Placing a Price Tag on Sexual Abuse by Priests
By Jonathan D. Glater
New York Times
September 14, 2003
JUST how much should you pay someone who has suffered psychological scars from sexual abuse? How about if the abuse consists of one incident, say, groping in a car? What if the abuse goes on for years, and includes sodomy?
An answer, of sorts, came last week: from $80,000 to $300,000, under the terms of a settlement negotiated by representatives of the Roman Catholic Archdiocese of Boston and lawyers for hundreds of people who claim they were sexually abused by priests.
These figures may seem like too much to some, or too little to others, but in settlements, an abstract notion of fairness is not the first consideration, according to a number of legal experts. Punishment of the accused wrongdoer and fairness of any monetary distribution among victims are constrained by the size of the pot of money provided.
In the Boston Archdiocese settlement, that pot holds just under $85 million. That may seem like a lot of money, but if it were divided equally among all 552 people eligible to participate in the settlement, it would be less than $154,000 apiece. And each person would probably have to pay a chunk of that, typically one-third, in legal fees.
There is no plan to divide the money equally, though. If the required 80 percent of claimants approve the settlement over the coming weeks, the most severely harmed would receive $300,000; $80,000 or less would be paid to those determined to have suffered less harm. This raises the question of whether that disbursement would be fair — whether, really, $300,000 is enough to compensate for whatever form of abuse a claimant suffered or whether $80,000 is too much.
"Any party who believes that the presumptive lower limit of $80,000 and the absolute upper limit of $300,000 are inappropriate can of course decline to participate," said Robert H. Mnookin, a professor at Harvard Law School and head of a program on negotiation there. "Each victim, with the advice of their lawyer, will need to assess the opportunities and risks of litigating further, rather than accepting the terms of the settlement."
But opting out of the settlement and pursuing litigation would pose its own risks. In a jury trial, a group of people struggles to determine what one victim deserves and what a defendant should pay. The results can sometimes be stunningly large, as in some tobacco lawsuits, but on less well-publicized occasions may be close to nothing. And a mass of individual lawsuits could bankrupt the church, leaving no money for some people with serious claims.
In the Boston Archdiocese case, a panel of arbitrators would decide how to allocate that money. The panel's task would be noble, but probably not pleasant.
There is no obvious way to decide just how much money someone should be paid for two, three or dozens of incidents of sexual abuse.
"How do you put a price tag on a nonmonetary injury?" asked Mark Geistfeld, a law professor at New York University. "It's a problem that vexes the tort system forever. You're evaluating two completely different things."
A recent case involved about 200 people who suffered post-surgical infections as a result of what the plaintiffs said were contaminated medical devices. Eric D. Green, a founder of Resolutions LLC, an arbitration and mediation firm, said that as arbitrator, he determined how much each claimant should receive by breaking down the injuries into categories based on the part of the body that was affected, the length of time spent in the hospital and whether any limb had to be amputated.
A similar strategy was used in the case of the Dalkon Shield, an intrauterine device intended to provide birth control protection that was ultimately deemed responsible for several deaths and more than 200,000 infections, miscarriages and other problems. A fund was created to compensate victims, and lawyers drew a matrix providing for different payment amounts based on the injuries suffered. But many women received less than $2,000, perhaps not a grand sum for someone who had suffered infections and infertility.
In these cases, said David Bernick, a lawyer in Chicago, "fairness is, just like many, many other aspects of the judicial system, a function of reality."
And perceptions of reality are certainly subjective in sexual abuse cases, making it difficult to account for those people who react strongly to some episode, needing years of therapy, when for someone else the situation might produce a shrug. Lawyers call this the "eggshell skull" problem.
In the case of clerical abuse cases, a priest's kiss might have scarred one claimant for life, while something much worse might have had little effect on another.
"If a person was sodomized once and they go on to be president of General Motors, one questions to what degree that act, although heinous in nature, adversely affected him," said Mitchell Garabedian, a Boston lawyer representing about 120 victims of abuse.
And settlements may not satisfy a claimant's desire for revenge and punishment. These are often the people who opt out of settlements and continue with lawsuits on their own.
Most people move past the point of desiring retribution, said Mr. Green, the arbitrator. So far, Mr. Garabedian said none of his clients have decided to drop out of the proposed settlement — but some are thinking it over.
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