Government’s Sex Abuse Hypocrisy Comes Due

I worked in senior staff positions in Catholic dioceses for twenty-seven years. For nearly all of them my duties included, in part, dealing with the legal, political, and media fallout of clergy sex abuse. A favorite theme of those years, from plaintiffs’ attorneys to the mainstream press, was the hypocrisy of a Church that preached sexual purity while harboring a tribe of sex predators. It was an ugly experience, but not an unwarranted one. As a parent myself, I believed that the punishment of abuse perpetrators and those who knowingly protected them was only just—Roman collar or not. So was ample compensation for their victims.

What struck me as much less just, and laced with an even bigger helping of hypocrisy, was the refusal of public authorities—including my own state’s then–attorney general, Pennsylvania’s Josh Shapiro—to acknowledge the same or worse abuse problems in their own institutions, and deal with them in the same punishing manner. 

In litigation related to sexual abuse, public authorities have typically hidden behind some version of sovereign immunity. Here’s their argument. Unlike private institutions, public ones are “owned” by the people at large and provide crucial public services. Thus they need to be shielded from catastrophic lawsuits. In most cases, this includes minimal windows to report sexual abuse. It also involves far lower caps on financial penalties than those that apply to private organizations for exactly the same misconduct.

Abuse victims, no surprise, see things very differently. Nor are they quiet about it. They argue that sovereign immunity diminishes the likelihood of litigation. The reason why is simple. The payoff for plaintiff attorneys seeking a settlement against government entities is too paltry. This in turn reduces the instinct in public authorities for vigilance and increases the temptation of coverup. Yet child rape in a public institution is no less loathsome than in a private one. It’s no less worthy of justice and compensation. It’s also no less—and evidently even more—common.  

In recent years, pressure from victims’ groups has forced some state legislatures to adjust their laws to better balance public and private financial liability in abuse cases. The result is not what lawmakers intended. Any delusion that public authorities are “better” at running their juvenile institutions, or “cleaner” at policing sexual abuse therein, is deader than a week-old corpse. The Catholic Church and other private organizations were savaged for their sexual abuse problems. Now it’s government’s turn.

A year ago, in exactly this space, I highlighted the disastrous scope of sexual abuse—and its financial impact—in just one California county’s juvenile detention system. Similar massive problems surfaced in Maryland’s public systems. The response of stunned (and formerly moralizing) lawmakers in both cases has been revealing: a scramble to stanch the arterial money bleed from thousands of abuse lawsuits. On August 27, the Wall Street Journal reported that

Los Angeles County has begun paying up to 11,000 people nearly $5 billion to settle decades-old claims of childhood sex abuse at foster homes and juvenile-detention centers.

There’s an issue: The county’s top prosecutor says the majority of claims might be fraudulent. County defense lawyers disagree and want to keep settlement payments moving, as going to court could prove even more expensive.

The nation’s largest county has become the epicenter of a fiscal quagmire for local governments and school districts across California. It began with a state law aimed at helping survivors of childhood sexual abuse seek recognition and recompense later in life. State lawmakers are considering ways to curb the costs before their legislative session ends Aug. 31.

The [2019–20] law temporarily suspended the statute of limitations for past childhood sexual assault, subsequently extended the maximum age for alleged victims to seek civil damages to 40 years old, from 26, and reduced other barriers to bringing civil claims . . . 

A survey of 19 of California’s 58 counties earlier this year estimated they [now] face liabilities of at least $12.4 billion since the law passed.

In the end, California lawmakers cobbled together a last-minute deal that fully appeases no one. They rejected caps on payouts, so abuse victims can continue to sue public entities for unlimited damages. New prevention and reporting measures are also mandated. But many older claims—claims from a time when abuse was rarely acknowledged or discussed—now face a higher evidence threshold. And the deal circumvents victim testimony to committees, triggering more abuse survivor criticism. Gov. Gavin Newsom has until September 30 to sign the compromise into law.

As chronicled above, various California officials claim that many of the state’s current abuse lawsuits are fraudulent. And today, some no doubt are. For more than two decades, I worked with one of the country’s leading defense attorneys for private institutions on abuse-related cases. His assessment was quite candid. The great majority of sexual abuse cases brought against the Catholic Church from the late 1980s to the early 2000s had merit. After that, precisely because of the dollar signs involved, the number of exaggerated, “misremembered,” and false cases sharply increased. 

As the Journal article notes: “Critics say the potential for vast settlements has attracted trial lawyers who often collect 40% of the victim’s payout as compensation for taking a case. Some [law firms] have fought lawmakers’ efforts to contain or even quantify the costs to taxpayers.” 

A belated discovery, but true. Somewhere in the late 1990s or early 2000s, the plaintiffs’ bar saw a gold mine in sex abuse litigation and industrialized the issue into a gigantic money-making machine with a bottomless ATM. Plenty of defense attorneys brought the cost implications of this, not to mention the potential for serious litigation abuse, to the attention of lawmakers more than a decade ago. They thought they were safe, so they shrugged off the warning.

Now they’re facing the consequences. And it’s odd, and bitterly ironic—and dishonorable—that lawmakers would expect any different punitive treatment, or any special sympathy, for the disasters they themselves created. They were tasked with protecting the young. In too many cases, they didn’t do it; and they didn’t do it while holding other institutions accountable to a degree they themselves evaded.

Abuse victims of public institutions suffer just as deeply as victims of private institutions. They deserve exactly the same attention, compensation, and avenues of legal redress. Pain is a great educator and motivator of reform. It’s time for public authorities to accept that, stop the blizzard of excuses, and do the right thing. 

Image by Tony Webster via Creative Commons. Image cropped.