Child Abuse Victims caught between two New York Senate Bills

Advocates for Child Victims Act

Child sexual abuse must be stopped, and the abusers punished. No one disagrees with that statement.  Right now, many victims cannot get justice because of the statute of limitations – a time limit on when a lawsuit can be brought against the abusers. We need a law to get rid of the statute of limitations in New York.  According to constitutional scholar and Cardozo Law School Professor Marci Hamilton, New York is one of the worst states in the nation for child sexual abuse statutes of limitation.

But what is the best way to do this? There are two bills up for approval in New York State -- but only one will become law. Why should we be concerned about which child abuse bill becomes a law?  Advocates for abused children have been trying for many years to get the Child Victims Act (CVA) to be law. Sponsored by democrats, the CVA has never passed the republican senate in New York.  Recently, a new bill was introduced by a republican senator and has met with quick approval by other republicans. Is this because the true sponsors are overjoyed with a bill that lets all the offending institutions evade their responsibility as abusers? 

Will one of these bills be more helpful to child abuse victims than the other? The rules proposed for each bill need to be looked at closely.

The Child Victims Act (CVA) is New York Senate Bill S809, sponsored by Senator Brad Hoylman (D). This bill does away with statutes of limitations for prosecuting child sexual abuse crimes and for filing civil lawsuits for damages against individuals, public institutions, and private institutions. Importantly, it also creates a one-year period during which victims who were abused and missed the statute of limitations reporting time period can seek the justice they have been denied.  This is easy to understand: no statutes of limitations and a window for those who missed out on getting justice.

The other bill is more complicated, will have financial consequences for New York taxpayers, and will allow some of the abusers to avoid any responsibility for their horrendous actions.

New York Senate Bill S8736  sponsored by Senator Catharine Young (R) sets up a fund that will be used to compensate victims that file an application and who meet requirements determined by officers chosen by lawmakers.

Some facts from Young’s bill:

The bill states that due to the amount of time that may have passed since the abuse took place, the claim can’t be pursued as a regular lawsuit.  Who is deciding this? Such a decision should be based on the individual case and discussion is between the victim and his/her lawyer.

Young’s Bill may help some people in cases where their sexual abuser has no money, can’t be found, or is dead. Many others will not be helped such as those whose abuse happened a long time ago and where the perpetrator was from an institution like the Catholic church. Institutions can be sued even if the perpetrator is dead.  Marci Hamilton said on Twitter: “Sen Young's bill is actually a New Joke for child victims  It should be called the Institutional Subsidy Act  Lets all institutions off the hook  Loved by Dolan and insurance companies.”

Young’s Bill would allow people who were abused to be represented by a lawyer. But the requirements of the bill decrease the chance that a lawyer would really be interested in the case.  The lawyer would have to conform to the rules of Young’s bill. 

Because institutions like the Catholic church, Boy Scouts, yeshivas, and insurance companies would not be financially responsible, compensation would be limited to what the rules allowed. It’s a fact that lawyers want to get paid for their services and with this bill, with its fixed compensation, they will not want to take these cases. Then the victim will be dependent only on NY State rules.

The CVA would open a one-year window for people who missed the statute of limitations, but each person would have an interested lawyer and a better chance of success.   

In Young’s Bill the claims cannot include punitive damages. Punitive damage awards are meant not to compensate the victim but to punish the offending party for reckless or shocking conduct*. Courts have held that punitive damages can be awarded only where the conduct to be punished approaches criminality.  

*This bill will not help me.  After being raped by a Catholic priest along with my brother, I was tortured for months by Dominican nuns. I was smothered with a pillow by a nun with intent to kill me.  I was in a coma for many months and left with brain damage that affects my speech, vision and hearing. My brother killed himself because he couldn’t accept what they did to both of us.  I personally know of others who were abused in New York and who were crippled or died. The perpetrators need to be forced to stop abusing and murdering children and hitting them in their pockets is an effective way to do it.

The process of choosing the decision makers and what the victim has to go through is unacceptable. It is open to prejudiced interpretations by those who make the decisions – the victim would have to “go through the mill” and be re-victimized.  The victims, if they want a lawyer will most likely have to pay the lawyer’s retainer fees unless they qualify for free help.  Will the victims have to go through a financial evaluation, another stress on already abused person?

The chief administrator of the plan is selected by the NY state comptroller along with leaders of the senate and assembly.  So, this means that lobbyists and others with their own agendas can influence the “leaders” and the comptroller.  We will then get a chief administrator who is under the influence of those who chose him/her.  Then, like a domino effect, the people chosen down the line are also suspect.

The chief administrator then appoints the Hearing Officers who will decide the merits of each victim’s request. 

The chief administrator is authorized to accept contributions by individuals, businesses, or “other entities” to add to the $300 million compensation fund. The fund money comes from the more than $700 million in asset forfeiture funds controlled by Manhattan District Attorney Cy Vance Jr.'s office.  These forfeiture funds come from money taken from terrorist activities, drug related crimes, and other criminal and civil offenses. Again, here is the opportunity for special interest influence on the outcomes of victims’ requests.  Who are these “other entities”?  Do they include for example the Catholic Archdiocese of NY, other religious denominations, schools and universities?  So the abusers can control the money.  Do you trust them?

Senator Hoylman questions whether it is legal to take funds from Vance's office. Even if it is legal, it is taking money from worthy criminal justice programs like the purchase of rape test kits and cameras for public housing at the expense of protecting "child sexual abusers and institutions who harbor them."  So more people are abused by the mis-use of the money. It is not clear whether any of the processes and the use of money allocated for other things will put some type of tax burden on New York residents.

When the victim files a claim he/she must say why they are eligible for compensation and how much money they want.  These are people with complex histories and multiple disorders – even difficult for teams of experts to understand. Some of them, like my husband have complex post-traumatic stress disorder, others have psychological damage or physical disabilities.  Will the Hearing Officers have the qualifications to really understand whether a victim is eligible? Will they have to hire “experts” – also of their choosing and spend more taxpayers’ money. 

Will the amount of money in the fund be enough?  Will these Hearing Officers or their superiors change limits on the amount of compensation if the money runs out?  Even with the 5% allotted to the fund yearly and possible contributions the administrators of the fund will necessarily be frugal with the amount. Will they award victims what they deserve?

Members of the clergy will have to report to the district attorney any information they have that a child was abused by a clergy member within 20 years prior to the bill becoming law. My husband was abused 70 years ago. Or they must report if they know that a clergy member who is still active in the institution has abused a child.  My husband’s abusers are all dead, but the Church is still in business. The clergy member does not have to provide this information if came from confidential communications (like confession) or was under privileged law or if the abuser is dead. It seems that the clergy member would not have much to say – the designers of the rules appear to want it that way.

I know that all the abusers and especially the institutions would like to see the victims die off before they get justice or fair compensation.  Everyone – voters, lawmakers, child abuse advocates, victims and their families should work together to ensure that the best Bill – the one that will help the most victims gets passed this time. We are hoping it is the Child Victims Act.

In Memoriam: Earl Baker Wert, M.D. (1913-2001)

Earl and me cooling down after a race

Earl and me running on track

Earl was my closest friend, the best one I had in my life. I think about him often and wanted to let you know that there are good people in this world.  When he walked on I was very sad.  He was also a great person who made a lot of contributions to humanity.

 

Earl was a star on his high school track and football teams. He went to the University of Pennsylvania Medical School and became a doctor in 1940. Earl served in the United States Army (1945-47) as a pathologist at the Army Institute of Pathology in Washington, DC.  In 1947, Earl taught pathology at Harvard Medical School, Boston, MA. 

In 1948, Earl and his wife moved to Mobile, AL.  (where I later met him in 1983). Earl was elected Mobile County Coroner and held that position for three decades.  He used to tell me that I had a lot of muscle and that he would give me a free autopsy anytime I wanted it!

Earl was an expert in clinical and forensic pathology. He was good at finding the cause of death in homicide cases and he was a pioneer in the study of vitreous humor of the eye to help determine causes and time of death.  He was Director of Pathology at the Mobile Infirmary until he retired in 1986.  He was also a Past-President and Founding Fellow of the Association of Clinical Scientists.

Earl’s scientific presentations were always timely, informative, practical, and he used gentle humor. He used to talk to me about his work and he brought me to his birthday party at the Mobile Infirmary. We walked in wearing our running clothes, he blew out the candles on his cake and then we went back out to finish our usual run.

Earl played piano and sang in a barbershop quartet. He knew foreign languages (he was fluent in French, and proficient in German and classical Greek). He loved to travel (he and wife often toured Europe, sometimes with their children).  He liked history (he studied the naval blockade of Mobile during the Civil War and the Battle of Verdun during World War I). He liked athletics (he was good at tennis and was an avid runner). He took up running again at age 65, often competed in the Boston Marathon, and held five age-group records for the Pike’s Peak Race in Colorado. He was 30 years older than me.  He had many State running records.  I just had one State championship at age 47 for the two miler.

I met Earl in 1983 at running races in Mobile, AL.  We felt like we were friends for life the first time we met.  We ran races together, he took me to the Blue Angel Marathons in Florida, sleeping in a tent.  We went to New Orleans races. We biked together for 10 miles at a time.  He had birthday party races at his home in Dog River every year.  He paddled a canoe for miles on the river and once heard a thump – it was an alligator! He was twice president of the Port City Pacers, a large running club in Mobile.  We ran on the track together many, many times. Once when we were running I fell and hurt my finger.  Earl went in his shed and made a splint for my finger out of a piece of aluminum. 

When I moved away from Mobile in 1992, I came back to visit him several times. We remembered the good times we had running together. 

Because of all his athletic activities Earl was always strong and healthy right to the end of his life. He was a true doctor of medicine and human nature.