Q&A: Marci Hamilton

By Jeff Storey (New York Law Journal)
September 28, 2012

Marci Hamilton, a professor at the Benjamin N. Cardozo School of Law, stepped out of the Ivory Tower onto the public square to decry what she sees as the widespread cover-up of child sexual abuse by institutions like Pennsylvania State University, the Roman Catholic Church and the Boy Scouts of America.

Hamilton represents victims of abuse in court and lobbies for changes in state statutes of limitations that would make it easier for victims to sue. Frequently quoted in the media, she has appeared on The Daily Show with Jon Stewart, and accompanied one of her Penn State clients to a taping this week in Los Angeles of The Dr. Phil Show.

Hamilton has taught at Cardozo since 1990, specializing in constitutional law, the First Amendment and religion and the law. She has two master's degrees, one in philosophy and one in English, from Penn State and a law degree from the University of Pennsylvania. She is the author of God vs. the Gavel: Religion and the Rule of Law (Cambridge, 2005) and Justice Denied: What America Must Do to Protect Its Children (Cambridge, rev. 2012).

Q: One of your academic specialties is church-state relations. Do you think organized religion has a disproportionate influence on public policy in the United States?

A: Our elected representatives have a history of being overly deferential to religious leaders and lobbyists, with tragic results for children. Until recently, there was a tendency to assume that there is an equation between religion and the protection of children, which is a mistake. Christian Scientists have lobbied the federal and state governments for exceptions to the medical neglect laws, making it easier for faith-healing parents to let their children suffer, be permanently disabled, and even die. Catholic and Mormon hierarchies have lobbied for exceptions to child abuse reporting statutes, and Catholic bishops continue to lobby aggressively against statute of limitations reform for child sex abuse victims, so that the victims cannot go to court.

Q: How did you get into this field?

A: I represented the city of Boerne, Texas, in its U.S. Supreme Court challenge to the Religious Freedom Restoration Act in 1997. We succeeded in persuading the Court to declare RFRA unconstitutional. (It was later reenacted to apply to the federal government and its successor, the Religious Land Use and Institutionalized Persons Act, now applies to land use and prisons.) Every major organized religion was on the other side. It was a high-profile case, and many of the groups that fight religious leaders and lobbyists in the legislatures and courts contacted me. They educated me on the myriad ways that religious institutions and clergy have harmed the vulnerable. As a mother, I became particularly interested in the issues affecting children. By the time the Boston Globe broke the story of the cover-up by bishops of child sex abuse by priests in the Catholic Church in 2002, my specialty was religious groups and individuals who break the law. The issue fell into my lap. I wrote about these and other constitutional issues in my bi-monthly column on findlaw.com for 10 years. I've been writing for justia.com since December 2011.

After reading several of my columns, Jeff Anderson, who is the leading clergy abuse litigator in the country contacted me to talk about the issues in his cases. I was very moved when he told me no law professor had taken their side in the many cases he had undertaken. I started to work on the First Amendment issues for him, and that eventually extended to RFRA and state constitutional issues, and other federal statutory issues, like the Foreign Sovereign Immunities Act [for a lawsuit against the Holy See].

Q: You and Jeff Anderson are representing two of the victims of former Penn State coach Jerry Sandusky in a suit against Sandusky and the university and Second Mile. Have you been involved in any other litigation related to the sexual abuse of children? What is your role in such litigation?

A: Philadelphia District Attorney Lynne Abraham contacted me in 2004 to consult with her office on what became its groundbreaking 2005 grand jury report on child sex abuse in the Archdiocese of Philadelphia. The lengthy report found a pronounced pattern of the archdiocese knowing about abusing priests and callously and recklessly placing them in one position after another with access to children. There was more attention paid to secrecy and reputation than child safety. The report is a landmark in the protection of children, because it laid out the pattern we now see at Penn State, Poly Prep, Horace Mann, the Orthodox Jewish community, Jehovah's Witnesses and Church of Jesus Christ of Latter-Day Saints, among others. Cardinal Justin Rigali accused Abraham, who is Jewish, of being anti-Catholic but also pledged to do better.

In 2011, the district attorney's office released a second grand jury report. It was the most infuriating document I have ever read. Not only had Rigali not done better, but the archdiocese's practices were even worse than we had learned in the 2005 report. The Philadelphia Archdiocese had had almost 10 years since the Boston Globe had broken the cover-up story, and six years since the first grand jury report. I called Jeff and told him that I wanted to come in on the Philadelphia Archdiocese cases as a regular member of the team, not just specializing on constitutional issues. We have heard from dozens of clients, and filed 16 cases on behalf of 17 clients against 12 priests, the archdiocese, and the hierarchy.

When the Penn State scandal was unveiled, it was natural for Jeff and I to work on those cases together. We are representing two survivors of abuse by Sandusky, and have filed suit on behalf of Travis Weaver against Penn State, Second Mile and Sandusky. I'm involved in every aspect of the litigation. These cases are the only cases in which I'm working on a contingency basis, as opposed to an hourly fee.

I have also worked with Jeff, and other clergy abuse attorneys, and child advocacy organizations around the country on child sex abuse cases involving a long list of religious organizations, including Orthodox Jews, fundamentalist Mormons, a number of Catholic dioceses, and cases involving public and private schools and other private organizations.

I have been retained as a consultant in the Catholic diocese bankruptcies in Portland, Spokane, San Diego, and Milwaukee (ongoing) to serve as First Amendment and RFRA counsel to the creditors' committee of sexual abuse survivors. I typically draft and do the oral arguments on the First Amendment, constitutional, and RFRA issues.

In many other sex abuse cases, I have briefed and argued the First Amendment, constitutional, and federal statutory issues, including before the Illinois, New Hampshire, Missouri, New Jersey, Oklahoma, Illinois, and Wisconsin Supreme Courts.

Q: Do you do any pro bono work on these issues?

A: I do a great deal of pro bono work with numerous child and victim advocacy groups, including the National Crime Victims Bar Association, Jewish Board of Advocates for Children, Survivors for Justice, National Black Church Initiative, Children's Healthcare Is a Legal Duty, Cardozo Advocates for Kids, the Foundation to Abolish Child Sex Abuse, Justice4PAkids, Americans Against Abuses of Polygamy, Child Victims Voice, Survivors Network of Those Abused by Priests, and New York Coalition to Protect Children, among others. I have filed amicus briefs for all of these organizations. I also serve on the advisory board to the National Crime Victims Bar Association, Justice for Children, and the Child Protection Project, among others. In addition, I am not compensated for the hours I spend on pushing for reform of child sex abuse statutes of limitations in every state where new bills are introduced.

Q: Have victims of sexual abuse been successful in winning court awards? Can winning in court repair the damage that has been done to them?

A: Victims of sexual abuse can do well in court, if they are not impeded by the statutes of limitations, which in many states are much shorter than the average survivor needs. It typically takes survivors of sex abuse decades to come forward, because of the shame and humiliation they feel and the threats many perpetrators level against their child victims, and as a result of alcohol or drug abuse, depression, and dysfunctional relationships. Simply being able to file in court against the abuser (or the institution that made the abuse possible) is often empowering. Many abusers tell their victims it is their fault, but in the legal system it is clear that the child victim was not at fault, and that fault rests on those who abused and endangered that child. Damage awards are often needed for these survivors to afford long-term counseling and therapy, to compensate for lost productivity and their pain and suffering, along with their families. A victim's loved ones often suffer as well. Winning can be a major step forward for the survivor who is struggling to survive with the extraordinary burden of a childhood stolen by a pedophile.

Q: What are the legal grounds for seeking liability for the "institutional" abuse of children by defendants like Penn State and the Catholic Church?

A: Penn State, the Catholic Church and other institutions are liable for their negligent oversight of employees who have contact with children, failure of fiduciary duty to children, failure to warn, negligent infliction of emotional distress, conspiracy to endanger children, and fraudulent concealment of child sex abuse by employees.

The torts and crimes are virtually identical, but responses have been very different. The Catholic bishops have chosen the path of delay, delay, and more delay, and filed for diocesan bankruptcy in jurisdictions where a large number of victims have come forward. Penn State says it is moving quickly to settle claims by the end of 2012. For the victims, though, the goals are the same. They want the truth about the cover-up, and they want fair compensation for the injuries they suffered. We will see whether Penn State's path of choosing Ken Feinberg to settle claims will proceed smoothly or slowly. It will depend on the needs of the victims, whose legal claims are rock solid, not the needs of the university.

Q: You have been accused, in the words of one blog, of having a "profound contempt" for the Catholic Church. Is that true?

A: I have been attacked by Catholic bishops for being "a bitter woman" and by Catholic bloggers accusing me of singling out the Catholic Church for criticism. All of these comments are just silly. I respect the church for its good works, and have many friends who are active Catholics and very good people. In fact, my husband and our children are Catholic. (I'm Presbyterian, which has had its own issues in this arena). But I do have a "profound contempt" for any institution or person who covers up for pedophiles and endangers children. I criticize the failure to protect children from sexual abuse wherever I see it, whether it is in a university, a private school or organization, or a public school. The whole culture needs to wake up and do better on this issue. The Catholic Church's problem is that it is the largest institution in the world, and its victims have been coming out of the woodwork. I take it as a compliment that the bishops and their paid public relations people think it necessary to attack me.

Q: Do your husband and two children support your crusade?

A: Yes, 110 percent. Both children have worked pro bono for Justice4PAkids. My husband Peter is a lifelong Philly Catholic who still goes to mass every Sunday, but he is a militant on these issues. Once the Boston Globe story broke and we started to learn more about the cover-up through my work with Jeff and others, Peter was moved to write a letter to the Bishop of Trenton, N.J., which is the diocese where he attends mass. He demanded that Bishop Smith publish a list of the known predators in the Trenton Diocese. He received a form letter from Smith's secretary. We then decided to shift our charitable giving away from the bishops to organizations we knew would use the money for the poor, children, and bishopaccountability.org to keep an eye on the bishops and their misbehavior. Peter also decided to replace his giving each week with a small printed note that said, "I will not give another dime to the Diocese of Trenton until the Bishop names all priests who abused children." He put it in his preprinted envelope every week and several of our friends followed suit. The next year, he did not receive the envelopes anymore, and so now he just writes on the Bishops' Annual Appeal, "Not a dime until the perpetrators are named."

Q: Is the Catholic Church unique in how it responds to sex abuse?

A: The pattern of child sex abuse cover-up is strikingly similar in all institutions: men in power have recklessly ignored reports of child sex abuse by their own employees while simultaneously taking steps to keep it secret. It is the perfect plan for every pedophile, who thrives on secrecy and access to children.

Q: Are your activities and those of other victim advocates a danger to religious liberty?

A: The First Amendment and state constitutions were never intended to protect acts of "licentiousness," like child sex abuse. Religious liberty does not include a right to harm children or the vulnerable. Religious organizations have lost these arguments in virtually every state. I am convinced that by fighting child sex abuse and the institutional instinct to cover it up, we are helping every organization, including every religious organization, not hurting them. When they cannot find their way out of the thicket of child sex abuse cover-up, the law is the best means of restoring them to a better place.

Q: You have advocated the elimination of statutes of limitations in child sex abuse cases and the opening of a "window" to allow suits where limitations periods have lapsed. New York's Catholic Conference says that would amount to changing the rules after the fact and eliminating an essential protection against fraudulent claims. How do you react to such arguments? Does the statute of limitations serve any useful purpose in child sex abuse cases?

A: When I was first brought into the clergy sex abuse cases, I was struck by how many strong cases could not go to court, simply because the statute of limitations had expired. It was an outrage, to quote Judge Edward Becker, for whom I clerked. This arbitrary deadline had been set in most states so that the vast majority of victims would never get to court, which meant that the pedophiles and the institutions that enable them had been able to keep their secrets, and the pedophiles were enabled to abuse one child after another. Many states have recently liberalized their SOLs for child sex abuse, and California, Delaware, Hawaii, and Guam have passed windows. Bills that would permit victims whose SOL have expired to file civil suits are pending in Massachusetts, Pennsylvania, New York, and New Jersey. Concerns about false claims have been met by including a "certificate of merit" element in the law, which requires the survivor to obtain a statement from a mental health professional affirming the victim's story. There have been very few false claims in any of the states where windows have been passed, but they have served an important compelling interest, as hundreds of previously unnamed pedophiles have been identified to the public..

In New York, in particular, the movement needs a leader like Governor Andrew Cuomo to place the welfare of children first, ahead of the lobbying demands of bishops.

Q: Is it unusual for a tenured law professor to become so involved in litigation and lobbying?

A: Law professors, like my Cardozo colleague Barry Scheck who started the Innocence Project, often become involved in shaping public policy as a result of their scholarly interests. There is a role in the legal academy for the publicly engaged professor as much as the more contemplative scholar. I was involved in advocating for the rights of authors and artists at the start of my academic career, when I specialized in copyright law. For me, it would be impossible to see injustice in the legal system, especially where no one else has seen it, and not want to take action to correct it.

Q: You obviously are very passionate about these issues. Is there a danger that your commitment might cloud your scholarly objectivity?

A: I am very committed to the protection of children from callous and reckless institutions, but I have not felt that it has clouded my ability to assess the law on the issues. Law professors typically take "sides" in public debates, but as professionals, we must look at the facts and law as we find them. It is energizing to see the big picture on these critical issues and to be able to explain and analyze it in my scholarship. Cases and advocacy do not offer the same opportunity to describe the big picture, but are irreplaceable tools to teach an academic how the law actually operates. The ivory tower has its place in law schools, but just as important is the real world.

Q: How has Cardozo reacted to having such a controversial faculty member?

A: Cardozo has been extraordinarily supportive of my work, for which I am very grateful. Academic freedom is real at Cardozo Law School. The school encourages entrepreneurial and original thought, and does not expect professors to fit into any particular school of thought. That has freed me to see and to say what others have not and cannot.

Q: Would you ever consider giving up teaching and becoming a full-time litigator?

A: No. I love to teach, I love to work with students, and I learn as much in the classroom as I do in the courtroom. I also need the opportunity to write about the big picture, not just the individual issues in particular cases. My primary skill is to see patterns where others do not. I can't imagine being deprived of either universe, and know that each informs and enriches the other.