In a recent article in First Things entitled “The Flawed System of Sexual Abuse Settlements,” Francis X. Maier takes a swing at arguing that child sex abuse victims should be consigned to so-called “[a]utonomous reparations programs” and stripped from the legal system when they come forward. Before I get to the finer points of his argument to reject them, let me just say that he is affiliated with the conservative Ethics and Public Policy Center, which states that its mission is for Christians and Jews, and among other features, consists of “advising policymakers” to “apply the truth.” He is also affiliated with the Catholic Information Center in Washington, DC, which is run by Opus Dei, the Catholic organization I discussed here.
Separating Out the Public Relations from the Real Issues
Before turning to his systemic argument, it is worthwhile to point out how Maier mimics the American bishops’ public relations messaging, which is intended to persuade the public that there is no longer a clergy sex abuse problem. First, he makes sure to bring to the reader’s attention that the Roman Catholic Church isn’t the only entity guilty of unchecked child sex abuse on a large scale, as he points to the Boy Scouts and Los Angeles County. What he doesn’t say is that the Catholic Church is the one institution whose abuse has been so deeply systemic that its practices enabling child sex abusers are reflected globally. It constitutes roughly one half of all Christians in the world, and there seems no corner of this organization untouched by abuse. Whether they like it or not, they are caught in the spotlight by their own design. Regardless, the fact that there are other entities with the same problem doesn’t absolve the Church! It just proves how badly children have been treated across our society.
Second, he talks about how important child sex abuse prevention is and pats the bishops on the back. Let’s look at the facts. My nonprofit organization, CHILD USA, studied all 32 Archdioceses’ prevention programs and concluded that they are inconsistent and none contains all the elements necessary to fully prevent child sex abuse. The results were published in two peer-reviewed journal articles, which you can find here. No doubt, there might have been some improvements over the years, but neither the problem itself nor the cover-up is a relic of history. They continue to be elements of the Church, driving public relations and substantive decision-making away from the protection of children.
Given his affiliations and his parroting of the bishops’ misleading public relations, you might assume this is not an essay worthy of a response. But I believe it is. We are at a pivotal moment in history for sex assault victims’ rights, and his arguments echo the corporate tort reform movement’s ongoing attacks on victims’ cases, which would yield the same reduction in truth and justice.
The Issue of Billion-Dollar Settlements: The Answer Is Not to Exit the Legal System
To make the case for change, Maier points to recent massive settlements involving the Boy Scouts (now Scouting America), approximately $7 billion for over 60,000 victims, and Los Angeles County, $4 billion to around 7,000 victims, and then notes that there has been a great deal of sex abuse in state-based institutions, causing “sticker shock” for the states. Now, if you are an ordinary citizen, I would imagine you might be more disturbed by the fact that these trusted institutions have had so many child sex abuse victims than by the settlement amounts. I imagine you would also be concerned when I tell you that the state-based institutional cases more recently emerging—whether foster care or juvenile detention facilities—feature a disproportionate number of victims of color. The priority is the protection of our children, right? The knowledgeable reaction to these numbers should yield a renewed effort to find justice for as many victims as possible and root out child sex abuse with as much truth as possible. That does not factor into Maier’s argument.
For Maier, the legal focus should be on the perpetrators, as though the institutions are victims as well, and prevention should be a priority. Then, if the victims need support or a therapist, they should be able to get payment from some kind of fund he doesn’t elaborate on. The beauty of that fund to him is that it would exclude lawyers and litigation funding companies. Yeah! It will be a lot cheaper.
So let me get this straight: Maier thinks it would be adequate to (1) criminally prosecute perpetrators, even though barely 11% are ever convicted; (2) follow the Church on prevention, even though its policies are inadequate and it has endless resources to move offending priests around the globe, and still does; and (3) throw some money at the victims. Get those pesky attorneys, judges, and jurors out of the way.
He is dead wrong and here’s why. We will never defeat the monster of widespread child sex abuse so long as hidden and disturbing truths are kept quiet. His scheme is built for secrecy. Criminal prosecution of the perpetrator is righteous, but it doesn’t have the capacity to fully explain how an institution let a 50-time abuser operate with impunity for decades. It takes civil litigation and the required discovery to uncover that truth. While prevention is deeply important, it’s prospective. Finally, a fund doesn’t do anything to push the truth to the public or inform parents about where children may not be safe. The only reason we know so much about the ugly machinations in the Church, Scouts, LA County, Penn State, boarding and public schools, Michigan State, USA Gymnastics, USA Swimming, Chicago Blackhawks, Jehovah’s Witnesses, Baptists, and more is civil litigation.
His stated goal is to reduce costs, which is fair enough on the surface. His unstated goal is to keep as many secrets as possible inside the organizations so that their image and fundraising are unaffected. Sacrificing the latter to the former is not the American way. In the United States, if you harm someone with a cover-up, you pay for the harm. And your cover-up is exposed for the world to see. It’s only fair. So let’s set aside this radical attempt to exit the courthouse.
Who Is Actually Making the Legal System Miserable and Re-traumatizing for Victims
I also take exception to Maier’s suggestion that a reason to shut down the lawsuits is that the legal system by itself is too hard on the victims. Well, yes, the legal system can be difficult for anyone. Sadly, it can be particularly traumatizing for Catholic victims as the bishops pay attorneys top dollar—as in Wall Street, white shoe law firm dollars—to play hideous hardball games against the victims. Want to make it easier on victims and less expensive? They could engage in fair and transparent negotiations, thereby saving time and misery..
Victims frequently say they want to know why they were abused—what happened that led them to such horror while others were spared. They need discovery to learn the facts of their case. And in the Catholic context, the bishops often have the information they seek in their files. But the bishops pay high-priced corporate law firms to battle the Church’s own victims just like they would in a cutthroat corporate case. These very same firms love to invoke the First Amendment as though it is a refuge for scoundrels who let so many children suffer. They seek delay regardless of the cost, and despite their knowledge that many victims are older and may die before a settlement. To be clear, many institutional defendants are not remotely kind to the victims in the process, but it is particularly rich to hear from a Catholic advocate that the courthouse doors should be shut because victims are being re-traumatized.
A Rational Way Forward for Dealing with the Large Settlements Caused by Decades of Failing to Protect Children from Sex Abuse
Having said all of that, it is true these are large settlements and there will be more on the horizon due to the simple fact that there are so many child sex abuse victims who have not yet been accorded justice, many of whom were children who desperately needed loving care, not further abuse. Think of the issue this way: there are two sets of victims. Those from the past who were treated unfairly by the system and SOLs, and those in the future. We need to reckon with the former and proactively prevent abuse of children now and in the future.
Maier argues that the current legal pathway “does nothing to heal victims.” Wrong again. The vast majority of victims seek three outcomes in a lawsuit: validation by the legal system that what was done to them was wrong, some means of preventing the institution that harmed them from harming any other children, and compensation for the harm done. Now, many will say at the beginning that they “aren’t doing it for the money,” for fear they will be judged. They should be doing it for the money, though, because they need compensation to support them as they move forward with the trauma inflicted on them, which can lead to not just psychological injury, but physical as well. Why should they pay for the illness, therapy, and failed achievements caused by the institution that endangered them? That’s not American justice. There is empowerment in being able to bring a claim and literal healing when compensation is fair. The most cynical in the anti-victim movement take those victims at their word. In 2006, Ohio lawmakers did, at the bidding of the bishops, and instead of providing justice to the victims, they gave them a “civil registry,” which “permitted” them to hire an attorney to tell the attorney general they were abused. Virtually no one has ever used it. To this day, the only victims Ohio has accorded actual justice by opening the statutes of limitations (SOLs) are Boy Scouts.
The private entities Maier seeks to protect have found solace and protection via Chapter 11’s bankruptcy reorganization provisions. (Let’s be clear here: none has filed for Chapter 7, which involves dissolution. These bankruptcies are about protecting their assets, despite the bishops’ and Maier’s misleading implication about “bankruptcy.”) The Chapter 11 system is not pretty for survivors and also suppresses too much truth, which means it needs major revisions. But the private entities have protected themselves with this feature that is not available to states, cities, and municipalities. They also typically have insurance coverage, which Maier fails to mention. Insurers have been taking some extreme positions as of late to avoid paying covered policies. They need to be required by the states to operate with transparency and in good faith so that they pay their fair share.
Dealing with State, County, and Local Child Sex Abuse Cases
But how do public entities find the dollars to pay for the many victims who need to come forward now? The only example we have seen so far appeared in the unfortunate moves of Maryland’s Gov. Wes Moore. His state was facing budget pressures and chose to take funds out of the victims’ compensation. The recent Maryland law that opened up the statutes of limitation permanently was the first SOL window to contain caps of any kind. Caps are a slippery slope, but Maryland’s were generous enough to generate meaningful justice: the window capped recovery from private institutions up to $1.5 million/occurrence and from public entities, $890,000/occurrence. This year, facing a budget shortfall, Maryland lawmakers and Gov. Moore ratcheted the caps way down in two ways. First, they reduced the numbers to $700,000 and $400,000, respectively, and they eliminated the “per occurrence” element. The former are so small as to dissuade many attorneys from taking these cases, given they are contingency fee cases and they will not be paid for three to five years. The latter removal of “per occurrence” is patently unfair: it means that a victim abused twenty times is treated identically to the one abused once.
States and local governments find funds in various ways. Instead of running away from the bad acts of their state, which led to their state’s especially vulnerable children being sexually abused, they need to think creatively and humbly about their obligations and opportunities. This back-up of cases is a short-term problem, not a never-ending one, assuming forward-looking criminal and civil SOL elimination and dramatically improved prevention policies and practices. May I suggest a short-term diversion of funds from casinos, the lottery, and/or marijuana sales? There is little that is more public-serving than making the victims of child sex abuse whole—this positive energy extends to their families, communities, and even the country as a whole. Then, investing in the right prevention policies will save states billions in the long term.
We have seen again and again that private institutions prioritize their own image and reputation at the expense of the victims. No state should be permitted to follow that ugly path and instead should make the remuneration of their victims a righteous cause for the sake of the people.
There is another difference for the public institutions. The states actually receive income from many cases, by law, because as part of the settlements, the victims are required to pay back funds that were previously paid by Medicaid for abuse-related treatments.
Prevention, Prevention, Prevention
At the same time that the states develop pathways of justice for their victims through SOL reform, they need to institute full-scale, easy-to-use, science-based, cost-effective child sex abuse prevention. As the leading authority on child sex abuse statutes of limitation, CHILD USA has seen what the future of the movement looks like. It is essential to remove the SOL barriers so that society can catch up with the victims from the past. Then prevention is everything, and for many youth-serving organizations today, it’s just too expensive. CHILD USA’s social scientists have spent years developing a prevention program that meets all of the criteria I mention above. True justice combined with affordable, high-quality prevention is what children need, not a wholesale retreat from the courthouses into secrecy.
