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New York Law Journal

Volume 238

Copyright 2007 ALM Properties, Inc. All rights reserved.

Friday, September 28, 2007

ADVOCATES SEEK TO EXPAND TIME FOR ABUSE CLAIMS

Thomas Adcock

AS A JURY voted on Tuesday to convict the fugitive leader of a Mormon sect on two charges of facilitating the rape of a 14-year-old girl, Professor Marci A. Hamilton of the Benjamin N. Cardozo School of Law hosted a gathering of plaintiff attorneys and mostly middle-aged victims of childhood sex abuse who called on the New York state Legislature to extend statutes of limitations for lodging criminal and civil charges against pedophiles. ‘We have what amounts to a national crisis,’ said Ms. Hamilton, whose new book, ‘How to Deliver Us From Evil: What America Must Do to Protect Its Children,’ is set to be published next spring.

Because of time bars on prosecuting pedophiles — and because victims generally do not give voice to sufferings at the hands of trusted elders until well into adulthood — Ms. Hamilton added, ‘A very large number of predators is capable of operating anonymously.’ Until the jury verdict this week in Utah — following his capture in August 2006 as a fugitive on the FBI’s Ten Most Wanted list — Warren Jeffs enjoyed near anonymity as autonomous head of the Fundamentalist Church of Jesus Christ of Latter Day Saints, a polygamist offshoot of the LDS church in Salt Lake City, which banned multiple marriages in the late 19th century. Mr. Jeffs was convicted for arranging what he termed a ‘celestial marriage’ in a motel room six years ago between teenager Elissa Wall and her adult cousin.

According to court papers, Mr. Jeffs was said to have approximately 80 wives and 250 children. He now faces life in prison. In a separate civil action, Ms. Wall, now 21, seeks $1 million from Mr. Jeffs and his church in order to establish a legal fund to aid girls similarly forced into unwanted sex. Meanwhile, rape charges are pending against Mr. Jeffs in Arizona, as well as a lawsuit filed by an adult nephew who claims he was sodomized by his uncle in the 1980s.

Such perversion by a religious leader constitutes ‘heinous and deeply disturbing crime,’ said New York state Assemblywoman Margaret Markey, D-Maspeth, one of several speakers during Tuesday’s gathering at Cardozo Law.

Ms. Markey is leading the effort in Albany to expand statutes of limitation covering criminal and civil claims against pedophiles and institutions that could be liable for their actions. Currently, claimants have until their 19th birthdays to press charges. For the past three legislative sessions, Ms. Markey has sponsored a bill to allow childhood victims to pursue criminal charges against sexual abusers until they turn 23, and/or civil charges for five years beyond that.

In addition, her bill provides a one-year window, from date of enactment, during which sex abuse victims of any age may file criminal or civil claims involving crimes at any time in the past.

Each year, Ms. Markey’s colleagues in the Democratic-controlled Assembly have voted overwhelming approval of the bill, A.4560. The last vote was 147-1, reflecting substantial Republican support. But companion bills in the Republican-controlled Senate have failed.

Nevertheless, Ms. Markey said she would reintroduce her bill for the next session, beginning in January.

‘Window’ Provision

Opponents to Ms. Markey’s bill single out the ‘window’ feature as the most objectionable element. The New York State Catholic Conference is the principal lobbying group opposing the bill. ‘While we’d like to convince members of the Assembly that this is unwise, our focus has been with the Senate,’ said Dennis Poust, a spokesman for the group. ‘So far, they’ve seen this for what it is…an attempt to bankrupt’ the Roman Catholic Church.

‘The church is perceived to have deep pockets — buildings, schools and property — and there are certain elements of the legal profession who would like to get their hands on that,’ he said.

In California, according to press accounts, three Catholic dioceses have had to pay out an aggregate $1 billion in sex abuse claims. In those cases, Mr. Poust said, ‘the trial attorneys got up to 40 percent of the settlements.’ Mr. Poust acknowledges the difficulty of lobbying against laws intended to crack down on pedophiles.

‘Nobody wants to say he’s voting for sex abuse,’ he said.

Plaintiff attorneys, who have won millions in settlements from the Catholic Church and other institutions as co-defendants in lawsuits filed for victims of childhood rape, also see themselves as targets for scornful detractors.

‘They think we’re a bunch of greedy bastards just looking to make a quick buck,’ said Michael G. Dowd, a Manhattan solo practitioner who has handled 140 cases of childhood sex abuse over the past seven years.

But Mr. Dowd said he and his fellow trial lawyers have emotional investments in what are clearly lucrative suits.

‘I don’t know that there’s anything quite like the devastation [of childhood sex abuse]. It’s very hard to be around, even as a lawyer,’ said Mr. Dowd. ‘You go home at the end of the week down and depressed from seeing the misery, from being in contact with people who have horrible flashbacks; people who can’t sleep because of nightmares. This isn’t about physical maiming, it’s about mental maiming.’

Young victims, said Mr. Dowd, ‘don’t know how to process what’s happened to them.’ It is only much later, he said, when they are able to make ‘the causal connections between abuse and difficulties they have later in life,’ such as alcohol and drug dependency, inability to sustain relationships and sexual dysfunctions.

‘I had one especially depressed client,’ said Mr. Dowd. ‘He drank a container of antifreeze. I went to his funeral.’

Criticism of Bill

In a ‘memorandum of opposition’ to the Markey bill and S.4614-A, the companion measure put forward by Senator Stephen M. Saland, R-Poughkeepsie, Catholic Conference Executive Director Richard E. Barnes said the church regards sexual assault as ‘heinous and vile, made even worse when the victim is a child.’

The memo continues, ‘While the church supports legislative efforts to…allow law enforcement to get sexual predators off the streets’ Ms. Markey’s bill ‘does nothing to protect children from sexual abuse, either today or in the future.’

Moreover, said Mr. Barnes, ‘the bill is discriminatory because it targets private institutions, yet exempts public schools and state and municipal entities.’

Mike Armstrong, a spokesman for Ms. Markey, said in an interview that her bill ‘doesn’t preclude its application to anyone, public or private’ and that a customary ‘memo of law’ to resolve nuances would be written after presumed passage.

Ms. Hamilton said that legislatures around the country ‘almost never deal with public and private institutions in the same bill’ because the two are not similarly situated due to sovereign immunity issues. As a routine matter, she added, ‘a bill dealing with public institutions follows the one dealing with private institutions,’ as was the case in California in 2002 and Delaware this July.

Recent Example

Mr. Barnes said that since 2002, ‘the Catholic Church has taken more steps to prevent the sexual abuse of children than any other private organization. Whenever a credible claim of sexual abuse is brought, it is both investigated by church authorities and reported to law enforcement.’

In May, Bishop Nicholas DiMarzio of the Diocese of Brooklyn placed Monsignor Nicholas J. Capua, retired pastor of St. Luke’s Church in Whitestone, Queens, on ‘administrative leave’ after a diocesan review board, in what amounted to a trial, found sufficient evidence that he had molested boys some 30 years ago.

Monsignor Capua, who denied the review board’s findings, ‘may not present himself as a priest, celebrate Mass publicly or administer the sacraments, ‘ according to a letter from Bishop DiMarzio.

Further in his letter, Bishop DiMarzio apologized to individuals who brought charges against the monsignor ‘for the emotional suffering…endured over these many years.’ Mr. Poust said the courts should not be involved in such old cases and asked, ‘Why should today’s Catholic parishioners pay for the sins of a priest 50 years ago? It’s really unfair.’

He said the Catholic Conference did not object to extending statutes of limitations ‘going forward,’ but would continue to vigorously oppose the one-time offer of a year in which anyone could file decades-old sex abuse claims.

A civil liability lawsuit has yet to emerge in the matter of Monsignor Capua, but Mr. Poust suggested that such action would damage church finances, as such litigation has in California and elsewhere. The church provides numerous social services that would suffer from ‘having to pay all these legal fees,’ said Mr. Poust.

Ms. Hamilton disagreed. She said in three bankruptcy cases filed by Catholic dioceses in Oregon, Washington and California in which she served as constitutional law advisor, ‘they were never even close’ to bankruptcy. Of those cases, she said, ’settlements did not touch services.’

Political pressure will ultimately trump church opposition to Ms. Markey’s bill, Ms. Hamilton assured the dozens of childhood sex abuse victims gathered Tuesday at Cardozo Law, most of them now with heads of gray.

‘This is a national, grassroots movement,’ she said. ‘It can’t be stopped.’ Thomas Adcock can be reached at tadcock@alm.com. 9/28/2007 NYLJ 24, (col. 6)

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3 Responses to “New York Law Journal Report on Marci Hamilton’s Call to Action to Expand Time for Abuse Claims”

1. Gabrielle Azzaro Says:
   October 4, 2007 at 7:28 pm

   Well, thank God for Marci Hamilton, someone who is sincerely interested in protecting children, unlike the Catholic church. While the church can argue all they want about these laws “targeting” them, what they are failing to admit is that there is a reason for them to be targeted. I find it interesting that the San Diego diocese filed for bankruptcy and then an honest, principled judge who saw through their smoke screen called them on it. Because of that a settlement was agreed upon, and, lo and behold, the diocese is recalling that filing. How sad that the church once again tries to villify the people who were irreparably damaged instead of standing up and taking responsibility for their own heinous actions - sexual abuse and cover up. If they had not done this for so many centuries, then there would be no concern about anyone “targeting” them. It is time they took some accountability for their own actions.

2. Michael Skiendzielewski Says:
   October 15, 2007 at 10:37 pm

   I too am very grateful for the work of Marci Hamilton, a lawyer who advocates for our children. In the Archdiocese of Philadelphia, the diocesan attorneys see things a little differently. For example, as quoted in the local paper, C. Clark Hodgson, long-time attorney for the archdiocese, stated that the reason that the archdiocese had not reported cases of clergy sexual abuse to the authorities was the fact that the reports were not made by the victims themselves, but by a third-party, and this obviated the requirement for the archdiocese to make a report to the local authorities. If the victims had reported the abuse directly, then the church would have been required to notify the police. Seems that Mr. Hodgson doesn’t understand that these young victims of such horror and abuse are controlled, ashamed, terrified and otherwise degraded so that it is very unlikely that anyone would have the courage at that young age to come forward and make the report themselves. But just so that you know that Mr. Hodgson’s work was not appreciated by the local St. Thomas More Society of Philadelphia, he was awarded the 2006 St. Thomas More Award by the local chapter. So that we are clear here, St. Thomas More, an attorney, was martyred because it was his philosophy to uphold the spirit of the law instead of the letter of the law. Does C. Clark Hodgson in fact exemplify this philosophy of St. Thomas More? But the Philadelphia St. Thomas More Society was not finished. In 2007, they saw fit to award the Philadelphia 2007 St. Thomas More Society Award to Mark Sargent, Dean of the Villanova Law School (Catholic institution don’t you know). Is this the same Mark Sargent who testified in front of the Delaware State Legislature in opposition to the proposed legislation to adopt a “civil window” to allow abuse victims to follow legal action against their perpetrators? Certainly another example of a member of the Philadelphia archdiocese adhering to the principles and ideals of St. Thomas More. One can only wonder who the winner of the 2008 Philadelphia St. Thomas More Society Award will be? Maybe, William Sasso or Mark Chopko??

3. Sister Maureen Paul Turlish Says:
   October 16, 2007 at 2:40 pm

   The callous disregard for the victims of childhood sexual abuse as evidenced in the remarks of C. Clark Hodgson, Philadelphia Archdiocesan attorney is the real scandal:

   C. Clark Hodgson, long-time attorney for the archdiocese, stated that the reason that the archdiocese had not reported cases of clergy sexual abuse to the authorities was the fact that the reports were not made by the victims themselves, but by a third-party, and this obviated the requirement for the archdiocese to make a report to the local authorities. If the victims had reported the abuse directly, then the church would have been required to notify the police.

   NOTHING LIKE DOING THE RIGHT THING BECAUSE IT IS THE RIGHT THING.

   One wonders if Hodgson would hold to such a position if the “victim themselves,” of whom he speaks so cavalierly, included his own grandchildren?

   If the Archdiocese of Philadelphia, along with all the Pennsylvania dioceses, had done the right thing by our children in years past, our Church would not be in its present state.

   We have all read the Philadelphia Grand Jury Report of 2005 documenting the actions and cover ups of the of Archdiocese of Philadelphia and except for the ineffectiveness of Pennsylvania’s criminal and civil laws, many of the sexual predators named in the PGJR would be in jail.

   Some of PA’s laws have been extended but they still remain woefully inadequate. Since the criminal prosecution of these predators has been declared unconstitutional, the only avenue for any recourse to justice at all is to pass window legislation to allow for the civil prosecution of these predators.

   The citizens of Pennsylvania would do well to study how the State of Delaware was able to get such legislation passed.