Sexual Abuse Legislation: a Proposed Strategy for Reform

By David Mandel
5 Towns Jewish Times
April 30, 2009

There is legislation pending to extend the statute of limitations on reporting and prosecuting child molesters. There is general agreement this change in the law would be good. Victims of child molestation, even older adolescents, are often not ready to disclose or confront their offenders until years later.

A second piece of legislation to open a “window” of one year permitting victims, even those molested decades ago, to file civil lawsuits against molesters or the institutions that employed them has drawn both strong support and strong opposition. As is often the case, victims’ advocates will favor the proposed legislation while institutional systems may oppose it.

Victims’ advocates are favoring the Markey bill, which includes this window. The Catholic church and some groups representing yeshiva institutions favor the Lopez bill, which extends the statute but has no window.

It is noted that Assemblyman Dov Hikind would like to work on a compromise position.

Several victims who have spoken publicly of their ordeals, along with a victim advocacy group, have been prominent in pushing for the passage of the window. This advocacy is important and well intentioned. But to express it in a way that if you’re not in support of the window you’re not supporting victims of sexual abuse is misguided, as it undermines our communities’ ability to have an open, honest discussion about child abuse.

The passage of such a window provision in California is often cited as a case in point by both sides, those in favor and opposed. In that instance, the legislation led to the disclosure and reporting of several hundred pedophiles in California. This was important and no doubt led to untold hundreds (and thousands) of potential victims not being molested. It also led to hundreds of lawsuits, most notably against the Catholic church, which eventually cost them hundreds of millions in settlements.

It is this issue of potential lawsuits that is pitting institutions against victims’ advocates. On all other issues, there is general agreement.

In a now infamous phrase, former President George W. Bush said to the world, concerning Al Qaeda and other terrorist groups, that “you’re either with us or against us.” But even he came to appreciate it was more complicated than drawing a line in the sand. People can at times be supportive of a position, but when asked to give their “all or nothing,” many defer. It is not a good way to negotiate.

For this reason, Assemblyman Dov Hikind is correct in seeking a compromise.

I offer the following suggestions that may be incorporated and serve the best interests of all:

1) Victims of child molestation have consistently stated they want the perpetrator to be accountable, to take responsibility and acknowledge his actions. Victims want the world to know it was the perpetrators’ fault, not their own. Victims have expressed this as an important aspect of enabling them to move on with their lives. They generally don’t speak of revenge, but of goodness and responsibility.

Open a one-year window for perpetrators to disclose their acts that were committed and that exceed the criminal statute of limitations. Provide them amnesty from future civil suits.

The gain here is to identify as yet unknown perpetrators and place them under a watchful eye, with required risk assessment, treatment, and some form of probation and monitoring.

Those perpetrators who do not come forward would be subject to (potential) future civil claims—stated another way, a window.

2) Institutions (churches, day schools, yeshivas) are understandably concerned they will be inundated with lawsuits. The Catholic church’s exposure in California and Boston forced them to sell property and likely close some schools.

Schools may be sued for acts committed by their staff that they may have been completely unaware of. That of course is not a consolation to the victim, who may understandably seek recourse. Nevertheless, the school’s financial liability may be great.

If a school is found liable in even one lawsuit requiring them to pay a sum in the millions that exceeds their liability insurance, they may be forced into bankruptcy. How can a school protect itself in an insurance claim from 25 years ago or more, when insurance coverage may have been wholly different? How does that serve the best interests of their student body, parents, and community? In the end, who wins and who loses?

Instead of allowing unlimited lawsuits, we can limit them to reasonable amounts. We can cap the lawsuits, for example, not to exceed a $500,000 payout, and cap the contingency fee by attorneys to 10 percent.

There is a tendency by attorneys to throw out a huge number in a lawsuit, in the tens or hundreds of millions. This is what is creating a backlash against the window provision.

3) Insurance companies have generally stayed on the sidelines, not wanting to be involved in any aspect. They need to be brought in, even as unwilling partners.

Many victims avoid treatment, fearing they will get a diagnosis on their insurance that will “label” them and further their stigmatization. This is true of offenders, as well; hence they may avoid seeking treatment.

Further, insurance companies have in the main refused to provide coverage for treatment of sexual abuse. This is similar to the insurance industry a decade ago choosing to significantly raise liability premiums for physicians, thus effectively reducing the number of ob/gyn, anesthesiologists, and other specialists. Victims’ advocates should lobby the insurance industry to provide coverage, thus broadening the entry of professionals into this complex field of work.

The lack of insurance coverage prevents many victims from obtaining good treatment. Aside from the 40 million uninsured Americans, countless people with insurance have only limited mental-health coverage. Treatment for victims of sexual abuse often requires the services of clinical professionals with specialized training and may last one or several years. Evaluation and treatment of pedophiles also requires highly specialized work and generally lasts two to three years.

Inadequate insurance coverage is a serious obstacle to properly supervising child molesters who want help and thereby protecting the public.

Victims’ advocates should place this in their sights. This is a critical issue, and success can be had. Advocates for infertility treatment successfully lobbied two years ago to require the insurance industry to include payment for fertility treatment. These often cost $10,000–$20,000 per course of treatment. It is common for many couples to go through multiple treatment cycles over several years.

4) Through our work over many decades at Ohel with victims, and in consultations with community groups throughout the country, the issue of a victims’ fund arises.

Compensation funds exist in many local governments for crime victims. This should be expanded to include victims of sexual abuse. Such compensation would further encourage victims who come forward and offer concrete validation for their pain and suffering.

Two victims now in their forties have repeatedly stated to me this is their primary interest. They, as many others, will not speak out, because of their personal shame and privacy.

A victims’ fund needs to be established especially for those lacking insurance, as well as others who do not want these diagnostic categories listed in their insurance history.

With an air of compromise and deliberations, it is possible that some institutional groups would consider establishing such a fund and to initiate a process of reconciliation between victims and institutions.

Our work at Ohel has brought us into contact with significant numbers of victims of sexual abuse, as well as perpetrators. This is one of the most complex areas of work in the field of mental health.

In the last ten years, OHEL has conducted numerous seminars in communities throughout the country on prevention and response to sexual abuse. Invariably, at every such gathering at least one individual would privately disclose their experience as a victim some ten, twenty, even thirty years earlier or more. It is fair to say that sexual abuse ranks very high on the list of secrets and memories not forgotten.

Many victims have said that by listening to tapes by prominent rabbanim and community leaders speaking out on this issue and by attending such seminars they have been empowered.

There are few issues in life that are black and white, even though we would like them to be. Many more are the shades of gray.

These suggestions could move our system another step toward protecting our children, providing victims with renewed strength and support, and putting perpetrators on notice that with every passing day we will shut them down.

David Mandel is chief executive officer of OHEL Children’s Home and Family Services in New York City. He can be contacted at

Dear Ms. Markey:

The Rabbinical Council of America represents more than 1,000 modern and centrist orthodox rabbis. We are the rabbinic arm of the Union of Orthodox Jewish Congregations of America.

We support Bill No. A.02596, sponsored by you, which would extend the civil and criminal statutes of limitations for sex abuse victims.

Child sex abuse is a horrendous crime. Victims often bear the scars for entire lifetimes. They are at higher risk for clinical depression, substance abuse, and suicide.

Many victims are overcome by feelings of confusion, shame, and embarrassment. As children and teens, they are psychologically and emotionally unable to deal with the court system. Only later, as adults, and often with therapy, do they feel comfortable in working with the judicial system. Unfortunately, arbitrary statutes of limitations stand in their way.

Jewish law and tradition recognize the need for our justice system to protect the most vulnerable among us. Lowering the statute of limitations bar for child sex abuse victims would serve that purpose. Sexual predators are often recidivists and need to be incarcerated, and classified as convicted sex offenders, in order to assure public safety. Sex abuse victims deserve to be fairly compensated for their grievous injuries. Your bill will assure these laudatory goals.
Sincerely yours,
Rabbi Basil Herring

Executive Vice-President

Dear Mr. Weisenberg:

The Rabbinical Council of America represents more than 1,000 modern and centrist orthodox rabbis. We are the rabbinic arm of the Union of Orthodox Jewish Congregations of America.

We commend you for introducing Bill No. A.06656 on March 11, 2009, together with Assembly Member Dov Hikind and 20 additional co-sponsors. This Bill, if it becomes law, will legally mandate the fingerprinting and criminal history background checks of all prospective nonpublic school employees.

The RCA is strongly committed to the safety of the approximately one-half million children who attend religious and private schools in New York State, including 100,000 yeshiva school children. In 2005 and 2007, at our annual Conventions, we enacted Resolutions endorsing background checks for all school employees. The Resolutions can be viewed on our web site.

We strongly support passage of Bill No. A.06656. Fingerprinting and background checks are required for all public school employees. Nonpublic school children are entitled to the same legal protection.

This bill is a critical first step towards assuring the safety of nonpublic school children. We look forward to working with you and your colleagues on additional legislation that will further enhance the security of religious and private school children.

Sincerely yours,
Rabbi Basil Herring
Executive Vice-President


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