South Dakota Legislature Quashes New Childhood-sexual-abuse Bill

By Stephanie Woodard
Indian Country Today Media Network
February 9, 2012

http://indiancountrytodaymedianetwork.com/2012/02/09/south-dakota-legislature-quashes-new-childhood-sexual-abuse-bill-96429

“It was a sad day,” said Mary Jane Wanna, Sisseton Wahpeton Oyate, of the South Dakota House Judiciary Committee killing a bill to remove the statute of limitations for lawsuits alleging childhood sexual abuse. The measure was presented on February 6, by Representative Steve Hickey, Republican from Minnehaha County, and co-sponsored by lawmakers on both sides of the aisle.

Proponents, opponents and spectators packing the committee room heard emotional testimony from victims, who recounted sex trafficking as well as brutal serial sexual assaults. Afterward, abuse survivors wept openly in the hallway.

Hickey’s new bill had proposed eliminating the statute of limitations for childhood-sexual-abuse complaints in the state. It was intended to remedy a 2010 measure that added restrictions to such suits, banning victims over age 40 from suing institutions (such as churches and schools). The 2010 law was written as a “constituent bill” by Steve Smith, an attorney representing an institution—Congregation of Priests of the Sacred Heart, which runs St. Joseph’s Indian School, in Chamberlain—and defending about a dozen such cases.

During Smith’s 2010 testimony to the legislature, the transcript shows he told the group that the perpetrators in such cases were typically “long dead” and “can’t defend themselves,” but neglected to say that his cases in fact included living alleged perpetrators, including Brother Matthew Miles (who had already told a South Dakota court he had pled guilty to sodomizing young boys in another jurisdiction), John Donadio, Father Thomas Lind and Father William Pitcavage. About 10 other living persons have been accused in current South Dakota-related childhood-sexual-abuse cases.

Smith’s 2010 bill has been called a way to sweep his cases, and others, from the system, particularly since a South Dakota judge has been applying the statute retroactively, projecting it back in time to dismiss already-filed lawsuits. Smith’s bill was written and enacted after about 100 Native Americans filed childhood-sexual abuse complaints against Smith’s clients and other Catholic entities that had run the notorious boarding schools American Indians were compelled to attend until the 1970s. As a result, said a witness who testified by telephone, law professor Marci Hamilton of Benjamin N. Cardozo School of Law in New York, the Justice Department is eyeing the 2010 statute as a possible civil-rights violation.

Though the legislature’s discussion focused on cases with Native plaintiffs in both 2010 and 2012, one of South Dakota’s most notorious perpetrators is Father Bruce MacArthur. A Catholic priest who abused children in several white parishes, he was eventually transferred out of the state, whereupon he embarked on a multi-state trail of sexual assaults of children and hospital and nursing-home patients, for which he was convicted in 1978 and again in 2008.

Professor Hamilton also noted in her testimony that the trend in the country is to make it easier to expose pedophiles, not harder, as South Dakota has done: In court, she said, “anyone abused can name the perpetrators, and South Dakota would know where the trouble spots are.”

Robert Brancato—head of South Dakota’s chapter of SNAP (Survivors Network of Those Abused by Priests) and an abuse survivor who testified during the meeting—vowed to press forward. “I’ll be lobbying for a measure in next year’s session, and I’ll be working to unseat those who voted against this one,” he said.

Despite the thumbs-down vote, Representative Kevin Killer, Oglala Lakota, was hopeful. Killer, a Democrat from Shannon and other counties encompassing the Pine Ridge Indian Reservation, said the silver lining was the bill’s bipartisan support. During the past year, the state legislature’s polarized stance has softened, Killer said, pointing to Republican support for proposals to enhance Indian child welfare and to provide additional funding for education on the Pine Ridge and Rosebud reservations.

During the Judiciary Committee meeting, members and witnesses offered varied reasons for support or opposition to Hickey’s bill. An insurance-industry trade group’s representative warned insurance premiums might increase. Smith defended his 2010 statute. Representative Gene Abdallah, Republican of Lincoln and Minnehaha counties, said that as a Catholic, he was offended by the bill and claimed any abuse was mitigated by the good done in Native communities by the Catholic Church.

More criticism of Hickey’s proposal came from a lobbyist for the Evangelical Lutheran Church of America, which was sued in 2007 by multiple victims from multiple South Dakota congregations. The lobbyist said making sexual-abuse lawsuits easier to bring was unfair to current-day church members, who would be “negatively affected.”

Killer said he was disappointed some Judiciary Committee members didn’t separate the protections the new bill would have offered victims from the happenstance that some lawsuits might involve religious institutions. He pointed to the Penn State scandal as comparable, though not involving a church. “We are a judiciary committee after all. We should be able to make the distinction,” he said.

“It came down to money,” said Hickey. “What’s at issue here are civil lawsuits, and that means financial liability. The opponents of my bill wanted to tamp down scandal and avoid paying money. They were not thinking about the victims.”

Hickey reiterated law professor Hamilton’s point that the state is potentially liable for civil rights violations: “A U.S. Department of Justice official confirmed to me that the agency was watching the outcome [of the Judiciary Committee meeting].”

“I do hope people fight on,” said Killer. “I’m disappointed this bill died in committee. It had enough sponsors and supporters to warrant a hearing before the full House.”

Hickey noted the victims were able to tell their stories: “That was an important goal. Now we’ll figure out what we want to do long-term.”

No matter what the legislature does, there are other options, said Wanna, who is a survivor of abuse at Tekakwitha Orphanage, run by the Catholic Church on her reservation. “A spectator at the committee meeting said her reservation wants to do what we at Sisseton Wahpeton have already done, and that is pass our own civil statute, so we can sue in tribal court. I told her, ‘Call me. We’ll do anything we can to help you pass such a law for your people.’”

All the Judiciary Committee did was encourage tribal members to pass their own civil childhood-sexual-abuse laws, said Ken Bear Chief, a paralegal with Tamaki Law Firm, in Washington state. “In fact, anyone who suffered abuse on a reservation—white or Indian—has this option. White children did go to schools run ostensibly for Indians. Perhaps their parents worked on the reservation. If they were harmed, they, like tribal members, have a civil claim and can bring it in tribal court.”