Push Intensifies for Passage of Long-stalled Child Victims Act
By Tom Precious
March 2, 2018
|The Child Victims Act is sure to be part of the discussion when Gov. Andrew Cuomo and state lawmakers begin budget deliberations. (John Carl D’Annibale / Times Union)|
If Rev. Norbert F. Orsolits had sexually abused what he’s described as “several dozen” teenage boys in Connecticut or Utah or even Guam instead of New York, the victims he molested four decades ago would today have a path in civil court to seek financial damages and perhaps some sense of justice.
But New York is one of the most restrictive in the nation when it comes to allowing victims from long-ago abuse to file lawsuits against their alleged perpetrators, and so neither the former priest or the Catholic Diocese of Buffalo is liable for the acts he told The Buffalo News he committed long ago.
Now, people who say they were abused as children are pointing to the Orsolits case as the latest evidence for the need of a long-stalled bill called the Child Victims Act. It is a measure that would expand the criminal and civil statute of limitations in abuse cases. But it’s most controversial provision – and one that has stopped it from becoming law so far – would and create a one year “look back” period to allow victims over the age of 23 to file lawsuits against alleged perpetrators or the institutions where they worked or volunteered for incidents of sexual abuse dating back potentially decades.
Victims say the measure, long blocked in the GOP-led state Senate, is about more than just permitting civil lawsuits to obtain monetary damages. “As a whole, the Child Victims Act will force, most importantly, institutions both public and private to act responsibly towards protecting children,’’ said Tom Travers, a Buffalo resident who says he was abused by a Catholic priest while he was an altar boy in the 1970s.
Advocates this year believe they have added ammunition to get the measure approved. Cuomo and all lawmakers are up for re-election and, these advocates believe, they can tap into the #MeToo movement to help push their agenda.
|The Rev. Norbert F. Orsolits, from the 1995 Priests’ Pictorial Dictionary by the Diocese of Buffalo.|
Advocates push for passage this year
Just days after his admission, the revelations by Orsolits already has found its way into the statewide effort to pass the victims measure. It is certain to be a part of the negotiations between Gov. Andrew M. Cuomo and lawmakers in the coming month over a new state budget that is due by March 31.
Child victim advocacy groups say Orsolits’ case will lead to a timely round of constituent calls to Western New York Republican senators Chris Jacobs and Patrick Gallivan. Advocates say all Senate Republicans are being lobbied, but that Gallivan and Jacobs, who is a freshman senator, are the immediate push among Western New York lawmakers.
“They will start hearing the voices of the people concerned about their children,’’ said Travers, who has traveled to the state Capitol at least four times in recent years with advocates from around the state to press for the Child Victims Act.
The issue, though, has not been an easy one at the Capitol since it first emerged 12 years ago. At the heart of the concerns by groups including the Catholic Church, some yeshivas and the Boy Scouts, is the one-year look-back provision.
There have been worries about a flood of litigation – some brought by people not abused but looking to take advantage of the litigation-easing measure.
And there are concerns that institutions including the Catholic Church could be held financially responsible for incidents involving alleged abusers who are dead and for which there is little evidence to say whether the abuse occurred.
Dennis Poust, a spokesman for the New York State Catholic Conference, which represents the church’s bishops, said church leaders support extending the criminal and civil statute of limitations on a prospective basis.
“We do continue to oppose an unlimited look-back for decades-old claims because it would open institutions up to claims going back to the 1950s and '60s or earlier, which are nearly impossible to properly defend due to the passage of time,’’ Poust said.
Bishop Richard J. Malone said the Buffalo diocese shares that concern.
"It's fraught with problems when you go back to cases that are 40 or 50 years old," he said.
The diocese also opposes any form of the bill that would exempt public institutions.
"It's got to be all or none," he said. "Otherwise, let's face it, it's targeting one institution."
|Buffalo's Bishop Richard J. Malone, left, discusses the new program along with attorney Terrence M. Connors during a news conference Thursday at the Catholic Center building. (Robert Kirkham/Buffalo News)|
But advocates for the Child Victims Act say the church’s concerns are misplaced. “The bill doesn’t guarantee an outcome in court. It doesn’t change the rules of the court or rules of discovery or rules of evidence,’’ said Michael Polenberg, vice president of government affairs for Safe Horizon, the nation’s largest victim services organization that has been pressing for the law in New York for years.
“The (look-back) window is important because it’s the only way to have a comprehensive path for justice for survivors,’’ Polenberg said.
Moreover, Polenberg said eight states in recent years have adopted laws permitting a similar look-back period. None have seen the litigation floodgates open, he said. In California, which has since ended its one-year window for abuse victims to sue related to incidents that may have happened decades ago, 1,150 cases were brought.
The Texas-based Boy Scouts of America, which has expressed an interest in the legislation, did not respond to comment.
The issue is about to become a matter for the state budget because Cuomo, in his January fiscal plan, included provisions of the Child Victims Act. Though the issue is not necessarily a fiscal matter for the state’s financial plan, Cuomo’s decision to include it in the budget provides negotiating leverage for supporters of the issue as they’ve not seen over the past decade.
“It’s being reviewed as part of the budget,’’ said Scott Reif, a spokesman for Republicans who control the state Senate.
Senate Republicans, who victims blame for the measure’s lack of movement, will show their hand on the topic during the week of March 12. That’s when the Senate and Assembly — the latter of which already has shown support for the measure — both issue their own set of ideas for what the state budget should contain. Unclear is whether the Senate plan will adopt Cuomo’s version of Child Victims Act language, make amendments to it, offer their own counter-proposal or just leave the issue out of their overall budget plan on the argument that it is not a fiscal matter that has to be dealt with as part of the budget process.
Plans on the table – for years
New York now joins Alabama and Mississippi with some of the nation's most restrictive language concerning prospective statutes of limitations. Plans being pushed in Albany would change that so the current law — giving child victims until their 23rd birthday to bring civil and criminal cases — is extended. The proposal would set the age for victims bringing civil cases to their 50th birthday and to their 28th birthday for felony criminal cases.
The proposal advanced by Cuomo and others also would treat public and private institutions alike for statute of limitations purposes; it would end the requirement that initial lawsuit actions commence against public employers within 90 days of an alleged incident – a current law that victims say gives public schools and other public employers an improper legal shield against culpability when one of their workers abuse a child.
The Democratic-controlled Assembly last year passed a version of the Child Victims Act pushed by victim advocates. Over the years, the Senate has not put the issue on the floor or, advocates say, held any hearings on the issue.
With the look-back issue remaining the chief obstacle to an overall deal, lawmakers are looking at a variety of possible compromises. Among them: setting a dollar cap on civil judgments brought during the one-year window.
Gallivan, a Republican from Elma, said he supports extending the criminal and civil statute of limitations on a prospective basis. “I have questions and concerns about a look-back forever proposal,’’ Gallivan said of the one-year opening for lawsuits by victims for incidents dating back decades.
“I think the look-back needs further discussion to determine what really is the appropriate length of a look back (period). I don’t think it should be forever,’’ Gallivan said.
The senator, the former Erie County Sheriff, noted he co-sponsored a bill to expand the criminal statute of limitations in abuse cases sponsored and in January introduced a bill to close a loophole that does not require private school teachers and administrators – unlike their public school counterparts – to report allegations of abuse.
Jacobs, a GOP senator from Buffalo, issued a statement Thursday saying it is his “strong belief that we will successfully pass legislation this session in Albany to significantly extend or completely eliminate the statute of limitations, both criminally and civilly, for children who were victims of sexual assault.” He said it can take years for the victims of such childhood trauma to be able to “confront their perpetrators and the institutions that enabled them and we owe them as much time as they need.’’
The senator’s statement did not mention the look-back controversy.
Alleged victims say they want a more direct route to justice. The look-back period, they say, is vital for victims who for years maintained their silence. “When a child is traumatized, the ability to process that information takes time. For me, decades,’’ said Travers, the Buffalo man who says he was abused when he was a child.
Travers said there could be some good that comes out of the Orsolits controversy. “Buffalo is a conservative, Catholic town … I hope this provides a platform for more conversation to take place about the systematic problem of childhood sexual abuse,’’ he said.