Who’s Afraid of the Big Bad Victim?

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Posted in: Criminal Law

I was in Albany, New York, today to advocate for the Child Victims Act (CVA), the long overdue bill to extend New York’s stunted child sex abuse statutes of limitations. I am honored to work with amazing survivors of child sex abuse, like Kathryn Robb, Steve Jimenez, Rich Tollner, Tim Echausse, Beth McCabe, Shaun Dougherty, Connie Altamirano, and many others. Many of us have been working on this bill for over a decade. On top of their regular jobs, they slog to Albany year after year to make what should be the most obvious case imaginable: access to justice for child sex abuse victims.

This year of #MeToo and #Kids2 feels like the year for the CVA. Today we were joined by the amazing Corey Feldman and Sarah Powers Barnhard, both of whom are heroes to the movement as they have been calling out their abusers and the system for decades. He in Hollywood where he was demonized and marginalized until recently and she in USA Volleyball where she and 5 others have had to point to their abuser, Rick Butler, for over 20 years before he was removed from coaching by USA Volleyball and the American Athletic Union (AAU). Yet, neither has received any justice. Short SOLs have meant that they couldn’t file charges or sue. Feldman isn’t the only celebrity to step up: A couple of weeks ago, Julianne Moore weighed in with her support.

So far, the New York Assembly has passed the bill numerous times, and last year, led by Assemblywoman Linda Rosenthal, by an overwhelming majority. Senator Brad Hoylman has been the lead sponsor in the Senate. After over a decade, this bill is no longer the arch progressive measure it was before but now a modest improvement for victims: it extends the criminal SOL and the civil SOL and for one year it would revive expired claims, the so-called “window.” One year is the shortest window in the United States. Delaware’s was two years, Minnesota’s three years, and Hawaii’s four years, as Hawaii considers another four-year addition to bring its window to eight years. As the rest of the country moves forward as compared to New York’s Child Victims Act, one might expect the opposition to soften. It has, as the arguments against have become more pro forma than substantive.

Republican Senators Wring Their Hands Over the Window

The Republican senators are publicly wringing their hands over the window, because they are so deeply concerned that institutions might be liable for the sex abuse they caused. Oh my, oh my. Like Chicken Little—under the glare of the #MeToo and #Kids2 spotlights—they are gathering their friends and calling out “the sky is falling, the sky is falling.” As the New York Daily News reported, Senator Lanza has problems with the window, because “people lie about everything.” He doesn’t give a fig that they rarely lie about being sexually assaulted as a child. When is the last time you were at a cocktail party, work, or Starbucks, and someone made up having their uncle penetrate them as a child? While he is troubled about a window for child sex abuse victims, he supports a window for medical malpractice victims (yes, New York Republicans are all over windows for everyone other than people raped as children). Why? Because they may not know that they were harmed until later. As every traumatologist will tell you, neither do child sex abuse victims. They often don’t know it was the abuse that leveled them until they wake up from an opioid fog in a therapist’s office, who then explains to them that the trauma of child sex abuse often manifests itself in such self-destructive behavior. No kid being traumatized understands at the time that the wages may be depression, PTSD, or addiction.

Senate Republican Majority Leader John Flanagan is worried about the organizations that might have to pay damages to the victims they failed to protect, saying, “We need to be talking to hospitals, nursing homes, school districts, local governments. . . The ramifications are of such a magnitude that I think we need to be judicious and take our time and get it down properly.” Setting aside the unlikely prospect of widespread child sex abuse in nursing homes, these men are simply not listening, but rather mansplaining stupid platitudes.

Windows Have Not Yielded a “Magnitude” of Claims

We have experience with windows in a number of states, and there has not been a “magnitude” of claims that justified continued protectionism for institutions like Penn State, Michigan State, the Boy Scouts, USA Gymnastics, parishes and yeshivas, or expensive private boarding schools. To the contrary, there have been a surprisingly small number of claims brought under window legislation, as this chart on the relative success of window legislation in the states illustrates here. The same is true for lengthy extensions of the civil SOLs, and even complete SOL elimination. There is no stampede to the courts. Nor have there been outrageous settlements. When lawsuits hit, institutions are forced to pay for what they did (along with their insurance carriers) and then forced to improve their dealings with child sex abuse victims or pay again later. Where is the negative in that?

And the victims’ compensation is cabined by the organizations’ available insurance proceeds and capacity to pay. For the vast majority of survivors, they don’t get the compensation they really need to survive a life of therapy. And the institutions caught red-handed who have to pay parcel out the smallest payments possible, and then move right along. Some of the dioceses have elected voluntary bankruptcy, Chapter 11, to help them move along, because it forces all victims to come forward or sacrifice their claims altogether and lets them aggregate claims to push down values.

The Republicans in New York are acting like the worst parents imaginable. Instead of correcting a wayward child to protect the child and others later, they are coddling entities with a clear record of endangering others. Instead of refusing to give in to the toddler who is certain the world revolves around him, they let known protectors of pedophiles play the martyr in public. These lawmakers are complicit in the sex abuse that happened and is happening in these organizations, because of the short SOLs for which they are fully responsible.

Republicans Racing to the Rescue of Defenseless Organizations That Have Let Children Be Raped

New York Republicans whine about the “harm” that might be done if public schools might have to pay settlements for the perpetrators from the past, but they resolutely ignore the exorbitant future costs to the state when they deny court access for victims and therefore let that teacher abuse one more child after another. As they fret over these poor defenseless organizations, child predators are happily grooming New York’s children so they can continue their reign of terror without being held accountable. The worst states like New York, Michigan, Alabama, Mississippi, and Georgia are veritable playgrounds for pedophiles while legislators dawdle over the horrifying possibility that institutions that have endangered children might be held accountable. What horrors will happen to institutions that have to face the adults their recklessness failed to protect? Well, let’s take a look at Penn State. If you didn’t know the history of Jerry Sandusky, would you even know it had a problem? What programs did it have to shut down to secure justice to victims? Well, none. Did the Archdiocese of Los Angeles lose a beat when it built its glorious new cathedral while it compensated hundreds of victims? No.

Make no mistake about it: the lawmakers in New York, Michigan, Georgia, and elsewhere that fail to prevent child sex abuse by denying victims legal rights are aiders and abettors of child rape, assault, pornography, and trafficking. They are no better than the administrators who learned about the rape of a kid on campus and twiddled their thumbs, or the bishop who zealously protected the secrecy of his Secret Archives while dozens of children were being groomed, raped, and threatened on his watch. Instead of fretting over the poor organizations that they ought to be holding accountable, they would do better to wake up to the new reality. Child predators aren’t getting any more popular and neither are the institutions that shield them.