Charitable Immunity

Monday November 15, 2004

Charitable Immunity Clause / NJ Assembly Bill A2512

Despite the efforts of numerous victim/survivors of sexual abuse and the intention of several assemblymen to bring to a vote, the elimination of the Charitable Immunity Clause retroactively in cases of grow negligence involving the sexual abuse of minors, the Bill did not arrive on the floor for a vote on November 15 as anticipated. Nevertheless, I thought it both appropriate and necessary for my website “parishioners” to know why I support this bill.

To be sure, I had certain reservations about this bill when the first attempt was made to introduce it for discussion into the NJ Senate Judiciary which attempt failed. However, over the last year, I have come to the reluctant conclusion that it is necessary not only for the protection of children in the future but to balance the scales of justice for the hundreds of victims of sexual abuse who are still waiting justice for what they suffered at the hands of clergy, many of whom have never been brought to justice and some of whom continue to function as priests in pastoral ministry. How true the axiom, “Justice delayed is justice denied.”

First Some History

The Charitable Immunity Clause was introduced many years ago in order to prevent the initiation of frivolous suits against charitable institutions by members of those institutions “who, in virtue of their membership, benefit from their services and activities.”

In as much as charitable institutions are supported by the free-will offerings and donations of their membership, it seemed right and reasonable that members who join of their own volition and who engage freely in the activities of those institutions not be permitted to sue themselves, thus placing in jeopardy ‘their own assets’ as it were as well as the charitable assets of the entire organization. Moreover, such a liability could also curtail or even defeat the purposes for which the charitable organization was established.

I assume there may have been opposing voices, e.g., persons who may have suffered personal injury or emotional trauma as result of a fall or the neglect of an officer or other member of the institution. Nevertheless, the clause was added and legal protection granted to charitable institutions unless suit might be brought under some other legal title or law virtually overriding this exemption.

In as much as I am not fully cognizant of the all the pertinent legislation in this regard, I am unable to cite examples of such potential ‘overrides.’

In any event, victims of sexual abuse by clergy and victims of other ‘charitable organizations’ such as the Boy Scouts, or the American Boychoir School turned to civil suits as a last resort remedy in order to obtain justice for the crimes which were committed against them years ago when they still minors, some as young as nine years of age!

It is essential to understand and appreciate the fact that for a variety of reasons, victims of sexual abuse do not disclose their abuse for many years. It is my contention that despite the review initiated by the National Review Board appointed by the US bishops and the study by the Jay Commission conduced under the auspices of the Review Board, there is a strongly held opinion that the number of abuse victims is much higher than reported in the study. _(I was honored to have been one of several victims’ advocates to be interviewed by the National Review Board in March of 2003. My name appears in the alphabetical list in the addendum of the report just above that of Cardinal Law!)_

Disclosure is no less difficult for victims of incest but the impact of abuse by clergy is exponential with the passage of time. Many victims of sexual abuse by clergy who disclosed their abuse were chastised by church officials or at least chastened by their cool response. Many victims who later told their stories to their parents and other family members were not believed and some were scolded.

Victims bury their abuse. Some are even successful at repressing the memory but they are not successful at repressing the emotional and psychological damage. Victims become dysfunctional at many levels and don’t know why. Marriage failures are common among victims of sexual abuse who fail to recognize the effects of their abuse.

It is not unusual for victims of sexual abuse to repress the memory or at least consciously bury their wounds in the most secret recesses of their mind for as many at 40 years or more. Comments by relatives, friends or church members at large such as, “Why don’t they get over it and get on with their lives,” or worse, “Why didn’t they distance themselves from the abuse when they realized what was happening; they should have known better.” are not helpful and over time tend to re-victimize victims.

Such comments reveal the incredible ignorance of the general population about the life-long effects of sexual abuse. The literature on the effects of sexual abuse is quickly becoming voluminous. There is no longer an excuse for ignorance.

Impact of the Statute of Limitations

As with the Charitable Immunity Clause, there may have been good reasons for the limitation of legal redress for crimes committed years ago.

In as much as it is difficult to collect evidence with the passage of time due to memory loss, death of witnesses, etc., legislators rightly introduced laws that would decrease frivolous but expensive criminal prosecutions with little hope of success due to lack of sufficient evidence.

Recall that the criteria for criminal indictment and proof of guilt is much more stringent than the criteria for a successful civil suit. Criminal conviction requires proof beyond a reasonable doubt. Civil suits require only a high probability or strong likelihood of injury or damage.

For most states, statutes of limitation for crimes runs from two to seven years, depending on the nature of the crime. Murder is an exception. To my knowledge, no state has a statute of limitation on the prosecution of murder but sexual abuse comes close to murder. The “slaying of their souls,” a term used by Fr. Steven Rosetti, PhD, Executive Director of St. Luke Institute, a treatment center for clergy, is not too strong a term to use to describe the effect of abuse by clergy. For this reason, the Statute of Limitation should also be eliminated in cases of sexual abuse.

Despite existing legislation that requires such crimes to be reported, in the majority of cases which have been publicized over the past four years since the disclosures in Boston, most crimes were committed over ten or twelve years ago and in many cases as long as 40 years ago.

When victims or their advocates reported their abuse to prosecutors, they (prosecutors) were unable to do anything about them due to the expiration of the statute of limitations.

Attempts to move a bill for the elimination of the Statute of Limitations have not been successful leaving victims of sexual abuse with no alternative than remediation through a civil suit.

Case closed? Criminally, yes unless and until the removal of the Statute of Limitations.

Civilly? Yes, in most cases due to the Charitable Immunity Clause. Catch 22!

Morally? Of course not. However in the majority of cases, the Church did not take the high moral ground but preferred to settle for the minimum, e.g., limited payment of or reimbursement for counseling but only after giving into pressure by victims and victims’ advocacy and support groups such as SNAP or LINK-UP (perceived by some bishops as a group that is “out to destroy the Church!”.

During a recent hearing on the removal of the Charitable Immunity Clause conducted by Assemblyman Cohen, chair of the Assembly Finance Committee, two attorneys representing the NJ Conference of Catholic Bishops submitted a plea to eliminate the retroactivity of the clause or to decrease retroactivity to 12 years. Stating their case, they stated, “It is unfair to change the rules of the game in the middle of the game.”

Although they were fulfilling their fiduciary responsibility to represent the bishops, their choice of words was unfortunate. The use of the word “unfair’ brought to mind the words of the Lord to the people of Israel, “Is it my way that is unfair? Or is it your way?” Familiarity with the stories of victims of abuse should make clear that Church officials were far from fair in their dealings with victims of sexual abuse.

The use of the word “game” was equally unfortunate unless it applies to the “games’ Church officials have been playing with victims of sexual abuse. Victims do not view their pursuit of justice and healing a “game.”

The Diocese of Paterson

Recall that I have been dealing with the disclosure of sexual abuse at St. Joseph Parish in Mendham NJ since 1984. It was just 20 years ago this month when Mark Serrano disclosed certain incidents of molestation that he suffered at the hands of James Hanley, pastor of St. Joseph from 1972 to 1982. It was not until several years later, however, that I came to know the full extent of the abuse that Mark and others suffered including criminal rape.

The tragic details of Mark’s story and that of at least 21 other victims of James Hanley including one who took his life one year ago are available on another venue and are not required for the purposes of this commentary.

Although I myself consulted a parish attorney about the legal liability of the parish should a suit be instituted, shortly thereafter having become more fully acquainted with the nature of sexual abuse, I promised Mark Serrano that I would make no decision that would impact on him or on the Church without consultation with him or other victims. I referred to this as my “preferential option for victims.” Though I may have inadvertently wavered from that promise, I have never intentionally done so.

And so it was in 1995 that Mark and I decided it was time to make his disclosure public safeguarding his anonymity. (Mark had been in individual and group therapy for many years but was not ready to indemnify himself despite the gag order by which he was legally bound. This is a whole other issue that needs to be unpacked elsewhere. It was not until March of 2002 following the publication of the details of the sexual abuse cover-up in the Archdiocese of Boston that Mark courageously ignored his gag order and went public.)

Prior to my disclosure to the parishioners of St. Joseph Parish in May of 1995, I had sent a three-page letter to Bishop Rodimer “pleading” with him to convene a summit meeting to discuss the issue of sexual abuse by clergy.

In that letter, I recommended that psychiatrists, psychologists, attorneys, newspaper reporters, victims, members of their families, victims’ advocates and yes, even recovering predators, be invited to a closed door confidential meeting extending for as long as it takes to unpack the issue and come up with conclusions for future response which would include all phases of disclosure and treatment for both victims and predators.

Not only was there no acknowledgment of this ‘plea’ but there was a continuation of the marginalization of victims and their advocates including me. A “wall of silence” had been constructed that prevented any engagement between victims, victims’ advocates and diocesan officials. The denial was serious and at this point, unquestionably culpable.

In late April or early May of 1995, I mailed a letter of invitation to approximately one hundred parent households whose children may have been affected by James Hanley’s behavior between the years of 1972 and 1982. In that letter, I simply invited them to a confidential meeting “to discuss certain incidents occurring between these years that may have had an impact on their children and consequently on them.”

The letter was ‘leaked’ by one of the recipients to the media. I had no prior knowledge of the leak but I was neither surprised nor disconcerted by it.

When news reporters called, I asked that they respect the confidential nature of the meeting and that they remain outside until the meeting was completed. If they did not, I assured them that I would cancel the meeting. Parishioner families had a prior right to privacy.

On the other hand, I informed reporters that I would repeat everything I disclosed to parishioners immediately after the meeting provided they honored my protocol, which they did. The subsequent reports were accurate and could not be characterized as sensational. Reports never crossed the river to NY nor did they hit the national press. I count many of these reporters among my most respected colleagues.

In an attempt to shoot the messengers, Church officials have criticized the media for bashing the Church.

Reporters did not write this story. They only reported it.

Other Relevant Details

Approximately three hours prior to the parish meeting, I received a phone call from the diocesan attorney who wished to discuss the meeting. He introduced himself as my attorney to which I responded, “I was unaware that I had retained an attorney.”

He explained that he is representing St. Joseph Parish which has been named in a civil suit for negligence against the Diocese of Paterson entered by one of Hanley’s victims. (It is important to note that by this time, James Hanley had already ‘confessed’ at least in general the incidents of abuse against Mark Serrano.)

The attorney in question asked that I not disclose the abuse by Hanley. When I asked him what he recommended at this eleventh hour, he said that I should state simply that since the matter was in litigation, I was unable to do into any detail.

I assured him that I was not able to accept that recommendation but that I had a moral obligation to disclose the crimes that he had already confessed. The conversation became quite heated but remained basically civil. However, I assured him that the meeting would take place as scheduled and the script would remain in tact as planned. As the pastor of St. Joseph Parish, I had the obligation to make known Hanley’s abuse so that other victims might come forward for help.

The attorney has no recollection of his ‘intervention.’

The details of the disclosure were mailed/faxed to the Diocesan Center and to the Office of the Apostolic Nuncio. Newspaper clippings were mailed/faxed subsequently. These communications remain unacknowledged to this day.

Several more attempts were made to introduce the issue of sexual abuse at the diocesan level with no acknowledgment.

Subsequent to the published reports about Mark Serrano’s abuse, a few other victims came forth and one unrelated to the Hanley incidents at St. Joseph.

I received a phone call from a man who had been an altar server at St. Therese Parish in Paterson where I had served over time as an associate Pastor, a resident assistant and eventually as pastor.

The gentleman in question, without identifying himself, revealed that he had been drugged and raped by Father Charles Bradley during his junior year at Paterson Catholic High School, located within St. Therese Parish. Father Bradley was a religion teacher at that time. This gentleman had read of the disclosure of Hanley’s abuse and because he remembered me as his pastor, he trusted that I would believe him.

After gaining my confidence, he identified himself and told me his entire story. It was devastating. An honor student with a full scholarship to a well-known university his grades slipped to Ds and he lost the scholarship. He went on to drugs, pornography, marriage, divorce and re-marriage.

I reported his abuse to the Passaic County prosecutor and then to the Bishop. The case was eventually settled “out of court” but incredible as it may sound, the Passaic County Prosecutor’s office has no record of my report!

For several months after the my report, Father Bradley remained in his apartment directly across from Paterson Catholic High School until I warned Msgr. Tillyer, Chancellor, that he might prefer further legal action for gross negligence or worse, publicity about the fact that Father Bradley was still residing across the street from the school!

There was never any public disclosure of allegations against Bradley or of the settlement. There was a ‘gag order’ on the settlement.

I assume there are other victims of Father Bradley but we may never know who they are for the reasons explained above.

Shortly thereafter at the tri-annual meeting of the priests of the Diocese of Paterson I overheard a brother priest say, “Yeah, poor Charlie’s in trouble. Lasch turned him in!” This remark continues to reflect the attitude of many clergy about my involvement in the abuse issue.

I might add at this point that I have yet to be present at a priest gathering during which the issue of clergy abuse comes up that a priest mentions or even inquires about the terrible effects of abuse on a victim. Instead, there is mention of the ‘poor priest’ who got in trouble and then several comments about how hard this whole thing has been for the good priests. I assume they are referring to themselves. At a recent meeting of Diocesan priests with our bishop, the abuse issue received a mention. Concern for victims amounted to a nod. Priests expressed concern for the safety and security of their pension. Our priests’ pension plan is not vested.

Even prior to Mark Serrano’s disclosure in 1984, I was the third to report incidents of sexual abuse by Msgr. Jose Alonso, the Rector of St. John the Baptist Cathedral in Paterson. I reported them to Msgr. Tillyer, then chancellor of the Diocese. The two who reported these incidents before me were not addressed. One was reprimanded for attempting to ruin the priests’ reputation.

When I inquired several months later about the ‘investigation,’ Msgr.Tillyer informed me that Bishop Rodimer asked Alonso about the reports of sexual abuse and he, Alonso, denied them. I asked Msgr. Tillyer if that was the extent of the investigation. He said yes, but here’s ‘the tricky part.’ Two years later when Alonso was arrested and Msgr. Tillyer and the Bishop were asked if they knew about Alonso’s proclivities, they denied it outright! Unless, I’m mistaken, this is considered by most morally upright citizens not to mention members of the Church as a lie.

A few years later Bishop Rodimer was deposed in a civil suit related to Alonso’s abuse. Though he was never asked the direct question, he more than intimated that he knew nothing prior to the incidents for which Alonso had been arrested.

On April 5, 2002 at approximately 1:30 PM I confronted both Bishop Rodimer and Msgr. Tillyer about these incidents and their denial. They explained that they thought inquirers at that time were asking if they knew about the incidents for which Alonso had been arrested? I immediately thought of Mr. Clinton’s “What does ‘is’ mean?”

The experience described above has convinced me that the officials of the Diocese of Paterson not only mishandled the abuse issue but are complicit and culpable in the re-victimization of victims of sexual abuse.

Moreover, significant Catholics of the Diocese of Paterson have known about these incidents over an extended period of time and have not held diocesan officials including the bishop, accountable, this despite the public outrage of lay groups such as Voice of the Faithful and numerous Catholic writers.

Some might hold that Catholics in the pew have been at least remotely complicit in the lack of an appropriate response by Church officials whom they have not held sufficiently accountable in the handling of the abuse crisis.

What happened in Paterson is a microcosm of what has happened across the state and across the country, When are Catholics going to hold diocesan officials accountable? When are Catholic bishops going to hold one another accountable? (Click “Project Millstone: elsewhere on this website.)

For those Catholics and others who might be concerned that the assets of the Church may be placed in jeopardy by the removal of the Charitable Immunity Clause, let me assure you that New Jersey is one of the few states that have retained this retrogressive legislation. The Church and other charitable organizations have not folded up in other states. Not only that, but the elimination has resulted in greater attention to screening and supervision of employees particularly those who deal with minors. The elimination fo the clause has resulted in safer environments for children.

“If only …” our bishops had engaged victim/survivors in a genuine dialogue in Dallas leading to justice rather than a perfunctory response leading to a policy they knew could not be implemented under current Church law. Remuneration for therapy is only a partial response. As one victim stated in Trenton, “I will never benefit from this bill because my perpetrator is dead. But all the money in the Vatican could never compensate for what I and my family have suffered over the last 26 years.” His brother who was also abused by the same perpetrator took his life and his father died of a broken heart several years later.

In fact, the issue was never about money but about justice. When victims turned to the Church for help, the bishops turned to their attorneys for advice. That’s when it became an issue of money. Now it is an issue of both justice and money. Victims have turned to the port of the court as a last resort!

Nevertheless in the midst of pain there is hope in the hearts of those who hurt the most. I continue to be in awe at the determination of victims to get well as they move beyond the wounds that have handicapped them emotionally and spiritually. They have turned their anger to energy for good. Some have left the Church but they have not abandoned their belief in a compassionate God who spares no ‘expense’ to help those who hurt. Some even believe that God cries when we hurt. I think there’s something to that sentiment. Isn’t that what the incarnation is all about; God taking on human flesh to prove his undying love for all humanity, especially the poor and those who are most impoverished by sin. I have witnessed miracles among victims who will not give up. They are energized not by vengeance but by justice.

While it is true, the Church is called not only to defend what is right and just in the eyes of humanity, it is not always and everywhere a paradigm of virtue. Though of divine origin, it is also a human institution and therefore fallible, subject to the blindness of its members, leaders and followers alike.

In the course of salvation history extending into Israel, God has used forces exernal to religious institutions and religious nations as a corrective to the arrogance of ‘religious’ men and women, often for the sake of the poor and disenfranchised.

While it is true, the secular state and the civil politic is concerned primariy with individual rights within the context of the common good, it is not the sole judge what is morally right and just for all times and places. Nevertheless, in the absence of moral leadership in the religious sphere it may rightfullly initiate a moral debate to order to bring justice to the disenfranchised and to those who have been deprived of justice even by religious insitutions.

Therefore, I have no other choice than to support the elimination of the Charitable Immunity Clause, retroactively. Not a minute too soon or too late.

There is much more to this story. This is presented to you as my “advocate’s brief” so that you may know why I have taken this reluctant bur firm stand for the elimination of the Charitable Immunity Clause.

“There will be no healing and forgiveness until there is justice; no justice until there is truth; no truth until there is full accountability.”

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