the following is an abridged version (footnotes and citations are omitted) of the Picher decision of the Maine Supreme Court dated July 7, 2009. This version was edited for the WesternMassachusettsCatholics blogsite. The full pdf version is here.
Possibly the key paragraph is this one:
[¶29] For three reasons, we do not recognize the defense of charitable
immunity in claims involving intentional torts.
First,
applying charitable immunity to intentional torts would set Maine so far outside the mainstream that it would put this State in a class by itself. We do not believe it advisable to expand so profoundly a doctrine that has generally been acknowledged as bankrupt.
Second,
nothing in the legislative history of section 158 indicates any legislative intent to so interpret the doctrine of charitable immunity.
Third,
there are no convincing policy reasons to apply charitable immunity to intentional torts. We therefore hold that charitable immunity is not available as a defense to intentional torts.
PICHER
v.
BISHOP OF PORTLAND
I. BACKGROUND
[¶2] Picher brought this suit against a former priest, Raymond Melville, and
the Bishop, based on sexual abuse of Picher by Melville when Picher was a minor in the late 1980s. Picher asserted claims against Melville for negligence, sexual assault and battery, invasion of privacy, intentional infliction of emotional distress, clergy malpractice, and breach of fiduciary duty. Melville defaulted. Picher asserts claims against the Bishop for negligent supervision, breach of fiduciary duty, canonical agency, and fraudulent concealment of facts.
[¶3] Picher alleges that the Bishop was on notice that Melville had abused a
child before he was ordained as a priest and before he was assigned to the parish where the abuse of Picher occurred. Picher further alleges that the Bishop failed to report Melville to law enforcement officials and concealed Melville’s propensities from parishioners and the public. The Bishop denies these allegations.
[¶5] From July 1, 1986, to July 1, 1988, during the period when the alleged
acts occurred, the Bishop was insured by Lloyd’s of London pursuant to two
consecutive policies, each of which contained an endorsement entitled “Sexual
Misconduct Exclusion.” This endorsement provides that “[s]exual or physical
abuse or molestation of any person by the Assured, any employee of the Assured or any volunteer worker does not constitute personal injury within the terms of this policy and as such any claim arising, directly or indirectly, from the aforementioned is excluded.”
[¶6] The Bishop moved for summary judgment based on its affirmative
defense of charitable immunity. The court granted the Bishop’s motion, holding that the Bishop qualifies as a charitable organization and has not waived its charitable immunity pursuant to 14 M.R.S. § 158 because it has no insurance coverage for the claims made by Picher. The court also held that the doctrine of charitable immunity covers both intentional and negligent torts. After a damages hearing, a final judgment was entered against Melville in the amount of $4,227,875. Picher appealed the grant of a summary judgment in favor of the Bishop.
II. DISCUSSION
A. Standard of Review
[¶8] The Bishop asserts a charitable immunity defense as to Picher’s claims
for negligent supervision, breach of fiduciary duty, and fraudulent concealment. Because we treat the intentional tort claim of fraudulent concealment differently from the negligence claims, we discuss them separately, after we explain the history of the doctrine of charitable immunity.
B. History and Current Status of Charitable Immunity
[¶10] Picher has… directly challenged the application of charitable
immunity to all intentional torts, an issue we have not previously had occasion to consider. Our decision not to extend the doctrine to intentional torts is based on three aspects of its history: (1) charitable immunity is discredited and has been abandoned in the majority of jurisdictions; (2) the Legislature did not intend to expand the scope of the common law doctrine of charitable immunity when it enacted section 158; and (3) we have previously held that we would maintain, but not expand, the doctrine, and we would leave it to the Legislature to decide whether to abolish it. We address each of these in turn.
1. Charitable Immunity Is a Discredited Doctrine
[¶11] This Court introduced charitable immunity as a judicial doctrine
almost one hundred years ago and adopted it as an affirmative defense available to non-profit organizations to bar negligence claims. Jensen, 107 Me. at 410-11, 78 A. at 899. In Mendall v. Pleasant Mountain Ski Development, Inc., 159 Me. 285, 290, 191 A.2d 633, 636 (1963), we acknowledged, for historical purposes, the two policy justifications for charitable immunity that had been advanced in Jensen. These were “(1) that funds donated for charitable purposes are held in trust to be used exclusively for those purposes, and (2) that to permit the invasion of these funds to satisfy tort claims would destroy the sources of charitable support upon which the enterprise depends.” Id. We upheld charitable immunity in Mendall, not because we concluded that these policy reasons were sound, but rather because non-profit organizations had relied upon charitable immunity for so long that abrogation of the doctrine would be far-reaching and should be undertaken by the Legislature. Id.
[¶12] Since Mendall, we have explicitly acknowledged that the rationale for
charitable immunity has been severely criticized…this criticism has been explained in the Restatement (Second) of Torts:
[T]here has been resort to ideas of “public policy” for the
encouragement of charities and mention of the fear that they may be
stifled if donors are discouraged from making gifts because their
money may go to pay tort claims. The development of liability
insurance has made it quite unlikely that donors would fail to
recognize it as a legitimate expense of operation. In fact, all of the
supposed reasons for the immunity fail when the charity can insure
against liability.
Restatement (Second) of Torts § 895E cmt. c (1979).
[¶13] A review of the history of charitable immunity and its widespread
rejection in other jurisdictions confirms that it remains a doctrine in general
disrepute. Charitable immunity had a precarious start in this country after it had been tried and rejected in Great Britain. It was first adopted in the United States in McDonald v. Massachusetts General Hospital, 120 Mass. 432 (1876). The court relied on a line of English cases, originating in 1846 from The Feoffes of Heriot’s Hospital v. Ross, (1846) 8 Eng. Rep. 1508 (H.L.). ….however, even before McDonald was decided, this line of cases had already been repudiated. ….eventually… most states recognized the doctrine….
[¶14] Despite its widespread adoption in the late nineteenth century and the
first half of the twentieth century, charitable immunity began to erode quickly by the 1960s… the Pennsylvania Supreme Court noted that the doctrine of charitable immunity “was built on a foundation of sand.” ….. By 1984, “virtually all states with decisions on the subject at all ha[d] rejected the complete immunity of charities” with only two or three states having retained “full immunity in the absence of legislation to the contrary.” …..
[¶15] With respect to our neighboring states, charitable immunity has either
never been adopted or has long been abolished. New Hampshire and Vermont
have never adopted the doctrine….In 1961, the Rhode Island Supreme Court upheld a statute establishing charitable immunity for hospitals, but it stated that “[t]he question of whether such immunity as a matter of public policy is sound or otherwise may be open to debate,” and it left the debate to the legislature. …. Seven years later, the legislature repealed the statute….. Connecticut abolished charitable immunity by statute in 1967…..
[¶17] A review of the remaining jurisdictions shows that only a minority of
them still recognize charitable immunity, and no state has applied the doctrine to intentional torts. … twenty-eight states, in addition to those mentioned above, and the District of Columbia have abolished the doctrine of charitable immunity by either supporting or adopting section 895E, which provides: “One engaged in a charitable, educational, religious or benevolent enterprise or activity is not for that reason immune from tort liability.” Those jurisdictions include: Alaska, Arizona, California, Delaware, District of Columbia, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Texas, Utah, Washington, West Virginia, and Wisconsin.
Ohio, Louisiana, and Nebraska have also abrogated the common law doctrine of charitable immunity.
[¶18] South Carolina initially recognized the doctrine of charitable
immunity, but, in 1973, the South Carolina Supreme Court explicitly declined to extend it to intentional torts. In Jeffcoat v. Caine, the court noted the absence of a public policy rationale for extending charitable immunity to intentional torts, stating,
Regardless of the public policy support, if there now be such, for a
rule exempting a charity from liability for simple negligence, we
know of no public policy, and none has been suggested, which would
require the exemption of the charity from liability for an intentional
tort; and we refuse to so extend the charitable immunity doctrine.
198 S.E.2d 258, 260 (S.C. 1973)
South Carolina has since abolished the doctrine of charitable immunity as to all torts, although it limits the amount of damages one can recover from a charitable institution.
[¶19] New Jersey still recognizes charitable immunity, but does not grant
immunity for intentional torts. …
[¶20] Of the remaining states that retain some form of charitable immunity,
no state has explicitly applied the doctrine to intentional torts. Virginia recognizes charitable immunity, but provides an exception for the negligent hiring of an employee who commits an intentional tort. J. v. Victory Tabernacle Baptist Church, 372 S.E.2d 391, 394 (Va. 1988). In Victory Tabernacle Baptist Church, a church hired an employee recently convicted of aggravated sexual assault of a minor. Id. at 392. As was the case here, the employee had duties that put him in contact with children. Id. The Virginia Supreme Court held that “the independent tort of negligent hiring operates as an exception to the charitable immunity of religious institutions.” Id. at 394.
[¶21] Alabama has not directly addressed whether charitable institutions
should be liable for intentional torts, but the Alabama Supreme Court has
otherwise limited the doctrine of charitable immunity, and in dicta implied that
charities could be liable for the failure to use ordinary care in the selection of
employees..….in addition, an Alabama statute granting immunity to the unpaid directors and officers of non-profit organizations does so only when individuals have not acted with willful or wanton misconduct….
[¶22] In Maryland and Wyoming, the highest courts have not addressed whether the doctrine applies to intentional torts, but both have created intentional tort exceptions to other doctrines of immunity.
Arkansas and Colorado retain some form of charitable immunity, but
have never expressly applied it to intentional torts. The highest courts in Georgia and Tennessee have not addressed charitable immunity for intentional torts, but charitable immunity in both states only protects the property of charitable trusts. Therefore, charitable institutions in those jurisdictions could potentially be liable for any tort, as long as the judgment is applied to non-charitable trust property. In Georgia, however, charitable trust funds can be used to satisfy a judgment against a charity that has failed to use ordinary care in the selection of its employees.
[¶23] Hawaii and South Dakota appear not to have addressed the doctrine of
charitable immunity. Finally, New Mexico has not addressed the existence of
charitable immunity.
2. The Legislature Did Not Intend to Expand the Scope of Charitable
Immunity
[¶24] In 1965, the Legislature enacted 14 M.R.S. § 158, which limits the
extent of the charitable immunity defense available to a non-profit organization
that is covered by liability insurance…the Bishop argues that 14 M.R.S. § 158 should be interpreted to apply charitable immunity to intentional torts. This interpretation would require a determination that the Legislature intended to modify the common law…when the Legislature modifies the common law by statute, it must do so with clear and unambiguous language…
[¶25] Section 158 does not clearly and unambiguously express legislative
intent to expand the scope of the common law doctrine of charitable immunity.
Section 158 states: “A charitable organization shall be considered to have waived its immunity from liability for negligence or any other tort during the period a policy of insurance is effective . . . .” This language is ambiguous; the words “or any other tort,” plausibly suggest that section 158 was meant to expand the applicability of charitable immunity beyond its historical bounds, to cover any tort, including intentional torts. The other interpretation is that the statute has only one purpose, which is to deny charitable immunity, to the extent it would otherwise be available under the charitable immunity doctrine, when the non-profit organization is covered by insurance.
[¶26] When a statute is ambiguous, we review its legislative history to discern legislative intent……there is nothing in the legislative history to indicate that section 158 was intended to do anything other than that, nor is there any indication of an intent to confer immunity for intentional torts.
The 1965 floor debates for section 158 reflect several facts. As originally
introduced, the bill would have completely abolished charitable immunity….there are repeated references in the floor debates to this Court’s decisions recognizing charitable immunity for negligence. … the final bill was a compromise, abolishing immunity only when the non-profit organization has insurance. ….
There is no evidence that the Legislature intended the bill to expand the scope of charitable immunity, nor is there any discussion in the floor debates of immunity for intentional torts. The floor debates contain several references to the discredited status of charitable immunity and to the fact that most other states had abandoned it. …. Section 158 is therefore properly interpreted solely as a limitation on charitable immunity, not an expansion of it.
3. The Court Has Maintained Charitable Immunity but Declined to Either Expand or Abrogate It
[¶27] Charitable immunity remains a judicial doctrine, subject to our
interpretation, notwithstanding that the Legislature created an exception to the
doctrine with the enactment of section 158…. it is therefore appropriate for this Court to continue to determine the scope of charitable immunity.
[¶28] We have previously held that we would maintain, but neither expand
nor eliminate, the doctrine of charitable immunity. We noted in Rhoda that the
adoption of section 158 provides a basis “for our continued adherence to the
charitable immunity doctrine.” …although we have maintained the doctrine to date, we have declined either to expand it beyond its traditional bounds or to contract it….
C. Charitable Immunity and Picher’s Fraudulent Concealment Claim
[¶29] For three reasons, we do not recognize the defense of charitable
immunity in claims involving intentional torts. First, applying charitable immunity to intentional torts would set Maine so far outside the mainstream that it would put this State in a class by itself. We do not believe it advisable to expand so profoundly a doctrine that has generally been acknowledged as bankrupt. Second, nothing in the legislative history of section 158 indicates any legislative intent to so interpret the doctrine of charitable immunity. Third, there are no convincing policy reasons to apply charitable immunity to intentional torts. We therefore hold that charitable immunity is not available as a defense to intentional torts.
[¶30] We now consider whether Picher has stated a cause of action against
the Bishop, as a corporation sole, for fraudulent concealment. The elements of a claim of fraudulent concealment are: (1) a failure to disclose; (2) a material fact; (3) where a legal or equitable duty to disclose exists; (4) with the intention of inducing another to act or to refrain from acting in reliance on the non-disclosure; and (5) which is in fact relied upon to the aggrieved party’s detriment.
…. Picher alleges that the Bishop had actual or constructive knowledge that Melville sexually assaulted minors, breached its duty to disclose that knowledge, and affirmatively concealed the knowledge with the intent to mislead Picher and his family. Picher and his family relied on the Bishop to Picher’s detriment. Picher has stated a claim for fraudulent
concealment.
Why 85K Needs Reform
(Why The Bishops Are Wrong, Part III)
Last time, we were about to explore the bishops' objections to Bill 1523's so-called intent to "abolish" charitable immunity (the Bill would actually eliminate the cap on damages for only one type of tort – sexual abuse), when what to my wondering eyes should appear but a timely decision by the Maine Supreme Court on this topic, dated Tuesday, July 7.
The entire 36 page decision is here.
A version showing the highlights is here.
A good news summary is here.
In Picher v. Bishop of Portland, the justices declined to accept the argument of the bishop of Portland that charitable immunity is a valid affirmative defense against charges of intentional acts. The act in this case being fraudulent concealment by the Bishop, or, as we would say in Catholic circles, a sin of omission. The decision confirms that silence does not always mean "neutral". The choice to remain silent when there is a moral duty to disclose can definitely rise to the level of fraudulent concealment.
Picher claimed that the bishop knew of the danger that a particular priest posed to parishioners, but did not warn them, and that as a direct result, Picher sustained harm in 1986-88. In this recent ruling, the judges are allowing the claim to be heard. Parts of the decision relate directly to the situation in the Commonwealth, not least the justices' excellent short history of the doctrine of charitable immunity that explains why the majority consider the concept "bankrupt". We will comment on these parts in due time, but first, let's get back to the local bishops' objections to Bill 1523.
As they have many times in the last few years, the bishops lead off with part of a paragraph from Kenneth Kohlberg's article "Modern Reflections On Charitable Immunity" which says the need for charitable immunity arises from the "financial strain of liability" that charities would face without it. Kohlberg explains that charities are important – without them, civil society would have to come up with the services they provide.
However, the bishops treat his definition as if it were an equation – as if charitable immunity was created as a balancing act between victim's rights and corporation's rights – which is clearly not the case. There are many reasons why charitable immunity is an outmoded doctrine, and Kohlberg covers many of them. See especially f.n.4, where he documents many articles which argue against the doctrine.
In fact the "primary rationale" that Kohlberg speaks of – financial strain – has largely vanished, due to liability insurance. This type of insurance was revolutionary in the 50's and 60's, when charitable immunity began to crumble.
This is a fine article and I include this permanent link on the sidebar. Speaking of sins of omission, what the bishops neglect to say about this article is more important than what they do say. For while Kohlberg does start with the rationale for the doctrine, he soon states that the rationale is in serious question. For example, in the very next paragraph, he foreshadows his conclusion:
A direct link can be made between the trust that Kohlberg speaks of and the equally great need for that same type of trust to be rekindled within the Catholic community. While this Catholic trust cannot be forced by civil law, and while it is limited to a subset of the population, it is not any less important than the trust that Kohlberg speaks of.
It is my position that the changes in the law that CORSAL promotes would strengthen – not weaken – the rehabilitation process and even the teaching authority of the bishops in the long run. The reason is that reform would give church culture a much-needed airing out. Most of the bishops, and especially those in Massachusetts, do not yet see it this way.
Kohlberg next gives several examples of Section 85K in action. Some of them are not pretty. Sadly, few need to be reminded that not all non-profits are truly charitable, or that non-profit hospitals, founded with an emphasis on charity and altruism, have evolved almost beyond recognition. The case of Keene v. Brigham & Women's Hospital is particularly hair-raising. Although 85K was enacted for noble purposes, this case (about a brain-damaged newborn) shows how far from noble it can be in its effects. In another disastrous case (Testa, not directly cited by Kohlberg), a child died, a hospital was found negligent and the family was awarded 20 million. However, due to a mandatory "plain text" reading of 85K, the family's award was reduced to $20,000.
Kohlberg cites articles relevant to how 85K benefits the Catholic hierarchy at the expense of the victims. See especially "Victims Agonize Over Church Deal", Boston Globe, Oct. 8, 2003, at B1, and "Immunity Statute Protects Church From Abuse Lawsuit", Mass. Law. Wkly, Aug. 30, 2004, at 1 (discussing Martin v. Kelley).
Obviously, 85K needs work. But, Kohlberg helps us understand why the judiciary is stuck with 85K, even though there is a well-voiced sense that it is out of date. For example he writes that:
Because the results are so unpredictable, and because of the vast changes in liability insurance coverage, judges have repeatedly asked the legislature to reform the statute, a challenge that has gone unanswered. Bill 1523 would not reform the statute, but it would answer judicial objections to some of its shortcomings by making change at the legislative, public policy level. And, more important, it would remove this stumbling-block outright for the legitimate claims of a subset of egregious torts, namely, those involving the sexual abuse of minors.
(to be continued)
Last time, we were about to explore the bishops' objections to Bill 1523's so-called intent to "abolish" charitable immunity (the Bill would actually eliminate the cap on damages for only one type of tort – sexual abuse), when what to my wondering eyes should appear but a timely decision by the Maine Supreme Court on this topic, dated Tuesday, July 7.
The entire 36 page decision is here.
A version showing the highlights is here.
A good news summary is here.
In Picher v. Bishop of Portland, the justices declined to accept the argument of the bishop of Portland that charitable immunity is a valid affirmative defense against charges of intentional acts. The act in this case being fraudulent concealment by the Bishop, or, as we would say in Catholic circles, a sin of omission. The decision confirms that silence does not always mean "neutral". The choice to remain silent when there is a moral duty to disclose can definitely rise to the level of fraudulent concealment.
Picher claimed that the bishop knew of the danger that a particular priest posed to parishioners, but did not warn them, and that as a direct result, Picher sustained harm in 1986-88. In this recent ruling, the judges are allowing the claim to be heard. Parts of the decision relate directly to the situation in the Commonwealth, not least the justices' excellent short history of the doctrine of charitable immunity that explains why the majority consider the concept "bankrupt". We will comment on these parts in due time, but first, let's get back to the local bishops' objections to Bill 1523.
As they have many times in the last few years, the bishops lead off with part of a paragraph from Kenneth Kohlberg's article "Modern Reflections On Charitable Immunity" which says the need for charitable immunity arises from the "financial strain of liability" that charities would face without it. Kohlberg explains that charities are important – without them, civil society would have to come up with the services they provide.
However, the bishops treat his definition as if it were an equation – as if charitable immunity was created as a balancing act between victim's rights and corporation's rights – which is clearly not the case. There are many reasons why charitable immunity is an outmoded doctrine, and Kohlberg covers many of them. See especially f.n.4, where he documents many articles which argue against the doctrine.
In fact the "primary rationale" that Kohlberg speaks of – financial strain – has largely vanished, due to liability insurance. This type of insurance was revolutionary in the 50's and 60's, when charitable immunity began to crumble.
This is a fine article and I include this permanent link on the sidebar. Speaking of sins of omission, what the bishops neglect to say about this article is more important than what they do say. For while Kohlberg does start with the rationale for the doctrine, he soon states that the rationale is in serious question. For example, in the very next paragraph, he foreshadows his conclusion:
...in setting forth and assessing proposals and considerations for the legislature, the article concludes that any new legislation involving the charitable immunity statute should, in addition to protecting charities, also ensure that charitable corporations fulfill their public responsibilities and utilize their funds in a manner that instills public trust and confidence in charitable institutions.Kohlberg's emphasis on "trust", an aspect that I have written about in previous posts, I find particularly relevant to the bishops and laity, because in this emphasis we hear an echo of the massive loss of trust that the abuse crisis has provoked. In Kohlberg's opinion, public trust in the charitable institution is nothing less than a prerequisite for making effective public policy.
A direct link can be made between the trust that Kohlberg speaks of and the equally great need for that same type of trust to be rekindled within the Catholic community. While this Catholic trust cannot be forced by civil law, and while it is limited to a subset of the population, it is not any less important than the trust that Kohlberg speaks of.
It is my position that the changes in the law that CORSAL promotes would strengthen – not weaken – the rehabilitation process and even the teaching authority of the bishops in the long run. The reason is that reform would give church culture a much-needed airing out. Most of the bishops, and especially those in Massachusetts, do not yet see it this way.
Kohlberg next gives several examples of Section 85K in action. Some of them are not pretty. Sadly, few need to be reminded that not all non-profits are truly charitable, or that non-profit hospitals, founded with an emphasis on charity and altruism, have evolved almost beyond recognition. The case of Keene v. Brigham & Women's Hospital is particularly hair-raising. Although 85K was enacted for noble purposes, this case (about a brain-damaged newborn) shows how far from noble it can be in its effects. In another disastrous case (Testa, not directly cited by Kohlberg), a child died, a hospital was found negligent and the family was awarded 20 million. However, due to a mandatory "plain text" reading of 85K, the family's award was reduced to $20,000.
Kohlberg cites articles relevant to how 85K benefits the Catholic hierarchy at the expense of the victims. See especially "Victims Agonize Over Church Deal", Boston Globe, Oct. 8, 2003, at B1, and "Immunity Statute Protects Church From Abuse Lawsuit", Mass. Law. Wkly, Aug. 30, 2004, at 1 (discussing Martin v. Kelley).
Obviously, 85K needs work. But, Kohlberg helps us understand why the judiciary is stuck with 85K, even though there is a well-voiced sense that it is out of date. For example he writes that:
In both his concurring opinion in Conners and his dissent in Keene, Justice Roderick L. Ireland maintained that Section 85K does not “fairly” balance the interests of charitable corporations against those of injured persons. Justice Ireland opined that the statute is “monetarily outdated” and that it fails to recognize the evolving roles of traditionally charitable institutions. Accordingly, Justice Ireland urged the legislature to act “in order that Massachusetts align with the vast majority of States in recognizing that the charitable immunity cap has become obsolete, unfair, and expanded beyond its original intent.” [footnotes omitted]Moreover, Kohlberg makes clear from a recitation of decisions, appeals and counter-appeals that 85K can be interpreted a number of ways, and even expanded to include not only torts, but "tort-like claims". However, it can never done away with entirely, as long as the judges feel constrained to honor the "plain text" of the law, which admits no wiggle room, no matter how compelling the circumstances. In short, it's a mess, and falls woefully short of the bishops' assertion that it strikes a "careful balance" among competing interests.
Because the results are so unpredictable, and because of the vast changes in liability insurance coverage, judges have repeatedly asked the legislature to reform the statute, a challenge that has gone unanswered. Bill 1523 would not reform the statute, but it would answer judicial objections to some of its shortcomings by making change at the legislative, public policy level. And, more important, it would remove this stumbling-block outright for the legitimate claims of a subset of egregious torts, namely, those involving the sexual abuse of minors.
(to be continued)
Why Mass. SOL Needs Reform
[Update: This is an old article but largely holds true as the legislation has simply been reintroduced each year or two. The original effort began in 2002. The Bill is called "469" in the current session.]
Why The Bishops Are Wrong, Part II
In this installment we consider the SOL issue (Statute of Limitations).
The bishops have tarred the provision of Bill 1523 to do away with SOL for child sexual abuse as an "extreme" measure. They also claim that eliminating SOL for sex abuse would expose "…society itself to an open-ended threat of litigation based on presumably unreliable testimony and the consequent uncertainty…".
But, Bill 1523 does not propose to gut the foundation of the SOL doctrine. It is specific to one type of tort only, namely, sex abuse of a minor. Thus, it could not introduce an "…open-ended threat…" as the bishops claim, for the reason that it would do nothing to change laws about anything else. Indeed, even in the child abuse area, it deals almost exclusively with civil, not criminal, penalties.
The second part of the bishops' objection concerns their fears about increased exposure to "unreliable testimony and the consequent uncertainty". Bill 1523 might increase perpetrators' exposure, but it's important to know that the bill would introduce no new liability, nor would it change any existing rules of evidence or strengthen or weaken the facts of any case. It would only remove the barriers presently posed by elapsed time, so that viable cases could go forward. The potential cases based on "unreliable testimony" would continue to go nowhere. And that is because the bar is already high – lawyers, most often working on a contingency basis, screen cases carefully, and do not take cases with poor chances of survival in the courts.
But, their objections do bring up a reasonable question: why does Bill 1523 want to extend the SOL for sex abuse victims only? Perhaps the clearest explanation was made by Rep. Gale Candaras during her testimony before the joint committee on March 14, 2006:
As Rep. Candaras points out, there are compelling reasons why eliminating SOL for sex crimes against young children makes a lot of sense. Again, she explains why:
- Apply Church teaching to any public policies and programs affecting the common good of all Massachusetts citizens and the interests of Catholics
Despite this noble impulse, it is hard to find the "church teaching" expressed in the stated objections of the bishops to Bill 1523.
Indeed, for the bishops, church teaching and the public interest seem almost beside the point. More important by far seems to be the largely unstated fear that the survival of the institutional church might be jeopardized if huge damage awards were paid out.
But, although the phrase "public interest" rarely appears, the bishops testimony on SOL is laced with references to "fairness", by which they mean, inevitably, fairness toward corporate interests and the interests of the status quo.
For example, they object to legislative changes directed at past claims because of the "…unfairness of imposing a new burden retroactively…". What is noteworthy is that the bishops do not contest the validity of the new burden, or of any particular claim, but merely that the claim is "old" or "past", and that reviving it would be unfair to individuals who might be brought to justice over the matter. True, perpetrators have rights, just as victims do, and they deserve due process. But, it is odd to hear bishops defending the rights of the perpetrators more vigorously than those of the victims.
Another "fairness" objection is that, in their words, "…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." Let's compare: against this right of the bishops to be free of bookkeeping, there is the right of the victims of sexual abuse to a day in court.
The bishops' last objection is that:
"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."
The present law referred to is the discovery law, which has been found wanting on many fronts, see the Candaras testimony. The problem with this status quo, head-in-the-sand approach is that it ignores the voices of the victims. The victims are on record as loudly protesting the way that the Misconduct Commission, settlements and negotiations about those settlements have been conducted by the church. For the Springfield Diocese, see especially "Many Clergy Abuse Claimants Unhappy with Settlements" by Stephanie Barry, Springfield Republican, Dec. 8, 2008.
Contrary to what is asserted by the bishops, the scales of justice do tip, and they tip badly. Far from living in a perfect world with all balances struck nicely between victims and perpetrators, we live in a world where justice is elusive, and reform necessary.
In saying that Bill 1523 would "destroy" the careful balance struck by the legislature and the courts, the bishops make two mistakes. First, they once again accuse Bill 1523 of trying to wipe out SOL altogether, when it is specific to one type of tort. Secondly, they ignore the well-established record that justice for Catholic victims in the sexual abuse area has not been done, that legitimate claims have not been answered, and that the perception of a cover up continues.
For example, the names of accused priests and others in the employ of the church have not been released to the public, nor have the whereabouts of the accused religious been publicized, or whether they are in treatment, or what type of treatment, despite ample opportunity to do so. And, it is likely that these disclosures will never be made, short of changes in the law, which is what Bill 1523 is all about.
The experience in California is instructive. After window legislation, over 1,000 survivors came forward, with 850 of those from the Catholic church. The identities of over 300 perpetrators who had never been named publicly before were released. These are the types of results that Bill 1523 would promote, and that the bishops of Massachusetts apparently seek to avoid. And yet, ironically, it is exactly these types of disclosures and results that may yet save the church in Massachusetts, by setting the stage for new growth after a long-delayed reckoning.
(to be continued)
Why The Bishops Are Wrong, Part II
In this installment we consider the SOL issue (Statute of Limitations).
The bishops have tarred the provision of Bill 1523 to do away with SOL for child sexual abuse as an "extreme" measure. They also claim that eliminating SOL for sex abuse would expose "…society itself to an open-ended threat of litigation based on presumably unreliable testimony and the consequent uncertainty…".
But, Bill 1523 does not propose to gut the foundation of the SOL doctrine. It is specific to one type of tort only, namely, sex abuse of a minor. Thus, it could not introduce an "…open-ended threat…" as the bishops claim, for the reason that it would do nothing to change laws about anything else. Indeed, even in the child abuse area, it deals almost exclusively with civil, not criminal, penalties.
The second part of the bishops' objection concerns their fears about increased exposure to "unreliable testimony and the consequent uncertainty". Bill 1523 might increase perpetrators' exposure, but it's important to know that the bill would introduce no new liability, nor would it change any existing rules of evidence or strengthen or weaken the facts of any case. It would only remove the barriers presently posed by elapsed time, so that viable cases could go forward. The potential cases based on "unreliable testimony" would continue to go nowhere. And that is because the bar is already high – lawyers, most often working on a contingency basis, screen cases carefully, and do not take cases with poor chances of survival in the courts.
But, their objections do bring up a reasonable question: why does Bill 1523 want to extend the SOL for sex abuse victims only? Perhaps the clearest explanation was made by Rep. Gale Candaras during her testimony before the joint committee on March 14, 2006:
"From a public policy point of view, we must remember that child abuse victims do not really come to grips with the nature of their victimization until well into their adult years. For a variety of reasons, children and young adults repress the offensive conduct of others towards them. Many are in denial about what was done to them. In the vast majority of cases, the abuser is a relative, a neighbor, a friend of the family, or even a parent. Abused children are afraid of being victimized again should they come forward to complain. The psychological trauma is deep and long-lasting; the abused child may not really come to grips with these childhood events until many years later. For these and other reasons, I urge the Committee to report favorably legislation that would extend the statute of limitations in civil actions for victims of child abuse."Her statement is well worth reading in its entirety, here:
As Rep. Candaras points out, there are compelling reasons why eliminating SOL for sex crimes against young children makes a lot of sense. Again, she explains why:
"…the reasons for enacting the extension are substantial and critical. Child abuse is a serious social problem that knows no boundaries, and exists in all segments of society. Child abuse traumatizes the victim, leaving him or her with serious emotional problems for years to come. It paralyzes the victim with fear, shame, and self-loathing. By the time the victim appreciates it is not her or his fault, it is frequently too late to take legal action against the abuser. These are compelling reasons in the public interest for enacting this legislation."In the last part of this testimony we hear two important words: "public interest". This is a phrase that is rarely encountered in the bishops' testimony. The closest that we come is in the mission statement of the MCC, which states that they will :
- Apply Church teaching to any public policies and programs affecting the common good of all Massachusetts citizens and the interests of Catholics
Despite this noble impulse, it is hard to find the "church teaching" expressed in the stated objections of the bishops to Bill 1523.
Indeed, for the bishops, church teaching and the public interest seem almost beside the point. More important by far seems to be the largely unstated fear that the survival of the institutional church might be jeopardized if huge damage awards were paid out.
But, although the phrase "public interest" rarely appears, the bishops testimony on SOL is laced with references to "fairness", by which they mean, inevitably, fairness toward corporate interests and the interests of the status quo.
For example, they object to legislative changes directed at past claims because of the "…unfairness of imposing a new burden retroactively…". What is noteworthy is that the bishops do not contest the validity of the new burden, or of any particular claim, but merely that the claim is "old" or "past", and that reviving it would be unfair to individuals who might be brought to justice over the matter. True, perpetrators have rights, just as victims do, and they deserve due process. But, it is odd to hear bishops defending the rights of the perpetrators more vigorously than those of the victims.
Another "fairness" objection is that, in their words, "…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." Let's compare: against this right of the bishops to be free of bookkeeping, there is the right of the victims of sexual abuse to a day in court.
The bishops' last objection is that:
"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."
The present law referred to is the discovery law, which has been found wanting on many fronts, see the Candaras testimony. The problem with this status quo, head-in-the-sand approach is that it ignores the voices of the victims. The victims are on record as loudly protesting the way that the Misconduct Commission, settlements and negotiations about those settlements have been conducted by the church. For the Springfield Diocese, see especially "Many Clergy Abuse Claimants Unhappy with Settlements" by Stephanie Barry, Springfield Republican, Dec. 8, 2008.
Contrary to what is asserted by the bishops, the scales of justice do tip, and they tip badly. Far from living in a perfect world with all balances struck nicely between victims and perpetrators, we live in a world where justice is elusive, and reform necessary.
In saying that Bill 1523 would "destroy" the careful balance struck by the legislature and the courts, the bishops make two mistakes. First, they once again accuse Bill 1523 of trying to wipe out SOL altogether, when it is specific to one type of tort. Secondly, they ignore the well-established record that justice for Catholic victims in the sexual abuse area has not been done, that legitimate claims have not been answered, and that the perception of a cover up continues.
For example, the names of accused priests and others in the employ of the church have not been released to the public, nor have the whereabouts of the accused religious been publicized, or whether they are in treatment, or what type of treatment, despite ample opportunity to do so. And, it is likely that these disclosures will never be made, short of changes in the law, which is what Bill 1523 is all about.
The experience in California is instructive. After window legislation, over 1,000 survivors came forward, with 850 of those from the Catholic church. The identities of over 300 perpetrators who had never been named publicly before were released. These are the types of results that Bill 1523 would promote, and that the bishops of Massachusetts apparently seek to avoid. And yet, ironically, it is exactly these types of disclosures and results that may yet save the church in Massachusetts, by setting the stage for new growth after a long-delayed reckoning.
(to be continued)
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