Marci A. Hamilton

The Maturing of a Movement: Statute of Limitations Reform for Sex Abuse Victims

By MARCI A. HAMILTON


Thursday, June 11, 2009

When the California legislature passed amendments to its statute of limitations on child sex abuse in 2002, no one knew that its members were initiating a revolution for child sex abuse survivors. The key innovation was the "window" legislation, which gave survivors one year (2003) to file claims even if the statute of limitations for their claims already had expired. In this column, I'll consider the growing influence of this important law and its supporters.

The Facts Learned from the California Experiment

There is no question that the California legislation was passed in part as a response to the public revelations about the cover-up of child sex abuse by the hierarchy of the Catholic Church, stemming from the investigative reporting in the Boston Globe. But the legislators did not pass the window legislation to apply solely to the Church. The legislators took what they had learned from the problems with the hierarchy of the Church – the fact of pervasive and hidden child sex abuse – and then passed legislation to benefit all victims of child sex abuse. Thus, the legislation was not at all anti-Catholic, but rather anti-child abuse. Courts reached this obvious conclusion repeatedly, with Melanie H v. Sisters of the Precious Blood being the leading decision.

In California, over 1,000 survivors came forward (about 850 from the Catholic Church). No one knew, though, what the benefits or costs of the window would be. It was a large experiment. Now that the claims have been litigated or settled, however, there are important facts that we have learned for the first time, or that reinforced facts unearthed by previous studies:

First, window legislation is not just good for victims. It is good for everyone. Windows divulge the perpetrators' and their enabling institutions' ugly secrets. In California, the names of over 300 perpetrators who had never before been named publicly were released. And the bishops' role in placing children's needs below public appearances was also elaborated. Making that information public is a benefit to every parent and child.

Second, many survivors need decades to come forward. The fact that over 1,000 survivors (from a variety of groups) took advantage of the window confirms what social science studies have shown repeatedly: It is a psychological fact that child sex abuse victims are disabled from revealing the abuse at the time they suffer it and for many years thereafter. However, if given an opportunity to come forward years later, they do want to – and are finally able to – do so.

Third, until the window was in place, society had been making public policy based on too little information. The window revealed that the laws we have focused upon, like sex offender registries and pedophile-free zones, have assumed we know who the predators are. One of the greatest shocks in the last ten years is to learn that we only know about 10% of the perpetrators because of a broken legal system that shuts victims out of court before they get there. (Victims usually cannot name their perpetrators without the legal system, because perpetrators can and will sue the victim for defamation. If nothing else, child predators are adept at lying and dissembling.)

There were also important lessons that we learned from statute of limitations reform about trial lawyers and their contributions to society. Trial lawyers and their large contingency fees are routinely vilified, but Professor Timothy Lytton of Albany Law School has written an important book, Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse, which supports the view that the clergy abuse lawsuits were instrumental in educating the public about abuse in the Church and about how Church leaders handled it. Even Professor Lester Brickman of Cardozo Law School, one of the most passionate opponents of abusive contingency fee practices and author of the forthcoming book The Rent Seekers: Lawyers, Torts, and Contingency Fees, has praised clergy abuse litigation for its good outcomes for society.

Without the trial attorneys and the lawsuits, society would have remained in the dangerous darkness that keeps children at extreme risk. The Boston Globe investigation was a vital beginning; only through victim-led litigation can we get to the documents and facts that explain the full story to the people.

The Movement Has Moved Across the Country, with Delaware Passing Window Legislation in 2007 and New York Now Actively Considering It

After the California statute of limitations (SOL) window closed at the end of 2003, Delaware opened a two-year window in 2007, which will close in July 2009. Once again, in Delaware, survivors deeply appreciated the opportunity for justice and the public was educated about previously anonymous child abusers.

This simple but effective idea has taken hold among survivors across the country. And similar legislation has been proposed in a number of states. Wherever the idea of SOL reform legislation for child sex abuse survivors has popped up, newspapers have come out in favor of the legislation. Supportive editorials of a variety of approaches to SOL reform have appeared in the San Francisco Chronicle, Press Enterprise (Riverside, CA), Denver Post, Palm Beach Post, Chicago Tribune, Bowling Green Daily News, Louisville Courier-Journal, Baltimore Examiner, Baltimore Sun, Times Herald (Port Huron, MI), St. Louis Post Dispatch, Newark Star-Ledger, Bergen County Record, Akron Beach Journal, Cleveland Plain Dealer, Philadelphia Inquirer, Allentown Morning Call, New York Times, Albany Times-Union, Jewish Daily Forward, Journal News (Westchester, NY), Syracuse Post Standard, Dallas Morning News, Spokesman Review (Spokane, WA), and Milwaukee Journal Sentinel. Thoughtful people who look at the facts find SOL reform legislation to be a no-brainer. That is why its opponents often sound maniacal or hysterical.

An Anti-SOL Reform Backlash: Why the Movement's Enemies Are Fighting a Losing Battle

The window movement also has generated an anti-SOL reform backlash. When the California window legislation passed, the hierarchy of the Catholic Church was still reeling from its recent exposure in Boston, and other communities across the country, and did not put up much of a fight. When the hierarchy realized after its passage, though, that many of their victims in California would open the window on the Church's secrets, they quickly mobilized, hiring an army of lawyers in California to fight every case (and now to fight the release of every document, as I discussed in a previous column).

The hierarchy's fear of having its secrets spilled also has motivated it to lobby heatedly against SOL reform. At this point, the Catholic Conference in each state is charged with monitoring whether child sex abuse statutes of limitations reform legislation is pending, and to fight it. Overall, the Conferences are spending hundreds of thousands, if not millions, of dollars to fight the survivor movement. They throw at the reform bills every conceivable argument, regardless of whether it is true or false, and their tone is invariably inflammatory and vituperative; they quickly and thoughtlessly demonize anyone in support of child sex abuse SOL reform.

In New York, which is now the most active state with respect to SOL reform, according to the media, four lobbyists have been hired by the hierarchy to battle the pending window legislation, the Child Victims Act (recently amended). These lobbyists have concocted three arguments: First, they say that the original bill was "unfair" because it did not apply to public institutions. (In fact, this was an outright misrepresentation of the law; it opened a window for all victims filing against public institutions under federal civil rights law and for victims in state court who could ask for a waiver of a state procedural hurdle.) In the tone of "woe is me," with their "fairness" argument, they have worked assiduously to move the attention away from the victims they created (who are walking the halls of the New York legislature virtually every day at this point), shamelessly portraying themselves as the "real victims."

Second, they argued that the original bill was too "open-ended." It is just not fair, according to them, to make the Church liable for its bad acts decades ago – even though no one questions the continuity or consistency of this 2000-year-old institution or that they are more than likely guilty in a large number of cases.

Third, they have told their parishioners and the press repeatedly that they will go "bankrupt" if they have to pay damages to the victims they created, when this is simply untrue; the Church will be able to pay its liability by selling real estate unrelated to its mission and through insurance, as I detail further below.

An Increasingly Diverse and Politically Savvy Movement

The movement in New York has become much more diverse, and has expanded to include not only survivors of the Church, but also Jewish survivors and victims of family sexual abuse. The diversification makes tremendous sense, since these bills apply to every survivor, and since the vast majority of child sexual abuse victims faced perpetrators who were neither trusted religious figures nor Mr. "Stranger Danger"; rather, the largest category of victims includes the victims of family abuse. The survivors have found many other partners, including the National Black Church Initiative and numerous Jewish groups, like Survivors for Justice, and others to join with them in their cause.

Ironically, the opposition is limited almost exclusively to a select set of religious groups, though they account for a small percentage of victims. (That means they are lobbying against the victims of incest, the largest percentage of victims.) The Catholic hierarchy has found a partner in Agudath Israel in lobbying against such reform in New York. You can identify which religious groups in a particular region of the country have particular concerns about their sex abuse secrets. In Oregon, where a bill to extend the statute of limitations is being considered, the Catholic hierarchy is working very publicly with the Church of Jesus Christ of Latter-Day Saints to stop the reform.

The victims' movement has matured in other ways as well. The survivors have become tougher and savvier in the public arena. No political fight, especially one in which religious groups are throwing around their political weight, leaves anyone unscathed. The making of legislation is like the making of sausage: No one in their right mind would want to watch. In New York State, the movement has had to learn – as it faces the brass-knuckle politics for which the state is famous -- that this movement is no different than any other. When it seemed they had no chance at getting their legislation passed, they were treated with kid gloves and respect. But now that there is a real possibility that a statute of limitations window will become law, the Church hierarchy has adopted the motto "All is fair in love and war" -- or in their case, "All is fair if the result benefits the Church." The members beholden to the Church likewise have been cold to the survivors' faces, who in turn have gotten thicker-skinned and tougher.

The Child Victims Act Is Amended to Meet All of the Church's Potentially Reasonable Objections

In order to build the strongest support for the Child Victims Act in the Legislature, its primary champion, Assemblywoman Marge Markey, agreed to amendments that would explicitly expand its reach to public institutions and cap the age of those who could bring claims under this window at age 53. She simultaneously slayed the only two plausible arguments the Church had.

Victims across the state initially were distraught at the age cap and some reacted blindly, saying that if the bill did not reach every victim, it should be killed. And truth be told, some of the most ardent supporters of the legislation are cut out by the age cap. But to their credit, they quickly recovered and went back to the arduous task of educating members of the legislature about the travails of child sex abuse survivors, and the need for New York parents and children to know who the perpetrators are. Ultimately, they came to the conclusion that having a somewhat smaller window was still far better than having no window at all in New York.

The Church was then left with its groundless financial argument against the bill. A crucial fact that came out of California was that the Church does indeed have the resources to make up for the evils that the hierarchy visited upon children. The settlements were half insurance proceeds and half proceeds from the sale of property not related to religious purposes. No schools were closed, and no services were cut, just because the Church paid the damages due to its victims under law. The one filed bankruptcy case (of the San Diego diocese) was baseless, because the diocese had so many land holdings it did not belong in bankruptcy court. The filing was dismissed.

The New York hierarchy, though, has ordered its parish priests to say the opposite to parishioners on Sunday, claiming that religious mission is threatened by statute-of-limitations windows, but putting these lies behind the pulpit does not make them true. It does, however, bring to mind a line from Prizzi's Honor, when Jack Nicholson says to Kathleen Turner, two hitmen falling love, that the Sicilians would "rather eat their children than part with money and they are very fond of children."

Nor can lies be turned to truth when a bishop states them. Brooklyn Bishop Nicholas DiMarzio aggressively has tried to sell the fiscal story. The money story against the window legislation, though, is deeper than his shallow predictions of the end of Catholic services (largely funded by the government anyway). The New York Times reported recently that DiMarzio removed Rev. James O'Shea of Churches United from a Brooklyn affordable housing project to increase Assemblyman Vito J. Lopez's control of it. In an unsubtle move, Lopez then introduced a bill to compete with the Child Victims Act, which was obviously co-authored by church lawyers given its original exclusion of institutions (like the Church) from liability for harming children. That bill has lost momentum in another mark of how far the survivors have come.

After Markey amended the Child Victims Act to meet the hierarchy's only potentially reasonable objections, DiMarzio moved to condescension for the victims, saying that he knows what victims need more than they do. According to the Times, he declared that "the adversarial process of litigation would present an "insurmountable barrier to bringing about what is necessary — healing." With the number of survivors joining this movement nationwide and walking the halls in Albany, his paternalism is outdated, to put the best face on it.

Knowing that money alone could not sustain their opposition forever, the hierarchy ratcheted up the rhetoric. On June 8, the Catholic League for Religious and Civil Rights released a wild-eyed press release, calling New York's newly-amended Child Victims Act "chopped meat." The flailing for metaphor speaks for itself.

The movement was then thrown for a loop (as was all of Albany) when the New York Senate flipped from Democrat to Republican control this week. Showing their resilience, though, the survivors showed up in Albany the next days and went from office to office with the same message: This is the right and the best thing to do for New York's children. The two Senators who moved from Democrat to Republican were sponsors of the original bill, so there is every reason to believe this bill for children can be passed whether Republicans or Democrats are in control. A vote is expected in the Assembly next Tuesday, June 16.

At the same time, the reform movement has become more sophisticated, with the Survivors for Justice purchasing radio spots urging passage, other groups even hiring lobbyists, and the creation of a comprehensive website, www.sol-reform.com, on which I have taken the lead. Moreover, the movement has expanded well beyond survivor groups alone, to now include Parents for Megan's Law, the National Organization for Women, Pandora's Project, Justice for Children, the Leadership Council, and the National Sexual Violence Resource Center, among many other worthy organizations.

Out of these coalitions, a new mantra can be heard, one which proves that the SOL reform movement has truly grown up and embraced its adult role in the rough-and-tumble world of politics. That mantra is directed to New York legislators right now, and it is this: Vote against the Child Victims Act, and we will fight tooth-and-nail to be sure you are never re-elected.


Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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