Marci A. Hamilton
From every tragedy there is something to be learned. The Catholic Church’s struggle with sexual abuse of children by members of its clergy is no different. But the lesson is one for the entire country, not just the church. Although there were inklings of the church’s clerical abuse problem before 2002, when The Boston Globe began publishing its Pulitzer Prize-winning reports, it was only then that the general public became aware of the scope of the problem.

Two forces worked together to increase the problem: (1) the church shuttled abusing priests among parishes and dioceses with no notice to families and the laity; and (2) the victims of abuse were incapable of coming forward until they had reached a psychologically safe place, often well into adulthood.

The church’s actions were indefensible, but its behavior was not unique. Since 2002, one church group after another has been publicly identified with cases of abuse, and victims have come forward from the Jehovah’s Witnesses, Southern Baptists, Mormons and Jewish denominations. Sexual abuse by members of the clergyand coverups by religious institutionsare nondenominational.

And the victims’ actions were typical of all victims of sexual abuse of children. It takes a certain amount of maturity and perspective to understand what was done to them. Most have to become adults before they can apprehend that their childhood was stolen from them.

The numbers alone are chilling. Nationally, authorities receive reports of child sexual abuse incidents less than 20 percent of the time, with approximately 25 percent of abused girls and 17 percent of boys reporting. As a society, we have plainly failed to offer adequate refuge or justice for these most vulnerable victims.

It was only when the victims turned to the law that we learned that our society has been cheating abuse victims out of any meaningful justice.

Coming Forward

The problem of limited reporting, which resulted in too little justice, was simple to identify, and it transcended the church’s story. Statutes of limitations for sexual abuse of children are so short in most states (sometimes only two years from the date of the assault) that victims of such sexual abuse rarely are able to prosecute or sue for the harm done to them.

It was also a psychological reality that the vast majority could not come forward soon enough. Consequently, the laws weighed heavily in favor of the perpetrators and against the child victims. The system was badly flawed, even corrupt.

In recent years, Americans have been focusing on the recidivism of pedophiles. The resulting reforms have been manifold: the introduction of so-called Megan’s laws publicly identifying convicted sex offenders, the creation of databases of perpetrators of child abuse, the extension of prison sentences and even the introduction of the death penalty in some states. But these reforms did not fix the primary problem to which the church’s scandal pointedthe unfairness of the statutes of limitations for the sexual abuse of children.

Reforming Statutes of Limitation

Because our laws have failed so miserably, reform of statutes of limitations is needed for all victims, past and present. Although the revelations about the Catholic Church were a catalyst, the law needs to be changed across the boardwithout reference to this or any other church, or to any particular secular organization.

The solution needs no task force or further study. It is clear: statutes of limitations for sexual abuse of children need to be abolished, as the federal government, Maine, Alaska and Idaho have already done. Murder has no statute of limitations because the victim can never speak for himself or herself. Child abuse, as we have learned, is little different. It involves a heinous crime, a powerless and vulnerable victim incapable of speaking for himself or herself and the murder of the victim’s very childhood and soul.

But abolition of the statutes of limitations regarding sexual abuse of children is helpful only for recent or future victims. For those victims for whose abuse the statutes of limitations have expired, for whom the law was so inadequate, there must be another fix if there is to be any chance for justice. That fix is window legislation, which has already been passed in California and is currently under consideration in about a dozen other states.

The window works as follows: for one or two years, the state legislature suspends the civil statute of limitations on sexual abuse of children, opening the door of justice to victims from the past to sue those who caused them harm. It is straightforward and simple justice.

California tried to create a window for both criminal prosecution and civil lawsuits, but the United States Supreme Court held in a 5-to-4 decision that it was a violation of the Constitution’s prohibition of ex post facto laws to suspend the criminal statutes of limitations. As a result, the only way for people who are already victims to obtain any justice, in the wake of our collective failure to protect them, is through a civil litigation window.

Civil Litigation

Civil litigation through such a window is the only way we as a society will learn the monstrous secrets still withheld by so manyperhaps every religious organization, every perpetrator of incest and every adult or organization whose members have sexually assaulted a child or made such an assault possible. Without the due process of the legal system, those secrets will remain buried, perpetrators will remain free to continue molesting (as we have learned from the anti-recidivism movement), and children will be at serious risk. It takes the law to force these secrets into the sunlight.

The most common objection to the window and lengthy statutes of limitations is that evidence will be stale, creating a risk of a miscarriage of justice. Such statutes are most important in cases involving property or business interests, where stability and predictability of ownership are crucial to a stable economy. In contrast, the heinous nature of a personal crimelike murderoften argues against the efficiency and docket-control principles that support a statute of limitations. Anyone who has watched the television show Cold Case has seen these principles in action. In those situations, justiceeven when delayedis more valuable to society than mere efficiency. That value is multiplied in the context of sexual abuse of children, where the perpetrator is likely to have many victims over a long period of time. Whenever a perpetrator and his or her enablers are stopped and publicly identified, there is a strong likelihood that future crimes will be prevented.

The window does not alter any of the other rules that ensure a fair trial, including the burdens of proof, rules of evidence and the application of particular privileges. As in all other cases, the older the case, the more difficult the victim’s task. But these concerns are overblown in many employment cases, because the evidence is pristinely preserved in the employment histories of the pedophiles involved. Indeed, strenuous objections in church circles to the window arise in no small part, I think, because of fears that revelations that will occur when the church is forced to open confidential archives that still may hide the identities of sexual predators.

The most specious legal objection to the window legislation is that it is targeting the Catholic Church. Nothing is further from the truth. While it is true that the Catholic Church’s problems revealed deficiencies in the legal system, there is not a single state proposal that singles out the church. All organizations and individuals responsible for the prevalence of sexual abuse of children are being targeted. This includes, as we have come to learn, a host of religious organizations, secular organizations and family members. The trigger for the reform may well be the enormity of the church’s problems, but the reason for the reform is that the shortness of the time periods allowed by statutes of limitations for sexual abuse of children have been a general blockade to justice and truth.

The Colorado Case

The following may well sound harsh, but it is unfortunately true: The primary barriers to legislative reform to aid victims of sexual abuse as children in the United States are the state Catholic conferences, which lobby state governments.

Most maneuvering by church officials on the state level to prevent window legislation occurs behind closed doors (often before victims even broach the topic), but a public battle occurred in Colorado. Senator Joan Fitzgerald, president of the Colorado Senate, and Representative Gwyn Green introduced legislation in each house addressing the statute of limitations. Fitzgerald (a lifelong Catholic) was staunchly behind window legislation, while Green’s bill would have abolished the statute of limitations for sexual abuse of children. Both were deeply upset to learn how many child abuse claims were prematurely shortened by unfair statutes of limitations. Both bills applied to all private entities.

The Archdiocese of Denver hired an expensive public relations firm and initiated a vigorous attack in the media and from the pulpit. The diocese’s public relations firm charged that the bills were anti-Catholic and intended to bankrupt the church. Following Masses, Catholic parishioners were handed preprinted cards to be signed and sent to state lawmakers. The public relations campaign proved the anti-Catholic bias by pointing out that the bills applied only to private entities. Archbishop Charles Chaput of Denver and his supporters pointed vigorously at the public school system as exempt from the bills. Notwithstanding the fact that private and public entities are almost always addressed in separate legislation, the archbishop scored with his tactics and succeeded in pulling all but two Republicans away from the bills.

The archdiocese did not inform Catholics that public schools had been under a state mandate to report child abuse since at least the early 1980’s, while the church had not been required to report until the late 1990’s. Moreover, public schools are required to make public any materials relating to child abuse by one of their employees. As Representative Green pointed out recently, archdiocesan representatives made it clear that the church would never agree to divulge any files involving its priests or the abuse of children. The archdiocese opposed the window. It knew from other archdioceses that litigation was the only weapon that could force its secrets into the open.

Catholic conferences in each state often tell the press, laity and politicians that window legislation will bankrupt the church, that parishes and schools will be closed and services cut. But Cardinal Sean O’Malley, O.F.M.Cap., recently disclosed that the settlements in the Archdiocese of Boston came largely from insurance payouts and the sale of nonreligious property. He emphasized that the decline in services in Boston is attributable to the faithful’s rebellion against the hierarchy, resulting in their decreased giving, not to payments made by the archdiocese to the victims.

Children an Absolute Priority

Voice of the Faithful recently approved a platform in full support of the window. The time has come for all lay people to demand justice for the victims of their own institution and to make it plain to the hierarchy that as a society we must make children an absolute priority. That means that legislators must amend the statutes of limitations, even if it means additional liability for the church. (The same goes for the many other institutions with the same problem, of which there are plenty.)

The most positive and proactive move Catholics disgusted with the scandal of sexual abuse by members of the clergy can make right now is to let elected representatives know that children must be a top priority, that the laws on the books in most states are inadequate to protect children and that they are far more likely to vote for a representative actively working for the victims of childhood sexual abuse, not for the perpetrators. Silence perpetuates a system that favors abusers and their enablers over abused children.

The sexual abuse crisis in the Catholic Church has the potential to be positively transformative for the United States. We may well be able to move closer to Jesus’ command to protect the children from harmbut only if we act on the lessons learned.

See response by Archbishop Charles J. Chaput in America, Oct. 9, 2006.

Marci A. Hamilton, holder of the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law at Yeshiva University in New York City, is one of the country’s leading First Amendment scholars. She has represented numerous survivors

Comments

Terrance Alan Collier | 11/23/2007 - 3:47pm
I was a victim of sexual assault and abuse when I was nine until I was thirteen years old. From 1977 to 1983. I am now thirty-nine years old, and I have been trying for the las eight months to see what the statute of limitations were for each state that the abuse occurred in.Alaska, Washington State, Missouri, and Florida. Alaska, and Florida the statutes may have changed recently, but in regards to when the assaults and abuse happened, the statutes of limitations have expired. the other two states have not responded to my inquiry on the statutes of limitations, nor has the USDOJ. I feel it is difficult for me to talk about now, years ago I don't believe I could have tried to come forward. I think child sexual assault/abuse victims should get a chance beyond any statute of limitations to prosecute the perpetrator. Each case is different, and each scar is differnt as well. I would also like to know, why ther is not anything federally that could be done, because of the multiple states the crimes occurred? I hope the victims become a priority for the laws that we pass in the future, and not the next deal that can be made.
Terrance Alan Collier | 11/23/2007 - 3:46pm
I was a victim of sexual assault and abuse when I was nine until I was thirteen years old, from 1977 to 1983. I am now thirty-nine years old, and I have been trying for the las eight months to see what the statute of limitations were for each state that the abuse occurred in: Alaska, Washington State, Missouri, and Florida. In Alaska and Florida the statutes may have changed recently, but with regard to when the assaults and abuse happened, the statutes of limitations have expired. The other two states have not responded to my inquiry on the statutes of limitations, nor has the USDOJ. I feel it is difficult for me to talk about now; years ago I don't believe I could have tried to come forward. I think child sexual assault/abuse victims should get a chance beyond any statute of limitations to prosecute the perpetrator. Each case is different, and each scar is different as well. I would also like to know why there is not anything federally that could be done, because of the multiple states the crimes occurred? I hope the victims become a priority for the laws that we pass in the future, and not the next deal that can be made.
Nicholas Clifford | 10/1/2006 - 11:28am
Professor Hamilton asks "what the clergy abuse crisis has taught us." But there are actually several different questions there, depending on what one takes that "us" to include. As she points out, if "us" means Americans in general, we have learned (or should have learned) that the abuse of children is not only a Catholic problem, or a problem affecting our various churches (not that we are likely to have learned that lesson from much of the press coverage, by the way). And we should also have learned that the abuse of children by clergy is not simply a problem restricted to Americans, or indeed to homosexuals of whatever nationality.

If that "us" means more narrowly we, the Roman Catholic church, then we have learned, unfortunately, that those appointed our leaders cannot always be trusted to be open with us. More than that, we have also learned (or should have learned) that the failures of our leaders stem from more than simply individual weakness and shortcomings, but represent systemic deficiencies in the structures of ecclesiastical governance and adminstration. In particular, they stem from a view that the accountability of priests and bishops is primarily, or indeed, solely, an accountability upwards -- from priest to bishop, from bishop to Rome. Accountability downwards, from bishops and priests to those whom they are supposed to be serving, seems all to often ignored, or indeed a notion foreign to our understanding.

Finally, if that "us" most narrowly means the Roman Catholic Church conceived of as the leaders who speak for it, I sometimes wonder if anything has been learned. Even assuming for the moment that the measures put in place ensure that no child will ever again be abused by anyone in a position of authority in the church, in America or anywhere else, the structural deficiencies of our governance continue to leave us wide open to other kinds of abuses of authority -- financial, for example, or political.

It is all very well for the church and its leaders to criticize the shortcomings of modern secular society, whether it be in Europe or the US or elsewhere. But let us remember that the church's own structures of governance are and have been for centuries themselves largely drawn from secular society, whether that of the late Roman empire, or that of the late Renaissance and early modern Europe with its absolutist tendencies.

Nicholas Clifford

(Hon.) Joseph W. Bellacosa, Esq. | 2/26/2007 - 12:26pm
I read Marci A. Hamilton’s lead article, “What the Clergy Abuse Crisis Has Taught Us” (9/25), with great chagrin and some surprise. Today, I read Archbishop Charles J. Chaput’s strong rebuttal (10/9), but noticed it was placed in a much less favorable location.

I write because I am puzzled. America evidently made an editorial judgment (as opposed to a reportorial one) to run the Hamilton piece, which constitutes an inimicus curiae effort by a manifestly partisan writer with an adversarial agenda. Either you let your guard down, or your editorial compass has gone awry. How could you not see what she was up to, despite her disingenuous disclaimers? Or, I fear, did you see and decide to go forward with a “Damn the torpedoes” attitude?

You have sparked a very troubling concern in me, as a former appellate judge and former academician (and longtime America subscriber), with this journalistically questionable enterprise.

James F. Sweeney, Esq. | 2/26/2007 - 12:22pm
As general counsel to a state Catholic conference and a diocesan lawyer, I was disappointed to read the recent article by the attorney Marci A. Hamilton regarding the sexual abuse crisis (9/25). Ms. Hamilton’s stilted arguments are terribly misleading.

Ms. Hamilton makes the disingenuous argument that laws lifting the statute of limitations in sexual abuse claims against employers do not target the Catholic Church. Her argument ignores reality. In California, for example, the legislation that lifted the statute was enacted by the California Legislature in 2002, at the height of the media coverage of the sexual abuse crisis and the Boston sexual abuse litigation. The legislative record unmistakably establishes that legislators had the Catholic Church squarely in the crosshairs when they enacted the bill lifting the statute against employers. In the following year, more than 1,000 lawsuits were filed against Catholic institutions in California. Only a few claims were filed against non-Catholic institutions during this same period, despite the fact that child abuse is a pervasive social problem hardly limited to the Catholic Church. To suggest that such legislation does not target the Catholic Church is the same as arguing that the enactment of the Patriot Act was unrelated to 9/11.

Ms. Hamilton, who teaches at the Cardozo Law School in New York and has for many years been a bitter and hostile critic of the church, conveniently fails to mention that she is also one of the plaintiffs’ attorneys in the sexual abuse litigation here in California. As a paid partisan, her views should be taken in the context of her own financial interests in the outcome of the cases she is handling, which one can only assume are sizable. Could those interests have colored her analysis? Perish the thought!

(Most Rev.) Stephen E. Blaire | 2/26/2007 - 10:45am
On behalf of the bishops of the California Catholic Conference I wish to respond to the article in America by Marci A. Hamilton (9/25), who is both an attorney for plaintiffs suing the Catholic Church and a professor at Yeshiva University Law School. The full response to her article can be found at www.cacatholic.org.

Under the guise of presenting “lessons” from the crisis of sexual abuse of minors, America has provided one of the most vociferous and bitter critics of the Catholic Church with a forum to publish a new plaintiffs’ brief. In federal court, she has argued the case against the Diocese of San Diego in its challenge to the California law that repealed the statute of limitations for the duration of 2003. She has opposed the church in several major legal issues, including the Archdiocese of Portland bankruptcy action. To describe Professor Hamilton merely as having “represented numerous survivors of sexual abuse by members of the clergy of various denominations on constitutional matters” is not transparent and certainly not full disclosure for the readers of America.

Professor Hamilton completely ignored the findings of the John Jay Report. The directors of that Report describe it “as one of the most extensive collections about sexual abuse of minors and one of a very small number not based on forensic content. As such, it is a very valuable source of knowledge about sexual offending” (John Jay 2006 Supplementary Report).

Her book God vs. the Gavel (2005) makes extravagant claims about abuse in the 1990’s that are not sustained by evidence. She has defended California’s targeting of the Catholic Church, and she promoted the same cause in Colorado. However, the John Jay Report shows that after 1985, as society became more familiar with the evil of sexual abuse of minors, church authorities dealt with it vigorously, and that it declined precipitously in subsequent years.

We agree with Professor Hamilton that the protection of children must be an “absolute priority.” However, we note that her priority extends only to children abused in private institutions. Sexual abuse by Catholic clergy is a terrible tragedy, but it represents a small fraction of one percent of the whole unfortunate problem of sexual abuse of minors. Clearly the extension of the civil statute of limitations in California targeted the Catholic Church. That is how it was drawn up, and that is how it operated. In fact, the “thousands” of children Professor Hamilton claims were abused in churches during the 1990’s were more likely abused in public institutions, but she closes out the possibility of suits against those institutions.

The Catholic bishops of California reaffirm their absolute commitment to keeping the church safe for all, particularly children. They hope that the lessons learned and the evidence provided regarding sexual abuse will be of universal assistance in dealing with this terrible problem. Our society must go beyond identifying sexual abuse as a Catholic issue. It must treat all victims equally and not just focus on those whom trial lawyers can select to make a great deal of money for themselves. Justice must include all children.

Ken Keenan | 2/26/2007 - 10:40am
I was very impressed by Marci Hamilton’s article “What the Clergy Abuse Crisis Has Taught Us” (9/25). She makes a strong argument for reforming the statutes of limitations. However, in my opinion there is one glaring omission.

There was no concern given to the rights of the accused. Everyone wants to see the guilty punished.

However, we should not presume that all the accused are guilty. Statutes of limitations are meant to protect the rights of the accused. It is very difficult to defend oneself against accusations from decades ago. Witnesses for the defense could have moved away or even passed away. Ask yourself, “Where was I at 10:22 a.m. on Saturday March 12, 1990?” I find this question very difficult. I am sure others would feel the same way. Society must provide reasonable rights for the accused.

I believe we should look at the statutes of limitations. But we should be very reluctant to weaken the current statutes. It is easy to take away the rights of others, especially those accused of awful crimes. We must never forget that things like the statutes of limitations protect all of us. Today we might eliminate the statutes in this area. Tomorrow there will almost certainly be pressure to eliminate other rights in the name of justice. In the current climate when a number of rights are currently in the balance, society should be very hesitant to give up any rights and protections.

Paul A. Becker | 2/26/2007 - 10:38am
Marci Hamilton’s obviously well-intentioned article, “What the Clergy Abuse Crisis Has Taught Us” (9/25), would have been a bit more balanced if she had also pointed out that the California statute of limitations for sexual abuse of children (C.C.P. Section 340.1), which was amended by the one-year window, already provided for the tolling (that is, suspension) of the statute until eight years after the victim had attained the age of majority, or for three years from the time of discovery that psychological injury or illness occurring after attaining majority was caused by sexual abuse.

Against that background, her statement that it is “a psychological reality that a vast majority could not come forward soon enough” could benefit from a bit more evidentiary support.

Donald J. Carek, M.D. | 2/26/2007 - 12:46pm
I agree that “sexual abuse” of children in any form is a heinous crime that demands strong legal action against the perpetrator. However, as a child and adolescent psychiatrist I am taken back by the histrionic and unsophisticated manner in which Marci A. Hamilton addresses the psychological issues in “What Has the Sexual Abuse Crisis Taught Us?” (9/25).

To compare sexual abuse to murder is going a bit too far on at least two counts. First, sexual abuse is not a clearly defined entity. The term encompasses the whole range of behaviors from fondling to attempted or actual penetration, with the effect on the child/adolescent depending on the particular behavior and the particular vulnerability of the child/adolescent at the moment.

Second, with the above in mind one finds that the effect fortunately tends to be a far cry from being “murder of the victim’s very childhood and soul,” her gut-wrenching conclusion that also ignores the psychologically complicated relationship, which is not so simple as the legitimate legal determination of perpetrator and victim. It also ignores the fact that fortunately, as has been shown across the board, the young are more resilient in dealing with horrendous stressors than people tend to realize.

Ms. Hamilton argues that “statutes of limitation for sexual abuse of children need to be abolished,” as she concludes that “most have to become adults before they appreciate that childhood was stolen from them.” Not only does the latter conclusion prove to be an exaggeration, but it may also be more appropriate to say “conclude” rather than “appreciate.” That is, there is also the well-known phenomenon of a chronically anxious/distressed adult being in search of a current or past “traumatic experience” to explain his/her condition, a phenomenon that lends itself readily to “post hoc propter hoc” reasoning as a substitute for more careful self-examination.

Mary Butler | 2/26/2007 - 12:33pm
Marci A. Hamilton would have us believe that the money involved in payments of lawsuits against Catholic dioceses either comes from insurance payouts or is withdrawn from the coffers of the diocese and has no connection to the personal contributions of the Catholics in the pews (“What the Clergy Abuse Crisis Has Taught Us,” 9/25). In fact, the assets of the church derive from the generosity of the faithful, past and present. The church is not a for-profit corporation in the business of making money, but a nonprofit religious institution dependent upon the charity of its members. Years ago, property was bequeathed to the church and land was purchased and churches and religious structures erected—in large measure by the nickels and dimes of immigrants—to glorify and worship God and transmit the faith to future generations. Archbishop Charles J. Chaput, O.F.M.Cap., is correct in his reluctance to burden the families of his diocese for something in which they share no responsibility (10/9).

Thomas M. Whaling, Esq. | 2/26/2007 - 12:32pm
“Putting Abuse in Context,” by Monica Applewhite, and “What the Clergy Abuse Crisis Has Taught Us,” by Marci A. Hamilton, (9/25) have highlighted the gravity of Christ’s admonition that harming or scandalizing children is a reprehensible action and has serious consequences.

The church is called upon to protect the weak, and whenever it uses “spin doctors” to protect itself, it fails to carry out its mission. If only the recent Congressional scandal had been highlighted early on.

People who molest children are, for the most part, hardwired differently from the majority of society. And until those in the church hierarchy acknowledge this fact, their solutions to the problem are highly suspect.

Forgiveness of the sinner is essential. But elimination of the occasion of sin is critical. And that action requires the participation of all.

Nicholas Clifford | 10/1/2006 - 11:28am
Professor Hamilton asks "what the clergy abuse crisis has taught us." But there are actually several different questions there, depending on what one takes that "us" to include. As she points out, if "us" means Americans in general, we have learned (or should have learned) that the abuse of children is not only a Catholic problem, or a problem affecting our various churches (not that we are likely to have learned that lesson from much of the press coverage, by the way). And we should also have learned that the abuse of children by clergy is not simply a problem restricted to Americans, or indeed to homosexuals of whatever nationality.

If that "us" means more narrowly we, the Roman Catholic church, then we have learned, unfortunately, that those appointed our leaders cannot always be trusted to be open with us. More than that, we have also learned (or should have learned) that the failures of our leaders stem from more than simply individual weakness and shortcomings, but represent systemic deficiencies in the structures of ecclesiastical governance and adminstration. In particular, they stem from a view that the accountability of priests and bishops is primarily, or indeed, solely, an accountability upwards -- from priest to bishop, from bishop to Rome. Accountability downwards, from bishops and priests to those whom they are supposed to be serving, seems all to often ignored, or indeed a notion foreign to our understanding.

Finally, if that "us" most narrowly means the Roman Catholic Church conceived of as the leaders who speak for it, I sometimes wonder if anything has been learned. Even assuming for the moment that the measures put in place ensure that no child will ever again be abused by anyone in a position of authority in the church, in America or anywhere else, the structural deficiencies of our governance continue to leave us wide open to other kinds of abuses of authority -- financial, for example, or political.

It is all very well for the church and its leaders to criticize the shortcomings of modern secular society, whether it be in Europe or the US or elsewhere. But let us remember that the church's own structures of governance are and have been for centuries themselves largely drawn from secular society, whether that of the late Roman empire, or that of the late Renaissance and early modern Europe with its absolutist tendencies.

Nicholas Clifford