Will State Legislatures Stand Up to the Catholic Church, and Pass Strong Anti-Child Abuse Laws?
Maryland's Example Suggests It Will Be A Tough Fight

By MARCI HAMILTON


hamilton02@aol.com
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Monday, Feb. 24, 2003

The latest figures show that over 4,000 children were abused by clergy members in the Catholic Church over the last several decades. That is a lot. One must wonder where the safety net was that might have protected these innocent, trusting children from men they were taught to trust.

We know where the Church was: protecting its own, both men and institution. And we know where the prosecutors were: deferring to the church leaders who asked that they be permitted to take care of the problem in-house. And where the newspapers were: deferring to the church leaders who asked that they not embarrass the church. And the parents: deferring to the church leaders as well, and either not reporting the abuse, or not telling the newspapers.

Thus the children suffered, and nothing was done. As a society dedicated to liberty, we have been extraordinarily slow in coming to the aid of children in pain.

This seems to be a new era, though - one where some newspapers, like the Boston Globe, have the courage to challenge the Church's pact of secrecy. And one where some prosecutors, such as the Massachusetts Attorney General, have the courage to bring the Church within the legal process.

Some judges, too, have been brave: Judge Constance Sweeney in Boston rightly has refused to read the First Amendment as a defense to wanton illegal behavior. And some states - in particular, Florida and New Jersey - have exhibited a growing awareness and appropriate outrage at the treatment of children under state care.

The question now is whether state legislators will have the courage to stand up to the Church's tactics, and pass the sorts of laws that will make it difficult for children to be abused in similar circumstances in the future. So far, some have and some have not.

Statutes of Limitations: Why States Must Extend Them To Target Child Abuse

The largest bar to prosecuting the church and its clergy for past abuse has been statutes of limitations for the relevant crimes and civil claims. With the scandal as large as it is, and the ugliness of the offenses, one would have thought state legislators would have jumped on board a movement to extend the statutes of limitations without a second thought. How could they lose? Only a few states have actually done so, however.

Why have legislatures been so reluctant (indeed, some might call it cowardly) on the issue? One clue to the answer appeared recently, when the Washington Post reported that the Maryland Catholic Conference was pushing to kill a bill that would extend the relevant statute of limitations.

Currently, in Maryland, the statute of limitations expires on the victim's twenty-first birthday, regardless of when the abuse took place. In other words, the law leaves the victim in the lurch the day the victim becomes an adult. That's ridiculous - it's unfair to victims, and overly generous to the Church.

The proper approach would turn the statute on its head - refusing to count any time before age twenty-one against the statute's limitations period, and starting, not ending, the limitations period on the victim's twenty-first birthday. Children do not have the maturity or resources to yet decide, on their own, whether to sue or testify (and parents, as we have learned, don't always help them). Moreover, adults who were victims as children need some time to decide whether to go through the additional trauma of suing, or cooperating in a prosecution.

That makes what is happening in Maryland all the more outrageous. The Church should have been assenting to the bill to increase the statute of limitations - and, at most, negotiating, over how long the extension would be. Instead, it is simply using the press in an attempt to kill the bill.

Those who hoped that the Church was going to find its way to being on the victims' side must be sorely disappointed - and rightly so. With the Church itself fighting legislative change, it will require exceptional bravery and integrity on the part of members of the state legislatures to improve the odds of children against predatory clergy members.

Clergy Abuse Reporting: Many States Need to Revamp Their Laws

Statutes requiring clergy to report child abuse or neglect are crucial, particularly in light of the Vatican's position that reporting is only required where it is explicitly mandated by statute. Seventeen states (including Maryland) do not currently require clergy to report known child abuse or neglect.

Meanwhile, the remaining thirty-three do have such a requirement - with two even requiring reporting of such information regardless of where it was obtained, including in the confessional. These latter, bolder states reaching out for the safety of children should lead the way.

Some wring their hands that requiring reporting without an exemption for the confessional violates the Free Exercise Clause. This is a severe misreading. The Constitution does not demand a confessional exemption--general reporting requirements can be imposed on similarly situated counselors, whether religious or secular, without special exceptions. Even if the Church were to attempt to argue that strict scrutiny must apply, the interest of children against abuse by those they trust the most is a state interest of the highest order.

In Maryland, child advocates have been attempting to get a reporting bill passed. The bill goes a long way in the right direction, requiring clergy members to report child abuse or neglect to the proper authorities. Like most states' reporting bills, it includes a confessional exemption from reporting, but only for confessions by perpetrators. It also makes absolutely clear that any information learned outside the confessional can serve as the basis for reporting.

So if a priest learns some information about a perpetrator's misdeeds within the confessional, and some information outside it, he must still report the latter information. Thus, suppose a priest hears a confession of abuse from another priest, and also receives a parent's complaint about that priest. He must report the information underlying the complaint, but he may protect the information contained in the confession he heard.

This provision is geared toward preventing the Church from hiding behind the confessional's privacy when it refuses to report abuse. And it is more than fair to the Church, as it protects the confessional unless the confession is about third parties. It is neither as stringent as those states that have no confessional exemption nor as lax as those states that give the confessional complete immunity.

Since Maryland's population includes many devout Catholics, victims' advocates offered legislation with an express exception for the confessional, in order to meet potential criticism from the Church. Sadly, however, the Church has turned this middle ground bill into an excuse for an impassioned media performance. Indeed, it has pulled out all the stops to oppose the Maryland legislation.

The Church's Unfair Opposition to the Maryland Legislation

For instance, the Church has gone straight to the press with outlandish claims. First, Bishop Theodore McCarrick stated in the Catholic Standard that the bill would require nonreporting priests to go to jail. That is simply not true.

Second, Bishop McCarrick has taken the position that the bill is an all-out attack on the confessional, an exaggeration intended to kill the bill, rather than help victims. In fact, as noted above, the legislation expressly exempts information disclosed by the perpetrator in the confessional from the more general reporting requirement. And if the Church is worried about protecting all confessions - not just the perpetrator's - it could simply suggest an amendment (removal of the word "perpetrator"), rather than opposing the entire bill.

Yet in a Washington Post story, McCarrick is quoted as saying "History is filled with stories of priests who suffered even death rather than break [the] solemn seal [of the confessional]. If there is a gauntlet involved in this process, then I throw it down now."

Such theatrics do not advance the cause of victims one iota. And they only undermine the Church's credibility.

McCarrick has been hailed as one of the most apologetic and outspoken clergy members who have responded to the scandal. The hijinks in Maryland, however, show that words are cheap. Actions speak far louder. If McCarrick means what he says, he should either support the Maryland reporting bill as is, or at most press for a broader confessional exception. And he should push for a defensible statute of limitations.

Whatever position he and the Maryland Catholic Conference finally take, it is up to Maryland's representatives to do what is in the best interest of the people--especially the children--and not to simply kowtow to an institution that for years has led too many down a path too dangerous for too many children.


Marci Hamilton is the Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University. Her columns on church-state issues, and the Catholic clergy abuse scandal in particular can be found in the archive of her columns on this site. Her email address is hamilton02@aol.com.

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