New York lawmakers last week closed their 2017 session in “legislative hell,” as one Senator called it, without resolving a number of important issues, including the Child Victims Act, which would reform New York’s antiquated child sex abuse statutes of limitations (SOLs). It would extend the civil and criminal SOLs, revive expired civil SOLs for one year, and eliminate the “notice of claim” requirement that has hobbled public school victims’ access to justice. Governor Andrew Cuomo had endorsed the concept earlier in the year, making him the first state governor to step forward before being asked to sign such a bill. While the assembly had passed a version and the senate appeared to have a majority to vote for it, Senate Majority Leader John Flanagan, on the next to the last day of the session, blocked its progress from committee to the floor. The New York situation is brilliantly summarized and parodied by Samantha Bee.
So what does a survivor do who has been put through the wringer by the New York legislative process for over a decade and who just had Sen. Flanagan unilaterally shut down their hopes again? Naturally, they picket the ninth hole of the Trump National Golf Course where Flanagan is holding a political fundraiser at $1,500/head. Survivors are where they need to be: speaking their truth to power. And the truth makes Flanagan complicit in the cover up of information about pedophiles the public desperately needs.
Now, it is no surprise at this point that an Irish Catholic Republican Senator would carry the Catholic bishops’ water on child sex abuse, but everyone knows that the bill is going to pass sooner or later. New York has some of the worst SOLs in the country and even Irish Catholic Republican politicians can agree that child sex abuse is really bad and hiding predators terrible. This is not all about the past. SOL reform helps children in the present tense, because it identifies child predators who are still operating in the silence afforded them when the system gags victims with expired SOLs.
When I first started thinking and writing about this issue over 15 years ago, the term “statute of limitations” was routinely met with a blank stare. As in, what are you talking about, and more importantly, why? It was legalese. By 2011, however, when the Penn State-Jerry Sandusky scandal hit, audiences were savvy that it is just a deadline for filing a lawsuit or pressing charges—and that it frequently re-victimizes victims by sending a message that their injuries are not worthy of the legal system’s time.
So what accounts for the New York Senate’s obstinate refusal to take up the issue? The answer, of course, lies in the lobbyists. Some have said that the opponents to the CVA lurked in the shadows this year, but no one needs a college degree to know that the most ardent and active opposition comes from the Catholic bishops. And it is equally clear why they were lurking rather than lobbing salvos into the public square.
Why the Bishops Have Taken Their Opposition to SOL Reform Underground
The problem for the Catholic bishops on SOL reform is that all of the arguments against SOL reform don’t hold water.
They say there will be an avalanche of cases. Not so. Even opening a generous “window” where victims can sue for several years even if their SOL has already expired, regardless of when the abuse occurred, does not result in a large number of cases. In each state to open revived SOLs, the number of lawsuits has been modest.
They say there will be many false claims that will be unfair to them. Not according to the facts: no false claims have made it into the courts where windows have been opened, as this chart summarizes.
They say there will be no evidence from cases long ago and, therefore, they will be at a disadvantage. If I hear “memories fade and evidence is lost,” one more time… But in fact, the bishops have done some great recordkeeping on priests’ sexual assaults on children. Their Secret Archives, which are described here, have held and still hold much of the information that is needed to prove up a case against a priest, bishop, and/or diocese.
They say that they will go bankrupt because of the many cases and payouts. There is no cause and effect relationship between SOL reform and diocesan bankruptcies. Not all windows have led to bankruptcies and not all bankruptcies have followed SOL reform. In any event, what they mean by bankruptcy is Chapter 11, which is the federal bankruptcy provision so that businesses can protect their assets from creditors, not Chapter 7, which results in liquidation of the entity. Besides, they use bankruptcy to reduce the amount they must pay for damages to each victim and to flush out as many victims as possible to avoid any future claims. No other legal mechanism makes it possible to force victims into the light before they are ready.
They say that social services will suffer. Yet, tax dollars support 70-80% of Catholic Charities social services, and they are the largest landowner in the United States. The land and property rights owned by the New York Archdiocese is worth billions.
They used to say that SOLs are very important for predictability and reliability in the law. That argument fell aside for the New York bishops, though, because they are now endorsing complete elimination of the civil and criminal SOLs—which just proves their other arguments don’t hold water. The only SOL reform that bothers them now is the window.
Finally, they say it’s unconstitutional to revive expired civil SOLs. That one really can’t fly in New York, where lawmakers keep passing SOL windows for other people.
Their arguments are simply too flimsy at this point to trot out in public. They circulate them behind closed doors, though, and for some members, facts don’t always matter if they can deliver a favor to the Church. Given that there is a solid answer to each and every one of their arguments against SOL reform, let’s try to figure out what exactly is bothering the New York bishops so much that they will sink millions into lobbying against a window.
The Real Reason Cardinal Timothy Dolan Is Fighting the Child Victims Act with Every Bit of Political Power He Has: The Contents of His Secret Archives
The actual reason Cardinal Dolan is financing the fight against SOL reform in New York is quote obvious: there are secrets in his Secret Archives there that will curl your hair. Based on every other diocese in the United States and the large Catholic population in New York, we know that there must be hundreds of abusing priests not yet named publicly, and if New York abusers are like the general population, they may well have 100 victims apiece, meaning that we are talking about thousands of events. Only about 43 have been named publicly so far.
The difference between a state with a window and without is that the defendants are forced to produce documents they would otherwise like to keep secret under a window. We don’t know about the other New York priests, because the short statutes of limitations meant few cases and even less discovery. In the states with generous SOLs, a heart, or windows, the public has learned the ugly secrets in the archives only because the courts have forced the information to the public through discovery. A lawsuit is the only leverage a victim has to force those secrets into the light.
Cardinal Dolan established a compensation fund for victims and Brooklyn’s Bishop DiMarzio has followed suit. These are good developments because victims do deserve an opportunity to have the cost of the abuse shifted from their shoulders to the institution that caused it. Also to the bishops’ credit, there is no requirement of secrecy or confidentiality to receive compensation from the diocese for their injuries.
There are a few loopholes in these compensation funds, though, that bode ill for many victims. They do not cover priests who were part of a religious order (as opposed to being a diocesan priest), even though the Archdiocese or Diocese always has control over any priest in its jurisdiction. So if you were abused by a Christian Brother or Jesuit, good luck in New York. They also won’t pay if you don’t have independent proof, and they do not offer up their secret archives on your perpetrator, either. So that if you don’t have that kind of proof on your own, they are likely to deny you as they have for some of the victims whose claims ring true.
This is the most important point: because these are mediations rather than litigation, the victim cannot obtain discovery. Litigation shifts the cost to the cause of the harm and educates the public on the truth. The compensation funds make it possible for the bishops to say they are helping the victims, while they unilaterally deny others and while they keep most of their secrets intact.
What Secrets Must Be Locked Away in Those New York Archives
So, let’s recap. (1) Their arguments against the window are hot air. (2) They are willing to pay compensation to victims for the harm done, but not in litigation—only through their own mediation system, which does not include sharing of any files from the secret archives. (3) They are still fighting tooth and nail against the window. What is it? What are they fighting for? The only thing they still have control over: the secrets in their files. They must be extraordinary. Given the payment of millions to halt the Child Victims Act, one can only wonder how much worse they are than the secrets released in other parts of the country, e.g.:
- Could New York also have a case involving the sexual abuse of hundreds of deaf boys at a boarding school for the deaf as in Wisconsin?
- or an unsolved death of a nun who was likely a whistleblower on sexual abuse by a prolific pedophile priest, a la The Keepers, which I discussed here?
- or could the Cardinal know there is an active priest with thousands of child porn images on his computer?
- or could the Archdiocese be harboring priests brought in for “treatment” like the hundreds of priests accused of sexual misconduct with many involving children, who were sent to the Order of the Paracletes in New Mexico, where they would staff masses for the local churches, which granted them yet another opportunity to abuse more children?
- or have an active elderly priest still abusing children in the diocese?
- or could there be many priests as brutal and disgusting as Brzyski and Cudemo in Philadelphia, who were defrocked but now roam freely, because the Archdiocese kept what it knew from the public?
There is little doubt that there are similar stories and more locked away in those archives. The Child Victims Act of New York will pass and it will include a window and we will learn the horrific secrets now locked away in Cardinal Dolan’s Secret Archives. Until then all we have is our imagination to conjure up just how awful those secrets are.
Marci A. Hamilton
CEO CHILD USA
Marci A. Hamilton is a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania and the CEO and Academic Director of the nonprofit think tank to prevent child abuse and neglect, CHILD USA, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children.