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.
MASSACHUSETTS CATHOLIC CONFERENCE
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.
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.