To Achieve Justice for the Victims of Sex Abuse in Pennsylvania: Don’t Let History Repeat Itself

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Posted in: Criminal Law

With Pennsylvania’s legislative session days running out, there is reason to fear that the furious forward momentum for statute of limitations reform for child sex abuse victims (and in particular a 2-year window) could be derailed. The ball is now in the senate’s court and it has only seven days left: October 1, 2, 3, 15, 16, 17, and November 14.

The assembly passed a great SOL bill as compared to Pennsylvania’s current SOLs: it eliminates the criminal SOL, extends the civil SOL to age 50, includes the Rozzi Amendment, which has a two-year window, and eliminates sovereign immunity in public school cases (prior to now, a victim in a public school could not sue for child sex abuse at all). That is the bill the senate has on its plate now. Pennsylvania will not displace Delaware as the leading state on SOL reform, but the current bill would be strong progress.

It is natural for the public to be enraged in response to systemic child sex abuse, and there has been reason for Pennsylvanians to be appalled as nine grand jury reports have detailed abuse in every diocese, Penn State, the Solebury School, and public schools. Citizens naturally assume that their outrage will be translated into proper action, but history tells us there is no straight line from public disgust to good policy. At each moment so far in the state, lawmakers have caved to the bishops and insurance lobbyists, which translates into nine grand jury reports over horrific sex abuse and callous coverups and the only change so far is the 2007 extension of the criminal SOL from age 30 to age 50.

It is important to know history to avoid its repetition, and so this column will detail how the Catholic bishops in Colorado and Ohio turned the survivors’ near-victories into defeat. My message is that Pennsylvanians should not be confident that their demands for legal reform will carry the day. Just as the sun rises in the east, the bishops and insurance lobbyists are still fighting the victims in lawmakers’ offices—clouding senate consciences.

Let’s examine history to clarify the reality of SOL reform for child sex abuse victims. There has been significant success in a number of states including Delaware, Connecticut, Hawaii, Massachusetts, and Minnesota. See Section E here, There are also the states that have stymied the victims seeking justice like Colorado and Ohio. There will only be real justice if facts displace the exaggerations and tactics of those intent on blocking justice for the victims.

How Then-Bishop Charles Chaput Manipulated Parishioners to Kill the Window in Colorado

Denver Bishop Charles Chaput earned himself a promotion to the larger and more powerful Philadelphia Archdiocese after he killed SOL reform in Colorado. Fr. Harold Robert White was the subject of fifteen lawsuits filed against the Denver Archdiocese, including one by his own godson. He told at least one survivor that the abuse was “the will of God.” Devout Catholic Senate President John Fitz-Gerald and Rep. Gwyn Green led the call for the enactment of a window. The pending bill would have created a window for all private institutions. Most states treat private and public entities separately and so it was not unusual that public entities were not part of one bill. Chaput took that fact and argued that the bill “targeted” the Church; it was rank discrimination in his re-interpretation. Let’s be clear: he was not arguing that they should add public institutions. To the contrary, he cynically intended to use his “equality” argument to stop the bill that would have applied to all private institutions, and he did.

In 2006, Chaput hired a leading public relations firm to concoct a strategy to quell the demands for justice by their sex abuse victims. Shamelessly, they printed flyers that were distributed in the pews each Sunday saying that the bill targeted Catholics and calling on parishioners to call their elected representatives to reject this supposedly anti-Catholic bill. Parishioners, who were relatively uninformed about clergy sex abuse and SOL reform, shut down the state house phone system when they called simultaneously on a Monday. That was the end of full justice for the victims of private entities in Colorado, a legacy Chaput owns. Who knows what dangerous day care centers, private schools, Boy Scout leaders, doctors, and coaches won the same day he did.

A year later, Delaware avoided the Chaput trap and enacted a two-year window that covered both private and public institutions and applied gross negligence in all cases. Imagine if Delaware had not done so: it would not have forced into the glare of public scrutiny Dr. Earl Bradley, the most prolific pedophile pediatrician known yet. The overwhelming number of victims to come forward in Delaware were his—nearly 1,000. There were “only” about 150 victims of Catholic abuse.

The pending bill in Pennsylvania follows the Delaware model by lifting sovereign immunity from public entities for child sex abuse. Right now, Pennsylvania victims can’t sue public entities regardless of how bad the sexual abuse is. Even so, the Chaput gambit persists as some argue that the Pennsylvania bill is unfair because it sets the standard for private entities at “negligence” and the public entities at “gross negligence.” Negligence means a “mistake” was made while “gross negligence” means the defendants acted in an “intentional, careless, or reckless” way. In reality, the windows in Delaware, Hawaii, and Minnesota employed “gross negligence” across the board and that standard was no barrier for the victims. Let’s face it: the grand jury reports describe little other than conduct that is “intentional, careless, or reckless.” Thus, the difference is one without a difference.

Perhaps more importantly, Pennsylvania Catholics are no longer uninformed lambs who can be hoodwinked by bishops into fighting the victims to block justice.

How the Bishops of Ohio Stuck It to the Victims by Getting Republicans to Replace the Window with a Joke Registry

Ohio is another state that could have been an early leader on SOL reform but the bishops and insurance carriers ensured that did not happen. On the wings of the Academy Award-nominated documentary, Twist of Faith, the subject of which was an Ohio resident and firefighter, Tony Comes, and emotional testimony from dozens of others, the Ohio Senate unanimously passed a good bill: it would have extended the criminal and civil SOLs, enacted a one-year window, and made clergy mandated reporters. Then it went to the House. Survivors were fond of saying that they weren’t in the battle “for the money,” in response to the bishops’ and insurance lobbyists’ sly attacks on their credibility and integrity. They aren’t to be sure, but in fact American civil justice works by shifting the cost of harm from the victim to the ones who caused it. Well, Ohio bishops took them at their word and in a midnight meeting the night before the bill was expected to pass the House, Republican leadership agreed to remove the window and replace it with a useless “civil registry.” Instead of being able to sue those responsible for their abuse, victims were relegated to a lame “civil registry.” If you ever doubted the cynicism of the bishops on these issues, think about what this registry provided: a victim could hire an attorney to ask for their abuser’s name to be posted on this civil registry, then the victim could litigate before the courts whether or not they were abused and if the court agreed, the perpetrator would be required to register an address and employer with the state. The victim could then get attorneys fees. It’s been used once and is literally a joke. The founder of SNAP, Barbara Blaine, an Ohio priest survivor, who tragically passed away last year, stated at the time that “this registry is a shallow, empty promise that will provide no measure of protection for children or justice for survivors.” She was so right.

The lesson here is that survivors should be proud of their demand for civil justice that includes damages. Why should they and their families be forced to pay for the therapy and suffering that was cruelly and recklessly caused by others? Window legislation is a matter of true, fundamental fairness. Pennsylvania senators have one simple choice: either pass a window and side with all child sex abuse victims or block it one more time and choose the perpetrators and their enabling institutions.

There are even more details about the history of SOL reform in Justice Denied: What America Must Do to Protect Its Children, replete with more villains and heroes. Pennsylvania’s full history is yet to be written. The state could turn the knowledge gleaned from thousands of victims and nine grand jury reports into fairness and justice by enacting a window. It could also be derailed by the desperate measures of bishops and lobbyists who care more about power, image and money than the suffering of children. In the end, though, it is not up to lobbyists to make the law. All eyes are on the Senators as the final days of the 2018 legislative calendar wind down. It’s their choice: children or predators, heroes or villains.