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How the Ohio Legislature Betrayed Child Victims of Clergy Abuse, and How We Can Stop It From Happening Nationwide

Thursday, Apr. 06, 2006

Last week, the Ohio House sent a bill to the Governor's desk that requires clergy to report child abuse. That sounds like good news - but closer inspection shows the bill is extremely disappointing. And worse, it is not the only way Ohio has grievously let down victims of child abuse.

Last year, as I described in a previous column, the Ohio Senate unanimously passed legislation creating a window of time during which the statute of limitations would not apply, and lawsuits based on prior clergy child sexual abuse could be brought. Fittingly, the Senate accorded the victims who attended a standing ovation.

But a year later, the House Judiciary Committee caved under the pressure of the Catholic Conference -- gutting the same bill and filling the void with a toothless child abuse reporting requirement and an ineffective, insulting "civil registry," which, as I will explain, bring the victims no closer to justice.

In this column, I'll discuss these two developments and their implications for clergy child abuse issues nationwide.

The Disappointing Ohio Bill on Reporting Clergy Child Abuse

To begin, let's consider the Ohio bill requiring clergy to report child abuse - which was swallowed up by three large exceptions:

First, incest need not be reported, because only abuse by "clerics" is covered. Second, "volunteers" are relieved of any obligation to report abuse, even if they were in a position to learn about it. Third, clergy are exempted from the requirement to report abuse if such a report would violate a so-called "sacred trust," which includes any interpretation of "canon law" or "church doctrine."

Be warned: This third exception doesn't just include admissions of abuse made in the confessional. It includes any situation in which the church vouches that the relationship required secrecy. (Similarly, the Catholic Church has been arguing in clergy abuse litigation that any speech between a bishop and a priest is "privileged" because it involves the "formation" of the priest. They have been losing in the courts, so now they are intent on hiding their secrets this way.)

How Ohio Destroyed Its Statute of Limitations "Window" Bill

Now let's consider the demise of the hope that Ohio would have a true statute of limitations "window."

What the statute, as passed by the Senate, would have done was to allow victims new hope in pursuing civil claims against the primary perpetrators and organizations that fostered a culture of child abuse -- permitting them a "window" of opportunity to file against those responsible for their abuse, even though the statute of limitations would otherwise have run. California has already passed such "window" legislation, and about a dozen states are now considering or introducing similar legislation.

Why are such "windows" needed? It's not because victims are not diligent (especially given the trauma they suffer). It's that the statutes of limitations for child abuse are unreasonably short in virtually every state. The upshot is that by the time the typical victim comes forward, it's tragically too late.

So Ohio's "window" bill, as passed by the Senate, was a terrific idea. But by the time the bill got to the Ohio House, things changed. The Catholic Conference argued that it was unconstitutional for the Ohio legislature to revive a civil action retroactively, because the defendant purportedly has a vested right in avoiding future liability.

Having testified on the constitutionality of the Senate Bill before the Judiciary Committee, I am familiar with all the cases, and I can assure readers that this argument is, in a word, meritless. The best case the Catholic Conference could cite was about a century old - and its reasoning long superseded. The Ohio Supreme Court has never found a vested right in a defendant. In addition, plenty of federal law indicates that a civil statute of limitations "window" is likely constitutional.

I also testified that it is rare that constitutional reasons are ever enough to scuttle legislation; there is always some other agenda at work. While Republican members of the committee reacted with great offense that anyone would accuse them of not caring about the Constitution, I was correct. The very constitutional principles they held so dear the day of the hearing are plainly violated by the bill they substituted. The moral hypocrisy is extraordinary.

In any event, constitutionality was not the real concern here. The expressed concern on the part of the Church was money - the money needed to compensate deeply injured abuse victims the Church helped to create, including money to pay for their medical treatment. And that concern was grossly overblown.

The Catholic Conference lobbied hard, and the Bishops claimed in the newspapers that they would be "bankrupt" if the window legislation were passed. In fact, no one knows exactly how much money the church has - and it is likely to be much more than the church claims. Revealingly, not a single diocese charging "bankruptcy" has revealed its actual worth, as compared to the cost of the anticipated claims against it.

The Church claims to have paid out over $450 million over the last year. But what percent of the Church's total holdings does that represent? No member of the press has ever, to my knowledge, done the homework to figure that out. That's shameful, for the investigative resources are there: Journalists ought to start surfing the Web for properties where the address of the titleholder is the address of the Archdiocese's offices. Such properties (often commercial properties) are legion: Diocesan wealth stretches well beyond the visible parishes, seminaries, and mansions for the hierarchy.

The Church also complains of the "hit" Catholic Social Services will take. But in fact, over 80% of the funds supporting Catholic Charities comes from the state and federal governments, with about 14% from independent charities, like the United Way. A mere 1-2 % comes from parishioners.

Thus, even if the Church were to cut out its support altogether, Catholic Charities might have to trim some administrative costs at most. Finally, the charitable activities of individual parishes often happen with money collected from inside the parish, which is then spent locally, so those activities would not be affected by making the Church's victims whole out of Church wealth.

The Legislature's Pale Substitute for the "Window" Bill: A Retroactive Civil Registry

Despite the factual weakness of the Catholic Conference's arguments, in an eleventh-hour maneuver, the Republican members of the Committee gutted the statue of limitations "window" bill, replacing it with a retroactive "civil registry" provision.

Here is how the registry - a pale substitute at best - would purportedly work: Suppose the statute of limitations has expired as to a particular childhood sexual abuse claim. A prosecuting attorney can bring a declaratory judgment action (that is, a judgment that seeks a court order, not damages or incarceration of the accused) against a named perpetrator.

The action is meant to determine if the perpetrator would have been found guilty, had the action been timely filed. If so, he is required to register his name in a public registry and to reside over 1,000 feet away from any school. Failure to register is a felony. Placement on the registry, and penalty for nonregistration, are the only remedies the statute provides.

Alternatively, if prosecutors do not act, then a victim can try to procure the same meager remedy via a lawsuit. But to do so, the victim must hire an attorney. The bill gives the victim attorney's fees if he prevails, but if he does not, he will have paid the steep costs of litigation for precious little.

In Practice, the Registry Is Likely to Be Ineffective In Addressing Abuse

That's how the registry would work in theory. But how would it work in practice? Not well, I fear - for several reasons.

First, the cost-benefit analysis weighs against prosecutors being aggressive here. This is an unfunded mandate that gives prosecutors more to do, but no more money to do it with. (Nor does it provide money to the sheriffs who are supposed to monitor those on the civil registry in their jurisdictions.) Prosecutors live to put bad guys in jail, not to expend all of their resources to put together a list of names.

Second, names do not reside on the registry permanently. Instead, if six years pass, and no further sex abuse claims are made, the perpetrator's name disappears! Thus, getting a name on the list is not merely a small victory, it's likely a temporary one.

Third, this law won't go into effect without endless litigation - for surely the first defendant to be named will claim that this is a civil retroactive law that unsettles his "vested interest" in the passage of the statute of limitations. To do so, his lawyer will merely need to cut and paste from the Church arguments against the "window." In other words, the Church hypocritically defeated the window by introducing a substitute that harbors its objections to the window.

Defendants also will argue that their due process rights are violated, and that while the Supreme Court has upheld Megan's laws, those laws were derived from beyond-a-reasonable-doubt criminal convictions, not upon on a hypothetical, preponderance-of-the-evidence finding of guilt. Finally, they will argue that the felony penalty for not keeping the local sheriff apprised of their residency is a retroactive criminal law that violates the Ex Post Facto Clause - contending that the penalty punishes both the original, statutorily barred offense and the failure to register.

These Victims Deserve Compensation, Just as Other Tort Victims Do

The most glaring problem with the registry, of course, is that it cuts the victims out of any fair compensation for the harm done to them. It is an axiom of American justice that those who do harm must compensate those they hurt.

Moreover, the hurts these particular victims suffered are profound: endured when they were children, resonating through their adolescent and adult lives, and of the most personal, terrible kind. If we were to exempt one class of victims from our system's protections, it must not be children whose lives were ruined by adults they trusted.

Sadly, these victims of an organization hiding ugly secrets would have been a lot better off if their hearts had been injured by Vioxx. No one is suggesting that Merck should not be held liable and accountable if it harmed patient's health by keeping secret reports about Vioxx's potential harmfulness; indeed, a class action was just approved.

Putting the Focus on the Perpetrator--and Moving It Away From the Church

In one ironic way, Ohio's civil registry law is actually very effective - effective, that is, in allowing the Church to keep its dirty secrets.

The mock trials that decide if defendants will end up on the civil registry focus onlookers' attention right where the Church wants it: on the direct perpetrator of the abuse -- and far away from the Church and its pivotal role in creating opportunities for child abuse, when it turned a deaf ear and a blind eye to its occurrence.

The registry does not include a category for organizations, dioceses, or parishes that harmed children. Surprise, surprise.

National Implications: The Need to Confine This Precedent to Ohio, At Least

In the end, the Ohio legislature's actions aren't just disappointing, they are appalling - for they not only leave documented, past child abuse uncompensated, but also give the perpetrators the latitude they need to abuse more children. Clergy abusers and the organizations that fostered the abuse must be reading Ohio headlines and breathing a sigh of relief. They can now relax, because the cadre of past victims remains powerless to find justice. The perpetrators will hardly be concerned with the straw man registry, knowing that it will either be unenforced or tied up in litigation during their lifetimes. And if someone in a religious organization learns of the abuse, the reporting requirement is narrow enough that they are unlikely to be reported to the authorities.

(For those who believe the bishops that there is a zero-tolerance system that requires such reporting, you will have to ask yourself why the churches worked so hard to get a reporting requirement that is so gutless if they were reporting already. Cardinal George of Chicago and Bishop McCormack of Manchester, New Hampshire, are just two recent examples of the continuing coverup.)

Notice to Ohio's citizens: There is apparently nothing anyone can do about the internal corruption of the Church's hierarchy when it comes to child abuse by its own, but it is possible to punish those elected representatives who are willing to choose the corrupt over the abused.

Speak out, in Letters to the Editor and in your community, and above all, vote these cowards out of office. In the meantime, should any of the representatives who made this evil choice ever claim to be "family values" conservatives, feel free to laugh in their faces.

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

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