Marci A. Hamilton

Getting Justice for "Justice Denied: What America Must Do to Protect Its Children": A Response to Martin and Melissa Nussbaum's Indefensible Review of My Book on Preventing Child Sex Abuse Within Religious Institutions and Outside Them

By MARCI A. HAMILTON
Friday, March 13, 2009

Martin and Melissa Nussbaum have written an indefensible and disingenuous review of my book, Justice Denied: What America Must Do to Protect Its Children (Cambridge University Press 2008), entitled "MarciWorld." It appeared in the Catholic publication First Things. In this column, I will offer a point-by-point refutation of some of their many scurrilous statements, which reveals that "MartyWorld" is a world filled with misrepresentations.

The Review Falsely Suggests that I Singled Out the Church, When I Support Aggressively Preventing and Punishing Child Abuse Everywhere

There are two possible explanations for their review. Either they intentionally misrepresented Justice Denied's central points or they did not read it. Either way, the review is obviously motivated first and foremost by a political agenda of protecting Nussbaum's clients, the hierarchy of the Roman Catholic Church. Moreover, the editors of First Things can hardly call themselves journalists if this sloppy, second-rate work is what they are choosing to publish. Sycophants to the hierarchy would be a better way to describe them and the Nussbaums.

While the First Things editors originally asserted that they were willing to publish my corrections to the Nussbaums' grotesque characterization of my work, they have stonewalled me ever since. That is hardly surprising. When I testified last year in favor of the Wisconsin bill that would have amended the statutes of limitations ("SOL") to assist victims of childhood sexual abuse, Milwaukee's Archbishop at the time, Timothy Dolan (now of the New York Archdiocese), made a point of coming up to me to tell me that he had warned the editors of "America" not to publish my article, "What the Clergy Abuse Crisis Has Taught Us." It would not take a genius to figure out that a similar conversation may well have happened with First Things. The big difference is that the Jesuits at "America" had the guts to publish what they believed in, while the First Things folks apparently lack their mettle.

The Nussbaums write, "If Hamilton's goal is to stop child abuse through the repeal of statutes of limitation in every state, and if child abuse is a more pervasive problem in public institutions than in private ones, why does Hamilton concentrate on private institutions and, in particular, the Catholic Church?"

Yet I wrote the following, on page 72: "The reality: SOL reform is all about children, not the Church. SOL reform will protect all children and deter perpetrators as well as any institutions aiding them. The 70-80 percent of survivors who were abused by family or family friends need it just as much as the hierarchy's victims. But the Catholic hierarchy has lobbied as though theirs was the only entity affected." Moreover, with respect to their claims that I singled out the Church, in Chapters 5 and 7, I focus on the insurance industry, public school teacher unions, the civil liberties unions, and defense attorneys. (Indeed, once you see this list, you start to realize just how hard it is for child sex abuse victims to receive justice in the United States. As I say in the book, it has taken extraordinarily far-sighted and visionary legislators to open the door for victims.)

The Nussbaums also claim, "[S]he never expressly calls for abolishing statutes of limitations going forward for public entities as she does for private entities." The opposite is true.

After a section on the elimination of SOLs in the private sphere, I say on page 42, "The same principles justify abolishing SOLs for childhood sexual abuse that was perpetrated in the public sphere as well." And then on page 44, I argue, "States, just like private institutions, need to be deterred by law from covering up the identities of abusers and be held publicly accountable by survivors. If the SOLs are eliminated in the state sphere, there is a powerful motive to identify predators and remove them. That motive is criminal and civil liability. . . . As I have said before, one of the key elements at stake is protecting future children from abuse by identifying abusers. This goal is just as important in the public realm as in the private. Predators draw no such distinction. "

The Nussbaums' Review Misattributes to Me the Statements and Advocacy of Others

The Nussbaums write, "Hamilton claims the 'Catholic dioceses were not targeted' by [statute-of-limitations window] legislation." In fact, that is not what I "claim," but rather what a federal court in California ruled in the Melanie H case, which they mention and which I briefed and argued.

Similarly, the Nussbaums inaccurately refer to me as one of the " 'plaintiff attorneys' . . . that persuaded the California State Assembly to enact the first window bill… . " In fact, while I would love to be able to take credit for the visionary window bill passed in California, I had nothing to do with it. I was brought into the California litigation after the law was passed, because the Church was fighting the survivors of abuse by raising First Amendment and other constitutional defenses.

I am a former United States Supreme Court clerk and a constitutional law and church/state expert. That has been my role in clergy abuse cases. I have been paid by the hour for my litigation expertise on these issues, not through a contingency arrangement – as the Nussbaums' reference to "plaintiff attorneys" implies. As with any other lawyer, my fee reflects the value I bring to a case. It is ironic indeed for Mr. Nussbaum to take issue with my fee when it is he who is paid attorney's fees by the Catholic hierarchy to shut down cases brought by their victims of sexual abuse.

The Nussbaums Get the Facts Wrong, Time after Time

The errors I have noted so far are hardly the only ones in the Nussbaums' review. For instance, they write, "After 'the window legislation was passed,' over a thousand previously time-barred claims were filed against Catholic institutions." In fact, other institutions, such as the Explorer Scouts, faced such claims, among the thousand-plus, as well. In total, about 80% of the claims were against Catholic institutions. That should be no surprise, for Catholic victims were energized by the Boston Globe's disclosure of bishop's cover-up of abuse and mobilized to get their day in court, while other victims doubtless did not understand what the window meant or simply were not ready to come forward. After the one-year California statute-of-limitations window closed, I heard from victims of the Buddhist community, the Children of God (a cult that started at Berkeley), and various schools, among others. Delaware understood this, which is why the window it currently has propped open for victims will last two years, not just one.

The Nussbaums write that the Colorado Catholic Conference asked for "fairness and prevention. In fairness, the conference asked that the general assembly protect the welfare and safety of children in public institutions under the same rules and with the same real penalties applied to private institutions. How could Hamilton object to such a reasonable goal?" In fact, I don't object to that goal; I share it, as I made clear in Justice Denied. How many times in this book and elsewhere do I have to say that I favor elimination of all statutes of limitations for childhood sexual abuse for those like the Nussbaums?

What I found objectionable, instead, was the Colorado Catholic Conference's hiring of a pricey public relations firm to come up with a plan to kill SOL reform with a strategy of saying that the bill was targeting the Church because it did not apply to the public sector. In fact, the bill was not targeting the Church (any more than California's bill, which was used by a variety of victims and not just Catholic victims, targeted the Church). The political ploy of saying that it should also extend to the public sphere was cynically intended to engender opposition from public school teachers, among others. Those interested in the truth, rather than misleading quotations couched in lies, should read pages 85 to 92 of Justice Denied, where I discuss this topic.

The Nussbaums also complain, "Where's the call for withholding federal dollars?" I suggest trying page 47.

The Nussbaums' Inaccuracies Relate Not Only to the Book, But Also to the Evidence of Abuse, the Legal Standards for Proving It, and the Consequences of Liability for the Church

The Nussbaums also misleadingly suggest that child sex abuse is difficult to prove, for there is scant evidence of it: "Because sexual abuse is an act of darkness and secrecy, it often occurs hidden from sight. Such acts are hard to prove or disprove. Reliable evidence is crucial to uncovering, stopping, and punishing child abusers."

This argument is ridiculously weak in the context of the Catholic Church abuse scandal, where the Church's very cover-up often generated copious evidence. In fact, the Catholic Church has pristine files in numerous cases documenting the abuse and the cover up. They are lodged in the "secret archives" of each diocese. Mr. Nussbaum himself surely has read thousands of such pages by now as he has advised and defended the Church hierarchy's bobbing and weaving in response to allegations they know are true.

It is also weak, because there is plenty of corroborating evidence. It is the vanishingly rare child predator who limits himself or herself to one child. Plus, sadly, victims typically decline during and after the abuse. And the indicators are legion: lower grades, depression, loss of interest in outside activities, drug abuse, alcohol abuse, isolation, and the myriad of personal problems that attend having your childhood stolen from you. There is not an iota of empathy or respect for the challenges these victims face in MartyWorld, where protecting the hierarchy from the victims they created takes precedence over the victims themselves.

The Nussbaums also claim that: "In MarciWorld, a person can be tried and found guilty on the testimony of one person, the one person who stands to gain financially from his or her testimony."

Yet, as any law student knows, changing an SOL does not affect the plaintiffs' burden of proof, which remains heavy and a threshold that must be crossed before the suit goes forward. Nor does an SOL change rules of evidence or any of the other rules that surround a lawsuit and trial. All it does is change the date of going to court. Moreover, it is rare that the perpetrators in these cases only have one victim to face. As I point out in Justice Denied, in California, when one victim came forward, others frequently did as well, and sadly, it was not uncommon that the next victim was a sibling. Moreover, the Nussbaums seem fundamentally confused about the distinction between criminal and civil cases. If they are talking about being found "guilty," that is what happens in a criminal trial, not a trial involving damages.

The Nussbaums once again are off-base when they write, "In the case of churches, the financial impact falls not on the priest perpetrator, often long dead, but on churchgoers who must tithe, not to support ministry, but to support the plaintiff lawyers' forty-percent cut."

In fact, the financial impact falls on the church hierarchy, which orchestrated the cover-up that made them defendants in the first instance. And, as Mr. Nussbaum knows full well, settlements have been paid out of insurance proceeds and, typically, out of proceeds from the sale of lands owned by the Church that are not dedicated to religious purposes. For example, the San Diego Diocese had so many such properties, it did not even have to sell an empty lot in the middle of downtown San Diego to compensate its victims. When the Archdiocese there asked parishioners to assist in paying the settlement because it could not afford it, the federal bankruptcy judge was prompted to cry in open court out of pure frustration at the ongoing lies being perpetrated by the Diocese.

The Nussbaums Suggest That I Have Misrepresented Statute of Limitations Realities; In Fact, Those Realities Leave Numerous Victims Without Justice

The Nussbaums claim that I "leave[] the impression that, in most states, seven-year-old victims must engage legal counsel and file suit by age nine or forfeit their claims." They add, "This is false, and Hamilton knows it. . . .."

In fact, I carefully detailed the precise SOL situation. Had they continued reading, they would have read on page 17, after summarizing the move from short SOLs that began to run from the moment of abuse to SOLs that began to run at the age of majority, I wrote, "While more than half of the states instituted a discovery rule, some still capped the age at which the survivor could file a claim at age eighteen plus two or a few more years, well before most survivors are capable of making their abuse public."

I wrote Justice Denied because, as I learned more and more about clergy abuse, I realized that there was something fundamentally wrong with the American law of child sex abuse. Victim after victim has been locked out of the courthouse, even when their cases are air-tight. It is a moral outrage that statutes of limitations are giving predators a free pass, and preventing survivors from entering court before survivors are reading to enter. I can tell you that the stories and experiences of the many survivors who have contacted me since Justice Denied was published only reaffirm my conviction that this easy solution must be adopted in every state, if we are ever to live in a society that protects our children.

If you are one of the 25% of girls or the 20% of boys who were sexually abused, then you need to read this book. If you care about justice and want to learn the most direct way to learn the identities of the predators amongst us, then you need to read this book. If you want to know why the laws we have on the books now, like Megan's Law, have failed to identify the vast majority of child predators, then you need to read this book. It was written for the general public, because the need to change these laws as soon as possible is extraordinary and pressing.

If the Nussbaums truly want me to stop criticizing the Church's handling of child sex abuse, then they should drop the ad hominem attacks and lead the charge to persuade their Church (and the Church of my beloved husband and children) to drop its feverish opposition to SOL reform. As the second half of Justice Denied documents, the most publicly-active entity currently trying to halt SOL reform is the hierarchy of the Roman Catholic Church – as New York Times article illustrates. But this movement is not about the Church, in the end.

In one of the precious few reliable statements the Nussbaums make, they note that clergy sexual abuse accounts for only a small category of all sexual abuse victims, a fact I repeat more than once in Justice Denied. Yet that fact provides all the more reason to condemn the hierarchy for attacking legislation that would benefit over 90% of the victims – victims the Church will never help. Until the legal system works to protect children, instead of shielding predators and their enabling institutions, I will not back down. Get used to it.



Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 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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