The Continuing, Coast-to-Coast Battle Between the Catholic Church and the Law on Childhood Sexual Abuse: Why It is Time for Federal Legislation

By MARCI HAMILTON
hamilton02@aol.com
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Thursday, Feb. 09, 2006

When the Catholic Bishops recently met in Washington, DC, their leadership stated that the clergy abuse crisis was behind them.

But as the events of the last week have made clear, there is no such reprieve.

This is an enduring, coast-to-coast national disaster, and it is now time for Congress to pay close attention. Federal legislation can, and should, be passed to protect our nation's children. Examples from across the country prove the point. The bottom line is that children remain seriously at risk.

The Chicago Archdiocese

Like so many others, the Chicago Archdiocese's Francis Cardinal George is on record as saying that the Archdiocese has adopted and followed a "zero-tolerance" policy for child abusers within its ranks. Sadly, it is all too clear that the Archdiocese's policies have posed continuing danger to children.

Last week, Father Daniel McCormack turned himself into Chicago police, after a twelve-year-old boy came forward to say that he had been abused by McCormack in December. This boy came forward after two other boys had made similar allegations.

Had George truly acted aggressively against child abuse, this latest victim might not have been abused at all. In George's defense, he has publicly acknowledged his failure, but that does not erase what was done to this most recent victim.

This case underlines the worthlessness of church self-policing: A fellow priest was charged with "watching" McCormack, apparently to no avail.

Meanwhile, Cardinal George finally removed Father Joseph Bennett from ministry, in light of new allegations by two women involving abuse decades before.

(For those tempted to think that Chicago is the only Archdiocese left with active pedophiles, also during this last week, Father Neil Doherty of the Miami Archdiocese was arrested for sexual battery against a child under 12. There, the lawyers for the Church are arguing that the abuse was due to the boy's "own negligence" when he was ten years old.)

And just outside Chicago, in the Diocese of Joliet, a judge unsealed the deposition of Bishop Imesch, taken in a civil lawsuit. The Bishop's deposition is stark - Imesch, again like so many others, reveals no real sense of social responsibility, seeing no reason to inform his parishioners, the public, or authorities about allegations of child abuse he received over the years. Indeed, more than once, Imesch appears to take offense at the suggestion he would turn in one of his own priests to the authorities.

Imesch also indicates that if the authorities opted not to file charges against a priest perpetrator (even when the reason was merely that the statute of limitations had run), Imesch acted on the assumption that the priest was fit for further service.

I commend this deposition to anyone who truly wants to understand the dynamics of child abuse within religious organizations. The reckless and knowing endangerment of children goes hand in hand with a gross insensitivity to children, and to the public interest. The drive to protect the public's image of an ecclesiastical body is almost beyond comprehension.

New York's Cardinal Egan, and the Culture that Perpetuates Abuse

On Tuesday, the Village Voice published an extraordinary article about Father Robert Hoatson of New Jersey, who is now barred from acting as a priest - but not because he engaged in child abuse. Far from it: It appears quite clear that Father Hoatson is receiving retribution for his active assistance of victims of clergy abuse (which includes himself) and for the RICO lawsuit he filed in December against New York's Cardinal Egan and others.

The lawsuit alleges that Egan has broken his vow of celibacy, living a less -than-subtle homosexual lifestyle. And it claims that this disingenuousness and hypocrisy have made it impossible for Egan adequately to police the child abuse crisis: Afraid of being exposed himself, Hoatson claims, Egan is loathe to turn in pedophile priests. (Egan's spokesperson has denied the allegations, claiming, "There is no truth to any of the statements he has made concerning Cardinal Egan.")

The real news here is that the press, at least the alternative press, is abandoning its deferential posture toward religion, and entering investigative mode. That should be good news for those who hope to find justice for childhood sexual abuse victims, and to shield future potential victims from harm. But it also indicates that the hierarchy may well be fundamentally incapable of taking the steps necessary to protect children.

New Jersey's Accused Priest: Victims Confront Him

The notorious, defrocked ex-priest James T. Hanley, in New Jersey, has admitted in a sworn statement to abusing 21 children while a priest. But Hanley is not in prison, because the statute of limitations passed by the time the authorities learned about him.

Cases like this demonstrate why, as I have argued in prior columns such as this one, child abuse statutes of limitations ought to be abolished. Not only has Hanley never served time for his heinous crimes, but he is not on any Megan's List that could be searched by those of his neighbors who have young children.

Recently, Hanley was confronted by victims and their families, who went to his neighborhood in Paterson, New Jersey, to warn neighbors there was a predator in their midst. It's fortunate that they did so - for Hanley was becoming friendly with his new neighbors. Reports indicate that he spent New Year's Eve with a family with three small boys, a move typical of a pedophile.

The family only knows now that their sons are at risk, because the victims have tenaciously tracked Hanley. Until Congress and the states pass the laws necessary to turn this situation around, that is the only alternative in cases that are too old to be prosecuted or subject to civil litigation.

The Spokane Diocese's Bankruptcy

After spending millions in legal fees in a bid to avoid full liability to clergy abuse victims, as it filed for federal bankruptcy protection, the Spokane Diocese has finally offered a settlement that plaintiffs' attorneys are urging victims to accept -- $45.7 million for 75 victims. Victims will vote on the offer in the near future, and plaintiffs' lawyers are urging them to approve. (Full disclosure: I have also represented these victims on a pro bono basis, for purposes of rebutting the Church's claimed First Amendment defenses, which were intended to reduce the size of the Diocese's estate so victims could be compensated as little as possible, as I discussed in a prior column.)

The numbers are relatively good. So are the settlement agreement's requirement that the Diocese may not refer to them anymore as "alleged" victims, and that it must institute procedures to reduce the likelihood of abuse in the future. The Diocese also explicitly acknowledges that the statute of limitations was inadequate to stop abuse, which is exactly correct and an issue in virtually every state.

One can only marvel at the Diocese's decision to play a futile game of hardball in federal bankruptcy court rather than opting much earlier for a common-sense solution like this one.

But what is disappointing in this settlement is that the offer does not include a provision for the release of all secret archive files relative to child abusers within the Diocese's ranks. Some of the files may already have been released during private litigation, but experience proves that until there is full disclosure to the public, children today are at risk - regardless of the diocese's promises about future policies.

The Need for Congress to Intervene

It is time for Congress to hold hearings and become involved in an issue of such national magnitude. Neither this Church nor any other organization can solve its internal problems with pedophiles on its own. And the states are moving glacially.

On behalf of children's groups, I have drafted the Violence Against Children Act, a national law that would protect children It calls for a national registry of convicted and accused child abusers, culled from criminal prosecution and civil litigation; the reduction of federal spending on health care for any state that fails to abolish the statute of limitations relating to childhood sexual abuse or to enact a window whereby past victims may seek justice; the denial of tax-exempt status for any charitable organization that fosters or covers up child abuse; and amendment of the federal RICO laws to cover an organization's reckless endangerment of children resulting in childhood sexual abuse. It's time for reform.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is Hamilton02@aol.com. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).