The Devil Is in the Details: How Insurance and Catholic Lobbyists Are Trying to Help Child Predators and Supportive Institutions Behind the Scenes

| 6/25/16 | Professor Marci A. Hamilton|

When it comes to behind-the-scenes chicanery against child sex abuse victims, no one holds a candle to the insurance and Catholic Conference lobbyists and bishops. They have pulled out all the stops against victims’ access to justice, especially when states have considered windows or revival bills that permit survivors with expired statutes of limitations (“SOLs”) to go forward despite the SOL. One or more have pulled some stunners in various states, with the result that they shut victims out of court and preserved the secrets of predators and the institutions engaged in self-protection.

As I discuss in Justice Denied: What America Must Do to Protect Its Children, in Colorado, Bishop Chaput put to work a public relations strategy to mislead Catholics in the pews into thinking a window is “anti-Catholic” and succeeded even though that is false. In Ohio, the night before a window would have passed in the House, the bishops persuaded members to strip out the window portion of the bill and replace it with a useless and unconstitutional “civil registry,” which has done zero for survivors.

In every state to consider revival legislation, the bishops have also trotted out lawyers with little knowledge of constitutional law to argue that a window or revival legislation is “unconstitutional.” Then when the bill passed, they challenged its constitutionality and lost in court—in California, Connecticut, Delaware, Hawaii, and Massachusetts.

In the latest Pennsylvania chapter, the Chairman of the Senate Judiciary Committee, Stewart Greenleaf, put together no less than 5 people to testify that it is supposedly unconstitutional to revive an expired SOL in Pennsylvania. To quote survivor Michelle Gonsmann in her published letter to the Altoona Mirror: “Greenleaf lined up a parade of attorneys, most of whom had no true constitutional expertise but were deeply involved in the Catholic church or Catholic universities. These experts were clearly biased toward the Catholic church.”

I was the sole expert to testify in favor of reviving an expired SOL. As the media reported correctly, I am a constitutional law expert, the leading expert on this issue in the United States, have been involved in every state to consider reviving expired SOLs, and have defended windows and revival statutes as lead attorney or amicus. Most recently, in Massachusetts, I wrote the amicus brief for advocacy groups, which the Supreme Judicial Court of Massachusetts highlighted in an opening footnote as it proceeded to conclude that reviving an expired SOL is constitutional.

Pennsylvania already has made history this year, when for the first time in the decade-long push to revive expired SOLs for child sex abuse victims, the House Judiciary Committee voted a bill out of committee that was then passed overwhelmingly on the floor. HB1947 has a revival element that would permit survivors up to age 50 to file civil lawsuits. It is modest, to be sure, but in Pennsylvania it would be a large step forward. The momentum behind it remains strong.

Apparently, the Senate Judiciary Committee is going to vote on HB1947 on Monday, which will be a first in Pennsylvania. Until now, a few members have been able to bottle up all bills for child sex abuse victims in committee in both houses. Members have at least come to understand, however, that sitting on these bills aids and abets child predators and the institutions that protect them.

Plenty of chicanery against the victims is still afoot in Pennsylvania. It has been rumored since the constitutional law “hearing” that Sen. Greenleaf will let HB1947 be voted out of his committee only after the committee votes to gut the retroactive, revival provisions. These, of course, are the provisions that are needed to find out who the hidden predators are in the Commonwealth and to shift the cost of abuse from the victims to the ones who caused it. So what many expect on Monday, June 27, is that the Committee will vote out of committee some extension of SOLs but no revival.

As a consolation prize, and so as not to appear pro-predator, some have been tinkering around with some novel language produced by, yes, the insurance and Catholic Conference lobbyists. The rumor is that they will take out the modest revival of expired SOLs up to age 50, and then substitute a provision that will be every bit as useful as the godforsaken “civil registry” in Ohio.

The Latest in Provisions Intended to Look Survivor-Friendly That Are in Fact Predator Friendly

Here is what the rumor mill says some Pennsylvania Senators are considering, with a guide to help you understand it.

Let’s say there is a grand jury report, like the Altoona-Johnstown report, which was shocking to many (but not to a lot of us). It shows the cover up continues to today and that children are still at risk. This new language would let victims then file a lawsuit, even if the SOL had already expired, if they had

  • “clear and convincing evidence”
  • that they could not bring a claim earlier based on a theory of “concealment,” because the defendant “through an intentional or knowingly false act on which the individual reasonably relied . . . deliberately misled the individual victim or his or her parents” and the evidence was “discovered by an official action” and could not have been discovered before.
  • At that point, the victim gets 5 years to go to court.

The Guide to a “Concealment” Provision

Here is a guide to understand what each of these terms does to the victim:

  • “clear and convincing evidence”

Guide: This is the most difficult standard of evidence in a civil case.

  • that they could not bring a claim earlier, because the defendant “through an intentional or knowingly false act on which the individual reasonably relied . . . deliberately misled the individual victim or his or her parents”

Guide: This language is the darling of the insurance industry because it means it will not have to pay a dollar. If the covered entity acted with intention or knew it was acting falsely or deceptively, coverage is blocked. Same goes for “deliberately misled” in that insurance is inapplicable if the covered entity acted deliberately.

  • and the evidence was “discovered by an official action” and could not have been discovered before.

Guide: If you file a civil lawsuit and obtain discovery in the court system, you can’t use that evidence. You can only use evidence generated by prosecutors. Given that prosecutors only prosecute a small percentage of child abuse cases and invest in even fewer grand jury reports, that means there won’t be much, if any, evidence to speak of.

  • At that point, the victim gets 5 years to go to court.

Guide: Prepare to represent yourself, because no lawyer is going to take such a case.

  • The Bottom Line: Blocking Justice for Victims Protects Predators

Here is the number of victims who will be able to obtain justice through this new devilish “concealment” provision: ZERO.

Here is the number of predators who will applaud the members who vote for it: EVERY PREDATOR IN PENNSYLVANIA.

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