Shakedown: How Catholics Are Getting Ripped Off in the Name of Justice
by Francis Maier - April 18, 2009
Reprinted with permission.
We got a new law passed in California that opens up the statute of limitations for all victims of sexual abuse. It's something we've been trying to do in several states for years. And I'm not waiting for it to click in. I'm suing the shit out of [the Catholic Church] everywhere: in Sacramento, in Santa Clara, in Santa Rosa, in San Francisco, in Oakland, in L.A., and everyplace else.
Jeffrey Anderson, plaintiffs' attorney
April 2003 interview
My wife and I were watching the news one evening when the camera cut away to an attorney on the steps of Colorado's state capitol. He announced to a cluster of reporters that he was suing the Archdiocese of Denver for $10 million for each of the various sexual abuse victims he now represented.
The attorney was Florida's Jeff Herman. Herman is one of several high-profile litigators – along with Minnesota's Jeffrey Anderson – who has made a business of suing the Catholic Church over the past decade. Under Colorado law, plaintiffs' attorneys may not name the damages they seek to recover in civil suits. That's a matter reserved for courts and juries.
Herman may or may not have known this. In either case, he couldn't resist a photo op and sound bite. Ten million dollars has a nice ring to it. In Colorado, as elsewhere, the guerrilla theater of sex-abuse litigation has some very practical goals: shocking the public, frightening Catholics, polluting jury pools, and influencing judges and lawmakers.
In this case, though, as we sat in front of the TV, my wife – a teacher for 30 years – asked a simple question: "$10 million? I wonder how much we'd get if Danny were abused."
In our house, the suffering of sexual abuse victims carries a special force. Our 15-year-old son, Dan, has Down syndrome. Two of our granddaughters also have serious genetic problems. Because of their disabilities, all three of them are up to ten times more likely to be sexually abused as a minor than the general population. For our family, worrying about the sexual abuse of children is not a theoretical problem. We're alert to it every day, in every one of our son's relationships – especially when he climbs on the bus to his school.
Dan attends a public high school. We don't actually want him there; we'd prefer to have him in a Catholic school, where he'd be safer. But the law makes this option cost-prohibitive by denying us the opportunity to apply his educational financing in a manner we judge best for our son. We can live with that. But what we won't live with is the hypocrisy of the news media and lawmakers blaming the Catholic Church for a culture of secrecy and sexual abuse when the same problems – and worse – pervade our public schools. In fact, if Dan ever does experience sexual abuse as a minor, the data suggest that he's more likely to face it in a public school than anywhere else outside the home.
The evidence is alarming: Dan is safer serving Mass at our local parish than he'll ever be in America's public schools. And yet the Church has been the sole focus of attack since the clerical sex-abuse scandal came to light four years ago. And now, thanks to new legislation cropping up in states around the country, she may pay a heavy price for our nation's selective blindness.
Dirty Secrets
A 2005 Associated Press report noted that in some states, sexual abuse is now the main reason public school teachers lose their licenses. A 1999 probe by the Pittsburgh Post-Gazette, appropriately titled "Dirty Secrets," found that during the 1990s, "by far the most common reason for teacher discipline" in Pennsylvania "was sex-related offenses, according to state documents." In January 2006, New York City's special-schools investigator Richard Condon reported that 250 public school teacher misconduct cases had been substantiated in his jurisdiction alone during 2005. Of these, 92 confirmed cases involved sexual misconduct complaints against public school educators, ranging from rape and educator-student relationships to sexual harassment and public exposure.
And this isn't a new development. More than a decade ago, Dr. Sherry Bithell, author of Educator Sexual Abuse, estimated that one in 20 teachers engages in sexual misconduct with students, from obscene comments to outright sexual abuse. Professor Charol Shakeshaft of Hofstra University, the leading national expert on sexual abuse by public school educators and staff, effectively confirmed this in her February 2006 testimony to the Colorado General Assembly, noting that 6.7 percent of all students in the United States report being sexually abused in a physical manner by an educator in public schools. In Shakeshaft's words, "Of the approximately 45 million students attending public and private K-12 schools, more than 3 million will have been the target of physical sexual exploitation by an employee of the school by eleventh grade."
Shakeshaft went on to stress: "These 3 million [victims] include only students who have been the target of sexual abuse that includes touching. This number does not include adults who show students pornography, who expose themselves, or who direct other forms of visual and verbal sexual abuse at children. I'm only talking about sexual abuse actions that include forced touch. If those [other abusive] actions are added, the number of students nationwide is 4.5 million."
Even on the wild chance that these data are off by half, the scope of public school sexual abuse involves many hundreds of thousands of students and eclipses anything in the Catholic clergy. The evidence also suggests that from 1 percent to 5 percent of the teaching profession and up to 25 percent of all public school districts have problems of sexual abuse.
All of this should sound familiar – from stories about sex abuse in decades past, right down to an alleged pattern of what one angry public school parent called "passing the trash" (moving abusive public school teachers from job to job). In fact, Craig Emmanuel, an investigator with the Arizona Department of Education, told the Pittsburgh Post-Gazette that, on average, teachers who molest children work in at least two to three school districts before they're stopped.
But don't expect to read about it in your local newspaper. According to Shakeshaft, most incidents of public school educator sexual misconduct with children "are not entered into criminal justice information systems, and abusers are generally subject only to informal personnel actions within the relative privacy of the [public school] administration." As just one example, she cited "a study of 225 cases of educator sexual abuse" in a major metropolitan area where "only 1 percent [of offending teachers] lost their teaching credentials."
Terri Miller, a single mother and president of SESAME – Stop Educator Sexual Abuse, Misconduct and Exploitation, a national, public school equivalent of the clergy-abuse victims' group SNAP – offered similar testimony to the Colorado General Assembly this spring. Quoting data that suggest a much higher incidence of sexual abuse in public schools when compared with the Catholic priesthood, Miller pointed to one of the teachers in her daughter's public school in Nevada who had been dismissed only when authorities belatedly discovered his long history of sexual misconduct at schools in Minnesota, Colorado, and elsewhere in Nevada. The teacher was never reported or punished, but rather allowed to move freely from one job to the next.
"This last point is not an isolated case," Miller told Colorado lawmakers. "There are many [public school] teachers like this one in classrooms across the country, paid by our tax dollars, who are changing the lives of our children forever."
Protecting Their Own
But in most states – including Colorado – there's one big difference between sexual abuse in public and private institutions, with huge consequences for public school parents like my wife and me. The fact is, it's much easier – and much more lucrative – to sue the Catholic Church, or any church or private organization, than it is to sue the local public school district. The reason is simple: Public school districts enjoy governmental immunity unless state law- makers say otherwise. And so far, the legislators in most states have kept that immunity in place. As a result, public school districts have a drastically reduced financial exposure with incidents of sexual abuse.
Under March 2006 Colorado law, and in many other states, my wife and I can recover a great deal more money, with much less effort, if our son Dan is abused by a priest at our local church than if he's raped by a teacher or coach at his school. Parents in states like ours have much less time to identify, report, and legally pursue sexual abuse committed by a public school employee than if the same abuse is committed by the employee of a religious or private organization. The amount of money they can recover in damages is also sharply limited – in Colorado, $150,000.
And yet, according to the data, children are more likely to be sexually abused in a public school setting than at their local parish. Most state lawmakers either don't seem to know this or simply don't care. The message sent to parents of public school students is clear: Sexual abuse at the hands of a public school employee is less grievous and less expensive than exactly the same abuse at the hands of a pastor or Sunday school teacher. Something is grotesquely wrong with that kind of lawmaking.
My wife and I have heard the usual cynical arguments in favor of governmental immunity. Our favorite is the excuse that opening public schools to litigation might "bankrupt" them – as if bankrupting Catholic schools, charities, and parishes were okay. We've even heard the bizarre claim that churches and other nonprofits should be held to a "higher standard" because of their tax-exempt status.
But this ignores the fact that governments grant tax exemptions precisely for the benefit of the communities they govern and to reduce their own expenses. It implies that the abuse of a minor by a priest is somehow more loathsome simply because his parish gets a tax break, and that public school districts should be held less accountable because we pay taxes to support them.
Of course, governmental immunity does ensure one thing – that superstar plaintiffs' attorneys won't care a whit about public school sexual abuse, no matter how deep the pain or how vast the pool of victims. There's just no money in it.
Shakedown
The sexual abuse of minors is a grave crime and sin, no matter who commits it. Catholics are right to be outraged at any priest who abused a child and at any bishop who callously refused to deal with the evil behavior. Many Catholics are parents themselves, with a deep sympathy for abuse victims and an eagerness to help them heal. This is a good and necessary thing. No one can listen to their suffering and remain unmoved. Unfortunately, some attorneys have built an industry on twisting the goodwill of today's Catholic community into a hammer for smashing American Catholic life.
What many Catholics don't realize is that big-league sex-abuse attorneys often sue the Catholic Church with the same money they took from other Catholics. The money your grandparents poured into building the Church, lawyers now use to rip it back down. In sex-abuse settlements against Catholic dioceses, plaintiffs' attorneys often take 40 percent of the action. Aside from providing the attorney a hefty take, it also fills a firm's coffers to file claims in other dioceses.
For the past 20 years, this has been a great way for some lawyers to make a living. But plaintiffs' attorneys now face a decline of new cases. Contrary to media innuendo, most Catholic dioceses and institutions did learn the lesson of the 1980s. As a result, over the past decade, the flow of current clergy sex-abuse cases has slowed to a trickle. Most clergy sexual abuse allegations coming to light now are decades old – 25, 35, even 50 years. That means that in many cases, these claims have expired. They're time-barred by statutes of limitations.
And statutes of limitations exist for good reasons; that's why law-enforcement officials almost always support them. Beyond a certain point, memories fade, people die, evidence gets lost or grows stale, and fraudulent claims increase. But these statutes put a major cramp on potential profits in the litigation industry. So what's a hungry plaintiffs' attorney to do? It's easy. Get the rules changed – retroactively.
Two different law codes govern the disposition of sexual abuse cases: criminal and civil. The Supreme Court has ruled that criminal liability cannot be applied retroactively. It's unconstitutional. But some lower courts have held that civil liability can be extended retroactively. And the threshold for proof in civil cases is much lower than in criminal cases. As a result, plaintiffs' attorneys – usually backed by victims' groups – have launched a national effort to lobby state lawmakers to change civil liability rules after the fact.
It works like this: Plaintiffs' attorneys troll a new territory for possible cases. Each new claimant then identifies other potential claimants. Victims' groups may assist in the process, or act as contacts with potentially sympathetic state lawmakers. Plaintiffs' attorneys may then provide help in drafting the proposed new legislation that they themselves hope to profit from. This happened in California, where Jeffrey Anderson helped develop the text for the state's catastrophic law SB 1779, retroactively revising the statute of limitations for sex-abuse cases in that state.
By the time the media enter the project, the plaintiffs' storyline is firmly in place, and the press almost invariably follows it without deviation. One study found that during the first six months of 2002, the 61 largest California newspapers ran more than 1,700 stories about sexual abuse incidents in the Catholic Church but only four about the same problem in public schools. And, as happened in California, once the public has been suitably barraged with shock reports, the lobbying begins to secure "justice" for those victims whose claims have expired due to statutes of limitations. Some victims claim they were too afraid to come forward in the past. Others say they were so traumatized that they didn't remember their abuse until recently. But all of them agree that the only way they can get closure and peace is by litigating their expired cases.
Whatever the merit of these claims – and many scientific sources reject the credibility of "recovered" or "repressed" memories – the goal is always the same: to overturn existing statutes of limitations for private (but not public) institutions. Once these safeguards go, the "legalized looting" – to quote one angry Catholic parent – can begin. How can a church community defend itself, for example, when an alleged perpetrating priest is dead, and so is every other witness except the accuser? But this has happened again and again. More than 1,000 new plaintiffs came forward in California during a 2003 suspension of the statute of limitations. So far, California Catholic dioceses and religious orders have paid out roughly $250 million to plaintiffs, and the bleeding continues.
The attack on statutes of limitations by plaintiffs' attorneys has now touched 14 or more states. It's a classic display of entrepreneurial skill – the fruit of years of carefully cultivating victims' anger, media gloating, the hostility of some lawmakers toward the Church, confusion and guilt by Church leaders, and resentment among the faithful. The effect on American Catholic life is catastrophic. There's no "Catholic Superfund" to pay for these massive, retroactive sex-abuse settlements, no secret pile of ecclesial wealth; and insurance, even in the best circumstances, covers only a modest portion of the total damages. In some dioceses, insurance companies are suing the Church to avoid payment.
In the end, the people who will pay the most for this crippling attorneys' scam are our families – and our children. "Retroactive liability" has nothing to do with real healing for sexual abuse victims; it has everything to do with greed. It involves the financial and legal mugging of innocent Catholic families today, for alleged events that happened decades ago and in which they played no part. It amounts to punishing the innocent in the name of lost innocence. But no matter how piously an attorney frames the scam, two wrongs simply don't make a right.
Waking the Sleepwalkers
The priests I knew growing up were good men – men I wanted to emulate without exception. But I also have two friends, and probably a third, whose sons were sexually abused by priests in decades past. They've struggled with that traumatic experience ever since. Like all Catholic parents in the last four years, my wife and I have listened to stories of clergy sexual abuse with a mixture of pain, disgust, and frustration. We look at our own four children, especially Dan, and we try to imagine what our attitude toward God, or the Church, might be today if they'd been hurt. More importantly, we've tried to pray ourselves into a deeper understanding of the wounds in the lives of young people damaged by sexual abuse.
Of course, we'll never fully understand that pain, any more than an outsider can fully understand the experience of raising a disabled child. But as a parent, I also know that real justice is not served by creating a new class of victims – innocent Catholic families and communities today – in the name of helping other victims. Changing the civil liability rules after the fact is not justice; nor is bankrupting Catholic parishes and dioceses. It's a form of financial and legal violence that will continue until the money's gone – or we force it to stop.
As a Catholic, I believe I have a duty to help sexual abuse victims heal. And I have an equal obligation to the Catholics who came before me, and the ones who will come after me, to pass along the Faith and the resources with which I was entrusted. They're not mine to throw away.
It's revealing that, in Colorado and elsewhere, some of the biggest supporters of "retroactive liability" are disaffected, angry, self-described Catholics who resent the Church for her teaching on abortion, "emergency" contraception, embryonic stem-cell research, the death penalty, immigration, Iraq – the list of complaints is endless. Too often, Catholics of my generation seem to be diving headlong into an assimilation gone perverse, moved by a spirit of revenge against the Church for simply daring to be herself and not a theater prop for their own egos. And nothing serves her enemies – including the sex-abuse litigation machine – better than when the Church's own children join in tearing her down.
American Catholics today are like sleepwalkers who dream they're awake – who think they're engaged with and accepted by their surrounding secular culture. In reality, we're getting robbed of our identity and resources while we slumber.
It's time to wake up.
Francis X. Maier is the chancellor of the Archdiocese of Denver.
