COMMENTARY
Lessons from Ohio
Background: As noted in the April 6
Vineyard Diocese/State Watch for Ohio: “The Senate
gave final approval yesterday to a House-passed bill that
requires church officials to report suspected instances
of abuse and creates an Internet registry of unconvicted
sex offenders who are found liable in a civil case. After
heavy lobbying by Ohio Catholic bishops, the House stripped
a provision that would have given victims a one-year window,
or look-back, to file a lawsuit for child sex abuse that
occurred as long ago as 35 years.”
How the Ohio Legislature Betrayed Child Victims of Clergy
Abuse, and How We Can Stop It from Happening Nationwide
by Marci Hamilton (hamilton02@aol.com)
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 Hamilton02@aol.com.
Professor Hamilton's most recent work is God vs. the
Gavel: Religion and the Rule
of Law (Cambridge University Press 2005).
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
cover up.)
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.
- Also
read Hamilton’s “How the Laws Look
the Other Way When It Comes to the Financial Improprieties
of Religious Institutions, And How They Should Be Amended
to Make Them Accountable.”
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