Sex abuse attorney’s book ignores abuse in public schools, critics charge

Denver, Colo., Feb 8, 2009 / 18:02 pm

A prominent law professor’s push to remove statutes of limitations on sexual abuse lawsuits ignores much larger sexual abuse problems in the public schools and excessively concentrates upon the Catholic Church, two writers say in a critical book review.

Marci Hamilton is a Yeshiva University law professor who has lobbied for “window legislation” allowing sexual abuse lawsuits on allegations which are past the standard statutory limitations.

She describes her 2008 book “Justice Denied: What America Must Do to Protect Its Children” as a “how-to book on stopping child abuse, empowering survivors, and helping society identify child predators.” Eliminating Statutes of limitation is her “straightforward and attainable” answer for both criminal prosecution of sexual perpetrators and for civil damage suits against them and their employers.

L. Martin Nussbaum, who is legal counsel for the Colorado Catholic Conference and other religious institutions, and writer Melissa Musick Nussbaum voiced their criticisms of Hamilton in an essay published Thursday at First Things Magazine’s blog “On the Square.”

In Hamilton’s book, according to the Nussbaums, the author calls for abolishing “statutes of limitations going forward” and for retroactively reviving time-barred claims of sexual abuse.

“But when she turns to public entities, Hamilton goes curiously vague,” the Nussbaums charge.

“She notes that public entities are often protected by sovereign immunity, a doctrine that ‘protects a state’s treasury from private lawsuits in order to shield a state from onerous interference with the performance of governmental duties and to preserve its control over state property and funds that might otherwise be endangered.’

“She shows no such concern for soup kitchens, homeless shelters, and schools endangered by private lawsuits against the Catholic community. Indeed, she claims that the Catholic institutions and their insurers were able to pay settlements totaling over two billion dollars to date without affecting the Church’s ‘charitable public works.’”

The Nussbaums argued that this approach neglects the realities of sexual abuse.

They highlight a U.S. Department of Health and Human Services’ report “Child Maltreatment 2006,” which shows that about 66 percent of sexual abuse perpetrators are parents, other relatives, unmarried partners of parents, friends or neighbors. Only 0.5 percent are classed as “professionals,” among whom clergy are a subset.

“Neither Child Maltreatment 2006 nor any other study identifies clergy (much less Catholic priests) as a statistically significant class of perpetrators. Statistically insignificant and taken from years and decades past, cases of abuse involving Catholic clergy—though profoundly troubling—are nonetheless few compared to the cases involving, for example, public-school teachers,” the Nussbaums argued.

“[I]n both actual numbers and percentages, sexual abuse of children by teachers, coaches, and employees in public schools exceeds anything that occurred in Catholic institutions,” they continued, claiming that sexual abuse of children in public schools is still occurring in “significant numbers,” in contrast to Catholic institutions.

According to the Nussbaums, expert Prof. Carol Shakeshaft told Education Week magazine “The physical sexual abuse of students in [public] schools is likely more than 100 times the abuse by priests.”

The Catholic bishops’ 2007 Annual Report on sexual abuse, based on an outside audit, found fifteen allegations of childhood sexual abuse in the Catholic Church in the U.S. from 2000 to 2007, an average rate of less than two per year. However, a 2007 Associated Press investigation indentified 2,570 public school teachers in the period 2001 to 2005 who had their teaching licenses “taken away, denied, surrendered voluntarily, or restricted” as a result of sexual conduct with minors.

Noting that the bishops’ report includes unproven allegations while the public schools report concerns sufficiently proven allegations, the Nussbaums write:

“Assuming only one victim per disciplined public school teacher, the ratio of abuse in public schools to that in the Catholic Church could run as high as 275 to 1.”

However, according to the Nussbaums, Hamilton’s new book only argues for the removal of statutory limitations for private entities and not for public ones.

The Nussbaums defended the existence of statutes of limitation, arguing the laws ensure reliable evidence and hamper false accusations. They also prevent undue liabilities upon future generations who are punished for the actions of a perpetrator in their organization’s past.

The two critics then identified Hamilton as a member of a coalition which included victims’ attorneys and the Survivors Network of Those Abused by Priests who in 2002 successfully lobbied the California State Assembly to enact a window on statutes of limitations for sex abuse claims,

This resulted in claims against the Catholic Church concerning incidents as far back as the 1930s, many alleging abuse by over a hundred priests “long dead.”

Against Hamilton’s claim that Catholic dioceses were not “targeted” by the legislation, the Nussbaums quote the chief sponsor of the bill, State Sen. John Burton, who told the Los Angeles Times that the bill was a “direct response” to the national clerical sexual abuse scandal involving Catholic priests and was aimed at “deep pocket” defendants such as the Catholic Church.

The Nussbaums also described Hamilton and her coalition’s efforts in Colorado in 2006, saying that the Colorado Catholic Conference had asked that the coalition’s proposed legislation satisfy the two principles of “fairness and prevention” by asking that the same standards and penalties be applied to both private and public institutions.

Hamilton attacked the argument as an “insidious” and “vile” strategy, to which the Nussbaums responded:

“Calling for childhood sexual abuse legislation that treats public and private entities alike is only insidious if one’s real goal is to burden only private institutions.”

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The Nussbaums concluded their essay at the First Things website by arguing:

“Marci Hamilton’s Justice Denied is a sloppy piece of work, poorly researched and poorly written. It is a diatribe against the Catholic Church disguised as a solution to child sexual abuse. Hamilton’s clients and ours—all of us—deserve better.”