By KAREN PETERSON
Posted Sunday, June 17, 2007Read Comments-->PERSPECTIVE
State Sen. Karen Peterson represents the 9th Senatorial District.
In recent weeks, the Catholic Diocese of Wilmington has published a number of articles, letters and editorials purporting to support the objectives of Senate Bill 29, The Child Victims Act, while urging the Legislature to pass amendments that would actually "gut" the bill. The church's claims about the legislation range from misleading to downright false. The purpose of this article is to set the record straight.
First, some facts about the problem:
• 1 in 5 children is sexually abused. It's an epidemic.
• The average age of a child-abuse victim is 9.
• 85 percent of victims are molested by family members or family acquaintances.
• Less than 10 percent of victims are molested by clergymen or teachers.
• The majority of abusers are white, heterosexual, married men who consider themselves "religious."
• Abusers typically molest between 12 and 77 children.
Delaware law gives abuse victims only two years to sue their abuser for damages.
Last year, I was approached by a representative of the Diocese of Wilmington who wanted to talk to me about my efforts on behalf of child sexual-abuse victims. He said, "Do you realize how much money this could cost the diocese?" My response was, "They should have thought of that when they were allowing innocent little kids to be molested."
To the church, S.B. 29 is all about the money and keeping its records of cover-ups secret. It should be about the children.
In diocese after diocese, the church hierarchy not only protected known predators, they actually aided and abetted them in committing their crimes by moving them from one unsuspecting parish to another, setting them loose on a whole new batch of innocent children. As one mother said, "They threw our kids to the wolves." There were the kids at St. Mary Magdalen (two of whom committed suicide), St. Ann's, St. Elizabeth's (my alma mater), Our Lady of Fatima and virtually every parish in our diocese.
Our diocese officials knew that children were being raped, sodomized and otherwise molested and did nothing to stop it. Now they are appealing to us, the Catholic faithful, to help them deny justice to our own children. That is unconscionable.
The diocese claims that S.B. 29 isn't "fair" because it does not allow public employees to be sued. That is absolutely false, and the diocese knows it. Line 12 of the bill specifically includes "public entities" and the state solicitor has confirmed (in writing) that the bill does, indeed, cover public as well as private employees. The diocese has thrown this "red herring" out there in an attempt to garner support from private institutions to gut the bill. Some have fallen for it.
Its argument relies on the notion that people will think that "sovereign immunity" means that public employees cannot be sued. The truth is that public employees are sued all the time (the numerous successful suits against the state police and Department of Correction are evidence of that). The state's "immunity" simply means that if a state employee performs an act that is a) within his/her discretion to do, b) is done in good faith, and c) is not done in a "grossly negligent" manner, they will have immunity from suit.
I cannot imagine that any court would find that a public employee: a) had the discretion to sexually molest a child; b) molested the child in good faith, or c) was not grossly negligent in his/her duties when molesting the child. That is why the church's argument on this point is a "red herring."
The second excuse the church is using is its claim that the bill isn't fair because in older cases, witnesses have died, records have been destroyed, and the accused could not get a fair trial.
First, the burden of proof in proving a case is on the accuser, not the accused. Therefore, if the witnesses are all dead and the records are all gone, the plaintiff will never be able to establish that the abuse occurred and such a case would never get past the courtroom doors. But the truth is that the Catholic Church does, in fact, have the records -- and therein lies their real concern. As Father Tom Doyle testified in the Senate, canon law requires that the church keep such records and, as he said, the Catholic Church is the best record-keeper in the world.
The third excuse the church has used is that the diocese could be "forced into bankruptcy" if this bill passes. Why would the Wilmington Diocese be "forced into bankruptcy" when the church has not been "forced into bankruptcy" anywhere else in the country?
The church is banking on Catholics' not understanding the difference between Chapter 7 bankruptcy (liquidation of assets) and Chapter 11 bankruptcy (reorganization).
The church routinely chooses to file for Chapter 11 bankruptcy at the last minute before a child sexual-abuse case is scheduled for trial. It pulls this legal maneuver to shield its assets and its records of cover-up from the plaintiffs. This maneuver has nothing to do with the church's ability to pay claims -- and not one diocese in this country has been "forced" into bankruptcy.
During a public forum on child sexual abuse in the Archdiocese of Philadelphia, District Attorney Lynne Abraham said that the reason there is no statute of limitations on murder is because murder is so "unspeakably evil." So, too, she said, is child sexual abuse. Child sexual abuse kills children's innocence, their souls, and robs them of their childhood. Its effects last a lifetime.
The diocese would have us believe that this matter is all behind us now and that they are voluntarily "taking care of" the victims. The truth is that this matter is far from over for the "kids" who were raped, sodomized and molested 20, 30, and even 40 years ago. They can tell you every single detail about the molestation, no matter how long ago it occurred.
Those who didn't turn to suicide or drugs to escape the psychological pain are like the "walking wounded" or, as one victim described himself, "the walking dead." They fill our prisons, our mental-health clinics, our Alcoholics Anonymous meetings, and our divorce courts in disproportionate numbers.
Allowing the diocese to decide how to compensate its victims would be like the courts allowing the convicted criminal to decide his own sentence.
The law needs to change and it needs to change drastically. Those who preyed upon our children and those who were complicit in those crimes need to be identified and brought to justice.
Right now, child molesters in Delaware are "home free" two years after their crime. Senate Bill 29 would make it clear that child molesters will never again be "home free" in Delaware.
Delaware should be held to the same standard on child abuse
By GREGORY F. LAVELLE
Gregory F. Lavelle is the state representative from the 11th District
The current two-year civil statute of limitations for childhood sexual abuse is unacceptable and needs to be changed. Senate Bill 29 is an effort to do just that. The bill creates a two-year window for past cases of sexual abuse to be brought into court and before a jury for consideration. The alleged abuser and the institution the individual worked for could be held liable for damages. The bill also completely eliminates the statute of limitations for future cases of abuse against children. Again, the alleged abuser and the institution the individual works for could be held liable for damages.
This is a strong bill to address a very serious issue. Understandably, few things shock us more than the sexual abuse of a child. The ability of a victim to face his or her abuser in court is important. To hold institutions accountable for their actions, or failed actions, past, present and future, is also important. For the institution, the possibility of being found liable in such a case should be more than enough to institute policies and procedures to ensure that corrective actions are taken immediately at the first hint that such an offense could be taking place.
Shut your eyes for a moment and then open them. Imagine that before you stand two victims of childhood sexual abuse who are seeking access to the courts. Their stories of abuse at the hands of individuals are the same. The institutions charged with each child's care have also failed to adequately protect them and end the abuse. You would assume that they would both have equal access to the courts to tell their stories and state their facts. The accused would have an opportunity to defend themselves, as would the institutions who may not have acted adequately to stop or prevent the abuse.
You are wrong.
As it stands today, agencies of the state of Delaware and public schools "enjoy" a defense called sovereign and limited immunity that no other institutions in Delaware can utilize.
Essentially, a victim cannot sue the state of Delaware for its failure to properly protect them from abuse. Public schools have defenses available to them that other institutions do not have, making it more difficult for a victim to prevail.
I believe that this is wrong today and it will be just as wrong tomorrow. We should not have two classes of victims based upon who employs their abuser.
We should not limit access to courts and hold the state of Delaware to a lower standard of care than we would be requiring of every other institution that cares for children in our state.
House Amendment 2 to S.B. 29 explicitly and without question ensures that Delaware is held to the same level of accountability and responsibility for the care and protection of our children that S.B. 29 demands of other organizations by waiving the state's sovereign and limited immunity for past and future abuses.
That way, lawyers will not be in a position to argue with the "intent" of the law at some point in the future. The will and intent of the General Assembly will be clear and unmistakable: We expect the state to rise to the same level of accountability that we are demanding of every other institution that takes care of our children.
Expecting anything less would be unreasonable.
In the past year alone, four public school employees have been arrested and charged with the rape and sexual assault of children in their care. One of these children was a special-needs student who was assaulted by a 60-year-old white male.
Statistical evidence on pedophiles would indicate this was not an isolated assault by the alleged abuser. Another assault involved the multiple rapes of a middle-school student. While we would prefer that this did not happen at the hands of state employees or others, it has, it does and it will.
House Amendment 2 does not kill S.B. 29 as some might argue.
It makes it stronger. It ensures access to the courts for all -- not for some. It demonstrates beyond any doubt that we will not tolerate sexual abuse of our children by individuals, and we will not turn a blind eye toward any institution involved in that abuse, including the one the General Assembly should be most responsible for overseeing, the state of Delaware.
We should not be fooled by the argument that the state's immunity issue should be dealt with in the future or in a separate bill.
We should not be misled that the state has this immunity "privilege" with other torts and should therefore be able to preserve it when abetting the sexual abuse of children. We should set the standard for this issue and apply it equally to all, including the state.
Demanding anything less would be unreasonable.
Imagine those two victims again. The private-school student would have complete access to the courts if S.B. 29 were to be enacted today without amending the bill.
Only with H.A. 2 would the public-school student have that same access to court to face the abuser and the institution that may have failed to protect them.
Amending S.B. 29 with H.A. 2 is the right thing to do. It is the only thing to do. Anything less would create a double standard and two classes of victims with the public-school student not only victimized by the abuser but also by being denied access to the courts.
The General Assembly should be sure that this does not happen and that every victim is treated equally and fairly.By ROBERT G. KREBS
Robert G. Krebs is the spokesman for the Diocese of Wilmington
Posted Sunday, June 17, 2007
The Catholic Diocese of Wilmington supports changing Delaware's statute of limitations for lawsuits by victims of child sex abuse. Victims of child abuse are uniquely damaged, and typically require a very long time, many years into their adulthood, to come to grips with their abuse. Last year, the General Assembly agreed that the statute of limitations should be extended, from two years from the date of the abuse to 25 years after a victim turns 18, and the Diocese of Wilmington supported that change. The Diocese of Wilmington also supports the extension of the statute for future claims contained in S.B. 29 even though there are logical and legal reasons not to abolish the statute of limitations completely.
But Senate Bill 29 not only abolishes the statute of limitations, it also opens a window allowing lawsuits to be filed at any time, regardless of when the abuse occurred. Under S.B. 29, lawsuits could be brought concerning events that occurred decades ago.
There is no precedent, in Delaware or in any other state, for completely eliminating the statute of limitations, forward and backward. Statutes of limitations are designed to enable claims to be investigated and decided fairly, while facts are fresh, memories are vivid, and relevant evidence is still available. Limitations periods also guarantee that judges and juries will not be so far removed in time from the circumstances surrounding a case that they cannot interpret the evidence in light of those circumstances. S.B. 29 completely undermines these essential purposes of statutes of limitations.
If S.B. 29 is to have some retroactive application, there are numerous ways to address these due process, fairness and other concerns.
For examplem rest ...
The Diocese of Wilmington is not looking for a pass on its legal obligation to victims, and the changes to S.B. 29 we propose will not shield the diocese from liability. What we are looking for is some recognition in the legislation of the legal and practical problems with an unlimited lookback provision. It seems to us that the needs and concerns of victims, of institutions and of Delaware's judicial system all can be addressed if there is some reasonable balancing of these needs and concerns, in the form of some reasonable limitations period on lawsuits based on child sex abuse.
The bill also should be amended so that it affords the same rights to all victims, including those children served by public institutions, and that all institutions, public and private, are held equally accountable.
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