Church opposes NY bill that opens indefinite lawsuit window

Albany, N.Y., Dec 18, 2011 / 16:44 pm

New York's Catholic Conference has criticized the fairness of a bill allowing sex abuse accusers to sue for damages on claims stretching back half a century or more.

“What we object to in the bill is not the extension of statutes of limitations going forward,” said Communications Director Dennis Poust, explaining the problems with Assemblywoman Margaret Markey's proposal to change how the law handles abuse claims.

“Our main objection is to the so-called 'window' portion of the bill, which would open up an opportunity to bring lawsuits for claims that were previously time-barred, where the statute of limitations has run out long ago,” Poust told CNA on Dec. 16.

“Someone could come forward and say they were abused by a priest, or Boy Scout counselor, in 1960. That priest or counselor is long-dead, and there's no record of any abuse. But the person could claim abuse and bring a lawsuit, under that bill. We think that's fundamentally unjust.”

Markey's February 2011 bill is drawing renewed attention due to the sex abuse scandals in the Syracuse and Penn State college sports programs.

Along with its one-year “window” for claims to be filed stretching back indefinitely in the past, it would also extend the statute of limitations in child sex abuse prosecutions, and the corresponding time limit on civil lawsuits.

The New York Catholic Conference, which represents the state's bishops, maintains that the indefinite retroactive lawsuit window – reviving, for one year, any claim previously considered too old to act on – should not be applied to any institution, religious or otherwise.

But it would support the changes in how newer cases are handled, if they applied equally to public and private institutions.

At present, New York state law imposes a five-year statute of limitations for civil claims, and many criminal prosecutions, involving child sex abuse. The time period begins either when the alleged victim turns 18, or when authorities receive a report of the incident, depending on which occurs first.

If Markey's bill passes, many lawsuits and prosecutions could be initiated up to five years later than that, a standard Poust says is fair in itself.

But a different, much more limited rule would still apply to lawsuits against public institutions.

“The state gives itself a bit of a 'pass,' and makes it tougher to sue itself. In New York, within 90 days of the offense you have to file something called a 'notice of claims' with the court, saying you intend to sue.”

“If you don't file that in a timely manner – within three  months – then you can never bring a lawsuit against a state institution.”

A previous version of Markey's bill would have changed this, extending the time period for child sex abuse allegations to be brought against both public and private institutions. The present version, however, does not do so.

“The current bill would not impact public institutions, like public schools or juvenile justice facilities,” Poust pointed out. “It creates two classes of victims, depending on where the abuse occurred. That's just not good public policy.”

“Most non-familial abuse occurs in public schools, yet this bill by Assemblywoman Markey does nothing to help those victims,” he said.

“For her to say that this somehow addresses what happened at Penn State is a fallacy,” Poust pointed out. “That's a public institution. If Penn State were in New York, her bill would have no impact on it.”

This double standard was not always Markey's intention, Poust recalled.

“Back in 2009, she did amend the bill to include public institutions,” Poust recalled. “That's the way the language of the bill read through 2010. And she has now explicitly gone back to the original bill, which excludes 'publics.'”

Poust said Markey made the reversal after pressure from public sector groups.

“The state association of school superintendents, the school board association, the conference of mayors, the association of counties – all these public associations came out against the bill, and it became toxic. It didn't have a chance.”

“She has no credibility to say that this bill is in any way fair. She acknowledged in 2009 that by including the public sector it was a better bill. And now, without explanation, she has gone back to the old bill.”

But even if Markey changed this portion of her bill, the New York Catholic Conference would maintain its objection to the one-year suspension of the statute of limitations.

When California passed a similar bill in 2002, the Church paid out nearly a billion dollars in settlements.

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In part, Poust observed, this is because “it's impossible for an institution to defend itself” against claims stretching back half a century or more.

“That's the reason statutes of limitations exist – because defense becomes impossible when evidence is lost or old and any witnesses, or the alleged abusers, may be long-dead. It leads to having to go into settlements for things that may or may not be true.”

“In California, one case went back 70 years,” he recalled. “It doesn't have to be a claim that was previously reported or known in any way, shape or form.”

“It really is an invitation for individuals to make false claims. We know the identities, at this point, of many individuals who were sex abusers. So all you have to do is say, 'Oh, he abused me too, 60 years ago.'”

The reality of past abuse, Poust said, does not eliminate the legal presumption of innocence – which loses its effectiveness against a flood of lawsuits potentially involving the distant past.

“Justice works two ways,” the Catholic conference spokesman observed. “Individuals and institutions have to have a right to defend themselves. The question is, at what point does it become impossible to defend against a claim like that?”

“It really is impossible to defend against 60-year-old claims. It's the equivalent of someone knocking on your door and saying, 'In 1962 I slipped and fell outside your house – which at the time was owned by your grandfather – and now I'm going to sue you for damages.'”

“Statutes of limitations exist everywhere, in civil and criminal law – because of the common understanding that evidence gets stale or lost, and memories fade,” Poust said.

“You have to strike a balance between giving justice to the accuser, but also to the accused.”