Child Victims' Act Proponents Push Lawmakers for Passage

By Thomas Adcock (NY Law Journal)
November 21, 2008

Richard Cerick describes what happened to him one night in 1969 at the Fordham University campus home of a Roman Catholic priest as "murder of the soul," and himself ever since as among the many victims of a "horrible web of secrets and deceptions and lies."

But this week, the 53-year-old attorney and his allies in Catholic lay groups such as Voice of the Faithful say justice delayed shall not be denied. They expect their three-year lobbying effort in Albany to result in adoption of the Child Victims' Act of New York when the new legislative session begins in January.

Outlined in Assembly bill 4560, the proposed measure would:

• Extend the age of alleged victims for bringing charges in child sex-abuse cases that have not been reported to law enforcement to 23 from 18;

• Call for a similar extension in the civil cases, giving alleged victims until at least age 28 to seek prosecution or civil redress;

• Create a one-year window in the civil statute-of-limitations provisions whereby from the effective date of the law victims of any age would be able to seek damages for past instances of child sex abuse.

Assemblywoman Margaret Markey, D-Queens, the bill's principal sponsor, is confident the measure will pass. While her colleagues in the Democratic-controlled Assembly have voted overwhelmingly in the past for the bill, the Republican-controlled Senate has buried the measure in the Codes Committee every year since 2005.

The Nov. 4 election saw the state senate become majority Democrat for the first time in some 40 years, though partisan leadership has yet to be settled as three New York City Democrats are considering leaving the party. But presuming eventual Democratic control, Ms. Markey said, "I have a very good feeling about the change, and the chances of finally passing this important legislation. I have good reason to be optimistic."

Although she has always enjoyed a significant measure of bipartisan support, Ms. Markey said she would now seek a Senate Democrat to sponsor a companion bill to improve chances of passage in both houses. During the last legislative session, she said, such a companion bill was introduced by Senator Stephen M. Saland, R-Poughkeepsie.

Judging by the stridency of the opposing lobbies - principally Mr. Cerick and abuse victims' groups versus the New York State Catholic Conference - the next battle appears no less emotional than in the past.

With reference to the Catholic hierarchy, which has been accused in litigation in several states of protecting sexual predators in the priesthood, Mr. Cerick asked, "Who more than children deserve protection from pedophiles?" Mr. Cerick requested anonymity for the bank that employes him as in-house counsel.

Dennis Poust, a spokesman for the Albany-based Catholic Conference, called the Child Victim's Act "patently unfair" and predicted its consequent failure when lawmakers "take the time to read it, and to consider that [similar bills] have been rejected in Colorado and Ohio, and when they consider what happened in California, which is devastating."

In March, the Archdiocese of Los Angeles paid $660 million to settle hundreds of claims of child sexual abuse by priests. Substantial settlements involving clergy accused of child sex-abuse have been made in several other parts of the country, notably by the Diocese of Orange, Calif., whose bishop agreed to pay 90 alleged victims $100 million in 2004, and the Archdiocese of Boston, which paid $85 million in 2002 to settle with 552 alleged victims.

"There are a handful of lawyers in this state who've stockpiled [child sex-abuse claims] and they're just waiting for this law to be adopted." Mr. Poust said of the New York plaintiffs' bar. "In this devastating economic climate, when the governor is asking charitable institutions to do more and more, when New York needs our schools and social services as never before, to bankrupt us [would be] beyond stupid."

Ecumenical Support

Survivors for Justice, a group formalized in October to advocate for victims of sexually abusive rabbis in the Orthodox Jewish community, is among the bill's newest supporters.

"For years, it's been an unofficial network to help victims get legal counsel, or report to the police or to get social and psychological services," said Lonnie Soury, president of Soury Communications and spokesman for the new organization.

Sexual abuse of Orthodox children has been "going on for a long time in schools and camps," said Mr. Soury, "yet our community leaders haven't dealt with it. They've done everything possible to sweep it under the rug."

He said the various sects of Orthodox Judaism are "extraordinarily insular" and that the scourge of pedophilia among the rabbinate is "proportionately more serious than in the Catholic church."

On Monday, Survivors for Justice established a toll-free hotline - 877-735-1420 - for members of the Orthodox community to make confidential reports of sex abuse.

According to Halacha, the legal interpretation of Talmudic scripture, "anyone with knowledge of this type of aberrant behavior is unequivocally mandated to report it to [secular] authorities," said Mr. Soury.

History of Silence

Until Summer 2002, when U.S. bishops met to draft new policies regarding pedophilia in the priesthood, the legal paradigm laid out by Vatican law was a confidential document written in 1962, unearthed by a CBS News reporter in 2003.

That document - "On the Matter of Proceeding in Cases of Solicitation," from the Supreme and Holy Congregation of the Holy Office - directs bishops who learn of sexual assault by priests, or "attempted by him with youths of either sex or with brute animals" to pursue cases "in the most secretive way . . . restrained by a perpetual silence . . . and everyone [including alleged victims are] to observe the strictest secret, which is commonly regarded as a secret of the Holy Office . . . under the penalty of excommunication."

Before he was elected Pope Benedict XVI in 2005, Joseph Ratzinger was for 24 years the Vatican cardinal in charge of the Congregation for the Doctrine of the Faith in Rome, responsible for enforcement of the "solicitation" document. In May 2001, then-Cardinal Ratzinger issued a confidential letter to Catholic bishops worldwide, stating that sex abuse charges "perpetrated with a minor by a cleric" are matters of "pontifical secret."

 

Professor Marci A. Hamilton of the Benjamin N. Cardozo School of Law, a constitutional law scholar who specializes in church-state separation issues and assists in the lobbying effort for passage of the Child Victims' Act, has long criticized defense attorneys for priests accused of child sex crimes of attempting to create an "autonomy doctrine" in support of Vatican reasoning. In an April 2003 article for the Web site FindLaw, she wrote:
Others who take care of children - such as daycare providers and health care providers - routinely must report such abuse, for obvious reasons: the abuser won't report himself or herself, and other caretakers may be among the only other adults young children see. The church, however, does not want to be treated the same way. Religious organizations requesting favors from the legislature often can do so with no public scrutiny [because] the press does a terrible job of covering pending legislation [and] an equally bad job of covering political action by religious elites.

Professor Marci A. Hamilton of the Benjamin N. Cardozo School of Law, a constitutional law scholar who specializes in church-state separation issues and assists in the lobbying effort for passage of the Child Victims' Act, has long criticized defense attorneys for priests accused of child sex crimes of attempting to create an "autonomy doctrine" in support of Vatican reasoning. In an April 2003 article for the Web site FindLaw, she wrote:

Others who take care of children - such as daycare providers and health care providers - routinely must report such abuse, for obvious reasons: the abuser won't report himself or herself, and other caretakers may be among the only other adults young children see. The church, however, does not want to be treated the same way.

Religious organizations requesting favors from the legislature often can do so with no public scrutiny [because] the press does a terrible job of covering pending legislation [and] an equally bad job of covering political action by religious elites.

 

For victims, organization is the key. Even emotional and outspoken majorities . . . are too disorganized to be a match for a presence as well-organized as that of the church. The legislature is a battlefield and victims will have to adjust accordingly, turning their ragtag army into an effective fighting force.

Passage of the Child Victims' Act, Ms. Hamilton said in an interview this week, would mean that New York "will go to a system that lets victims name their abusers, and thereby protect other children."

Renewed Lobbying Effort

Mr. Poust said the New York State Catholic Conference will once again mount a strenuous lobbying effort against Ms. Markey's bill on two central points.

"It's not generally applicable to all areas of society, that's the first objection. People who are abused in public institutions or health clinics would not be able to bring suit," Mr. Poust claimed.

He said further of the bill, "It allows people to go back 40 and 50 and 60 years [in recounting incidents of child sex abuse]. Which goes against the interests of justice since it becomes virtually impossible to prove you're innocent."

Ms. Markey acknowledged the retroactivity aspect of her bill, but noted, "The burden of proof is on the victim."

Further, she pointed out that §3 of the act would require a plaintiff bringing a decades-old case to have an accompanying "certificate of merit" from a mental health professional stating "in reasonable detail the facts and opinions relied upon" for claiming victimhood. That way, she said, "we eliminate false claims."

As for Mr. Poust's claim that the bill exempts "public institutions" from civil litigation, Ms. Markey, who is a Roman Catholic, said, "That's a red herring the Catholic Conference is always bringing up. The bill does not exempt anyone."

 

 

Meanwhile, Mr. Cerick said his coming to terms with childhood sexual abuse is an odyssey that began in 2005 when he read newspaper accounts of such crimes in other cities. When he contacted authorities of Fordham University, the Jesuit institution where he was allegedly violated, the response was "total indifference," he said.

As a devout Catholic, he said, "I would not have believed [sexual abuse by a priest] possible [unless] it actually happened to me. A lot of people, I've learned, are reluctant to come forward because of shame or embarrassment."

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