Timothy Dolan Implements the Penn State Playbook for Child Sex Abuse Victims: The Best Argument Yet for SOL Reform
By Marci A. Hamilton (Justia.com)
October 7, 2016
Admitting that the clergy sex abuse crisis still dogs the New York City Archdiocese, Timothy Cardinal Dolan has announced an Independent Reconciliation and Compensation Commission. This move is right out of Penn State's playbook for dealing with the Jerry Sandusky victims, and it is a good one for some. But it cannot be the final word on justice for the sex abuse victims in New York state.
Cardinal Dolan's Record on Justice for Sex Abuse Victims Is Mixed
Cardinal Dolan has a mixed record on justice for sex abuse victims, to put it mildly. He is the only bishop I know of who personally testified against statute of limitation (SOL) reform, which he did while he was Archbishop of Milwaukee. I know because I was there. With a straight face he told lawmakers that the diocese would become "bankrupt" if the SOLs were revived for victims from the past. In the thrall of his presence and his earnest manner, the legislative panel abandoned its previous plans and shelved reform. Unlike Dolan, most bishops have handed over the responsibility of lobbying against access to justice for the victims to their paid lobbyists.
Dolan was not kidding about the Milwaukee diocese going into bankruptcy, though he didn't mean that the diocese would have no assets; in fact the diocese did not wait for SOL reform. He just meant it would take advantage of federal bankruptcy law to avoid paying victims. With fewer than a dozen lawsuits filed, the diocese filed a federal bankruptcy action.
He was the mastermind in Milwaukee of the attempt to move over $50 million from general funds to a so-called "cemetery trust" that the diocese hoped could not be touched by the victims. The victims, who were transformed under federal bankruptcy jargon into "creditors," objected to the cemetery trust on the ground it was a fraudulent trust. Therefore, the funds should have been available to compensate them. Dolan's cynical cemetery trust move resulted ultimately in lengthy judicial proceedings in which the Seventh Circuit ultimately held that there was no right to religious liberty in such a trust and, even more, that fraud should not be eligible for a religious liberty theory. This was a great ruling, but did little for the victims.
The victims paid the price for Dolan's maneuver against them and the ensuing lengthy litigation They were dragged through years of litigation during the diocese's voluntary federal bankruptcy, only to receive little in compensation at the end. Many to this day have every right to condemn the legal system that made this scenario possible.
Dolan Is Promoted to Archbishop and Then Cardinal of the New York City Archdiocese and Digs in Against the Victims
In apparent recognition of his signal achievements keeping victims at bay, Dolan was promoted to the New York City Archdiocese, which has been the most opaque diocese in the United States on these issues for three reasons. First, New York is the worst state in the United States for justice for child sex abuse victims, with statutes of limitations that can shut victims out of the legal system by age 23. The New York legal system keeps victims out of court.
Second, it is the second-largest diocese in the country, and so it has proportionally the second-largest number of victims in the country. California made sure the largest Archdiocese in the United States, Los Angeles, was brought to justice, as I discuss here. But to date the New York legislature has dragged its heels on justice for all victims in the state. With the short SOLs, we know less about clergy sex abuse in New York City than anywhere else in the country.
Third, neither New York City District Attorneys nor the New York Attorney General's office ever took the courageous step of calling a grand jury to investigate the many clerical sexual predators in their midst, which aided and abetted the secrecy that has enrobed the New York City Archdiocese.
Cardinal Dolan arrived in New York, and picked up where his predecessor, Edward Cardinal Egan, left off, paying lobbyists top dollar to block any attempt by survivors to obtain justice through the legal system. He led the New York state bishops on a crusade of resolute defiance of their responsibility for the suffering of so many. Until now.
Cardinal Dolan Pivots Toward the Survivors with an Independent Reconciliation and Compensation Commission
Having defeated the Child Victims Act every year he has been in New York, and again in 2016, many believed that Dolan would continue his crusade against the victims. But lo and behold, he announced the Independent Reconciliation and Compensation Commission. Given the preceding history I fully understand the anger expressed by many survivors and organizations in response to Dolan's announcement. Let's just say he has built a trust deficit.
I actually think it is a positive step forward, though no panacea for the justice deficit across New York state.
This does appear to be an independent commission, because it is offering mediation and compensation under the guidance of Ken Feinberg, who has hammered out settlements in numerous contexts including the 9/11 fund, the Boston Marathon fund, and Penn State fund for Jerry Sandusky victims. I witnessed how he made decisions in the Penn State cases, where he was tough but fair. That was a system, guided by him, where survivors with strong and even imperfect cases were able to obtain meaningful justice. The latter victims would have been torn apart in the justice system, even though they desperately needed justice as much as those with stronger cases.
Most importantly, he has obviously hammered out an arrangement with Cardinal Dolan where his decision is final, and the program is overseen by a panel of unquestioned integrity, including federal Judge Loretta Preska, former New York Police Commissioner Raymond W. Kelly; and a Columbia University child psychiatrist, Dr. Jeanette Cueva. In addition, there is no cap on the fund, as Dolan tried in Milwaukee, and the funds are being provided by loans (which the Archdiocese can certainly obtain given its deep property ownership).
So why is this good news for some victims? Not every survivor has the wherewithal to survive and thrive in the legal process. This is an alternative route to compensation for the injuries inflicted by the Archdiocese's practices that empowered pedophile priests. There are also plenty of victims who need their own church to do right by them, though they would never sue their mother church. Mediation is the justice of our times in the vast majority of cases, and so it is not per se wrong in this context.
This system also requires reporting to law enforcement and so this is not solely an internal, secret system. Some trial lawyers will object that this system-without discovery-will not uncover enough, but I would posit that those survivors who would take advantage of such a system may well not have been able to pursue the hard-charging litigation that produces such discovery. Moreover, at the very least, their perpetrators will no longer have the cloak of secrecy they currently probably wear. As a more efficient and private path for those survivors who would not choose the legal system, it is rightfully good news.
What Cardinal Dolan's Compensation Commission Cannot and Does Not Do
This move highlights how few New York victims Dolan could help if he wanted to. This Commission is irrelevant for the majority of New York victims, who were abused in the home or by a close family associate, or the Boy Scouts, any sports organization, or the private schools like the Emma Willard, Horace Mann, or Poly-Prep schools, and on and on. Nor does it make a dent in the harm done to victims from the public schools system. Child sex abuse is a scourge in our culture, not the special province of the Catholic Church. Though even if it were, this Commission still doesn't cover any of the other seven dioceses in the state.
With this Commission and his words, Dolan has conceded that there continues to be a serious problem created by the denial of justice for so many victims. He is further publicly saying that until he addresses that, he cannot move out from under the cloud of the clergy sex abuse scandal. For those who would like to believe that these issues are in the past, now a Cardinal has in no uncertain terms told you that you are wrong. He is correct on this point: justice delayed and denied exacerbates the trauma of abuse, which can and often does exist for a person's lifespan.
New York SOL Reform Is Needed More than Ever
The shortcomings of this Commission as compared to the needs across New York state underscore how much New York lawmakers and Gov. Andrew Cuomo need to act now to open the way to justice for child sex abuse victims. In addition to being irrelevant to the vast majority of victims in the states, the Commission does not do anything for those survivors who want their day in court to right the wrongs done to them. Those strong enough to endure the rigors of the legal system should not be forced into Dolan's system but given an opportunity for civil justice. When you add all the other victims in the state to those who seek civil justice even with respect to the New York City Archdiocese, there is much left to be done.
So I applaud Cardinal Dolan's creation of this Commission, with its independence, its strong mediator in Ken Feinberg, and its credibly independent oversight committee. It is thoughtful and perhaps, after we see how it actually operates from a victim-centered perspective, a model for other dioceses and organizations.
It is no substitute, though, for New York lawmakers to do the right thing for victims. They have two separate categories of victims to consider: (1) those who were abused in the past and shut out of justice by thoughtlessly short SOLs, and (2) those currently being abused. They need to revive the expired SOLs for the first, and to eliminate, or at least extend, the civil and criminal SOLs for the second.
Cardinal Dolan is trying to remove some of the victims from that legal process, which should be their choice. Good for him and hopefully for them. Yet, he should no longer be permitted to dictate New York statutes of limitations for all those survivors he obviously cannot help or who do not want his help.
It's your move, New York.