Governance and Trust

(Why The Bishops Are Wrong, Part I)

A few posts ago, we learned that the bishops' opposition to the abuse reform Bill 1523 boiled down to three points. The MCC claimed that the bill would:
1) upset the reasonable balance of rights and interests struck by current legislative and judicial policies governing civil statutes of limitations;
2) destroy the protections of charitable immunity which exists for legitimate reasons based on the social contributions generally provided by non-profit, religious, and other charitable organizations;
3) inflict “no-fault” punishment contrary to reason and justice.
In the coming posts we will examine these objections. For now it's enough to point out that # 1 is a defense of the status quo (it assumes that the current balance of rights between victims and perpetrators is just).
# 2 rests largely on an argument that has unfortunately become very familiar –"We are too big to fail."
# 3 asserts that a corporation should not be punished for the actions of its employees.

Many of the arguments of the MCC have merit when viewed in isolation. But, if one takes the time to study the issues it becomes clear that there is a larger picture which the objections do not address.

In the previous post, we suggested that the MCC, though it claims to speak for the entire church, actually speaks only for the bishops. Specifically, the MCC does not solicit the views of the laity prior to giving testimony before committees of the legislature. Nor does it encourage discussion within the church in order to arrive at the conclusions claimed to represent the Catholic position on public policy.

By these actions, the MCC slights the canonical body, the true church, in favor of the corporations of the respective dioceses. To be sure, the corporations are necessary, since the church could not operate in the civil arena without this license. But even though the corporations are important, they are not the church.

Thus, it is not only the content of the bishops' objections to the reform bill that is wrong – the way that these objections are arrived at, and how they are expressed, is also wrong. It is telling that when testimony is actually made in front of the joint committee, the language is unabashedly corporate. Gone is the pretense that "giving witness to spiritual values" or adherence to a "moral vision" are what that MCC is after. Instead, this is legal hardball – and sounds like it. Where does this disconnect from the simple message of the Man from Galilee come from? The problem can be summed up in one word: governance.

The bishops justify their preference for centralized power on a hierarchical understanding of the church. There are many problems with this approach, but the most serious is that it tends to favor centralization at the expense of community. Catholicism could survive without corporations, but not without community.

Those wielding centralized power occupy the "pointy end of the pyramid". But, they are only some of the many. The center of gravity should arguably be in the opposite direction, toward the bottom of the pyramid.

In church doctrine, the pope is the figurehead, but he is also described as the "servant of the servants", i.e., of the bishops. This ends in mystery because now the highest point of the pyramid is also the lowest. But, the church as Mystery is another perfectly respectable way to look at the church, and is itself more aligned with authentic Catholic values than centralization. At any rate, the more we look at corporate structure, the less it resembles what the church needs to be, a point not lost on canon law scholars who deplore the use of corporate structures in the church. See for example page 1457 of the "New Commentary on Canon Law" (2000) by Beal and others.

But, if we talked about church doctrine more, we would probably never find our way back to the Boston Common, so let's move on to the church/state dynamic.

According to the James Madison Center on Free Speech:
Almost all churches are exempt under section 501(c)(3) of the Internal Revenue Code on the basis that they are “operated exclusively for religious, charitable . . . or educational purposes.” As a 501(c)(3) tax exempt organization, a church:

(1) is exempt from paying corporate income taxes and donations to it are tax deductible for federal income tax purposes, and

(2) may expend funds for religious, charitable and educational purposes and an insubstantial amount on lobbying to promote legislation.
The amount spent on lobbying referred to in (2) cannot be too much. Generally, this "insubstantial" amount is judged to be between 5 and 20% of "funds".

More important is the opening definition, which suggests that it is the "exclusive" nature of the mission (religious, charitable, or educational) that makes it worthy of protection. Charities must be charities and cannot cross the line into political advocacy, nor can they become for-profit enterprises without losing their charitable status.

Taken together, these rules have been interpreted to mean that a charity must be generous toward all citizens: it is not allowed to discriminate, for example, by limiting services to its own adherents.

By furnishing desirable goods and service, the charity relieves the state of those burdens – and in return, the charitable organization is tax exempt. The church and state may be separate, but they don't operate in isolation. If it's reasonable to give the church a break (a tax break) it is no less reasonable to expect that the church will offer charity to all citizens, regardless of religious affiliation.

And yet, because the church is non-profit, the support of its adherents is crucial. To gain and keep this support, trust between adherents and officials must be maintained. Without that trust, the very existence of the church would be in doubt. Indeed, some commentators feel that the Roman Catholic church may have already reached that stage.

A key objection of the MCC to the abuse reform bill is that it would strip away the charitable immunity law which protects the church from large damage awards. But, this is not the only way that the church could go under. The church is just as vulnerable to a gradual loss of funding caused by a slow but discernible loss of trust among its adherents.

It's important to keep this trust issue in mind as we proceed. We next examine the first objection that the MCC raises to Bill 1523: the crucial importance of statute of limitations.

(to be continued)

Diocese should drop fight to hide past

An editorial on the effort by Bishop Lori of Connecticut to keep abuse documents secret:

OK, what is the MCC, really?

In the last installment we considered what the MCC (Massachusetts Catholic Conference) was all about, according to the bishops and Attorney Saunders, chief lobbyist. Now let's take a closer look.

When Saunders was introduced to the press in 2005, then-archbishop O'Malley said that he looked forward to working with the Board of Governors of the MCC and Saunders. It's hard to see how it could be otherwise - the four Governors of the MCC consist of the four bishops of the MCC, one of which is O'Malley! In fact, one searches in vain for anyone making policy for the MCC, other than the bishops. Since there are none, it's a safe bet that the MCC is simply an alter ego of the bishops.

It follows that the MCC staff acts as proxy for the bishops in the areas of public policy. One might call them The Apostles To The Legislature.

Their stated purposes are to witness to spiritual values, apply church teaching, and identify public needs in the areas of morality. So far, this sounds pretty much like a traditional description of what the clerical wing of the church proposes to do for the laity. The difference seems to be that this attention is directed, through the staff, to the legislature, and ultimately, through their formation and implementation of public policy, to all the citizens of the Commonwealth. This is serious stuff, because although the moral vision is peculiar to one group, it affects all, regardless of their religious convictions, through the political process.

I suppose when the legislature was mainly Catholic the MCC might have been preaching to the converted. Now, with so many non-Catholics (and ex-Catholics) among the lawmakers, the MCC might have to dig a little deeper and preach a little harder.

The MCC also states that it speaks for the Roman Catholic Church in Massachusetts. Here, I beg to differ. The church, as we know, is all of the people who make up the church, the communion of saints. To speak for the entire church the MCC would have needed to consult with the people who make up the church, to ensure that they are speaking with moral clarity, as one voice for the many. But, they didn't.

For example, I've been in this state attending Catholic churches for most of my life, and I don't recall being approached by Attorney Saunders or Attorney Avila for my opinion on a single thing. Of course Boston is a long way from Lee, or maybe it's still true that "Western Massachusetts" is identified as Worcester by those in the Hub of the Universe! But seriously, there are simple ways to seek consensus, or, at the very least, to survey the views of the Catholic people of Massachusetts, in order to represent the Catholic point of view before the legislature. In the absence of such efforts it is clear that the MCC can represent only the views of the chief executive officers of the corporation (the civil component) and not the views of the canonical body known as the church.

In the last installment we learned that the MCC aspired to be an "informational resource" for Catholics and wanted to encourage the "active participation of all Catholics in these important public debates". It is noteworthy that the MCC is willing to provide ammunition for the laity so that they can influence the public debate – but at the same time seems incapable or unwilling to maintain a discussion within Catholic ranks about what the Catholic position should be.

Should anyone doubt that there is a predetermined game plan which the troops are expected to follow, please revisit the link to the MCC-NET sign up page, where you will find a loyalty oath. This makes it plain that potential civil activists will be working under the "Exclusive Direction" (emphasis in original) of the bishops of the diocese. Loyal lay members are urged to participate, so that they can experience the satisfaction of leaving the sidelines for a place on the "winning team" in the legislative battles. The approach is not subtle.

However, some of the language is coy. The MCC, like the bishops, cannot say what they really want, as some of it would undoubtedly cross the line into political advocacy, running afoul of IRS and state-imposed guidelines. For this reason a great deal of code is necessary. Future posts will discuss this code, and how this code relates to Bill 1523.

(to be continued)

The Maturing of the SOL Movement

Marci A. Hamilton

The Maturing of a Movement: Statute of Limitations Reform for Sex Abuse Victims

Thursday, June 11, 2009

When the California legislature passed amendments to its statute of limitations on child sex abuse in 2002, no one knew that its members were initiating a revolution for child sex abuse survivors. The key innovation was the "window" legislation, which gave survivors one year (2003) to file claims even if the statute of limitations for their claims already had expired. In this column, I'll consider the growing influence of this important law and its supporters.

The Facts Learned from the California Experiment

There is no question that the California legislation was passed in part as a response to the public revelations about the cover-up of child sex abuse by the hierarchy of the Catholic Church, stemming from the investigative reporting in the Boston Globe. But the legislators did not pass the window legislation to apply solely to the Church. The legislators took what they had learned from the problems with the hierarchy of the Church – the fact of pervasive and hidden child sex abuse – and then passed legislation to benefit all victims of child sex abuse. Thus, the legislation was not at all anti-Catholic, but rather anti-child abuse. Courts reached this obvious conclusion repeatedly, with Melanie H v. Sisters of the Precious Blood being the leading decision.

In California, over 1,000 survivors came forward (about 850 from the Catholic Church). No one knew, though, what the benefits or costs of the window would be. It was a large experiment. Now that the claims have been litigated or settled, however, there are important facts that we have learned for the first time, or that reinforced facts unearthed by previous studies:

First, window legislation is not just good for victims. It is good for everyone. Windows divulge the perpetrators' and their enabling institutions' ugly secrets. In California, the names of over 300 perpetrators who had never before been named publicly were released. And the bishops' role in placing children's needs below public appearances was also elaborated. Making that information public is a benefit to every parent and child.

Second, many survivors need decades to come forward. The fact that over 1,000 survivors (from a variety of groups) took advantage of the window confirms what social science studies have shown repeatedly: It is a psychological fact that child sex abuse victims are disabled from revealing the abuse at the time they suffer it and for many years thereafter. However, if given an opportunity to come forward years later, they do want to – and are finally able to – do so.

Third, until the window was in place, society had been making public policy based on too little information. The window revealed that the laws we have focused upon, like sex offender registries and pedophile-free zones, have assumed we know who the predators are. One of the greatest shocks in the last ten years is to learn that we only know about 10% of the perpetrators because of a broken legal system that shuts victims out of court before they get there. (Victims usually cannot name their perpetrators without the legal system, because perpetrators can and will sue the victim for defamation. If nothing else, child predators are adept at lying and dissembling.)

There were also important lessons that we learned from statute of limitations reform about trial lawyers and their contributions to society. Trial lawyers and their large contingency fees are routinely vilified, but Professor Timothy Lytton of Albany Law School has written an important book, Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse, which supports the view that the clergy abuse lawsuits were instrumental in educating the public about abuse in the Church and about how Church leaders handled it. Even Professor Lester Brickman of Cardozo Law School, one of the most passionate opponents of abusive contingency fee practices and author of the forthcoming book The Rent Seekers: Lawyers, Torts, and Contingency Fees, has praised clergy abuse litigation for its good outcomes for society.

Without the trial attorneys and the lawsuits, society would have remained in the dangerous darkness that keeps children at extreme risk. The Boston Globe investigation was a vital beginning; only through victim-led litigation can we get to the documents and facts that explain the full story to the people.

The Movement Has Moved Across the Country, with Delaware Passing Window Legislation in 2007 and New York Now Actively Considering It

After the California statute of limitations (SOL) window closed at the end of 2003, Delaware opened a two-year window in 2007, which will close in July 2009. Once again, in Delaware, survivors deeply appreciated the opportunity for justice and the public was educated about previously anonymous child abusers.

This simple but effective idea has taken hold among survivors across the country. And similar legislation has been proposed in a number of states. Wherever the idea of SOL reform legislation for child sex abuse survivors has popped up, newspapers have come out in favor of the legislation. Supportive editorials of a variety of approaches to SOL reform have appeared in the San Francisco Chronicle, Press Enterprise (Riverside, CA), Denver Post, Palm Beach Post, Chicago Tribune, Bowling Green Daily News, Louisville Courier-Journal, Baltimore Examiner, Baltimore Sun, Times Herald (Port Huron, MI), St. Louis Post Dispatch, Newark Star-Ledger, Bergen County Record, Akron Beach Journal, Cleveland Plain Dealer, Philadelphia Inquirer, Allentown Morning Call, New York Times, Albany Times-Union, Jewish Daily Forward, Journal News (Westchester, NY), Syracuse Post Standard, Dallas Morning News, Spokesman Review (Spokane, WA), and Milwaukee Journal Sentinel. Thoughtful people who look at the facts find SOL reform legislation to be a no-brainer. That is why its opponents often sound maniacal or hysterical.

An Anti-SOL Reform Backlash: Why the Movement's Enemies Are Fighting a Losing Battle

The window movement also has generated an anti-SOL reform backlash. When the California window legislation passed, the hierarchy of the Catholic Church was still reeling from its recent exposure in Boston, and other communities across the country, and did not put up much of a fight. When the hierarchy realized after its passage, though, that many of their victims in California would open the window on the Church's secrets, they quickly mobilized, hiring an army of lawyers in California to fight every case (and now to fight the release of every document, as I discussed in a previous column).

The hierarchy's fear of having its secrets spilled also has motivated it to lobby heatedly against SOL reform. At this point, the Catholic Conference in each state is charged with monitoring whether child sex abuse statutes of limitations reform legislation is pending, and to fight it. Overall, the Conferences are spending hundreds of thousands, if not millions, of dollars to fight the survivor movement. They throw at the reform bills every conceivable argument, regardless of whether it is true or false, and their tone is invariably inflammatory and vituperative; they quickly and thoughtlessly demonize anyone in support of child sex abuse SOL reform.

In New York, which is now the most active state with respect to SOL reform, according to the media, four lobbyists have been hired by the hierarchy to battle the pending window legislation, the Child Victims Act (recently amended). These lobbyists have concocted three arguments: First, they say that the original bill was "unfair" because it did not apply to public institutions. (In fact, this was an outright misrepresentation of the law; it opened a window for all victims filing against public institutions under federal civil rights law and for victims in state court who could ask for a waiver of a state procedural hurdle.) In the tone of "woe is me," with their "fairness" argument, they have worked assiduously to move the attention away from the victims they created (who are walking the halls of the New York legislature virtually every day at this point), shamelessly portraying themselves as the "real victims."

Second, they argued that the original bill was too "open-ended." It is just not fair, according to them, to make the Church liable for its bad acts decades ago – even though no one questions the continuity or consistency of this 2000-year-old institution or that they are more than likely guilty in a large number of cases.

Third, they have told their parishioners and the press repeatedly that they will go "bankrupt" if they have to pay damages to the victims they created, when this is simply untrue; the Church will be able to pay its liability by selling real estate unrelated to its mission and through insurance, as I detail further below.

An Increasingly Diverse and Politically Savvy Movement

The movement in New York has become much more diverse, and has expanded to include not only survivors of the Church, but also Jewish survivors and victims of family sexual abuse. The diversification makes tremendous sense, since these bills apply to every survivor, and since the vast majority of child sexual abuse victims faced perpetrators who were neither trusted religious figures nor Mr. "Stranger Danger"; rather, the largest category of victims includes the victims of family abuse. The survivors have found many other partners, including the National Black Church Initiative and numerous Jewish groups, like Survivors for Justice, and others to join with them in their cause.

Ironically, the opposition is limited almost exclusively to a select set of religious groups, though they account for a small percentage of victims. (That means they are lobbying against the victims of incest, the largest percentage of victims.) The Catholic hierarchy has found a partner in Agudath Israel in lobbying against such reform in New York. You can identify which religious groups in a particular region of the country have particular concerns about their sex abuse secrets. In Oregon, where a bill to extend the statute of limitations is being considered, the Catholic hierarchy is working very publicly with the Church of Jesus Christ of Latter-Day Saints to stop the reform.

The victims' movement has matured in other ways as well. The survivors have become tougher and savvier in the public arena. No political fight, especially one in which religious groups are throwing around their political weight, leaves anyone unscathed. The making of legislation is like the making of sausage: No one in their right mind would want to watch. In New York State, the movement has had to learn – as it faces the brass-knuckle politics for which the state is famous -- that this movement is no different than any other. When it seemed they had no chance at getting their legislation passed, they were treated with kid gloves and respect. But now that there is a real possibility that a statute of limitations window will become law, the Church hierarchy has adopted the motto "All is fair in love and war" -- or in their case, "All is fair if the result benefits the Church." The members beholden to the Church likewise have been cold to the survivors' faces, who in turn have gotten thicker-skinned and tougher.

The Child Victims Act Is Amended to Meet All of the Church's Potentially Reasonable Objections

In order to build the strongest support for the Child Victims Act in the Legislature, its primary champion, Assemblywoman Marge Markey, agreed to amendments that would explicitly expand its reach to public institutions and cap the age of those who could bring claims under this window at age 53. She simultaneously slayed the only two plausible arguments the Church had.

Victims across the state initially were distraught at the age cap and some reacted blindly, saying that if the bill did not reach every victim, it should be killed. And truth be told, some of the most ardent supporters of the legislation are cut out by the age cap. But to their credit, they quickly recovered and went back to the arduous task of educating members of the legislature about the travails of child sex abuse survivors, and the need for New York parents and children to know who the perpetrators are. Ultimately, they came to the conclusion that having a somewhat smaller window was still far better than having no window at all in New York.

The Church was then left with its groundless financial argument against the bill. A crucial fact that came out of California was that the Church does indeed have the resources to make up for the evils that the hierarchy visited upon children. The settlements were half insurance proceeds and half proceeds from the sale of property not related to religious purposes. No schools were closed, and no services were cut, just because the Church paid the damages due to its victims under law. The one filed bankruptcy case (of the San Diego diocese) was baseless, because the diocese had so many land holdings it did not belong in bankruptcy court. The filing was dismissed.

The New York hierarchy, though, has ordered its parish priests to say the opposite to parishioners on Sunday, claiming that religious mission is threatened by statute-of-limitations windows, but putting these lies behind the pulpit does not make them true. It does, however, bring to mind a line from Prizzi's Honor, when Jack Nicholson says to Kathleen Turner, two hitmen falling love, that the Sicilians would "rather eat their children than part with money and they are very fond of children."

Nor can lies be turned to truth when a bishop states them. Brooklyn Bishop Nicholas DiMarzio aggressively has tried to sell the fiscal story. The money story against the window legislation, though, is deeper than his shallow predictions of the end of Catholic services (largely funded by the government anyway). The New York Times reported recently that DiMarzio removed Rev. James O'Shea of Churches United from a Brooklyn affordable housing project to increase Assemblyman Vito J. Lopez's control of it. In an unsubtle move, Lopez then introduced a bill to compete with the Child Victims Act, which was obviously co-authored by church lawyers given its original exclusion of institutions (like the Church) from liability for harming children. That bill has lost momentum in another mark of how far the survivors have come.

After Markey amended the Child Victims Act to meet the hierarchy's only potentially reasonable objections, DiMarzio moved to condescension for the victims, saying that he knows what victims need more than they do. According to the Times, he declared that "the adversarial process of litigation would present an "insurmountable barrier to bringing about what is necessary — healing." With the number of survivors joining this movement nationwide and walking the halls in Albany, his paternalism is outdated, to put the best face on it.

Knowing that money alone could not sustain their opposition forever, the hierarchy ratcheted up the rhetoric. On June 8, the Catholic League for Religious and Civil Rights released a wild-eyed press release, calling New York's newly-amended Child Victims Act "chopped meat." The flailing for metaphor speaks for itself.

The movement was then thrown for a loop (as was all of Albany) when the New York Senate flipped from Democrat to Republican control this week. Showing their resilience, though, the survivors showed up in Albany the next days and went from office to office with the same message: This is the right and the best thing to do for New York's children. The two Senators who moved from Democrat to Republican were sponsors of the original bill, so there is every reason to believe this bill for children can be passed whether Republicans or Democrats are in control. A vote is expected in the Assembly next Tuesday, June 16.

At the same time, the reform movement has become more sophisticated, with the Survivors for Justice purchasing radio spots urging passage, other groups even hiring lobbyists, and the creation of a comprehensive website,, on which I have taken the lead. Moreover, the movement has expanded well beyond survivor groups alone, to now include Parents for Megan's Law, the National Organization for Women, Pandora's Project, Justice for Children, the Leadership Council, and the National Sexual Violence Resource Center, among many other worthy organizations.

Out of these coalitions, a new mantra can be heard, one which proves that the SOL reform movement has truly grown up and embraced its adult role in the rough-and-tumble world of politics. That mantra is directed to New York legislators right now, and it is this: Vote against the Child Victims Act, and we will fight tooth-and-nail to be sure you are never re-elected.

The Fight Over Bringing Old Accusations to Court

The Wall Street Journal
JUNE 11, 2009


Sex-Abuse Scandals Lead States to Revise Statute of Limitations; Opponents See Risk in Relying on Stale Evidence

If it is too late to bring a criminal case against a child abuser, should it be too late to sue in civil court?

A handful of legislatures have grappled with that question, and a pair have said better late than never.

Two states have created litigation windows that open up a new time period for victims of childhood sexual abuse to seek redress in civil courts. In 2002, California allowed victims one year to file cases against their abuser or the employer, no matter when the abuse had occurred. Delaware followed suit in 2007, giving people two years to bring accusations in civil court. This year, New York state legislators have been debating a one-year statute. Other states are mulling similar measures.

Statutes of limitations, for criminal or civil actions, help avoid circumstances in which evidence is incomplete, documents have disappeared and testimony relies on faded memories.

But triggered by high-profile scandals of abuse at the hands of Catholic priests, some of which occurred decades ago, a few states have seen the need for "window laws'' that temporarily open the courts again to allow past grievances to be remedied through civil actions, though not criminal prosecutions. Supporters say these laws can benefit people who might not have known years ago or didn't disclose that they had been harmed.

Yet, such laws inevitably raise questions of constitutionality and fairness.

Defense attorneys say many of the abuse cases that were brought in California and now in Delaware name perpetrators and religious superiors who are dead or retired. The only point, says some attorneys, is to wrench money from the Catholic church. "It's almost impossible to defend the cases," says Mark Chopko, the former counsel for the U.S. Conference of Catholic Bishops, who says he has been a consultant on more than 1,000 abuse cases.

The Most Rev. Nicholas DiMarzio, bishop of the Diocese of Brooklyn, N.Y., has been an outspoken opponent of the bill in Albany. "Clearly this is aimed at the Catholic Church," he said. "People believe we have deep pockets and are responsible for individuals that might have been representing the Catholic Church." Sexual abuse is a much bigger problem in public schools, he said.

The issue is the subject of debate beyond the Catholic Church. In New York, the proposed law to create a one-year window on civil suits is being supported by some Jewish groups, who say that childhood sexual abuse is a little-known problem in the Jewish community. But opponents say the legislation would force Jewish institutions into settling cases from years past, bringing financial ruin to schools and synagogues.

Legislatures have created window laws before, particularly when people have become sick years after the harm was caused. State laws passed after the Vietnam War allowed lawsuits by veterans and their families who had developed cancer and other ailments linked to Agent Orange. Some states have created window legislation for those harmed by asbestos, injured by medicines taken by their mothers during pregnancy or exposed to environmental dangers, such as the polluted New York state neighborhood around Love Canal.

Courts have generally upheld statutes of limitations, in part, to give potential targets of lawsuits a sense of relief, known as "repose" in the court system. "If 25 years have gone by and a defendant can be sued, there's an aspect of this that can seem unfair," says Peter H. Schuck, a professor of law at Yale University, though he doesn't have a position on the legislation.

A more practical rationale underlies the notion of time limits, too. The idea is to bar lawsuits for acts performed so long ago that defendants no longer could mount a reasonable defense. A business owner, for example, would have difficulty building a defense against an accusation, filed 30 years later, by a former employee who says he got hurt on the job, long after witnesses scattered and the company's paperwork was discarded. Says Mr. Schuck: "You don't want legal disputes to be resolved on the basis of stale evidence."

There are some crimes that are viewed as so heinous, namely first-degree murder, that they often don't have a statute of limitations. In many jurisdictions, murder charges can be brought whenever prosecutors believe they have enough evidence, no matter how much time has passed.

But the criminal charge of rape or sexual assault is subject to a statute of limitations in many states, though often a relatively lengthy period, such as 10 years in some states.

Efforts to open a "window" to criminally charge people for rapes committed years ago have met with resistance in court. In 2003, the U.S. Supreme Court rejected retroactively extending time limits on criminal prosecution of sexual abuse against minors. The court said California unlawfully changed the legal consequences of the crime after the fact. The Supreme Court chose not to take up the issue of civil lawsuits, but California state courts have upheld the constitutionality of retroactive civil actions.

The California legislation ushered in more than 800 lawsuits, compelling the Archdiocese of Los Angeles to issue a report that named clergy who had been accused of abuse. Some who were still working in ministry were removed from their posts. That diocese alone paid a settlement of more than $660 million in 2007 to people who said they had been abused.

Plaintiffs attorneys say that the nature of sexual abuse -- which some victims, such as children, are too ashamed to report -- compels state governments to give victims an added legal opportunity to confront their abusers.

The California law ushered in litigation that revealed the names of alleged perpetrators and compelled schools, dioceses and other organizations to handle abuse complaints more quickly and openly, says Marci Hamilton, a Cardozo Law School professor and longtime advocate of lifting limitations on abuse cases.

Matthias Conaty, 40 years old, who says he was abused by a Capuchin Franciscan friar starting when he was 9, helped lead the effort to get the Delaware law passed. Last year, Mr. Conaty sued his alleged abuser, religious orders, a school and the Diocese of Wilmington, accusing them of gross negligence. Mr. Conaty is seeking unspecified monetary damages and the release of all documents related to the alleged abuse of children.

An attorney for the diocese couldn't be reached for comment on the case, which is still pending. An attorney for the friar said she had no comment on Mr. Conaty's case.

"It's really in the public interest because it's about protecting children today," Mr. Conaty says. "Some institutions have changed the way they screen people. They've been much more responsive to small complaints."

The Massachusetts Catholic Conference

The MCC has voiced staunch opposition to the comprehensive sexual abuse reform act (known as Bill 1523 in the current session) since the effort began several years ago. There seems no reason to expect any change in 2009.

But what, exactly, is the MCC, and what does it stand for?
In this installment, we consider this question.

The stated goals of the MCC include the following:


The staff of the Massachusetts Catholic Conference (MCC) assists the bishops of the four Roman Catholic Dioceses in the Commonwealth by giving witness to spiritual values in public affairs. Under the direction of the Archbishop of Boston, and the Bishops of the Dioceses of Fall River, Springfield, and Worcester, the MCC will:
- Apply Church teaching to any public policies and programs affecting the common good of all Massachusetts citizens and the interests of Catholics

- Speak for the Roman Catholic Church in Massachusetts before all branches of government and before all groups concerned with social policy

- Identify needs in the areas of morality, health, welfare, education, human and civil rights, and determine ways to meet those needs

Ordinarily, it is the Executive Director of the MCC, Attorney Ed Saunders, Jr., who actually testifies in front of the legislature, often, if not always, before the Joint Committee on the Judiciary. His testimony is often underpinned by research conducted by fellow attorney Daniel Avila, who appears to be the number two staff person. A third member of the staff, Kathryn Davis, was added in Feb. of this year. Ms. Davis has been a legislative aide in the House for many years. The staff is rounded out with an office manger.

When Saunders was appointed in July of 2005, then-Archbishop O'Malley stated that it is "…imperative that the Church's voice on…moral issues be competent, always civil and consistently faithful to a moral vision…". He also stated that "The Bishops and Board of the Mass. Catholic Conference look forward to working with Ed Saunders to meet the objectives".

For his part, Saunders said that both the state and the church faced important public policy issues that will have long-term effects. He looked forward to working with the legislators on behalf of the MCC and "…being able to provide our lawmakers with the information that they need to make informed decisions…"

The press release announcing Saunder's appointment stressed that the MCC has always concerned itself with the "…foundational social issues affecting the dignity of the human person and the sanctity of all human lives." However, the MCC cannot achieve its goals alone.

It "…serves as an informational resource and encourages the active participation of all Catholics in these important public debates." Indeed, for the MCC, the "…involvement of all Catholics in the public policy arena is absolutely crucial…" because of the "…threats posed by the legalization of abortion and euthanasia, the re-institution of the death penalty, the redefinition of marriage and the family, and economic injustice…".

The perceived severity of the threats may explain the vigorous outreach program conducted by the MCC. Their web site contains a sign-up page (MCC-NET) so that interested Catholics can avail themselves of the latest alerts - 11 so far this year - broadcasting MCC-sanctioned positions. The sign-up sheet is well worth studying and is located at:

(to be continued)

Donohue Threatens To Help Abuse Victims

The Catholic League Web Site
June 4, 2009

Paul Vitello has a news story in today’s New York Times reporting on the decision by New York State Assemblywoman Margaret Markey to amend her bill on the sexual abuse of children. Her previous bill only covered private institutions like the Catholic Church, leaving in place protections afforded public institutions. This led many Catholics to oppose her bill and support the one sponsored by Assemblyman Vito Lopez which treats public and private institutions equally. There is still one major difference between the two bills: Markey’s allows for a one year suspension of the statute of limitations, thus permitting anyone to file a claim regardless of when the abuse occurred.

Catholic League president Bill Donohue outlined a new campaign:

The statute of limitations is an integral provision of justice, and that is why the Lopez bill is still preferable to Markey’s new one. But if Markey’s bill prevails, the Catholic League will spend hundreds of thousands of dollars in a massive public education campaign to alert those who have been sexually abused by a public school employee that they now have one year to sue the schools, even if the abuse took place when JFK was president. We will use every media outlet available.

Our campaign will be limited to those victimized in public schools. Why? Because up until now, in New York and many other states, lawyers and professional victims’ abuse advocates have waged a relentless campaign to exclusively stick it to Catholic institutions, all the while doing positively nothing to help those victimized by public school teachers. To even the scales of justice, we will now copy-cat their tactics, only the target audience this time will be those molested in the public schools.

Markey is nothing if not dishonest. All along she insisted that her initial bill applied equally to private and public institutions. But if this were true, then there would have been no need to amend it.

Bishops' Position on Abuse Bill

The following is the official position of the Catholic bishops of Massachusetts on Bill 1592, the previous version of Bill 1523. The bills are similar but not identical.

For example, language has been inserted in the most recent version to counter the previous complaints of the bishops about the attempts to hold corporations or other institutions responsible for the failure of a mandated reporter (an employee) to file a report.

Another change is that the new bill asks for a two-year window, not three. But in most other respects, the current Bill, 1523, is a carbon copy of Bill 1592, which the legislative testimony below is a response to.

To date there has been no public announcement of how the bishops feel about the new bill which was filed in January; but based on their past positions, it is likely to mirror what we see here.


Re: H. 1592, “An Act Relating to Comprehensive Protection from Childhood Sexual Abuse”
Date: February 26, 2008

…in general…statutes of limitation acknowledge the increasing risk over time of inaccurate verdicts based on “stale” evidence, and reflect the reasonable judgment that after a certain period, the risk becomes unacceptable. The time, money and effort required to separate out the truly meritorious claims will expand exponentially while the odds of accurate fact-finding by judges will continue to shrink as the years pass.

Eliminating filing deadlines altogether ignores these critical interests. By proposing such an extreme measure, House 1592 would, if enacted, expose potential defendants and society itself to an open-ended threat of litigation based on presumably unreliable evidence and the consequent uncertainty.

…an additional serious problem of fairness arises when a legislative alteration…is directed not only prospectively but retroactively, such as to revive lapsed past claims or to extend the time on existing, yet-to-lapse claims. To the issues of staleness and social uncertainty is added the unfairness of imposing a new burden retroactively.

Based on existing legal expectations, potential defendants are led to believe that their vulnerability will exist for a certain period of time, but that then it will end: then they will be free to cease gathering and preserving evidence of their innocence and direct their attention and resources to the future.

Present Massachusetts law regarding the limitation period for civil claims already accommodates in a fair manner the competing interests of plaintiffs, defendants, and society as a whole. The scales do not tilt entirely in either direction between plaintiffs and defendants. If passed, the provisions in House 1592 dealing with statutory civil filing limitations would destroy the careful balance currently struck by the legislature and the courts.

Abolishing Charitable Immunity

Sections 10-13 of House 1592 expands the degree of potential civil liability to which a charitable organization and its officers and directors would be subject by removing altogether the existing cap in Massachusetts for a range of tortious conduct, and making the expanded liability retroactive. We oppose these changes for the following reasons.

Charitable immunity recognizes the importance of preserving the financial capacity of charities to serve the public good. As noted in the Massachusetts Law Review, a publication of the Massachusetts Bar Association,

“The primary rationale for charitable immunity is that, without it, the financial strains of liability would reduce the capacity of charitable institutions to provide valuable goods and services to the community. In turn, these ‘public goods’ would be undersupplied when left to the commercial sector, with government having to make up the shortfall. Thus, by furnishing societal benefits, charitable institutions relieve government of the burden and costs it would otherwise confront if responsibility for public goods were left primarily to for-profit businesses.” (Kenneth R. Hohlberg, Modern Reflections on Charitable Immunity, Mass. L. Rev., Winter 2006, at 163, 164.)

Any alteration in the careful balance currently struck by the charitable immunity statutes between the interest of charities in providing services of great public value and the interests of those harmed by sexual abuse should be based on a careful and comprehensive public policy assessment. The bills before this committee fail in this regard for the following reasons.

1st, removing all limits on the amount of liability exposes charities to the threat of dissolution as a result of the unlimited awarding of damages in specific cases.

2nd, no precedent exists for singling out specific torts in order to open the damage award floodgates.

3rd, retroactive application would interpose an extremely unfair enlargement of potential liability without affording charities the opportunity to sufficiently insure against actual risk of loss from claims already brought.

4th, stipulating that retroactivity should be as extensive as judicially determined, transgresses constitutional guarantees of fairness while at the same time it hands over to the courts the legislative task of assessing the competing public policy interests.

5th, the combination of all of these effects, when exacted on individual officers and directors, will create a serious chilling effect on the willingness of dedicated citizens to serve in these socially indispensable capacities.

Subjecting Institutions to the Threat of Criminal Fines Under the Child Abuse Reporting Law

Section 4 of House 1592 would subject charitable and educational entities to the threat of criminal fines for up to $100,000 based on the failure of an employee to exercise his or her duties under the child abuse reporting statute, M.G.L. c. 110, § 51A. This punishment would pertain regardless of whether the institution’s policies, standards, controls, and responses concerning the potential, alleged and actual wrongdoing of employees were reasonable in light of the circumstances.

Even those institutions would be subject to punishment which took every conceivable measure to address the risk that individual employees subject to the duties of § 51A in fact would breach those duties, despite the lack of any institutional fault. Given that criminal sanctions should have as their purpose the punishment of wrongdoing, a criminal provision that inflicts punishment in the absence of wrongdoing cannot satisfy the demands of justice.

Conference Position

In conclusion… key provisions [of House 1592] would:

1) upset the reasonable balance of rights and interests struck by current legislative and judicial policies governing civil statutes of limitations;

2) destroy the protections of charitable immunity which exists for legitimate reasons based on the social contributions generally provided by non-profit, religious, and other charitable organizations;

3) inflict “no-fault” punishment contrary to reason and justice.

For these reasons, the Conference urges the Committee to give House 1592 an unfavorable report recommending that the bill ought not pass.