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The Laws We Need To Pass to Properly Punish Child Abuse

Thursday, Jun. 16, 2005

Evidence at Michael Jackson's trial strongly indicated that he is a child molester. There was testimony that he plied children with liquor, showed them pornography, and invited them into his bed - all behaviors typical of a molester.

Yet, the jury did not convict Jackson - apparently largely because they believed the victim's mother was a gold-digger. The problem, however, is that there is every possibility that she was a gold-digger and the boy was abused.

If this boy was indeed a childhood sexual abuse victim, he is just one more example of how the system works against these victims. And while nothing can be done now about the Jackson verdict, much can still be done about child abuse in general.

Revelations of clergy abuse taught us that the law has been inadequate to redress the sexual abuse of children. But that left a question: What would be an effective legal approach?

My view is that both the states and the federal government ought to act to address this heinous crime - in ways I will detail in this column.

The States: Abolishing Criminal Statutes of Limitations for Now and the Future

Tragically, the vast majority of the childhood sexual abuse victims who have come forward in the clergy abuse context have been unable to bring charges against their perpetrators and the institutions that fostered such abuse by hiding it. That is because the statutes of limitations for both criminal prosecution of, and civil suits based on, such abuse are shockingly short, as I have discussed in a previous column.

The solution is simple: All states should abolish the statute of limitations - as the federal government did in 1999, and as Maine and Alaska have done.

A number of states have merely lengthened their statutes of limitations. That is a step in the right direction, but it is not enough - for several reasons.

First, no perpetrator of such a heinous crime should ever be permitted to feel he is safe from prosecution or liability.

Second, by its nature, the crime of child abuse is often reported only years - typically decades - later. It takes time for victims - whose abusers often threaten them in the strongest terms - to come out from the burden of confusion, fear, and shame that they feel. Given this reality, we should not have statutes of limitations that will, in reality, leave many genuine victims out in the cold when they are finally able to come to terms with reporting their abuse. Moreover, these predators typically have a string of victims. If the victim from the past can come forward, it may well aid a victim today. Bringing this information into the public square, regardless of when the abuse occurred, is crucial in stopping serial abuse.

Third, as is the case with murder (which has no statute of limitations), child abuse is a crime such that the perpetrator himself may take measures that allow him to avoid detection for decades. Murderers, of course, silence their victims permanently and literally. But child abusers may use less literal silencing techniques on vulnerable children that are just as effective.

After all, they have the advantage of age, power, and often, a position of authority. They can threaten their victims in a way that makes a terrifying psychological imprint for decades. They can also, at times, call on their superiors to aid in the cover-up - as occurred when religious institutions opted to "handle" the problem internally, instead of reporting the abusers.

The States: Retroactively Abolishing Civil Statutes of Limitations

Under the Supreme Court's decision in Stogner v. California, no government may revive a criminal claim that is time-barred; to do so, the Court held, is unconstitutional under the Ex Post Facto clause, which bans certain retroactive laws.

But the states can - and ought to -- do so with respect to civil claims against the perpetrators and those who assisted them. They can do so by opening a "window," during which civil claims are not subject to the defense of the statute of limitations.

Indeed, California and Illinois have done so already. Moreover, New York is considering such a bill this week, and may well put it on the fast track. As discussed in a previous column, the Ohio Senate recently passed a window bill unanimously; it is now pending in the House.

Finally, the Governor of Wisconsin just announced that he supports a window in his state. And no wonder: There, one of the most deplorable clergy abuse cases we've seen - one in which there was clear evidence of institutional responsibility for the abuse -- was summarily dismissed on statute of limitations grounds.

All fifty states and the District of Columbia - as well as the federal government, with respect to abuse that comes under federal jurisdiction because it occurs on military bases and the like - ought to adopt "window" statutes.

Otherwise, heinous perpetrators not only will continue to walk free, they will continue to suffer no punishment whatsoever. Worse, the truth will remain hidden, and victims will not have the psychologically freeing experience of having their claims vindicated through presentation in a neutral forum. Private settlements are simply inadequate for these victims; they need the legal system to stand behind them as they search for some measure of justice and closure.

The States: Amending Child Abuse Reporting Requirements to Include Clergy

Most states require professionals to report child abuse, though some exempt clergy. Such an exemption is a mistake, however.

The reasons to put a reporting obligation on clergy are plain: They have unique access to family dynamics and may well be in a better position than even a doctor or teacher to save a child from further abuse. Without a legal obligation to report, though, they are simply too tempted to "keep it inside the church," as we have seen in a number of congregations.

And on the other side of the balance, the arguments against such a requirement are makeweight at best. There is no sacrifice at all to religious belief or practice in requiring clergy to speak up when they learn of child abuse; if anything, religious belief and practice ought to be vindicated by doing so. No religion - except aberrant cults - treats child sexual abuse as a religious tenet.

Churches can be free, yet still be good citizens. It is absurd for them to claim that their independence is comprised by the minimal obligation to help children who are being abused, rather than turning a blind eye. Nobody should fail to understand the primary moral, political, and legal lesson arising out of the Roman Catholic Church's clergy abuse experience: self-policing of child abuse, even by religious organizations, simply does not work.

The States and the Federal Government: Organizing Data about Child Abusers

As experts have come to realize that pedophilia is an incurable condition, the United States has moved from a rehabilitative model to a tracking policy to deal with perpetrators.

Accordingly, a number of states have a version of Megan's Law, which requires the registration of convicted sex offenders on a public registry. One problem with such registries, though, is that pedophiles may move across state lines, making it difficult to track their movements outside the state.

SCAN USA, a Houston-based, for-profit company, is providing free information to its subscribers about predator movement between states to those in California, Texas, and Florida, with an eye to covering the entire country. SCAN USA is filling a gap that should not have existed and is better handled by government agencies. The Department of Justice (DOJ) has announced that it is coordinating the states' sexual offender data into a single database.

Victims, though, are not satisfied that the DOJ's registry will be adequate. They say that there are too many predators who are guilty and are accused, but are not convicted, and therefore evade the sex offender registry.

Why? Sometimes, prosecutors offer a plea bargain to a lesser offense - a practice that does children little good, especially if the offense is a misdemeanor that may not even be reported on a job application. These bargains are made in response to the difficulty of proving a crime committed in private against a child; the same difficulty also doubtless leads to the acquittal of guilty persons.

The one thing no government could do is to publish a list of "possible" pedophiles. Each state, however, could report to the DOJ any public records involving charges against individuals on these claims, and the DOJ could publish on the Web the compilation of the data.

Pedophiles typically have dozens of victims during their lifetimes. Such a federal listing would make it possible for victims to search to see if their perpetrator has been the subject of other allegations.

Another option might be to create a special misdemeanor for pedophiles - one that prosecutors could offer, but that would still go on Megan's List. Bargaining pedophiles down to loitering or public nuisance charges is not the answer.

Yet another option would be to create a "three strikes" law for pedophile misdemeanors - in which the third would be tried as a felony.

All these options have one goal: Get information that will protect children out there, where the public can access it. If there is anything we have learned from the sharing of information regarding abuse in the Roman Catholic Church, it is that victims are empowered when they learn they were not the only child victim, but rather one in a series. Finally, they understand that it really was not their fault, that the adult was a criminal perpetrator, not a figure to be respected.

And Megan's List shows us that victimization can be prevented with knowledge: If a parent finds out there's a pedophile next door, she will watch her children all the more closely. If a would-be babysitter appears on Megan's List, parents can get together to get the word out.

The modus operandi of the pedophile is significantly undermined if the secrecy he or she values so much is breached. Thus, government should work to make evidence of pedophilia easily accessible to the public.

States and Federal Government: Revocation of Institutions' Tax-Exempt Status

It should be painfully apparent by now that the law has been inadequate to deter and punish institutions that know about child abuse. Even before the Catholic Church, we knew about the Boy Scouts and child day care centers.

As I proposed in USA Today last week, nonprofit, charitable institutions that have the benefit of tax-exempt status should lose that privilege - on both the state and federal level -- if they foster or cover up child abuse, or fail to report it to the local authorities. Remember, this status is a privilege, not a right: When it's abused, it should be revoked.

Nonprofits receive the benefit of tax-exempt status in the first place, because they are especially beneficial to society, and because we want to encourage them to continue being beneficial. Those that hide and abet child abuse have crossed the line from beneficial, to horribly destructive: They damage this society incalculably by harming these victims for life.

The Federal Government: Aggressively Apply the RICO Statute

The federal Racketeering-Influenced Corrupt Organizations (RICO) statute - which has both criminal and civil sections - was enacted to address Mafia behavior. But by its language, it can be used to combat patterns of certain federal crimes (including wire and mail fraud) when they involve an institution.

And when it comes to churches and child abuse, such a pattern may well exist. (For instance, when a church sends out mail asking parishioners to welcome a new priest without disclosing his history of abuse in another parish, that may well be mail fraud. And phone calls that involve lies that do damage may well count as wire fraud.)

RICO has been used against corrupt unions; it is not far-fetched to envision that it could be used against corrupt churches as well, as I discuss in a prior column.

Unfortunately, civil RICO has proved inadequate to bring those institutions fostering child abuse to account, because it requires a showing of harm to property, as opposed to harm to the person. (The idea was that it could address crimes such as arson against shopkeepers who refused to pay "protection" money.)

Congress could - and should - amend civil RICO to encompass patterns of federal crimes that cause harm to the person as well. Surely child abuse is as harmful, in its way, as arson; surely a pattern of abetting or covering up abuse is as, or more, insidious as a pattern of committing arson against non-paying shopkeepers.

But criminal RICO is another matter; it is not limited to property damage. Unfortunately, however, it requires a prosecutor to take action, and it is hard to find the prosecutor daring enough to charge the higher-ups in a religious organization, like the Roman Catholic Church, with serious crimes.

Such charges may seem like career suicide, so only those with an extraordinarily strong moral compass will file them. Many, if not most, prosecutors have political ambitions that overcome their moral consciences on matters like these. And this is as true of those who support "family values" as those who are not part of that particular movement.

In the not-too-distant future, though, it will be those who did prosecute known abusers who will be among those revered and then elected. We can make it arrive faster, though, if we make it known that our litmus test, in voting, is the courage to indict, on RICO charges, those churches and institutions whose actions, with respect to child sexual abuse, fit the law's requirements. Someday, those who failed to bring such charges may be as reviled as those who once thought segregation - also supported by some powerful, including religious, institutions - was acceptable.

There is, then, some bad news. But neither the frustrating Michael Jackson verdict, nor the Catholic Church's stalling tactics in litigation across the country or lobbying efforts to defeat child abuse initiatives, nor the loud silence when it comes to RICO indictments, should defeat the hopes of the many who still believe in effectively combating child abuse - wherever it occurs, and whoever is trying to protect the perpetrator.

There is a legal path that can lead to the protection of children, as opposed to the predators and institutions who cover for them. As noted above, various legal initiatives that have been introduced in some states, and on the federal level, are encouraging, and would be helpful. We need to make sure they become law, and make sure they spread across the nation. This is a righteous cause.

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 book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005) has just been released.

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