Catholic Church Fights for Shield

By Krystal Knapp
The Times [New Jersey]
December 5, 2004

Leaders of the Catholic Church in New Jersey have been lobbying state legislators to amend a bill that would eliminate charitable immunity as a legal defense in cases where nonprofit organizations negligently employ child molesters.

The New Jersey Catholic Conference (NJCC), the lobbying arm of the state's Catholic bishops, is urging lawmakers to set time limits on how far back the legislation would apply retroactively.

The church's lobbying effort comes as the state Supreme Court is deciding whether John Hardwicke Jr., a graphic designer from Maryland who alleges he was sexually abused numerous times by several American Boychoir School employees, has a right to sue the nonprofit institution.

Hardwicke attended the elite Princeton Township school from 1969 to 1971.

In September, a state appeals court ruled Hardwicke's case could move forward, overturning a Superior Court ruling barring him from suing the school.

Advocates for survivors of sexual abuse and sponsors of the legislation have decried the church's proposed amendment, saying it is unacceptable, arbitrary and unfair to victims.

Under the NJCC proposal, the church and other nonprofit institutions would be shielded from civil lawsuits for acts of child sex abuse committed by their employees before Sept. 24, 1992, the date New Jersey's Child Sex Abuse Act went into effect. Charitable immunity would not be a defense for any act of child abuse after that date.

Church officials had been working to kill the bill, which would repeal part of the state's 56-year-old Charitable Immunity Act. But after the state Senate overwhelmingly passed it, they realized their efforts were better spent trying to broker a deal that would at least leave them with some protections.

"We have been actively lobbying against the legislation right from the get-go," said William Bolan, executive director of the NJCC. "But given the vote in the Senate, our position has been that we recognize there is not sufficient support in the Legislature to pass no bill."-- -- --

The Archbishop of Newark and the other Catholic bishops in the state have written letters to legislators, called some and met with others to express their opposition to the legislation or to push for the amendment, Bolan said.

Several Democratic legislators say at least one of their Assembly colleagues has been contacted about the bill by one of the most influential leaders in the Catholic Church in the United States, Cardinal Theodore E. McCarrick, the former archbishop of Newark.

But they would not name the colleague who was approached by McCarrick, saying the information was revealed during a recent Democratic caucus where legislators discussed the bill.

Both Bolan and McCarrick's spokeswoman, Susan Gibbs, said they were unaware of McCarrick making calls on behalf of the NJCC. And Bolan said the NJCC has not singled out Catholic legislators in its lobbying efforts.

Two legislators who did not want to be identified said they don't buy claims that McCarrick has been involved in lobbying efforts. The Times interviewed several legislators who said they were contacted about the bill by either Bolan or a bishop, but none said they were contacted by McCarrick.

Bolan argued that charitable immunity should be protected for various reasons.

First, a charitable organization is not like a corporation, which can pass on its expenses to customers. Its money comes from other people, Bolan said.

Second, benefits flow from nonprofit groups to society. In New Jersey, for example, the Catholic Church shelters 45 percent of the homeless and educated 153,000 children, saving taxpayers more than $1 billion in taxes, he said.

Third, it is not fair to sue a charity for the behavior of an employee when the proclivity toward that behavior is impossible to gauge. "Pedophilia is something you can't test for," Bolan said. "There is no psychological testing that uncovers the proclivity."

An individual perpetrator, such as a priest or choirmaster, always can be sued and is never immune from a lawsuit, Bolan said.-- -- -- Supporters of abuse victims have criticized the Catholic Church for becoming involved in the case and siding with the Boychoir School where, according to lawyers for Hardwicke, sexual abuse and harassment were pervasive.

"Over the years, the Supreme Court has upheld the Charitable Immunity Act," Bolan said. "It's not like we are doing a dirty little deed to defend it."

In the Boychoir case, Bolan said the appellate judge made an erroneous decision by allowing the case to continue. "We are not making a judgment about what took place by defending charitable immunity," Bolan said. "We condemn it. I too was horrified with some of the testimony from witnesses."

But Sen. Joseph Vitale, D-Woodbridge, and Assemblyman Neil Cohen, D-Roselle, sponsors of the legislation, don't buy Bolan's arguments.

"It comes down to the church arguing economics over the rights of children who have been molested and raped," Vitale said. "In my view, there is no choice. The choice must be for children past, present and future who are abused and victimized. They should all have equal access to justice.

"If the organization did not know, it is an entirely different issue," Vitale said. "If they did but did nothing about it, they should be culpable, both the institution and the individuals."

Cohen said the amendment would block many victims from having their day in court, including victims whose cases still fall within the statute of limitations.

"If this issue was about abuse at a public school, a library, a police department or a day-care center, the bill would get passed in two minutes, no question about it," Cohen said.

"Forty-one states have done away with this dinosaur known as charitable immunity. And you know what? Their churches, synagogues and Little Leagues are still in existence. We need to do the right thing to protect children and support victims, many of whom have had their lives ruined by abuse."-- -- --

Some legislators claim the church has wrongfully depicted alleged victims as people out to make a quick buck.

Bolan acknowledged that in the heat of the moment, a diocese lawyer who was having a bad day said something to that effect. "We were all aghast and wish he hadn't said it," Bolan said.

Legislators have expressed mixed feelings about the issue of retroactivity in the bill.

Assemblyman John McKeon, D-West Orange, a Catholic who said he has not been lobbied by church officials, said he abstained on the bill when it was in an Assembly committee because he thinks changing the law retroactively would be burdensome and could make the law subject to abuse.

Assemblyman Reed Gusciora, D-Princeton Borough, who acknowledges he was contacted by Bolan about the bill, said he will support the legislation whether it goes before the Assembly in its current form or with the amendment.

The bill was approved by the Assembly Financial Institutions and Insurance Committee last month. The only person with the power to post the bill for a vote is Assembly Speaker Albio Sires, who has not indicated when that might happen.

Members of the Survivors Network of Those Abused by Priests and other advocacy groups have vowed to begin a campaign of their own to have the people in the pews lobby legislators to pass the bill without the amendment.

A candlelight vigil was scheduled for last night in front of the Cathedral Basilica of the Sacred Heart in Newark.


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