Democrat and Chronicle [Rochester NY]
August 13, 2021
By Sean Lahman, Diana Dombrowski, and Saba Ali
[Photo above: Carol DuPré, Spencerport, a victim of priest abuse as a teenager, supported by Mitchell Garabedian, Boston attorney who has represented over 3000 victims of clergy abuse, talks to the media about her coming forward outside the Diocese of Rochester on Flower City Park in Rochester Thursday, June 14, 2018.]
When legislators in New York passed the Child Victims Act in 2019, it was prompted by an understanding that survivors of sexual abuse were struggling to heal and needed help. Outdated laws kept them from finding justice through the courts, and the institutions which had fostered the abuse were slow to respond on their own.
What the legislators did not understand, perhaps, was how pervasive the sexual abuse of children had been across the state and the sheer number of individuals who had been victimized.
More than 9,200 complaints have been filed as part of the CVA process, with a surge of new claims arriving as the Aug. 14 deadline approached. The final number may approach 10,000 cases.
They include thousands of accusations of sexual abuse by Catholic clergy, more than a thousand against Boy Scout leaders, and still more against teachers, coaches, health care workers, and family members.
The volume of claims prompted four of the state’s eight Catholic Dioceses to file for bankruptcy protection, as did the Boy Scouts of America. Those proceedings will certainly impact the resolution of abuse claims, but they have also forced a deeper reckoning with those organizations’ failures to protect children and to support adult survivors who continue to struggle with the impact of the abuse they suffered.
The Child Victims Act, or CVA, initially opened a one-year window for survivors to file civil lawsuits seeking compensation for the sexual abuse they suffered as children. The deadline was later extended by one year because of the COVID pandemic.
At the outset, a dozen or more law firms that specialize in sexual abuse cases began signing up clients and estimated that 2,000 to 3,000 lawsuits would be filed.
Now that the deadline for filing has passed and the true number has been established, many questions remain. Chief among them is the path forward for the victims who have stepped forward into the spotlight in pursuit of justice.
One survivor, identified only by the initials J.O. in court documents, says that there has been little substantive action on his case since he filed a claim nearly two years ago. That silence seems no different than what happened before the CVA when they tried to share their stories of abuse.
“The bottom line is that victims are stuck once again in a dark place that seems to offer them very little hope in the way of justice and compensation, which no doubt has discouraged other victims from coming forward,” he said.
Some cases already settled
Law firms such as New York City-based Marsh Law Firm have been working with child sexual abuse cases since before the passage of CVA, but didn’t know what to expect in terms of the number of cases that would come in when the legislation was passed.
“We knew that certainly a lot of people have been abused, but are they interested, ready, available to come forward? ” said Jennifer Freeman, a senior attorney with Marsh Law. Due to the influx of individuals coming forward, her firm dedicated specific resources to CVA cases and even hired additional staff.
That firm has filed about 479 cases, including one with 80 accusers against Reginald Archibald, a Rockefeller University Hospital doctor who allegedly abused hundreds of children during his over 40-year term starting in 1948. There are about 70 lawsuits filed against the university hospital under the CVA.
And as the deadline approached, law firms were finalizing new claims left to be filed and waiting for the court system and the defendants to decide whether to settle or proceed toward trial.
Some of the cases involving Archibald have been resolved, and a handful of other clients have been able to reach a settlement agreement without needing to file a claim.
However, Freeman said the larger institutions may be waiting until after the deadline passes to assess the number of claims and liability exposure before deciding how to move forward.
Some survivors who have filed claims have encountered stiff resistance from the institutions they hold responsible for their abuse. Any hopes that the CVA would help speed up the process have quickly dissipated.
“I have no reason to not believe that the Catholic Church, and the clergy, and the schools that I went to are dragging their heels for a reason,” said Rich Cardillo, who was among the first to file a claim when CVA first passed.
He, along with several others, filed a claim on Aug. 14, 2019 in New York City against the Irish Christian Brothers, which ran private schools across the country. The complaint was against multiple entities including the Archdiocese of New York and Iona Preparatory School.
Cardillo’s attorneys are waiting on documents from the defendants. The defendants are appealing a court order to provide the documents, according to Jason Amala who is with the law firm Pfau Cochran Vertetis Amala.
Like many defendants, Cardillo expects his case will take some time before reaching a resolution. Most child sexual abuse cases are resolved through settlement.
In order to reach a settlement, both sides can work with a mediator to determine the maximum liability. The valuation process, which attaches a cost value to an act of abuse, may factor in the severity, frequency and length of time, Freeman said.
“It’s somewhat in flux, how to value these cases because we don’t have a lot of history,” she said. “There have been very few child sexual abuse cases before this.”
‘Victims have felt re-victimized’
The decision to come forward and reveal the trauma they’ve endured was not an easy one, and survivors say they’ve been frustrated at the lack of progress since they filed their cases in state court.
Survivor J.O., who was among those who filed when the CVA window opened in August 2019, alleged that he had been physically and sexually abused as a teenager in the early 1980s. He was living in a group home run by DePaul Mental Health Services, which was then affiliated with the Diocese of Rochester.
J.O. and his lawyers filed a separate lawsuit against the diocese and St. Joseph’s Villa, an orphanage where he had lived as a child. That suit claimed J.O. had been sexually abused by a priest there, the late Rev. Austin Hanna.
When the Diocese of Rochester filed for bankruptcy protection in September 2019, those cases were put on hold. Claims against the diocese will likely be settled as part of the bankruptcy case, but nearly two years into that process, there are no signs of being close to a resolution.
“With the CVA cases involving the Rochester Diocese bankruptcy, victims have felt re-victimized by the diocese, whose only interest is the financial welfare of the diocese and protecting the accused,” J.O. said. “They have done very little to facilitate the healing process for victims, including compensating them justly and fairly.”
Lawyers for the Rochester Diocese and lawyers for those with claims against the diocese told a federal judge last month that they had reached an impasse, but he ordered them to return to mediation. The Rochester Diocese is facing claims from 475 abuse survivors.
Dioceses in Buffalo, Syracuse, and Rockville Center also filed for bankruptcy protection in 2020, citing the growing number of CVA cases. The outcome of those claims will be decided by federal bankruptcy cases.
The typical process is to evaluate the merits and value of each individual claim, and then pay out settlements with funds from insurers, from member parishes, and from each diocese itself. Claims against the Boy Scouts of America will likely be handled the same way. A federal judge in Delaware began hearings on Thursday to consider a proposed $850 million settlement. Nearly 90,000 people filed claims alleging that they were sexually abused while participating in Scouting programs, including 1,000 filed under the CVA in New York.
The process allows the courts to resolve a large number of cases en masse instead of separate litigation, but the process can also deny survivors closure.
“Victims continue to feel that their voices are not being heard, and are being denied their right to a fair trial,” J.O. said.
Bankruptcy ‘an arduous process’
Bankruptcy cases are global and final, said Marie T. Reilly, a professor at Penn State Law, who has analyzed the outcomes of diocesan bankruptcies.
For those filing for bankruptcy over CVA suits, bankruptcy forgives all the liability an organization might have incurred for historic wrongdoings up until when the bankruptcy was filed, Reilly said. That means people who suffer injuries after the bankruptcy would still be able to pursue legal action, but for someone who suffered abuse before the bankruptcy and aren’t part of a claimant group, the door is shut.
One benefit of bankruptcy cases is that they create a powerful incentive for everybody who might have a claim to bring it forward, Reilly said.
Negotiations with insurance companies and those organizations filing for bankruptcy can be complicated, Reilly said, as organizations push for their insurance to make large contributions in the payouts.
“It’s been an arduous process,” said attorney Hillary Nappi of Hach Rose Schirripa & Cheverie LLP. “For survivors, just mentally wrapping their head around the fact that they finally had the opportunity to pursue justice has been a lot for my clients to accept.”
Nappi has 210 active cases under CVA in varying states of progression.
Delays have also been frustrating for her clients, which was exacerbated by the pandemic.
“People who were unrepresented had trouble finding lawyers,” Nappi said, and others who already had complaints filed “were sitting and waiting while the courts were closed for anything to happen.”
‘We were ignored’
Experts say that it is not unusual for someone who was abused as a child to suffer in silence and shame until they are in their forties or fifties. It’s then they connect the dots between their abuse and challenges that have plagued many their whole lives — job struggles, substance abuse, mental health issues, and difficulty maintaining relationships.
“It messes you up not only sexually and physically and emotionally, but also spiritually,” said Carol DuPré, who filed a case against the Diocese of Rochester for the abuse she says she suffered at the hands of Catholic priest Father G. Stuart Hogan when she was a teenager in the early 1960s.
Hogan died in 1985.
It’s hard to recognize abuse as abuse when it’s at the hands of a spiritual authority, DuPré said, but after “repeated fondling and kissing and caressing,” she told her mom, who went to the diocese.
“We were ignored,” DuPré said.
DuPré’s path to filing a case started with an appearance of Elizabeth Cucinotta Sorvillo discussing her book “Controlled Burn: Exposing Child Sex Abuse and Corruption at America’s Largest Private Catholic High School” on “Dr. Phil.” She ordered the book and as DuPré read it, “obviously this stirred up a lot of the past.”
Television commercials were also popping up with a number to call for people who’d been abused by Catholic priests. DuPré knew almost immediately when she saw the commercials she had to do something.
She called and got in touch with attorney Mitchell Garabedian. Not long after that, the CVA legislation was passed.
DuPré is now on the creditors’ committee in the Diocese of Rochester bankruptcy case.
“It just seems like it’s been very hard to find some kind of compensation, or for them (the diocese) to even be aware of the fact that we have been ignored and many people’s lives have been ruined,” DuPré said.
Winning by attrition
With some cases recounting abuse that happened decades ago, finding records from that time period can lengthen the process — “It just takes time,” Hillary Nappi of Hach Rose Schirripa & Cheverie said. “Locating witnesses takes time. People move. Their names have changed. People have passed away.”
While locating decades-old insurance policies takes time, the policies themselves might only cover certain kinds of injuries. “Then if it does have coverage, you know, the amount of the policy may be minuscule compared to my client’s damages.”
“Insurance companies, you know, generally don’t like to pay out money,” said Mike Reck, an attorney with Jeff Anderson & Associates, which represents over 1,000 people who filed claims under CVA. Reck noted that one trend he is seeing is that insurance policies for the Catholic Church started having provisions in the 1980s that excluded child sex abuse.
“Think about how that comes into existence,” Reck said. “It means that the insurance companies were getting enough claims of child sex abuse by priests that they started limiting their insurance policies to exclude them.”
As time went on, some dioceses had trouble getting insurance, Reck said — it was too risky for big insurance companies because dioceses had too many sex abuse claims. In response, the church created its own insurance companies and dioceses pooled their risk in agreements designed to alleviate the impact on one diocese if it got hit with a claim.
Insurance company Arrowwood Indemnity, who filed a federal lawsuit in Dec. 2020 against the Diocese of Brooklyn, says it should not be responsible for paying settlements to victims who say they were sexually abused by the diocese’s priests because of “allegations of the diocese’s long-standing specific knowledge of individual instances of abuse and its decades-long culture of coverup.”
The CVA cases Reck and his colleagues have, particularly involving the Catholic Church, are developing slower than he’d like: “The Catholic Church thinks about time in centuries, and if they can slow the process down enough that the survivors die, the church wins,” Reck said. “They win by attrition, simply because they have outlasted the generation of children that got hurt.”
Outside of the bankruptcy process, thousands of other cases will now have to move forward through New York’s state court system, which is a daunting prospect. It’s likely most of those will be referred to mediation, but working through the volume of cases will take months and even years.
The closing of the CVA window does not mean more survivors won’t come forward in the future.
In addition to creating the opportunity for survivors of past abuse to come forward, the CVA also changed the rules for how these cases are heard going forward. It extended the statute of limitations for future acts of child sexual abuse so that victims have until age 55 to bring suit. The statute for criminal prosecution changed as well, adding five years to the window of time within which charges can be brought.
Contact Democrat and Chronicle staff writer Sean Lahman at firstname.lastname@example.org. Follow him on Twitter @seanlahman. Contact Journal-News staff writer Diana Dombrowski at email@example.com and Poughkeepsie Journal staff writer Saba Ali at @firstname.lastname@example.org.