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	The Wisconsin and New Hampshire Supreme Courts Rule against Clergy Abuse Victims Two Decisions That Illustrate Why the Law in This Area Must Change By Marci Hamilton FindLaw [United States] July 25, 2005 In two recent cases involving clergy abuse - in Wisconsin and New Hampshire -- state Supreme Court rulings left victims out in the cold. Neither decision made new law, but that is why they are worth noting: The law in this area is desperately in need of amendment, if we are to prevent children from being sexually victimized in the future, and provide remedies to those who have already been traumatized by abuse. (Full disclosure, I represented the victims in each of these cases.) As I have discussed in previous columns (such as this recent one), the legal system has fallen well short of doing justice to the victims of clergy abuse. Why? In part the explanation is that, as I document in my recent book, God vs. the Gavel: Religion and the Rule of Law -- Americans are na?ve when it comes to the actions of religious individuals and institutions. Many of us find it very hard to accept even clear proof that these individuals and institutions have done wrong. This attitude, while understandable - we want to look up to our clergy and houses of worship - must change. The proof is there, and it is irrefutable. We cannot ignore it. Yet until recently, courts, in particular, have been slow to hold religious institutions accountable for the harm they have done. In this column, I will explain the ramifications of the Wisconsin and New Hampshire decisions, and the way the state legislatures ought to amend their laws, in the wake of these decisions. The Wisconsin Supreme Court Decision First, let's look at the Wisconsin Supreme Court decision, John Doe v. Archdiocese of Milwaukee. The case arose when a man alleging he had been sexually abused as a child in the Sixties sued the Milwaukee Archdiocese - alleging that it knew of the priest's pedophilia and did nothing to protect him. (He argued that the statute of limitations did not bar his claim, because while the events occurred decades ago, he had not discovered the wrongdoing by the Archdiocese until recently.) The plaintiff pointed, in his complaint, to specific evidence suggesting the Archdiocese knew of this wrongdoing as early as 1980. But the court held that this was not enough: Because the plaintiff did not point to specific evidence suggesting that the Archdiocese knew of the wrongdoing in 1960, it dismissed his claim. But how was the plaintiff supposed to find such evidence, which almost always resides exclusively in the employment files of the Archdiocese, before the process of civil discovery had even begun? Archdioceses in general have been arguing that it is unfair to subject them to suits involving abuse going back decades, when they know full well that their employment records go at least that far back and typically include detailed information on the pedophiles within their ranks. Conceivably, the plaintiff might try to find another victim, who preceded him, who also reported the abuse to the archdiocese, prior to 1960. But again, without discovery, finding such a person would be a matter of chance and luck. And the chances of finding a fellow victim, in a case like this, are even smaller than in, say, a fraud case: The nature of the abuse makes it extremely difficult, psychologically, for victims to tell even their own families, let alone to make their abuse public enough that a fellow victim could track them down. Our system is not supposed to ask plaintiffs to depend on a fluke of luck, combined with costly investigations. We don't place on plaintiffs arduous investigative burdens, that even private investigators would find immensely time-consuming and challenging, when the answers are right there to be found in a party's - here, the Archdiocese's, own files. Discovery into the Archdiocese's employment records would have easily proved, one way or the other, just how much knowledge the Archdiocese had regarding the priest perpetrator before this victim was abused. The court should have allowed that discovery, ruling that the plaintiff's allegations were sufficient to survive a motion to dismiss. In so holding, the Court reached a procedural holding, and avoided addressing the more difficult constitutional issues brought before the Court. It is unfortunate that the Court would use a technicality to tilt the balance against the abused. But that's far from the only legal change needed to protect Wisconsin clergy abuse victims. Well before John Doe 54 brought his case, the Wisconsin Supreme Court, in a series of cases, employed the First Amendment and narrow interpretation of the discovery rule to protect religious institutions from tort liability. As I've noted in a prior column, such arguments are specious. The First Amendment is not - and should not be construed to be -- a haven for scoundrels. The good news is that the Court did not defend its prior decisions in this arena and instead left the door open for the victims already in the court system who have proof positive of the Archdiocese's complicity in the abuse. One can only hope that the Court will at that time follow the reasoning of concurring Justice Bradley, and reverse or distinguish its prior, draconian rulings that made it so difficult for victims of clergy abuse to go forward and far too easy for religious institutions to avoid liability for their wrongdoing. As Justice Holmes rightly observed, experience must inform our laws. And in light of what we now know about the practice of religious institutions hiding child abuse by their clergy, thereby increasing the chance of abuse exponentially, Wisconsin's earlier decisions simply make the problem worse. If justice and fairness are to be achieved, however, legislative reform is also needed -- especially regarding the statute of limitations for past victims and the application of the discovery rule in all childhood sexual abuse cases. New Hampshire Rejects a Duty To Intervene For Clergy Who Know of Abuse Soon after the Wisconsin court issued its ruling, the New Hampshire Supreme Court issued an equally disturbing clergy abuse decision. In Berry v. Watchtower, a woman who was abused as a child sued the elders of her church, the Jehovah's Witnesses. She alleged that her father - an elder in the Jehovah's Witnesses - was sexually abusing her. She alleged, too, that though her mother repeatedly asked the other elders to intervene, they not only refused -- demanding two witnesses before they could level such a charge against a fellow elder -- but they also instructed the mother, in no uncertain terms, that she should not go to the police, because going outside the church was contrary to religious teachings. The girl's mother, the girl alleged, obeyed. It is common within the Witnesses' faith to treat all outsiders as representatives of Satan. Allegedly, as an obedient member of the religion, based on the elders' instructions, she did not go to the authorities. According to the complaint, the abuse then continued for years. (The statute of limitations is not an issue, because, as in the Wisconsin case, the discovery of the church's role came later: The girl did not know that her mother had asked for the elders' assistance in stopping the abuse until recently.) The question for the New Hampshire Supreme Court was whether the elders had a duty of care toward the girl. The Court held that they did not. It was clearly worried about a slippery slope - fearing that a contrary decision would have made anyone who knows about some harm, liable in tort for failure to stop it. Typically, it's true that American law does not recognize "Good Samaritan" duties to prevent crimes where one is only a bystander. But declining to impose duties on strangers to break up street fights - as our law chooses to do -- is a far cry from what is at issue here. Child sexual abuse is an egregious crime. It is done against the most vulnerable of victims and the damage typically lasts a lifetime. In this particular case, the church not only failed to intervene, but actually prevented the mother from seeking police aid. If ever there were a case for recognizing a duty of care, this was the one. This slope doesn't slip: A ruling for the plaintiff could easily have been cabined to cases involving institutions with knowledge of minor victims, or even (though I think this is the wrong ruling) to cases involving active discouragement of reporting to the civil authorities. As in Wisconsin, in New Hampshire, too, the state legislature must now act - or it should face public ire for its refusal to do so. The State Legislatures May Often Be the Better Forum for Reform Make no mistake about it, these cases are tragedies for these individual victims. It takes an enormous amount of courage to file such a case and to have one's sexual abuse revealed to the public. When a court rules that the case or the law is inadequate, the message to the victim is that here is one more instance where society is going to let you down. There are important lessons to be learned, however, from these two cases. For victims in pain, the court system seems like a tortuous road that works far too slowly - but it is that way by design. The common law, especially in the tort arena, is subject to lurches and starts. Courts gradually assess old rules, gingerly test new rules, and, in this era, are always conscious of opening the floodgates to new claims. Regardless of the degree of harm, and there is tremendous harm when one's own clergy sexually abuses one as a child, courts creep, rather than leap, toward justice. The state legislatures, however, stand in a very different position. They have the capacity to create new causes of action, to abolish the statutes of limitations for future victims, and to open windows of opportunity for past victims. They can delineate duties of care in this arena explicitly, and they can abolish the statute of limitations in the civil context for a set period of time so that victims whose meritorious claims were foreclosed by scandalously short statutes of limitations can have their day in court. In 2005, for instance, California laudably opened a statute-of-limitations "window" - a short time period during which previously time-barred complaints could be filed -- for past victims. Over a thousand such victims came forward. Similarly, Illinois has opened such a window. Moreover, after the Ohio Senate unanimously approved a window, the House Judiciary Committee is actively considering the issue. Citizens of every state who care about their children need to let their representatives know that these reforms should be at the top of the legislative agenda. Strict Liability: A Viable Option to Truly Hold Religious Institutions Responsible Brainstorming is needed in each state legislature if we are to have the laws that will effectively deter institutions (religious or secular) from permitting childhood sexual abuse. A key evil in the clergy abuse cases has been the willingness of religious institutions to hide abuse by their clergy for the purpose of protecting the institution's reputation. To counteract this willingness, strong medicine is clearly necessary. In close-knit, secretive, hierarchical institutions, such conspiracies of silence easily breed. It is well worth considering strict liability - that is, liability even in the absence of proof of fault -- for any institution that hides childhood sexual abuse by an employee, when that employee molests even one more child. The legal system needs to institute zero tolerance for those who craft the conditions for such abuse. When institutions learn of abuse, and don't act, no more proof than this should be necessary to hold them liable for additional abuse by the same perpetrator. They have already been negligent. They should be held legally responsible for what follows, for they have already aided and abetted it through their cover-up. In a praiseworthy and moving development, the survivors of clergy abuse have started a political movement to find better legal protection for those who are sexually abused as children. The laws they have been advocating are not limited to the victims of clergy abuse. Rather, they are leading the charge for all childhood sexual abuse victims. Plainly, these victims are willing to work to ensure that future children are not subjected to the kind of abuse that has marked their own lives forever. Typically, the barriers to these reforms, sadly enough, are the religious institutions themselves. In California, the Catholic Church has been claiming that the window that aided all child abuse victims was an unconstitutional form of religious persecution. Meanwhile, in other states, the Catholic Conference is floating the proposition that statutes of limitations should never be altered retroactively, because it is just "unfair" to the defendant. What both sides know, though, is that there is little hardship to any institution being sued for abuse by its employees, because the files themselves will usually tell the story and foreshorten both discovery and any trial. And it is hardly unfair to subject an institution to liability when the proof is right there. Each state legislature has a clear choice before it: Either abolish the statutes of limitations, create "windows," and/or introduce new tort causes of action, or permit the same regime to be perpetuated that compounds the misery already inflicted by the sexual perpetrator. This is not a choice between victims and any church. It is a choice between justice and legal neglect. Lady Justice, fortunately, is blind. She has two sides to her scale. On one side, sits the accumulated suffering of all such victims - the mental breakdowns, the divorces, the substance abuse, and the suicides. On the other, are the defendants who may now be forced to take responsibility for knowingly placing pedophiles in positions with access to children. She does not need to know the identity of the parties to know which side is the side of the angels. 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 book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), an Amazon best-seller, was recently featured on "The Daily Show" with Jon Stewart.