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  Changing the Rules
Selective Justice for Catholic Institutions

By L. Martin Nussbaum
America, carried by Opus Bono Sacerdotii
May 15, 2006

http://www.opusbono.org/casenews/ChangingtheRules.asp

The Boston Globe began publishing on Jan. 6, 2002, a series of reports regarding sexual abuse of children by priests in the Archdiocese of Boston. In a flash, newspapers around the country began reprinting the Globe’s reports and developing their own. They published 728 stories in January, 1,095 in February and 2,961 in March. By April these papers were publishing a new story every nine minutes, 160 every day, 4,791 for the month. By year end, American papers provided their readers over 21,000 stories of sexual abuse by Catholic priests.

A One-Sided Story?

The press’s obsession with the scandal was remarkable in other ways as well, beyond the large number of reports. First, the stories almost never deviated from one construction of the problem. Second, they consistently overlooked the much larger problem in other institutions; and third, they created the false impression that the “Catholic problem” was ongoing.

Professor Philip Jenkins identified the construct of these stories in his 1996 book, Priests and Pedophiles: “The dominant construction not only suggests the locus of the problem (the Catholic Church), but also places the blame on a patriarchal clerical elite anxious to defend the virtually hopeless cause of mandatory celibacy. The central theme is one of organizational deviancy, so that if the church’s policies and procedures could be reformed, the problem would be reduced or eliminated.”

Jenkins could, in 1996, identify this journalistic construct of 2002 because the story line was fixed in the 1985 reporting about a perpetrator in Louisiana, the Rev. Gilbert Gauthe, and the reporting in 1992-93 about a perpetrator in Massachusetts, the Rev. James Porter. The press so adhered to its construct that it seldom reported nonconforming facts. This is why few are aware that the largest single-victim judgment against a religious institution was not against the Diocese of Dallas. It is the $105 million judgment against the Episcopal Church Porter Gaud School in October 2000. The construct is also why few are aware that by 2004 over 500 claims of sexual abuse of children were filed in eight Hare Krishna bankruptcy cases.

The biggest problem overlooked by the press was the sexual abuse of children in public entities—in schools, foster homes and juvenile detention facilities. The problem of sexual abuse in public entities dwarfs anything in Catholic institutions. Professor Charol Shakeshaft authored the U.S. Department of Education’s study in June 2004 that found that 6.7 percent of K-12 public school students—over 3 million children—report being targeted by a school employee for sexual abuse involving physical contact. But the press was not interested. During the first half of 2002, the 61 largest newspapers in California ran 1,744 stories about sexual abuse in Catholic institutions and only four about the same problem in public schools. During this period, California ran 436 stories of “Catholic” sexual abuse for every story of public school abuse—even though, according to Professor Shakeshift’s analysis, 422,000 of current California public school students will be victims of sexual misconduct by educators by the time they graduate—a number that easily exceeds the total of 143,000 students enrolled in Catholic schools in California.

Can the Church Reform Itself?

The most misleading impression left by the press coverage was that the Catholic Church had not addressed its problem. This impression led victims, plaintiffs’ attorneys, judges, legislators and others to conclude that if Catholic institutions could not reform themselves, others would have to do so. The truth is that most American bishops learned the simple lesson taught by the Gauthe and Porter scandals—the lesson of zero tolerance. Those who behave in a sexually inappropriate way with children do not get a second chance.

The lawyers suing Catholic institutions came to understand this by April 2002. They knew there would likely be no appreciable number of claims against Catholic institutions based upon conduct after 1990. The John Jay College study showed that the over 300 instances of sexual abuse of children allegedly occurring in Catholic institutions every year from 1968 through 1980 dropped precipitously to under 50 per year by the mid-1990’s. While even one instance is too many, 50 such instances for institutions serving 70 million Catholics is, when compared with other institutions working with children, extraordinarily good.

A Problem and an Opportunity

Plaintiff attorneys recognized their problem and their opportunity. The problem was few new claims, and old claims barred by statutes of limitation. The opportunity arose from one-sided press coverage that had aroused public opinion encouraging legislators to enact legislation targeting Catholic institutions. With this, the plaintiffs’ bar, in concert with the victims’ groups, set about to retroactively change the rules governing their cases.

Two prominent attorneys who are suing Catholic institutions, Jeffrey Anderson of Minnesota and Laurence Drivon of California, led the way, with support from the Survivors Network of Those Abused by Priests. They drafted and lobbied for California Senate Bill 1779, which retroactively revoked settlement agreements already made in claims of sexual abuse of children, set aside defense verdicts based upon statutes of limitation and revived old, time-barred claims. Crafted to all but guarantee Catholic institutional liability, SB 1779 made 2003 the year when there would be no statute of limitation for such lawsuits in California. The bill passed unanimously, and over 1,000 new plaintiffs filed suit. As a result, California dioceses and religious orders are now defending claims in which the alleged abuse occurred as long ago as 75 years. The California settlements, involving around 200 claims, have so far resulted in over $250 million being paid to the plaintiffs, of which approximately $100 million went to their attorneys.

The plaintiffs’ bar, often with SNAP’s assistance, has now introduced legislation in at least 14 other states. New York, Iowa and Mississippi killed the legislation. Connecticut, Illinois, Ohio and Kansas extended their statutes of limitation. Colorado, Massachusetts, Maryland, Michigan, New Jersey, Pennsylvania and Tennessee are presently considering legislation that would either extend or eliminate statutes of limitation, create rules that give plaintiffs almost total control over when such statutes begin to run, abolish charitable immunity, require courts to publish the names of individuals merely because they have been accused and, in general, facilitate the transfer of hundreds of millions of dollars from Catholic institutions to plaintiff attorneys and their clients. Most of these proposals are retroactive.

SNAP favors “window” legislation, cloned from California, that eliminates statutes of limitation for claims of sexual abuse of children for a two-year window. SNAP representatives were outraged when the Ohio House of Representatives rejected a one-year window by a 77-to-18 vote on March 29. In Ohio, Colorado and other states, SNAP representatives converged for legislative hearings. They gave accounts of horrific abuse, contended that only civil lawsuits can reform Catholic institutions and left legislators emotionally drained and eager to help. Just before the hearing in Colorado, one SNAP representative told another, “We’ve got three dioceses so far, and there’s a lot more to come.” Presumably he was referring to the dioceses in bankruptcy—Portland, Tucson and Spokane.

Statutes of Limitation

It is important to recall why legislatures enact statutes of limitation. Prompt claim-making helps remove dangerous conditions and people so that others are not injured. In Colorado, for example, one cannot sue a government agency unless one serves notice within 180 days of the wrongful act. The legislature enacted this early notice requirement so that public entities can promptly remove threats.

Good legal systems seek accurate adjudications. Memories fade. Documents are not retained. SNAP’s “window” legislation results in claims being made, in some cases, long after the alleged perpetrator is dead. The Archdiocese of Los Angeles is now defending cases involving allegations against 68 dead priests. Half the lawsuits against the Diocese of San Diego arose from conduct alleged against 24 dead priests. How can an adjudication be accurate when the only other person present during the alleged wrongful conduct is dead? In most cases with dead alleged perpetrators, the seminary professors, pastors, vicars general and bishops under whom they served are also deceased.

Old Claims and Fraud

When the quality of proof declines, the amount of fraud increases. Attorneys defending Catholic institutions can provide many accounts of suspect claims made against deceased priests with unblemished records during their lifetimes. Daniel Lyons’s article in Forbes (September 2003), “Clergy Sex Scammers,” identified the “wicked twist in the Boston clergy sex-abuse scandal: Now that the [Archdiocese] has offered $85 million to settle 552 complaints, two leading plaintiff lawyers are suggesting some of the claims might be bogus.”

This phenomenon was repeated in the Diocese of Tucson bankruptcy. Soon after the settlement pot was fixed, the tort claimants committee began identifying the questionable claims. A panel appointed by the bankruptcy judge eventually threw out 60 such claims, so that the remaining claimants were eligible for a larger share of the settlement fund.

Retroactive suspension of statutes of limitation almost guarantees that insurance coverage will be inadequate. Insurance purchased with a set of assumptions about risks and verdicts in 1940, 1960 or 1980 is seldom adequate today—if the insured institution can locate its old policies.

Contemporaneous Standards

Reasonable statutes of limitation ensure that defendants are judged by contemporaneous standards of care. No one would hold a brain surgeon to today’s standard of care for professional decisions he made in 1970. Yet the decisions made in 1970 by Catholic bishops, who routinely consulted with mental health professionals about sick priests, are being judged by today’s standards. Today, the confidence of the mental health community about the likelihood of curing sexual disorders is far less than it was in 1970.

When legislatures extend statutes of limitation far enough, those statutes function like reparations—making the current generation pay for an earlier generation’s decisions. According to press reports, the reorganization plan proposed in the Diocese of Spokane will require parishioners to conduct fundraisers in order to keep their parish property. Those parishioners being forced to raise such sums could be considered a new class of victims.

Parishioners all over the country are also now being forced to pay for others’ mistakes, as their parishes are hit with ever-inceasing insurance premiums because of the $1 billion paid out so far by Catholic dioceses and their insurers.

Repressed Memories or New Opportunities?

The primary justifications for extending statutes of limitation are that sexual abuse is so traumatic that victims repress memories and that it takes many years before childhood sexual abuse victims can martial the psychological and emotional strength to confront their abusers in civil litigation. Dr. Elizabeth Loftus and others consider the theory of repressed memories junk science. The almost universal human experience is that traumatic events are more memorable, not less. In addition, statutes of limitation always accomodate child victims by “tolling”or delaying when a statute begins to run until the child reaches adulthood. Because of this “minority” provision, a child victimized at the age of 10 would have eight years before the statute of limitation even started. Such a victim would then have, at the least, the additional limitations period before his or her claim expired.

Since January 2002, there have been five major spikes in the number of claims filed by claimants in cases of childhood sexual abuse: the over 1,000 cases filed against Catholic insitutions during the massive press coverage in 2002; the over 1,000 plaintiffs who came forward in California during 2003 after the statute of limitation was suspended; and the large numbers of new claims filed in the bankruptcies of the Dioceses of Tucson, Portland and Spokane just before imposition of the bar date. Are we to suppose that these periods were collective moments of clarity, when memories became unrepressed and claimants—all together—gained the strength to confront their oppresors? Or was something else going on?

Neither delayed emotional strength nor repressed memories explains the massing of these claims. They are explained, instead, by a rule of economics: when the price paid for an activity increases, the amount of that activity increases. When the price of oil goes up, the amount of drilling increases. When the value of sexual abuse claims increases, the number of such claims also increases.

Fairness for All

No one denies that terrible offenses occurred, but this does not justify legislation targeting Catholic institutions, retroactively changing the rules, corrupting the rule of law or punishing the innocent for their forebears’ mistakes. It also does not justify transferring hundreds of millions of dollars away from inner-city schools, from ministries to families and their children, from soup kitchens and immigration services and from ministries to the grieving—all of which constitute the good work of a church humbled by its sins and resolved not to repeat them.

L. Martin Nussbaum is a religious institutions attorney in Colorado Springs, Colo., and the Web master for the RJ&L Religious Liberty Archive at www.churchstatelaw.com.

 
 

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