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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