By Anne Cohen (Jewish Daily Forward)
August 16, 2013
A federal judge’s recent decision barring discovery to 31 adults who say they were sexually abused as students at Yeshiva University High School for Boys years ago bodes poorly for the plaintiffs’ case, say two legal experts who have been following the case.
The August 6 decision by United States District Judge John G. Koeltl will effectively deny the plaintiffs’ attorney, Kevin Mulhearn, access to internal records from Y.U. as he seeks to counter a motion by Y.U. attorneys to dismiss the case.
That was a crucial tool in his surprise success in overcoming the state’s statute of limitations in a similar child sexual abuse case against Poly Prep Country Day School.
“You know what I would say [to Y.U.] … I’d say, ‘Let’s not do anything,’” to settle the case, said Karen Burstein, a former judge. “Let’s make the strongest motion [to dismiss the case] that we can.’”
Indeed, in an accompanying ruling, Koeltl agreed to consider a motion from Y.U. to dismiss the case on the grounds that the plaintiffs had filed their suit long after the state’s statute of limitations for such misconduct had passed. He ordered Y.U. attorneys to submit written arguments supporting their motion by September 13, after which he will hear counterarguments from the plaintiffs before issuing a decision.
But meanwhile, said Burstein, a Democratic nominee for New York State attorney general in 1994, the judge’s decision not to allow discovery has removed all impetus on Y.U. to consider a settlement.
The 31 plaintiffs, all of them now adults, allege that they were abused from the late 1970s through the mid-1990s by two senior staff members at the high school, and by an outsider allowed into their dorm rooms. They charge also that Y.U. officials ignored repeated complaints about their abuse over many years and failed to report their allegations to law enforcement authorities.
New York State’s controversial statute of limitations law mandates that civil suits for child sexual abuse be filed before an alleged victim turns 23.
Mulhearn surprised many observers last December, when he overcame this legal hurdle in a similar suit filed by adults who were abused while they were students at Brooklyn’s prestigious Poly Prep Country Day School many years earlier. According to some experts on sexual abuse, this success owed much to the judge’s ruling in that case to allow Mulhearn to conduct discovery even as the judge considered Poly Prep’s motion to dismiss the case. This gave Mulhearn access to internal school records that he could use as evidence in his arguments against the dismissal motion on the grounds that the school had engaged in a cover-up of the allegations.
“I think [the former students] are going to have a very hard burden here,” Burstein said, referring to the current case.
The plaintiffs in the suit against Y.U. charge that as students they were abused on repeated occasions by Rabbi George Finkelstein, the school’s former principal; by Rabbi Macy Gordon, who was a senior Talmud instructor there, or by Richard Andron, an outsider who frequently visited the Y.U. dormitory in which they lived with no interference from Y.U. authorities. The plaintiffs are asking $380 million in compensation and damages.
“It’s impossible to know whether the plaintiffs can survive this motion until we see what [their] answer [to the motion to dismiss] is,” Burstein said. “I’d be very loath to allow 30 years to pass before you brought an action.”
Marci Hamilton, who is the Paul R. Verkuil Chair in Public Law at Yeshiva University’s Bejamin N. Cardozo School of Law and has spent years studying child sexual abuse, disagreed.
“This is another example of how the New York statutes of limitations for child sex abuse victims block justice and hinder the education of the public about the institutions that create the conditions for abuse and the individuals who abuse children,” she wrote in an email.
Asked to expand her answer, Hamilton replied that as an employee of Y.U. she could not comment on the situation. But in the past, Hamilton has cited research that shows it often takes child victims of sexual abuse many years, and even decades into adulthood, to confront what happened to them.
Even Burstein acknowledged that in some cases, the current statute was too restrictive.
“It seems to me that given a society that at least acknowledges that sexual abuse is not uncommon, and [in which] there’s a lot of pressure not to say anything, that maybe you need to give kids a little longer,” she said. “But I don’t think you give them forever.”
New York Assemblywoman Margaret Markey has been pushing for reform of the statute of limitations for the past several years. The N.Y. Child Victims Act, which she sponsors, would, in its current version, abolish the time limits for such cases in the future and address past abuse by opening a one-year window for victims to file civil law suits against their abusers and against institutions that either knew or should have known about such inappropriate conduct by their staff members.
The Catholic Church and Agudath Israel of America, an ultra-Orthodox umbrella group, have been adamant opponents of the bill.
Regarding Koeltl’s ruling, Markey wrote in a statement to the Forward that “what is particularly noteworthy in this Yeshiva University case is the apparent pattern of cover-up to protect the institution and its leaders.
“It appears to mirror other prominent cases we have seen in the past few years where religious, educational and youth organizations and institutions have protected pedophiles and abusers by preventing law enforcement from acting in a timely way to bring child molesters to justice.”
Markey reintroduced her bill in the Assembly earlier this year, and hearings held in March to support it included testimony from Hamilton and from Rabbi Yosef Blau, a senior faculty member at Y.U.’s rabbinical school.
But according to Markey spokesman Mark Armstrong, the Assembly’s Democratic majority has now shifted the onus onto the mostly Republican Senate to pass the bill, making its survival unlikely.
“The Assembly has voted four times to adopt the N.Y. Child Victims Act to apply a more realistic statute of limitations to this type of crime,” Markey wrote. “The State Senate, however, has refused to bring this legislation to the floor of their house. Just as there is no statute of limitations on murder or rape, there should be no statute of limitations on child sex abuse, particularly when it involves rape and sodomy of children.”
Ben Hirsch, a co-founder of Survivors for Justice, which advocates on behalf of child abuse victims in the Orthodox community, also laid the blame for Koeltl’s ruling in the Y.U. case with state legislators.
“A motion to dismiss an out-of-statute lawsuit is almost always granted under New York State laws,” he said. “The blame for this belongs in Albany, where the laws are passed. Politicians from the governor on down have been sitting and doing nothing to change what are some of the weakest child sex abuse laws in the country.”