Arbitrate NY clergy sex abuse claims
The New York Times’ Paul Vitello took a look back this week on the Catholic bishops’ lobbying campaign that averted proposed New York state legislation to open the door to many more lawsuits over sexual abuse of children. It turned out that some of the Assembly members who voted for the bill in previous years, when it had no chance of passing in the State Senate, withdrew their support for Assemblywoman Marge Markey’s measure once it became clear that it might actually have the votes to become law.
The Markey bill would have created a one-year window to file lawsuits currently barred by the statute of limitations. The bishops’ best argument, in my view, is that however horrendous the clergy sex abuse scandal is, it would be fundamentally unfair to rewrite the legal rules covering past offenses with the primary aim of making the Catholic Church pay up. It is fundamentally unfair to the many victims, however, that the church’s systematic cover-up of the problem will not be punished adequately in the New York state legal system.
Shouldn’t there be some form of arbitration under which dioceses will compensate the victims to the best of their ability? Now would be a good moment for the New York state bishops to make that decision, before the Legislature returns to reconsider Markey’s bill. And if the New York state bishops can’t agree on this, then individual bishops can in conscience act on their own.
on August 12th, 2009 at 2:27 pm
I thought the major argument against the bill was the terrible financial hardships the Church would endure and the impact thereon on Church service to its members and the por.
To ask for fairness and compensdation for victims against that view would seem unlikely.
Moreover, the issue of secrecy is much in play in all of this – note most recently that the Diocese of Bridgeport is appealing a State Supreme court’s release of files order to the US Supreme Court!
The argument about this matter will go on and on (as at this blog) between defenders of victim rights aginst institutional protection advocates.
Until the sunlight of the truth of what happened hits the light of day, leaving it to the hierachy (who are under duress from above to protect the institution,) in my view, offers little hope for fairness to resolve this.
on August 12th, 2009 at 2:38 pm
Hi, Paul, I agree with you about arbitration, at least conceptually. But I don’t know very much about arbitration, except as I’ve read about it in labor disputes (particularly in baseball). I’d be interested to hear from folks who have looked into it as to what the pros and cons would be.
on August 12th, 2009 at 3:55 pm
Amen to your suggestion BUT….there is always a BUT.
- would suggest that the current track record of secrecy works against this suggestion – who really trusts a bishop especially a victim?
- your idea might work if the USCCB authorized a competent, independent, free standing mediation body that worked with national support groups, dioceses, national priest groups, etc.
- SOL and sexual abuse is also a state/national issue…..it would be nice if the catholic church took the lead in this “needed” area
- Mr. Moses – you cited some NY assembly folks who had a history of supporting the Markey bill; what I read was that they supported the bill because it had not chance before; once, the political land changed; they withdrew their active support. Why? not really explained?
- summarize – personally, the church needs to demonstrate that justice must come first – this requires truth and reconciliation. Mediation would not be successful without history being set straight. As with many other issues in the world, the USCCB/Church need to support a Truth and Reconciliation Board prior to any mediation attempts. Can the dioceses of NY state do this on their own? Can a single diocese do this? (hard to imagine given the crossover from diocese to diocese and religious transitions)
on August 12th, 2009 at 4:48 pm
As a lawyer I am a huge fan of arbitration. I have served as court appointed arbitrator over the years.
That said, there is ultimately no difference between the outcome of an arbitration and a lawsuit. Both result in an award of monetary damages.
There is a perception that there is less “showboating” or “Hollywooding” in arbitrations than there is in jury trials. I suspect that is so. I find arbitrations to be far less expensive than trials and the arbitrations “get to the point” faster, and expect the lawyers to get to the point faster as well. Any procedure that reduces the transaction cost of litigation and still gets to a fair result is good for the legal system and good for society.
there is also a perception that arbitrators are more “stingy” than jurors, especially in awarding “soft” damages such as pain and suffering and punitive damage, if applicable. That may be generally true but I predict it will not be true in clergy sex abuse cases.
If the bishops are willing to agree to arbitration, they should expect to get hit with astronomically high arbitration awards.
I have read some of deposition transcripts of bishops and chancery staff. Aside from the blatant perjury in the depositions, the actual testimony is horrific. I can see routine multi-million dollar arbitration awards as a matter of course. By multi-million, I mean 10 million dollars or more per plaintiff.
In short, arbitrations will merely reduce the legal fees incurred in litigation. I do not see the potential for reduction in the amount of the actual awards. In fact, I see that arbitrators may well be far more offended than jurors by the combination of the initial conduct and the relatively frequent obstruction of justice and the systematic subversion of the legal system. I predict the realized savings in legal fees will not be significant in light of the massive awards in any forum where the evidence is fairly presented.
on August 12th, 2009 at 4:59 pm
Paul Moses: based on history and present policy, what in the world would give you any indication that the bishops would in any way, shape, or form treat victims of Church abuse in a compassionate, just, and fair way? If you find the bishop that has done this, please report who he is, because I have yet to find him.
on August 12th, 2009 at 5:31 pm
I attended a few of the 8 abuse trials on abuse in Northern California all resullting in big judgements and these trials caused about 80 settlements. The 400+ So, California cases were settled out of court.. no trials after 5 years of delay tactics. Ask what is the difference between these settlements and arbitration??. The answer is that the threat of trials forces settlement. Nothing but conscience forces ‘no threat of trial’ arbitration.
So no threat of trial ,… no arbitration in NY… period.
on August 12th, 2009 at 6:01 pm
Joe McFaul, thanks for your comments – very interesting. Some quesitons:
* Do arbitrators consider themselves bound by precedent in determining awards? I.e. if plaintiff X was given $1 million, would that serve as a sort of reference point or milestone in determing plaintiff Y’s award?
* I understand arbitration decisions frequently are not appealable to courts. I believe that is determined by the mutual consent of the parties to the arbitration, is that true?
on August 12th, 2009 at 8:51 pm
The bishops are so deeply entrenched in Clericalism that they cannot even appreciate the obvious contradiction of their claim that “it would be fundamentally unfair to rewrite the legal rules covering past offenses….”
It seems to have bothered them not at all that their basically criminal behavior facilitated thousands of children being abused, molested, raped and sodomized, who would never have been put in harm’s way if the bishops did what any responsible adult would be expected to do in the face of such evil.
The crime is that no legal entity, state or federal, has seen fit to pursue any conspiracy, criminal facilitation, reckless endangerment, aiding and abetting, RICO or any other charges in the civil rights violations of so many innocent children.
Statutes of limitation in regard to the sexual abuse of children is completely arbitrary as is shown by the fact that they differ so much from state to state to state.
In Delaware, for example, there was a two year statute of limitation both criminally and civilly on the books before 2007, which has to have been among the worst of all the states.
Now with the passage of Senate Bill 29 as the 2007 Child Victims Law, there are no SOLs civilly or criminally going forward and a two year civil window for previously time barred cases of abuse, by anyone, just closed in July of 2009.
Does it count for absolutely nothing that the Holy See was a signatory to the United Nations Convention on the Rights of the Child even though a September, 2002 shadow report, “The Holy See and the Convention on the Rights of the Child,” points out the fact that the Church submitted none of the required compliance reports?
In refusing to support legislative changes that would protect all children, the institutional Roman Catholic Church, along with a few other denominations, continues to state ever so loudly by it actions, that it refuses to be either accountable or transparent for sins and crimes perpetrated against children.
A “Do as I say not as I do,” mindset that is the hallmark of Clericalism.
Sister Maureen Paul Turlish
Victims’ Advocate
New Castle, Delaware
maureenpaulturlish@yahoo.com
on August 12th, 2009 at 10:38 pm
Arbitration can save legal expenses and much pain, but only if bishops respond constructively. And that is the last thing their despicable record implies.
Much of the thrust of litigation is to force the release of documents in secret archives so that survivors understand who knew what, when; and there is nothing like seeing a bishop on the stand under oath in open court, with documents exposed, required to testify as to his conduct. The slip-sliding, evasions, and denials are downright masterful — and sinister.
What is clear is that no matter what approach is used, the bishops’ imperative is to block the release of documents. Mahony took his appeals for secrecy all the way to the US Supreme Court and mercifully lost, which alone is what forced a settlement. But he still plays hardball with every trick in the book, to the point that documents are still not public years after promising otherwise. There’s always a legal angle to pursue and delay. Are we coming up to ten years in court yet?
Now, Lori in Bridgeport is appealing a CT Supreme Court ruling to the US Supreme Court so he can prevent disclosure to the public. It’s all about keeping the secrets, period, because they are so damning.
Bottom line: it’s about THEM playing CYA. There is nothing unfair at all about bringing justice to survivors, when bishops purposely hid abuse and stalled so that SOL’s could kick in. Be an accessory after the fact, obstruct justice, fail to report under the law, be criminally negligent under neutral principles of law, and praise the Lord, you get away with everything. This is “fairness”?
Instead, equity should trump law, as I’ve read here.
on August 13th, 2009 at 10:55 am
To Mr. McFaul: Would it be possible for a diocese to voluntarily create a compensation fund (perhaps by selling off some real estate) and then seek a special master or independent arbitrator to administer the funds to clergy sex abuse victims whose legal claims are barred by the statute of limitations?
on August 13th, 2009 at 2:19 pm
Arbitrators are generally not bound by prior awards. Each individual is unique and deserves a unique analysis. There could be broad ranges of earlier awards that later arbitrators might use as guidelines, bot normally one arbitration award is not binding on another, unless the parties agree in advance that the earlier award will have that effect. Sometimes test cases can be used to “ballpark” later settlements. That procedure has been done in asbestos cases for example.
Normally arbitration awards are not appealable. The parties can agree that awards can be appealed but that defeats one of the main benefits of arbitration–finality. I usually will not agree to any appellate procedure in my arbitrations, if possible. I want a “final” award even if it goes against my my client.
The diocese could create a compensation fund, but participation by victims would be voluntary. If I was representing victims I’d only participate if it was unlikely that the fund would be “capped out” by a series of very high awards.
Arbitration is normally a voluntary process. Victims would agree to participate only if the arbitration process was fair, the arbitrators were not under the influence of either party and any arbitration awards would have the same status as a court judgment.
Almost all arbitration awards do carry the same status as a judgment and are enforced in the same way–seizure of assets if the judgment is not voluntarily paid.
In short, arbitration is a process that is normally cheaper than a court trial. The arbitration will probably not save much money in clergy sex abuse cases because the legal transaction costs in the form of legal fees to the diocese are a small fraction of what anticipated judgments and awards would be in either arbitration or in a trial.
The diocese could set up a fund to pay claims that may be barred by the statute of limitations. That would be a Christian thing to do.
on August 13th, 2009 at 3:01 pm
I support arbitration as long as we cannot be forced to pay out any church monies to victims.
Signed,
Bishop Joe J.
on August 13th, 2009 at 6:39 pm
“The diocese could set up a fund to pay claims that may be barred by the statute of limitations. That would be a Christian thing to do.”
I agree! But as long as suspension of statutes of limitations is seen to be politically in play, I’d think it’s unlikely that a diocese would do it.
on August 15th, 2009 at 1:27 am
No! No! No Arbitration. In 2003 Archbishop Pilarczyk of Cincinnati Oh, as a sacrificial lamb,
pled “No Contest” to five criminal charges for failure to report child sexual abuse by priests
to government authorities. As part of the plea bargin he nobley voluntarily offered to establish a three million dollar fund to be spread among the victims who applied. A private review board handpicked by the Archdiocese determined who was eligible and for how much, and the victims were paid with a provision of confidentiality, and that they would never seek additional legal remedies. As of today we do not know which priest abusers were named, no records needed to be released, and we have no knowledge of how many times they abused and when the Archdiocese knew it. I do know many victims who refused to participate. The same who refused to file claims for the Civil Registry (that will be proven to be unconstitutional when it is used) the Ohio Legislature approved after they kowtowed to the Archbishop and the Ohio Catholic Conference and shot down a bill for a Statute of Limitations window for barred cases.
Pilarczyk was also the head of the USCCB in 1989 when Rev. Tom Doyle told the Bishops of the massive amount of child abuse by priests and they refused to listen.
For the survivors it is not about the money…the US Legal system is the only system bigger than the Catholic Church and can force it to comply, forced it to open their files, force it to admit how evil they are. Tell me one Bishop who voluntarily complied. The Dioceses
who have paid big monies are the ones in states with a SOL window. Keep at it NY.
on August 18th, 2009 at 3:23 pm
Annie’s rage is understandable!
Just read about the supposed throwing of coins at abuse victims by busloads brought in to counterprotest at a certain Brooklyn Democrat’s home -a friend of the bishop – the buses accomapnied by a member of the clergy who was really there to protect Church monies!
Where have i heard that argument before?
I also read yesterday’s report on Frank Keating’s address at the SNAP convetion – you know SNAP -those angry victim advocates.
Keating said that he still beleives in his criminal justice approach and that includes THOSE WHO AID AND ABET (my italics.) I beleive also that criminal justice outweighs concern for Church finances!
So, Keating said, you can’t expect much out of the bishops who are stacking the Review Boar dwith their followers.
Whether Keating’s words are too harsh, the focus should not be on that but the behaviour of Churc leaders and their defenders in dealing with this.
I don’t see any peaceful mediation forthcoming in the present scene.