The False Promise of Window Legislation
In the Sept. 25 issue of America, Professor Marci A. Hamilton joined with Voice of the Faithful in renewing their call for “window” legislation. Window legislation retroactively suspends the statute of limitation for childhood sexual abuse damage claims so that lawsuits filed during a specified period can proceed, regardless of whether the alleged abuse occurred five or 70 years earlier. She argues that window legislation is not about targeting Catholic institutions but protecting children. This statement does not withstand scrutiny.
Targeting Catholic Institutions
Professor Hamilton writes that the “most specious legal objection to the window legislation is that it is ‘targeting the Catholic Church.’” She reasons that because such legislation does not identify Catholic institutions by name, it could not possibly be targeting them. Not so.
The attorneys Jeffrey Anderson and Laurence Drivon, who specialize in suing Catholic institutions in childhood sexual abuse cases, drafted the first window legislation in California in 2002. After the bill’s passage, Drivon, Anderson and others filed suit against Catholic institutions for over 1,030 plaintiffs.
In a report in The Los Angeles Times in May 2002, Senator John Burton, the bill’s sponsor, identified the general assembly’s target. The Times reported, “Burton said the bill was aimed at ‘deep pocket’ defendants such as the Catholic Church.” The Times continued that Senator Burton said his bill “was a direct response to the widening national scandal over sex-abuse by Catholic priests.”
Professor Hamilton is an attorney who regularly represents plaintiffs suing Catholic institutions, regularly teams with Messrs. Anderson and Drivon and regularly assists V.O.T.F. and the Survivors Network of those Abused by Priests (SNAP). Her writing about childhood sexual abuse seems to focus only on Catholic institutions. Among 31 such articles listed on her Findlaw Web site, every one concentrates on the Catholic sexual abuse scandal. Not one focuses on the larger problem of sexual abuse of children in public schools.
Protecting the Children
Professor Hamilton writes that without window legislation, “children will be at serious risk” and that society “must make children an absolute priority.” Protecting all children is a necessary priority. However, the proposed window legislation does not protect all children. Its primary function is not about child protection but retroactively reviving time-barred claims and providing monetary damages for individuals who are well into middle age and beyond.
The goal of child protection is better served by immediate reporting of abuse, not by eliciting reports from the 1970’s and earlier. This is why child abuse reporting statutes require immediate reporting upon reasonable suspicion of abuse. It is also one reason why Catholic bishops call upon abused individuals to report to the police or their dioceses as soon as possible.
Even more important, in a U.S. Department of Education study in June 2004, Professor Charol Shakeshaft found that over three million children in public schools reported that a school employee physically sexually abused them. In Colorado alone, 85 public school teachers lost their licenses during the past eight years because of sexual conduct with students. Such numbers dwarf the historical problem in Catholic institutions, yet V.O.T.F. supports window legislation that applies only to nongovernmental entities. If civil litigation is needed to protect children, it is needed regardless of whether those children attend public schools or Catholic schools.
While I am not sure that we need more laws to protect children from abuse, those who propose such laws need to ensure that the laws are fair. Let me suggest five criteria for fairness. (1) Fair laws are not retroactive. (2) Fair laws abolish sovereign immunity and make public and private institutions subject to the same notice requirements, statute of limitation, required proofs and damages. (3) Fair laws do not consider old claims against dead offenders, because it is too late to prevent recidivism, exonerating evidence is lost, and fraudulent claims increase. (4) Fair laws do not create new victims. This occurs when a statute of limitation is so lengthened that a generation of innocent persons supporting a church or taxpayers supporting a school are forced to pay huge damages for an earlier generation’s negligence. (5) Fair laws strike the right balance between the competing demands of compensating victims and funding present services. During the 2006 session of the Colorado Legislature, it appeared that public schools might prospectively be subjected to childhood sexual abuse liability similar to that experienced by Catholic institutions. A public school official questioned whether such a law would require the school to divert resources from its mission to the payment of damages. This is the question of striking the right balance. It applies to public and private institutions.
We bishops have taken extraordinary precautions to ensure that sexual misconduct does not recur. We must steadfastly ensure that diocesan and parish ministries remain safe. We must continue to reach out with compassionate assistance for those injured, but also we must not sit idly by when others offer false arguments to hide their true intent.