Court Could Shake up Charity Law
Abuse Victim: Schools, Churches Are Liable
By Abbott Koloff
Daily Record [Morristown NJ]
November 13, 2003
MORRISTOWN -- Three appellate court judges heard arguments on the validity of a law barring lawsuits against charities in a session at the Morris County Courthouse Wednesday.
Their decision, expected in a few weeks, could open or shut the door to potentially dozens of lawsuits against charitable organizations, such as schools and churches.
The law, the Charitable Immunity Act, is meant to protect money sent to charities.
At Wednesday's hearing, the attorney for the plaintiff argued sexual abuse of minors at a boys choir school decades ago was so prevalent that it was part of the school's culture.
The school's attorney countered that money designated for charity is protected from lawsuits by the statute that has been upheld before by state courts.
A judge asked whether a terrorist organization would be exempt from lawsuits if it started a charity in the state.
The case before the appellate judges centers on John Hardwicke, 46, now of Maryland, who is appealing a Mercer County judge's ruling he could not sue the American Boychoir School of Princeton for alleged abuse by the school's music director as a child. The judge said he could sue individuals, but not the institution, which is protected by the act.
"It's crazy that victims have to go through this," Hardwicke said after the hearing. "I haven't been able to get in front of a jury to tell my story."
Victims' rights advocates say the law prevents survivors of sexual abuse from filing lawsuits against charitable organizations and getting justice. The Morris County chapter of the Survivors Network of Those Abused by Priests, known as SNAP, held a news conference after the hearing to support efforts to overturn or weaken the charitable immunity law. Members contend that a change in the law could have an impact on more than a dozen people who have claimed they were abused by a former Mendham priest, and who have not yet filed lawsuits.
Mark Goebel, 41, of Morris Plains said he was abused while attending American Boychoir when he was a child. Now a member of SNAP, he issued a statement after the hearing, saying that overturning the law would give nonprofit institutions incentive to hand over information about sexual abuse to law enforcement officials.
"No organization can be considered charitable if it maintains an environment that protects the guilty at the risk of the innocent." he said.
Larry Lessig, a Stanford University law professor who once attended American Boychoir, presented arguments on behalf of Hardwicke. He said in court that the sexual abuse of children was pervasive at the school. Afterward, he would not talk about his own experiences at the school.
"If this court affirms the Superior Court decision," he said in court, "this would be the only state in the nation where a corporation could engage in an intentional wrong and the assets of the corporation would be protected."
While other states have similar laws, Lessig argued that the statute is not designed to defend an organization that has violated the law. It immunizes charities from negligence charges, he said, but not from more serious charges. He said that the state's sexual abuse law allows certain persons who know about sex abuse, and who enable it, to be considered abusers.
The law applies not only to individuals, he said, but to corporations as well.
At one point, David Landau, one of the judges, asked Greenblatt whether a terrorist organization that set up a charity would be protected under New Jersey's law. Greenblatt replied that terrorists could be sued as individuals. He also said that money actually designated for a charitable cause would be protected.
"I am certain that a court would say that it was a sham corporation set up for an illegal purpose," Greenblatt said.
More than 50 people packed the courtroom, including members of SNAP and people who supported them. Kenneth Lasch, pastor at St. Joseph's church of Mendham, said he attended the hearing to lend support to victims' groups. He said he doesn't favor completely overturning charitable immunity but that, in some cases, charitable organizations should be held responsible for their leaders' actions.
"I come down on the side of the victims and their need for redress," Lasch said.
Greg Gianforcaro, an attorney who represents 19 people who say they were abused by James Hanley, a former Mendham priest, said some of his clients could be affected by the appellate decision. He said he has been talking to Paterson Roman Catholic Diocese officials, hoping to come to a settlement in those cases, but has not ruled out filing lawsuits.
"I don't want this to be a Catholic issue," Gianforcaro, who attended Wednesday's hearing, said of the appellate case.
"It's an incentive issue. There has to be a legal incentive to hold institutions responsible."
Gianforcaro also claimed a church official knew Hanley was abusing children before some of his clients were abused. Paterson Diocese officials have said they didn't find out about the allegations until 1985, and that Hanley committed no abuse after that, although he was allowed to work as a priest for years afterward. Gianforcaro said someone in the church knew before 1985.
Ken Mullaney, the Paterson diocese attorney, said Gianforcaro's claims involve a now-deceased priest, so there's no way to know whether they are true. He also said the appellate decision wouldn't have much impact on allegations of abuse before 1995, when the Charitable Immunity Act was expanded to protect not only charities but people who work for them.
Mullaney said he often argued successfully for charitable immunity, getting cases dismissed against the diocese only to have church officials named as individuals in lawsuits.
"That made it a hollow victory," Mullaney said.
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