the freedom on the part of religious persons and entities to break secular laws. The Establishment Clause means the government cannot prescribe a religion, or even religious belief in general. The Free Exercise Clause means there must be fair treatment of --and absolutely no persecution of - religious entities and individuals.

Neither of these guarantees, however, is implicated in the Church's well-orchestrated and outrageous actions. No Catholic tenet ever suggested abusing children, or giving pedophiles maximum access to children.

The Catholic Church's attitude toward the civil law has long been at odds with this fundamental and foundational principle - going so far as to threaten excommunication to any Catholic who attempted to impose the rule of law on the Church.

This attitude turned out to be not only wrongheaded, but tragic: If every diocese--the minute it knew of allegations of child sexual abuse--had turned to the civil authorities, instead of turning inward, this evil could not have festered for decades, with the numbers of victims climbing into the thousands.

Had the Church adopted a policy of reporting - not ignoring and, indeed, aiding and abetting - abuse, there still would have been isolated incidents of abuse, but there would have been no Church-wide scandal.

Legislatures Must Reform Child Abuse Laws, Especially Statutes of Limitations

Even if the Church does reform itself so as to speedily report child abuse to secular authorities, those authorities must act - and their failure to do so, too, has been a cause of the scandal. They, too, share culpability.

As I have argued in a previous column, I am firmly of the belief that there should be no statute of limitations for child sexual abuse - either in our civil or our criminal law.

Child abuse is a crime that is likely to be covered up by the perpetrator, who is likely to be an adult with authority over the child. And children lack the maturity to understand the devastation that is being wreaked on them. There are few, if any, crimes as to which delay in reporting is more understandable, or better justified.

The only arguments in favor of having statute of limitations for such abuse are absurd or makeweight. The absurd argument holds that, at some point, molesters should be allowed to rest easy, no longer worried about a potential prosecution. But why in the world should they be able to rest and move on, when their victims suffer for a lifetime?

The makeweight argument worries about stale claims and evidence. But in a case in which claims or evidence are truly stale, prosecutors may choose not to go forward. And if they do go forward, you can bet it's because they have good evidence of heinous abuse. Staleness is a proof problem in particular cases - not a reason to impose a blanket statute of limitations on all cases.

In any event, neither of these arguments comes close to outweighing the value to society of ensuring that children who have been sexually abused by trusted adults can - when they are ready - demand justice from their attacker.

So far, few states have taken the necessary steps to bring justice to child abuse victims. Connecticut, at least, has a respectably long 30-year statute of limitations. California has opened a one-year window for retroactive claims, and Wisconsin is considering introducing a bill that would do the same. Illinois, too, has opened a window for retroactive claims.

Different States Should Try Different Statute-of-Limitations Approaches

What is the best approach? That remains to be seen - and the genius of our federal system is that states can try different approaches. After all, when it comes to the issue we are discussing today--child sexual abuse--the states, not the federal government, are the primary sovereigns. It is up to states to become laboratories in which different statute-of-limitations experiments can be tried.

The value of the "laboratory of the states" implies, however, that those states that sit on the sidelines - refusing even to experiment with longer statutes of limitations - are harming not only their own citizens (and children, at that!), but also the rest of society.

Every state that sits on its hands, waiting to see what others may do, damages us all. States' failure to participate in the statute-of-limitations debate means that fewer ideas are out there, and that fewer legislators are engaged in devising reforms to address this widespread social tragedy.

States won't necessary get the new statutes of limitations right the first time - they might be too long, or might still be too short. But the current statutes of limitations are plainly unacceptable; it is these laws that have impeded the victims of the clergy child abuse scandal from getting justice, and that alone is reason to junk them, and start anew.

We cannot expect our state legislators to instantly hit upon a perfect solution. But we can expect them to strive for a good one - one that, at a minimum, is a large improvement over the current situation.

Doubtless, more tinkering will be necessary, for there are always unintended consequences to every piece of legislation. After all, drafters of legislation, being human, are imperfect, and some may craftily try to evade even the best-designed laws. But that is all the more reason to start the experimentation now that can lead us to the optimal system in the future.

The Deep Need For Justice For Past and Future Victims

Current abuse survivors need to find justice for their own hurts; they cannot, and should not, be forgotten in reform efforts. But as they go forward, my hope is that they may be able to find at least some small consolation in knowing that they are simultaneously forging the path for children in the future. Many future children can be spared abuse if we devise a better system - and even those who may still suffer it, will at least find that, in a better system, justice follows on its heels.

Victims' organizations - and by this, I mean organizations not only arising out of the of Catholic Church abuse scandal, but of other religious institutions' abuses as well - should unite behind a common agenda. The agenda should insist upon religious institutions' compliance with the rule of law and upon prosecutors enforcing the laws against religious institutions that apply to everyone else. Neither the Constitution nor sound public policy counsel in favor of permitting religious institutions a free pass when the issue is child sexual abuse by trusted adults.

Future victims need the criminal child abuse statutes of limitations extended; past victims need the civil child abuse statutes of limitations extended retroactively. Only then can justice triumph over this particular evil.

All of us--newspaper editorial boards, legislators, prosecutors, and citizens--should urge states to extend or abolish their child abuse statutes of limitations. To those who may think that the Supreme Court's recent decision in Stogner v. California bars retroactive extension of a statute of limitation, they are right if the retroactive extension applies to criminal child abuse charges. They are wrong when it comes to civil claims. Legislatures have broad latitude to alter, even retroactively, civil statutes of limitations, and this situation cries out for retroactive extension for the thousands of survivors of clergy abuse.

The result, ideally, will be justice not only for current victims, but also for society as a whole. If society achieves this agenda, we will have brought sunshine to the dark places where too many have already traveled, and closed off those places so that few - or someday, none - must venture there.


Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her previous columns, including those on the Catholic Church abuse scandal, can be found on the archive of her columns on this site. Her email address is hamilton02@aol.com.

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