At the beginning of 2004, the legal system seemed to offer little, if any, recourse for clergy abuse victims. However, I am happy to report that, over the course of the year, the legal situation changed, at least to some extent - leaving victims with genuine reasons for optimism about the future.

 In this column, I will contrast the state of affairs with respect to legal recourse for clergy abuse victims, at the beginning of 2004, with the state of affairs now. I will also sketch what still needs to be done if we are to truly afford victims some justice for the grievous harms they suffered, and if we are to do our best to deter future victimization.

The State of Affairs in January 2004
Here was the legal situation at the start of this year:

The situation in civil court was mixed, and dire in some states. Some state courts had held that a victim could not bring a civil cause of action involving sexual abuse by clergy against a religious institution - claiming wrongly that the First Amendment created a defense to such liability.

 Similarly, various states, such as Massachusetts and New Jersey, had laws on the books permitting nonprofit institutions such as churches to avoid liability for the tortuous acts of their employees or volunteers. As I discussed in a previous column, there was a time when charitable immunity was the prevailing rule. It has been on the wane almost since it first appeared, though, because it runs counter to the deep-seated American belief in holding those who harm others responsible for their conduct. Nevertheless, some states still retain the doctrine, and when they do, it drastically reduces potential liability for the Church, even for abuse that it was well aware of, and not only did not stop, but actually facilitated.

The situation in criminal court was bleak. Statutes of limitations for reporting criminal abuse were ridiculously short - in some states, lasting only two, three, or five years. But the reality is that it typically takes decades for these victims of trusted adults to come forward.

 And in some instances it was difficult to get the prosecutors' attention. Federal prosecutors, for example, simply sat on their hands.

 As I argued in a prior column, a religious institution's oversight of repeated clergy child abuse - when fostered by an institutional system that merely transfers abusers, exposing them to a new crop of potential victims - is illegal under the federal Racketeering-Influenced Corrupt Organizations (RICO) Act. RICO, though well-known as a way to prosecute the Mafia and the unions, by its language takes aim at organizations that facilitate repeated criminal acts - and the Church fits the bill. Yet there have been no RICO criminal prosecutions.

 What about state or local prosecutors? They failed to bring charges against the Catholic Church, even when there was a colorable argument.

 One exception seemed to exist in New Hampshire - whose prosecutors reached an agreement with the Church in which it admitted criminal fault. But in the end, the victims were re-victimized as neither the Church nor the government was willing to pay for the annual audit of clergy abuse demanded by the agreement.

The State of Affairs Now, at the End of 2004
That's the bad news. But what about the good news, arising from legal developments that took place in 2004?

 Not much good news came from prosecutors -- though prosecutors in Los Angeles were a striking exception, as discussed below. Generally, prosecutors either had their hands tied by the statutes of limitations, or lacked the political will to go out on a limb to change the law.

 There has been some legislative progress, however. For example, New Jersey now has pending legislation that would appropriately abolish charitable immunity. This legislation should pass nationwide: Religious and other nonprofit institutions must be held responsible to the victims they have had a hand in creating.

 But the lion's share of credit ought to go to the state courts. Numerous state courts issued courageous decisions in 2004 that allowed clergy abuse actions - criminal and civil - to go forward.

Repeatedly, religious institutions have claimed that their employment files should be immune from discovery. In defense of this indefensible position, they have invoked every conceivable privilege, from priest-penitent to doctor-patient to lawyer-client. They have also invoked the First Amendment, as though religious liberty should mean liberty from duly enacted laws.

 In most circumstances, however, courts have rightly found that these defenses do not close the door to discovery except in narrow circumstances, and that the First Amendment is simply not implicated by this kind of discovery. After all, the discovery requests do not seek religious writings or records of doctrinal discussions. Rather, they simply seek to find out whether the Church was aware of child sexual abuse by its own clergy and if so, what it did in response, if anything.

 A particularly inapposite invocation of the priest-penitent privilege came in the Arizona case of Waters v. O'Connor. There, a woman sent emails to a church music director that contained admissions she had sexually abused a sixteen-year-old boy. The music director was not a clergyperson. Accordingly, an Arizona appellate court recently - and wisely -- held that the "clergy-penitent" privilege did not apply. It was entirely right to do so: Emails to a choirmaster are a far cry from confidential communications to a priest in the secrecy of the confessional.

In Los Angeles, prosecutors scored a significant victory for clergy abuse victims when a court granted their request for discovery of "secret archive" employment files. The Catholic Church had raised meritless First Amendment and privilege defenses. The court rightly rejected them.

 In 2002, in Malicki v. Doe, the Florida Supreme Court had held that a religious institution could be held liable under tort in clergy abuse cases, and stated that it was following the growing trend. That trend continued in 2004. In the northern California consolidated clergy abuse cases, Judge Sabraw held that the Catholic Church is subject to neutral, generally applicable tort laws.

 Three state supreme courts are, or will be, considering this precise issue - of whether state tort law reaches religious institutions -- in the near future. First, in New Hampshire, the Court is considering whether tort liability should attach to the Jehovah's Witnesses. In that case, it is alleged that the Witnesses knew a child was being abused by an elder for years, and were asked by the child's mother to do something about it, but sat idle.

 Second, in Maine, the Supreme Court recently heard arguments in a case that will play a large role in the fate of civil child abuse cases in that state. Earlier, the Court had ruled that it had no jurisdiction in a case involving abuse by clergy of a disabled adult. Now, plaintiffs' attorneys urge the Court to decline to extend this holding to cases involving clergy child abuse.

 Finally, and similarly, in Wisconsin, the state's Supreme Court may reconsider past decisions that might otherwise bar clergy child abuse claims. Earlier, that Court had ruled in such a way as to protect a church from liability for clergy abuse. These decisions were deeply flawed. Now, the Court has a chance to reverse itself, and do the right thing.

What Remains to Be Done: A Great Deal, But There Is Room for Optimism
What remains on the agenda? A great deal.

First and foremost, every state legislature should abolish - not merely extend -- its statute of limitations for child abuse--both criminal and civil. Second, every state legislature should make sure its reporting obligations for such abuse are strict, and are applicable to all those who have contact with children; there is no reason to treat clergy differently, in this respect, from daycare workers.

 Every constituent, of every religion, should support such legislation. The Catholic Church and other religious interests may try to block this legislation. But this is not about religion; it is about crime - crime inflicted on the most vulnerable of victims, by those they ought to be able to trust most. Worshippers should make clear that they will not support a Church that lobbies against protecting its own - and their own - children. Indeed, they should demand that if a Church is to lobby at all, it ought to lobby for the measures that will prevent abuse. Early in this clergy abuse era, in a column for this site, I urged the Church to take a 180-degree turn and become an advocate for the children. That has yet to happen, but better late than never.

Every state court should rule - as so many wisely ruled this year - that we are all equal under the law. The First Amendment ensures the Free Exercise of religion, not the free reign of child abusers. Priest-penitent privileges protect the sacred confines of the confessional, not the file cabinets where ignored reports of abuse hide. The priest who merely transfers an abusing priest, is just as culpable as the daycare center owner who merely transfers an abusing worker. Anyone - and any institution - may become a tort defendant, if they negligently or intentionally cause harm. Anyone - and any institution - must provide the evidentiary discovery that is the foundation of our justice system.

For decades, American society perpetuated an unjust, cruel system that favored pedophiles and their complicit religious employers, and left children to be victimized again and again. Changing this system must be our priority. The good news is that the needed transformation in the law appears to have already begun.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues can be found on this site. Her email address is hamilton02@aol.com.