The Southern Baptist Convention's Unconvincing Claims as to Why It Cannot Effectively Report or Prevent Clergy Child Abuse and How Insurance Companies Can Exert Pressure to Ensure Better Systems

By MARCI HAMILTON
Thursday, Jun. 12, 2008

The Southern Baptist Convention (SBC) has recently proven why it is that children are at risk for sexual abuse in our society: It’s easier not to protect them, and especially easy to issue ineffectual platitudes while looking the other way.

According to the Associated Press, the SBC has concluded that its decentralized structure of independent churches makes it impossible for it to establish a website of pastors credibly accused of child sexual abuse, or even to require the reporting of such crimes to the police. Yes, you read that right: The SBC is citing these lame procedural reasons for not taking the most basic steps to protect children from devastating abuse that can have repercussions that leave victims suffering for a lifetime (and that severely taxes society in medical and other resources).

In this column, I’ll rebut the Convention’s claims that policing and reporting abuse is an impossible task to put on its shoulders, and also describe how change in this quarter needs to come from what may seem like an unlikely source: the insurance industry.

Why the SBC’s Claims Don’t Hold Water

To begin, the SBC prevaricates by saying that as there is a comprehensive federal database of abusers, the creation of a Baptist database would just confuse matters. The way SBC officials make it sound, the issue is now dead and individual churches should just do their own individual background checks. Never mind that such checks would be profoundly easier – and more likely to be thorough -- if an intra-organizational database could be consulted. As I discussed in a previous column, the federal database is not without its own serious problems.

Independent entities can coordinate their actions for the greater good, and there is rarely a more powerful reason to do so than here.

Consider an analogy: Under the Articles of Confederation, the states that are now the United States of America were incapable of coordinating their activities for the general good. The group re-considered those relations at a Constitutional Convention held in Philadelphia, where a committee of representatives from each state created a system that made it possible for them to coordinate their efforts to achieve important ends – without sacrificing sovereignty.

In short, there is a basic procedural answer to what the SBC has portrayed as an insuperable barrier – agree among all independent entities to coordinate. If Baptist churches cannot coordinate on a shared, national strategy in favor of children at risk, they rightly lose a great deal of moral capital.

Thus, the autonomy excuse is nothing more than just that: an excuse. If the members and churches of the SBC were truly interested in protecting children from predators within the organization, then they would create mutual obligations among their individual churches to report all reports of abuse to the police (not only the ones the churches’ themselves unilaterally find “credible”) and make public the names of those about whom they have received reports already.

A straightforward “report any complaint” policy combats the natural human tendency to protect friends and coworkers and creates a simple bright-line rule. No one likes to believe he or she is working alongside a monster, especially if that monster is engaging in other “good works,” but with clergy child abuse, that is too often the case. If individual churches’ credibility determinations are allowed to govern, reports may be made or not made according to the popularity of the accused, not the credibility of the accuser. The SBC needs to learn, as the Roman Catholic Church has had to, that even the most charming clergy can be dangerous predators.

The church-network database suggestion was visionary – and the suggestion that it would simply overlap with Megan’s Lists or federal databases is dead wrong. In too many cases, churches’ databases will have information about predators that would have been otherwise unavailable, because victims are barred from going to court by short statutes of limitations. No government may put a name on a criminal sex offender list without a conviction. (The barriers imposed by statutes of limitations are especially acute in Alabama, which has the most backward and predator-friendly statute of limitations in the country, with a mere two-year limit.)

An Unlikely, But Potentially Exciting, Ally for Children: The Insurance Industry

In prior columns, I have called on courts, prosecutors and legislators to more avidly protect children. Sadly, it became clear early on that churches themselves would do little, and the recent SBC news only confirms that. Moreover, clergy abuse accounts for only a relatively small portion of the abuse in this country. In this column, I’d like to draw attention to another player here that could also act to protect children (and its own interests as well): the insurance industry. After all, this is the business that made it possible to require everyone to wear seatbelts and reduce fatalities on the road.

The insurance industry needs to step into the fray here as soon as possible. There are multiple conditions that insurance companies could place on employee coverage that would aid all of us, and would reduce the insurance companies’ financial exposure in the future – a clear example of “doing well by doing good.”

First, the insurance industry should require organizations to do background checks on all employees before being hired and thereafter on a required annual date, and require them to report any allegations of abuse as a prerequisite to coverage. Private organizations are too self-interested and too amateurish to handle investigations into child sex abuse. In contrast, law enforcement agencies do this for a living. Thus, insurance companies should insist that they be called in to investigate reports.

Second, the insurance industry should lobby to eliminate the civil statutes of limitations on child abuse cases retrospectively, and the civil and criminal statutes of limitations prospectively. (Unfortunately, the Supreme Court has held that criminal statutes of limitations cannot be retrospectively extended.) The more victims there are who can identify their predators in court, and the more predators there are about whom we know, the fewer victims in the future will have to suffer terribly. That reduces the insurance companies’ exposure, the employers’ liability, and, most important, the quantum of risk facing children.

Third, the insurance industry should investigate the application of the mandatory child abuse reporting statutes and whether they have done what they were intended to. Most have no effective enforcement mechanism, which means there is good reason for the insurance industry to force states to add meaningful punishments if anyone (especially a professional, including a member of the clergy) fails to report to the state his or her suspicions of abuse. The more reports that are filed, and the more predators who are identified, the better it will be for everyone. Just think how many fewer sex abuse claims there could have been if the Catholic Church hierarchy and clergy had been under a meaningful legal obligation to report every report of abuse (credible or otherwise). Here is another arena where the insurance industry could lobby for the greater good, as well as its bottom line.

All three of these reforms, taken together, would reduce the number of claims insurance companies would have to pay out in the long run. Even the retroactive statute of limitations reform reduces future claims by identifying predators no one knew about until the courthouse doors were re-opened for the victims.

The denial of insurance is a powerful and even irresistible incentive for private organizations to clean up their acts. Right now, as the SBC has illustrated so well, such intervention is desperately needed. If insurance company decisionmakers move forward, they will not only be wisely protecting their financial health, but they will also be protecting their children, their grandchildren, and those of all Americans.


Marci Hamilton is Visiting Professor of Public Affairs and the Crane Senior Research Fellow at the Program in Law and Public Affairs at Princeton University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent book is Justice Denied: What America Must Do to Protect Its Children(Cambridge 2008). Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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