Testimony re: A.1771 Markey
Published on March 8th, 2013
Public Hearing Testimony
Submitted by the New York State Catholic Conference
to the Assembly Standing Committee on Codes
Re: A.1771 (Markey)
Assembly Hearing Room
250 Broadway, 19th Floor, Room 1923
New York, New York
March 8, 2013
The protection of children is the hallmark of a civil society. Respect for the dignity of every person and the sanctity of life imposes a sacred moral obligation to protect the young and vulnerable as a precious treasure. Protection of children and young people from the crime and tragedy of sexual abuse is a fundamental component of this obligation.
For nearly a decade, reacting to widespread shock and revulsion at past and present sexual abuse of minors in schools, colleges, churches and public facilities, the New York State Legislature has considered the most effective ways to ensure the protection of children.
New York historically has been a national leader in the protection of children and vulnerable adults, and there has been broad agreement in the Legislature on the virtue of more comprehensive, proactive approaches to protecting children from abuse. There have also been strong, principled disagreements – in New York State and in other states — on the question of whether to retroactively punish organizations that once employed individuals accused of abuse.
While multiple competing approaches have been advanced, it is clear that there is common ground on which to make progress on this issue:
- There is broad agreement New York should be a leader in protecting children from abuse of any sort.
- There is broad agreement that abuse occurs wherever children and adults interact, and that children should be protected in every setting, public and private, including homes, schools, colleges and public facilities.
- There is broad agreement that victims should have equal access to justice and not be treated unequally based on where their abuser may have worked.
- There is broad agreement that effective prevention is key to addressing this societal problem.
- There is broad agreement that the criminal and civil statute of limitations should be increased prospectively by a reasonable number of years.
The New York State Catholic Conference strongly supports legislation that provides a comprehensive, prospective, preventive approach to sexual abuse of children in all places, public and private. The Conference supports the concept of adding clergy to the list of mandated reporters of suspected abuse, assuming the reporting requirements apply evenly to all mandated reporters and respects the sanctity of the confessional. The Conference supports the expansion of mandatory criminal background checks and training for employees and volunteers who interact with children. The Conference supports strong, swift and certain criminal punishment for abusers. We supported the 2006 elimination of the criminal statute of limitations on felony sex offenses, and support prospectively extending the civil statute of limitations to give abuse victims up to five additional years to sue their abusers.
There is already a bill (A.575, Cusick) with wide bipartisan support before the Assembly that would extend the statute of limitations prospectively for both criminal prosecution and civil action against certain sex offenses — providing victims with additional time to report their abuse. The New York State Catholic Conference strongly supports this bill.
What the Conference does not support is the proposal contained in A.1771, Markey to retroactively waive the statute of limitations on civil lawsuits claiming sexual abuse from decades ago. Statutes of limitations are a fundamental protection against fraudulent lawsuits. They are fundamental to American jurisprudence and in place in every jurisdiction in the United States.
Allowing lawsuits claiming sexual abuse at any time in history does nothing at all to protect children today but imposes potentially catastrophic costs on organizations that provide charitable, educational, health care, spiritual benefits essential to communities across New York State. Such an approach requires organizations to expend limited resources – already under pressure in this economic environment – to defend lawsuits related to alleged conduct about which they have no knowledge, in which they had no role, potentially involving employees long retired or dead, based on information long lost, if it ever existed. Defending these lawsuits shifts the burden and the cost to innocent parties who depend on these organizations for services and support today.
Profoundly troubling, because of existing “notice of claims” requirements in law related to bringing lawsuits against public institutions, the proposed retroactive invitation to sue in this particular bill applies only to private organizations – churches, private schools and colleges. Without amending the notice of claims provisions, public schools and colleges where media reports have documented pervasive sexual abuse of minors, are effectively exempt from the “window.” The practical result is that many sexual abuse victims would be denied the retroactive opportunity to sue, based on the meaningless distinction of where the abuse occurred, or who employed their alleged abuser.
If the goal of the legislation is justice for victims, all victims must be fairly. Assembly Member Markey, acknowledged this fact when she amended her original bill in 2009, fixing the notice of claim issue. At that time, she told the New York Times, the inclusion of public institutions made it “a better bill” (NY Times, 6/4/09). She subsequently abandoned that approach for reasons unknown, and has reverted to a bill that creates two classes of victims, based solely on where the abuse occurred.
The Catholic Conference is not alone in its opposition to this legislation. The concept of retroactively waiving the statute of limitations on civil lawsuits has been rejected in more states than have adopted it. High courts in seven states, including Illinois and Florida, have held that retroactive waivers of the statute of limitations are unconstitutional, concluding that changing the statute of limitations after the fact robs both plaintiffs and defendants of the reliability and predictability of the law. The New York State Bar Association has repeatedly opposed attempts to retroactively change statutes of limitation:
“Over time, evidence in lost or destroyed and witnesses die or become unavailable or, when they are available, their memories are less reliable. These circumstances make proof and defense of such actions extremely difficult, if not impossible, for all parties involved.”
— New York State Bar Association’s Committee on Civil
Practice Law and Rules Legislative Report #8, Feb. 25, 2003
A Call to Common Ground
Today, based on tragic experience, the Catholic Church, among many other private and public organizations in New York and elsewhere, is implementing some of the most effective and far-reaching practices to prevent abuse by proactively educating children and adults; requiring training and criminal background checks for adults interacting with children, and implementing policies that eliminate opportunities for sexual misconduct.
With so such support for common-sense measures that proactively protect children, the New York State Catholic Conference — in concert with parents, educators, religious and community leaders across the state — urges the state Legislature to enact proactive measures to protection all children in all settings in every corner of the state.
We thank you for the opportunity to submit this testimony and for considering our views.