Suspicious Characters? Some Want Special Rules for Priests
By Thomas A. Szyszkiewicz
National Catholic Register
February 23 - March 1, 2003
LEXINGTON, Ky. - The sex-abuse scandal in the Church throughout 2002 has moved into a second and perhaps more damaging phase. Government is stepping in.
In many states around the country, legislatures have either passed laws or are considering bills to address the issue - at least, the issue as state lawmakers see it.
The new and proposed laws fall into two areas. Statutes of limitation law changes would remove limits on how many years back an accuser can go in bringing charges against clergy. Changes in mandated-reporting requirements would make the Church responsible for telling, or not telling, the state about child sexual-abuse accusations.
Last year the California legislature took only 10 weeks to fully pass a bill that put a one-year moratorium on the statute of limitations in that state for the filing of lawsuits regarding sexual abuse of children. The change ushered in a rush of new cases.
The Kentucky legislature wants to take away the statute of limitations on these kinds of lawsuits, but it would be permanent and retroactive, according to Father Patrick Delahanty of the Kentucky Catholic Conference.
According to Jeffrey Anderson, a Minnesota-based lawyer who has been suing churches on sexual-abuse issues for 22 years, this is a good thing. Anderson is looking for ways that make it easier for victims to make claims against their abusers.
Anyone can make a claim, he said, "but the burden falls on the survivor to prove it." And the rules of the court are there to give both accuser and accused rights and protections, he said.
But they don't prevent people from making frivolous claims, according to Carol Hogan of the California Catholic Conference.
She cited one case that has been filed where "all the parties are dead except the claimant." The priest who allegedly abused the plaintiff and his bishop have both been dead for about 11 years, she said.
Anderson does not believe this is a hindrance to the claim going forward, though, because of the Church's record-keeping practices.
The Connecticut legislature passed a law extending the statute of limitations on civil suits to reach 30 years from the date of the incident or 30 years after reaching age 18. Like California, this was made retroactive.
Other states that are having this sort of debate include Washington, New Jersey, Wisconsin and Minnesota.
In Washington state, the legislature is debating a measure similar to Kentucky's statute of limitations. Dominican Sister Sharon Park, the executive director of the Washington State Catholic Conference, is not too happy with the effort since the current law is "very, very flexible."
That law allows for a claim to be made three years from what is called the time of discovery (the time a person comes to the realization that he or she had been abused) and does not set an age limit on it, as other states do.
She is working with the author of the bill to make the law prospective, meaning it would be in effect only for those who are abused after the law is passed, rather than retroactive.
"We won't oppose it if it remains a prospective law," she added.
The difficulty with the statutes of limitation changes, observers say, is that the longer it goes, the more difficult it is to produce evidence to support the claims. According to Father Raymond O'Brien, a law professor at Catholic University of America, these statutes "protect the rights of the accused and the accuser to bring claims that can be verified."
"The way I like to relate it to reporters," said Bill Bolan of the New Jersey Catholic Conference, "is by asking them, 'Can you tell me where you were on Jan. 28, 20 years ago?'"
He said his state is considering legislation that "would obliterate the statute of limitations."
Wisconsin is dealing with a unique situation. That state's Supreme Court ruled in 1995 that the Catholic Church is immune from certain lawsuits. The problem, according to Kathy Markeland, associate director of the Wisconsin Catholic Conference, is that the ruling has been interpreted incorrectly.
The perception many people have of the Pritzloff ruling, as it is known, is that the Church is immune from all lawsuits. This even includes attorneys such as Anderson.
But, Markeland said, the attorney for the state legislature "has stated that the ruling didn't necessarily bar claims" that would hold the Church responsible when priests who were known to abuse were not removed from their positions.
Instead, she pointed out, the ruling said the Church could not be held liable for things like the formation of her priests, the fact that they're celibate or other aspects of her life and governance that are clearly protected by the First Amendment free exercise clause.
What Markeland is hoping is that the legislature doesn't put the Church on a different standard from what is common in law for other employers.
Other aspects of the bill would mandate clergy report abuse claims and extend the statute of limitations.
New York does not have a comprehensive mandatory reporting law. It's not that the legislature hasn't tried, according to Dennis Poust, communications director for the New York Catholic Conference. It's that Planned Parenthood has blocked any efforts in that direction.
Current law, Poust said, only requires reporting if a family member suspects sexual abuse by another family member. The Senate and Assembly passed separate bills in each house, he said, that would have greatly expanded the number of mandated reporters.
However, that list included nurses and physicians. Planned Parenthood officials realized this would require them to report the many statutory rape cases they see, he said, which would have cut into their income.
In the end, Poust said, "Planned Parenthood torpedoed it ... Planned Parenthood almost always gets its way in New York state."
Anderson said he is working on proposals to extend the statute of limitations to age 48, like in Connecticut, and eliminate the seal of the confessional in his home state of Minnesota, though no legislator has yet picked up his draft legislation.
The Minnesota Religious Coalition is a group formed in 1992 to lobby the legislature on these types of issues, according to Rich Forschler, an attorney and lobbyist at the law firm of Faegre and Benson in Minneapolis. Current Minnesota law allows for claims to be filed six years from the time of the incident or from age 18. The Minnesota Supreme Court ruled against another part of the law that allowed for claims six years from the time of discovery, and Forschler is working to keep it that way.
"This covers all kinds of other folks," Forschler said, including teachers and their school districts, and day care providers.
When victims' advocates decry the Church's efforts to block this type of legislation, Forschler said, they assume the Church is insensitive to their needs. But he said that is not the case.
"No member who is involved in this [coalition] is in it to protect perpetrators," he pointed out.
One thing is clear in all of this, said Hogan of the California Catholic Conference: "This is a time of trial for the Church. We're not out of the woods yet."
Thomas A. Szyszkiewicz writes
from Altura, Minnesota.
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