Sullivan & Cromwell and Yeshiva University Issue a Disappointing Report on Child Sex Abuse That Is Short on Facts and Long on Public Relations

After many months, and many media stories about child sex abuse at the Yeshiva University High School (“YUHS”) in The Jewish Daily Forward, Yeshiva University released the “independent investigation” of child abuse that was led by Karen Patton Seymour, Co-Managing Partner of the litigation department of the prestigious law firm Sullivan & Cromwell.  The report was issued on August 26, in the doldrums of the summer, the week before Labor Day.

Before launching into my analysis of this disappointing report, I should clarify my own role in the report, given that this is one of my key areas of expertise and given that I am a law professor at Yeshiva’s law school.  Here is the summary of my involvement: I met once with YU Administrators, at my request, to urge them to do the right thing.  And I spoke with Ms. Seymour twice to urge her team to do the right thing.  My advice was not sought otherwise, and I saw the report first in the press.  In my view, they did not do the right thing.

The YU Report Is Not a “Report”

The YU Report is, in fact, a policy statement.  First, it spends seven pages describing what the Sullivan & Cromwell attorneys did.  Fair enough.

Second, it provides a four-paragraph (that is not a misprint) summary of “Findings.”  Readers are told that “multiple incidents of varying types of sexual and physical abuse took place at YUHSB [and at other schools comprising the University] during the relevant time period. . . including, in some instances, after members of the administration had been made aware of such conduct.”  This is little more than a continuation of the cover-up that apparently already occurred.

Third and finally, the rest of the document describes YU policies and how they should be improved.  Appended to the document is another report and analysis of its policies produced by T&M Protection Resources.

YU reportedly spent millions paying Sullivan and T&M to produce a “Report” that anyone with knowledge of child-protection policies could have written after receiving YU’s policies and reading the Forward stories.  I do not intend to denigrate Sullivan’s work or the work of T&M.  Future policies and analysis of past policies are valuable fodder for such endeavors, but I would not have permitted my name to be on such a deficient and embarrassing document.  A document that was truly a “Report” would have included an actual report of the facts that prompted the need to review those policies.

Why the Report Is Not Truly a “Report”

The reason given for the document’s lack of actual reporting is that there is still pending litigation by survivors of abuse against YU.  True enough, but as YU has argued in court, the claims that are pending, are pending in New York, where the statutes of limitations for sex abuse are among the shortest in the country, which puts virtually all, if not all, of the claims beyond the statute of limitations.  So, what the heck do they have to hide?

It is sad to see that YU has chosen the Roman Catholic bishops’ approach to the scourge of child sex abuse: Keep as many secrets as possible for as long as possible, and, thereby prolong the suffering of the victims, the believers, and the institution itself.  This weak document reminded me of the bishops’ Dallas meeting following the Boston Globe’s devastating investigative journalism that disclosed the bishops’ callous cover-up of abuse and their lack of accountability to the needs of survivors and children in the future.  The bishops issued their “Charter” and their “zero-tolerance” pledge, and then, as we later learned, went back to business.  The goal from the beginning was to get the scandal “behind it,” but you can’t get in front of a cover-up scandal by continuing the cover-up.

Without providing full factual disclosure, YU perpetuates the harm to the victims, and keeps secrets that can only hurt it in the future, when other victims of previously unnamed perpetrators come forward, which they surely will.

What the Report Should Have Included, at a Minimum

It is not enough, in this era, for any institution to say that it will do better in the future on the issue of child sex abuse.  First and foremost, it must come clean about its past.

An institutional report on the cover-up of abuse within an institution needs to give details on the types of abuse, the levels at which abuse occurred, the number of abusers identified, where the abuse occurred, how many survivors were identified (whether they were interviewed or not), and it should detail precisely how the institution covered up the abuse.  Although Penn State failed to investigate abuse by Jerry Sandusky before 1998, the Louis Freeh Report regarding Sandusky’s child sex abuse and the University’s involvement still scores better on these criteria than does the YU memo.

What is saddest to me is that this well-respected, Orthodox Jewish institution where I have taught for over 20 years, and that I love—in no small part because it observes an extraordinarily high standard of academic freedom—has let us all down by choosing to opt for public relations and a litigation stance over truth, integrity, and child protection.

What Else Is Missing:  Fully Grappling With Mandatory Reporting 

Internal Mandatory Reporting

The document includes a “Reporting Protocol,” for reports of “harassment” that requires a college degree to understand.  Imagine that you are a YU employee and you are told or given the following:

“Promptly upon learning of a possible violation of the Policy, whether as a victim, witness, or recipient of such information from someone else, YUHS and YU employees and volunteers must report the possible violation to one of the following people: 1) Their supervisor, 2) A Guidance Counselor, 3) Dean of Students, 4) Assistant Principal, 5) Principal for General Studies, 6) Head of School/Principal. If anyone other than the Head of School/Principal is notified, that person must promptly inform the Head of School/Principal of the report. Once the Head of School/Principal is notified of such a report, he or she must notify the YU Liaison to the High School and the Office of the General Counsel at YU. If the report involves the Head of School/Principal, the Head of

School/Principal should not be notified, but rather the report should be made to the YU Liaison to the High School and the Office of the General Counsel at YU and the latter will apprise the President of YU of such report. In all other reports of violations of the YUHS Anti-Harassment Policy, the Office of the General Counsel will use its discretion to decide when the President of YU should be apprised of the report.

If for any reason, a YUHS or YU employee or volunteer is uncomfortable reporting the violation to one of the above-denominated individuals, he or she may instead report directly to the YU Liaison to the High School and the Office of the General Counsel at YU.”

This is so convoluted, it is almost funny.  But not quite.  This hard-to-follow path is guaranteed to have employees throwing up their hands in confusion, or worse, it is likely to result in reports that get lost in the cracks of the bureaucracy.  There are just too many variables here.

The reporting requirement for sexual abuse or assault is slightly less convoluted, but is still wanting in clarity or convenience for the reporter, both of which are needed to ensure the maximum amount of reporting within the system.

Reporting to the Authorities

Far more important than internal reporting, however, is getting reports of sexual abuse and assault to the authorities.  This topic is addressed on page 15 of the T&M addendum.  As the addendum points out, mandated reporters are required to report abuse of a child to the state hotline, and then follow up with a written report.  Only “reasonable cause” to suspect abuse triggers the requirement, and it is the personal duty of the person to report the suspected abuse.  Penalties include up to a year in jail and a fine of $1,000.00.

As the Sullivan & Cromwell document points out, though, “New York State law only requires that abuse and neglect perpetrated by a parent, guardian, or other person legally responsible for the child be reported to the State Hotline.”  That, of course, leaves many other employees outside the mandated set of requirements.

The T&M document does not include a list of mandated reporters, but here is the list on the New York State Office of Children’s Services, the website of which T&M does cite:

• Physician
• Registered physician’s assistant
• Surgeon
• Medical examiner
• Coroner
• Dentist
• Dental hygienist
• Osteopath
• Optometrist
• Chiropractor
• Podiatrist
• Resident
• Intern
• Psychologist
• Registered nurse
• Social worker
• Emergency medical technician
• Licensed creative arts therapist
• Licensed marriage and family therapist
• Licensed mental health counselor
• Licensed psychoanalyst
• Hospital personnel engaged in the admission, examination, care, or treatment of persons
• Christian Science practitioner
• School official, including (but not limited to):
  • school teacher
  • school guidance counselor
  • school psychologist
  • school social worker
  • school nurse
  • school administrator or other school personnel required to hold a teaching or administrative license or certificate
• Social services worker
• Director of a children’s overnight camp, summer day camp or traveling summer day camp
• Day care center worker
• School-age child care worker
• Provider of family or group family day care
• Employee or volunteer in a residential care facility for children
• Any other child care or foster care worker
• Mental health professional
• Substance abuse counselor
• Alcoholism counselor
• All persons credentialed by the NYS Office of Alcoholism and Substance Abuse Services
• Peace officer
• Police officer
• District attorney or assistant district attorney
• Investigator employed in the office of the district attorney
• Any other law enforcement official

There are two primary problems with this part of New York law, neither of which is addressed by either Sullivan or T&M.

First, as we learned when the abuse allegations against the Syracuse University basketball program were disclosed, coaches are not explicitly included as mandated reporters, and it is not at all clear that university officials and administrators are necessarily included in the list.  The administrators on the list are described as follows: “school administrator or other school personnel required to hold a teaching or administrative license or certificate,” which sounds like a high school administrator, not a university official.

Second, as I mentioned above, the law does not cover all employees.

Thus, while the list bodes well for children treated by YU medical or psychological services and the Einstein Medical Schools, it does not seem to create the same obligation to report sex abuse to the authorities for university officials, and it doesn’t cover all employees.  This is troubling, because children are often on campus, whether they are the children of employees, attending events for high school students or others, or subjects of study by various departments.  There are many ways in which adults can gain access to children and abuse them on a university campus, and New York law currently is inadequate to protect them when that occurs.

Frankly, I was surprised that Sullivan, T&M, or YU would issue a report that is not more candid about this deficient area of New York law.  Institutions are far better off when they are subject to—and follow—state-mandated reporting requirements, because such requirements move the abuse and information away from the potential for endless internal cycling, and into the arena where public professionals are devoted to dealing with these sorts of crimes.  Such legal requirements, when followed, also can also protect against civil liability.  If there is any lesson that we have learned from the last decade regarding child sex abuse, it is that institutions are engaged in self-destruction when they permit information about child sex abuse to stay within their institutional boundaries.

YU should have pointed out this potential weakness in New York state law, and advocated for the improvement of mandatory child-sex-abuse reporting to protect New York’s children, including those that come into contact with YU employees, and to protect YU itself—instead of silently letting the large loopholes slide by.

Again, I was reminded of the Catholic bishops’ stance on mandatory reporting.  The Pope has issued a mandate that they report abuse to the authorities—if the law requires it.  But if the law does not, there apparently is no such requirement.  And the bishops have lobbied to avoid reporting, so the Catholic Church reporting policy is classic doublespeak.

To its credit, T&M does suggest that YU General Counsel should report some abuse to the authorities even when YU is not legally mandated to do so.  But, tellingly in my view, that suggestion is limited to instances involving incidents against a “YUHS student.”  Why wouldn’t abuse by a medical care provider at Einstein or a researcher at Sy Syms, or an employee’s abuse against children brought from off-campus (think Jerry Sandusky), or abuse by a coach anywhere in the university system, also trigger such a requirement?

Finally, and most troubling to me, is that this document is an affront to survivors everywhere.  I have never read a document of this genre with less verbiage speaking directly to the survivors.  It is, in a word, cold.  YU needs to figure out how to become more child-centered in its approach to abuse, or it will be fighting these battles for decades to come.