Times Union [Albany NY]
June 12, 2021
By Edward McKinley
Nearly two years ago, the Child Victims Act went into effect, touted as a way to bring both a reckoning for individuals and institutions involved in decades of child abuse and a measure of justice for their victims. But none of the thousands of court cases that have been filed in New York have yet gone to trial and many details of the alleged institutional coverups that shielded the abuse remain cloaked in secrecy.
Although there has been extensive pre-trial discovery in many of the cases, including internal records and depositions of key leaders in both the Catholic Church and the Boy Scouts of America, much of that information remains off-limits to the public due to stipulations approved by judges that require all parties in the cases to keep the information private. It’s also possible, if cases are settled and do not go to trial, that the details on the extent of any cover-ups or the systemic protection of abusers would never be revealed.
The Boy Scouts and four of New York’s Catholic dioceses have also filed for bankruptcy, enabling them to protect assets that may later be doled out by a judge in instances when there are settlements or court judgments. The bankruptcy proceedings also halt the civil proceedings, including pre-trial discovery, with those claimants becoming potential creditors who may be entitled to court-authorized payouts.
But even as a two-year window for alleged victims to file lawsuits against their abusers or the institutions that harbored them is nearing an end — cases that had previously been prohibited by New York’s statute of limitations — the legacy of the landmark law, which took more than a dozen years to pass, remains complicated.
It has prompted thousands of allegations in court filings of abuse against people associated with large institutions, including school districts and county-run child care systems. Yet the vast majority of child abuse is attributed to individuals, including family members or people who had close ties to a victimized child, but recourse for those victims has in many cases been sidelined.
As the two-year window is set to expire in August — it was extended more than once due to the pandemic that crippled court systems — there have been nearly 6,000 lawsuits filed, with actions in all but a few counties across the state.
The cases describe abuse in some instances from decades ago at the hands of priests, Boy Scout leaders, foster parents, family members, strangers, teachers and others. The accounts of institutionalized abuse are strikingly similar, even across the domains where they occurred: predators leveraging their positions of authority to prey on children, and the existing support structures failing to prevent or stop the abuse — and in some instances abetting it.
While the individuals who have brought claims under the CVA have been affected most by the law, which was passed expressly to allow them to pursue justice and seek accountability for the abuse that victims suffered, its effect is not limited to them.
“It’s truly remarkable in terms of, sure, it’s 6,000 individuals, but I think as each one of these individuals, whole families and communities realized the impact of this. So it’s much more than the 6,000 people,” said Bridie Farrell, CEO of America Loves Kids and a CVA plaintiff.
As Times Union reporting has showed, child abuse often rocks entire communities, rippling out from court filings into newspaper headlines, forcing people to reckon with their own actions and to consider how abuse was made possible in so many areas where children were supposed to be safe.
“It’s not just the church. Not just the Boy Scouts. But it’s pervasive,” said Assemblywoman Linda Rosenthal, a Manhattan Democrat who sponsored the law. “So, rather than the good old days, which weren’t that good, where you assume the person that you’re entrusting your child to will be good to them and not abuse them, I think parents and others have to start with the assumption that they must be vigilant, and I wouldn’t say suspicious, but trust has to be earned.”
COVID-19 has slowed the legal process over the last 15 months, so few cases have been settled. Many hundreds of other cases are frozen in bankruptcy proceedings.
The Times Union collected data in late May on every Child Victims Act lawsuit filed since the beginning of the so-called “look-back window.” At that time, there were about 5,800 cases filed electronically in state courts, representing the vast majority of the litigation.
In the greater Capital Region counties of Albany, Rensselaer, Columbia, Warren, Saratoga, Schenectady, Washington, Fulton and Greene, there were about 400 CVA lawsuits. Albany County has the highest per capita rate of the cases of any county in the state.
Child Victims Act filings in the Capital Region by defendant
Large institutions, including the Catholic Church and Boy Scouts of America, are the most common defendants in cases filed under the Child Victims Act since August 2019.
|County||Boy Scouts||Catholic Church||School||Individual||Other|
Note: Data does not include a small number of cases that have not been filed electronically.
A large majority of cases in this region — 74 percent — targeted the Catholic Church or its associated entities, with the Diocese of Albany being the single most common defendant. The Boy Scouts and its associated Twin Rivers Council were the next most targeted, making up 9 percent, followed by schools at 5 percent. Summer camps, youth sports organizations, Boys and Girls Clubs and county foster care systems followed with less than 5 percent each.
Jeff Herman, whose law firm has roughly 2,500 CVA cases pending — or roughly 40 percent of the total — said about a quarter of his cases involve the foster care system. Since that’s a much higher proportion than those in the Capital Region, and most of his cases are downstate, that suggests that the Capital Region’s portion of foster care cases is underrepresented compared to the statewide number.
“It’s a reckoning for society. I often hear defendants make the argument that, ‘Oh, well, we’re applying today’s rules to behavior that happened decades ago.’ And I find that to be a frivolous argument. And the reason that’s frivolous is that we’ve always known as a society that molesting children is wrong,” Herman said. “If it wasn’t wrong, why were you hiding it? What’s changed is that they’re being held accountable.”
There were just 11 cases in the Capital Region against individuals who weren’t part of institutions, less than 3 percent, despite research showing a vast majority of child abuse comes from parents, neighbors, other family members or individuals known to the child, not tied to institutions.
One theory of why cases against individuals are underrepresented, acknowledged by critics of the CVA and proponents alike, is the structure of the legal system. Attorneys often take cases based on the potential payout, and institutions are more likely to offer large settlements than someone’s estranged relative, for example.
“It’s not a blind spot. We knew this going into it. There’s nothing that prevents anyone from filing a lawsuit in, let’s say it’s an incest case, right? But as a practical matter, if the clients don’t have the money to hire a lawyer it’s going to be difficult to hire somebody,” Herman said.
Gary Greenberg, a child sexual abuse survivor and advocate who started a political action committee to lobby for the CVA, said he fields calls constantly from people struggling to find lawyers to take their cases.
“They are actually heartbroken because they thought they were going to get justice under the CVA, and they haven’t as of yet,” he said. “It’s discouraging when you think that you’re finally going to get justice, and you’re told, ‘Well, we can’t take your case. It’s not something we can get any monetary financial reward out of.’”
Greenberg was one of the strongest proponents of the law, but its tendency to leave out people without cases against large institutions has caused him to sour on it and push for further reform, including a fund dedicated to help people who may be unable to be compensated for the abuse they suffered.
Rosenthal said she doesn’t believe taxpayer money should be used to pay for lawyers; rather, she believes the responsibility is for the abusers to pay somehow. She said she doesn’t see a way to fix the problem of how the law leaves some people out, as it’s not an issue with how the legislation was crafted.
“I think it’s an intractable system with the legal system,” she said. “Unless we mandate that people are entitled to lawyers, which I don’t see happening.”
The Boy Scouts and Catholic church knew for decades they had widespread problems with child sexual abuse before it was broadly public. The Boy Scouts kept extensive “perversion files” for years on scout leaders who were accused of sexual abuse, while the church was known to shuffle priests around, often sending them to treatment centers after abuse accusations but then reassigning them to parishes without reporting anything to authorities.
Abuse survivors and their advocates are generally against bankruptcy proceedings in these instances, saying it undermines the accountability that survivors seek by avoiding a full, public reckoning that is revealed through pre-trial discovery, including obtaining internal records and being able to depose alleged abusers or the people who were in charge of their institutions.
“I think the tactic of declaring bankruptcy is reprehensible,” Rosenthal said. “It echoes some of the arguments that religious institutions made to me and others. That we’re going to punish future generations by forcing the institutions to pay the survivors of abuse that occurred under their watch. And they’re following through: They’re declaring bankruptcy to get out of taking responsibility for their actions, and that is doubly tragic.”
The Albany Diocese — which has not declared bankruptcy — is the subject of nearly 300 abuse lawsuits, the most in the Capital Region.
Nationwide, the average clergy abuse settlement total is $268,000, one nonprofit estimated, and the church in one recent year spent more than $300 million on abuse claims, CNN reported. It’s unknown what the outcomes of the claims against the Albany diocese will be, but its potential financial liability is extensive.
“Our concern, as always, is for survivors, who have borne their scars for many decades, often in silence. We will continue to accompany them on their journey toward healing, to support them and to assist them in any way we can,” said Mary Deturris Poust, spokeswoman for the diocese. “While the overwhelming majority of abuse cases occurred between the 1960s to the early 1980s, Bishop (Edward) Scharfenberger is committed to being ever vigilant in protecting young people today, and in working toward healing for those who have suffered.”
Ultimately, perhaps the strongest legacy of the Child Victims Act — in addition to the effect on individuals who have been able to pursue cases — will be the public conversation it has spurred on the topic of abuse.
The state Legislature this year considered an accompanying bill, the Adult Survivors Act, for those who were abused when over the age of 18, and more and more states around the country are looking at similar bills.
The Child Victims Act has also taken place in the context of a nationwide push for statute of limitations reform on child sexual abuse, with 23 states passing similar laws. Advocacy groups say 35 states have passed or debated legislation to address statutory limits on child sexual abuse claims in recent years, and many hope that New York’s Child Victims Act, which has received intensive coverage, could accelerate that trend.
Farrell said she doesn’t think summer camps, youth centers, the church, the Boy Scouts or other organizations are likely to take drastic anti-abuse steps while under active litigation out of fear of acknowledging their own misdeeds. But she said she hopes for such drastic steps once the current wave of cases recedes.
“It’s not impressive to just put up that wall and lock the information inside, but maybe once they come out of it and they’re resetting their organizations they’ll be better,” Farrell said of the bankruptcies.
“I think we all have to have a moment where we say we’re going to give you a chance to do the right thing,” she continued. “I’m for whatever reason eternally an optimist and believe that people do the right thing, which I don’t know if it’s good or bad, but we’ll see on the other side,” she said.
With two months remaining for lawsuits to be filed outside the statute of limitations, Herman said his firm has several hundred cases it intends to file before the August deadline.
“I think it’s thrusted it into the mainstream. It’s become a topic that people discuss. It has certainly encouraged people to come forward, and families to reckon with what happened to the kids affected in their families,” Rosenthal said. “I think the truth is that this kind of child sexual abuse continues to this day. And we have to be ever more vigilant when it comes to protecting our kids.”
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Edward McKinley reports on New York state government and politics for the Times Union. He is a 2019 graduate of the Missouri School of Journalism and a 2020 graduate of Georgetown’s Master’s in American Government program. He previously reported for The Kansas City Star newspaper, and he originally hails from the great state of Minnesota. You can reach him at Edward.McKinley@timesunion.com.