Friday, February 08, 2019

The Child Victims Act

Survivors & advocates in Albany when the Child Victim Act passed (JW)
I supported the bill. Reluctantly. The New York State legislature passed the Child Victims Act last week by a whopping 130-3 majority. A bill that was opposed by The Catholic Church and – more significantly to Orthodox Jews - the Agudah. More about that later.

As I understated it the law now allows victims of sexual abuse to seek prosecution against their abuser until age 55 in civil cases. The previous age limit was 23. 

This is a good thing which I support enthusiastically. That’s because survivors of child sexual abuse are reluctant to report their abuse out of a sense of shame or embarrassment. Or because of the fear by parents of the social repercussions for the survivor and the rest of the family. In the past - by the time a survivor was emotionally ready and had the courage to confront what happened to them, the statute of limitations prevented them from doing anything about it. That is now changed.

The law now also allows a one year window during which victims of any age can come forward and prosecute. If I understand correctly this means that for a period of one year, any victim can sue an abuser no matter how long ago the abuse took place. 

This too is a provision that I enthusiastically support. The reluctance on my part comes from the same problem Agudah is worried about: the fact that not only can the abuser be sued, so too can their enablers.

Let me hasten to add that enablers should be sued. The reason for my concern is in how one defines enablers. 

If we are talking about institutions that knowingly allowed an abuser to continue working in their environment thereby enabling them to continue their abuse, than I enthusiastically support that provision too. I even support allowing a lawsuit to be submitted if they didn’t know about it when it happened, but tried to cover it up after they found out. Especially if they encouraged the victim to keep quiet about it and thereby spare any embarrassment to the institution which might destroy their otherwise good reputation.They deserve to be sued as well for putting the institution ahead of the individual. 

Victims of abuse deserve better than that. Their lives have been changed forever and even ruined in some cases to the point of clinical depression. Which can and often does lead to going OTD, and/or substance abuse, and even suicide. No laughing matter.

So even though they did not perpetrate the abuse itself, enablers should never be given a pass. Because they have contributed mightily to the negative mental state that survivors have been put through via the abuse they experienced. The institutional leaders responsible for the abusers continued employ or their attempt to cover it up to save their school’s reputations - at the expense of the abused is unjust and a huge moral failing in my view.

But here is my problem. What if the abuse took place long before any of the current leadership was even aware it happened at all? If 20 or 30 years pass since the abuse, it is not unreasonable to assume that the people running the place now were not there when the abuse happened. Should they be sued for the ‘sins’ of their forbears? I don’t think so.

But if I understand correctly the new law allows for that to happen. And if enough schools have had any victims over that long period of time, in theory a lawsuit could destroy a lot of schools no matter how well it is doing with respect to survivors preventing abuse today.  Or in the case where it might happen anyway - reporting credible accusations of abuse to the authorities immediately and treating the victim appropriately.

This is not right. I know that a survivor of abuse is hurting and deserves redress. I am the child of 2 survivors myself. Survivors of a different kind that arguably have suffered even greater abuse than survivors of sex abuse. My parents were survivors of the Holocaust! So I know a bit about the trauma experienced by a survivor. I was raised by them. 

Who should be responsible for compensation for the suffering by any kind of survivor has to be fairly determined. That is why reparations from Germany to Holocaust survivors is just. (For the record, my parents never took reparations payments.) But when it is sought from people that had absolutely nothing to do with past abuse, it is unjust.

It is with that in mind that I completely understand the concerns of Agudah. (Interestingly, Rabbi Mark Dratch, an executive of the RCA who has been a champion of the abused expressed similar concerns.) In theory a lot of valuable educational institution that are vital to Orthodox Judaism could be destroyed by massive judgments (often in the millions) against them for abuse that took place decades ago and whose current leadership had nothing to do with.

So why do I support this new law if it has provisions that might make this possible? It is because in states where this law already exists in some form - to the best of my knowledge, no institution has yet been destroyed. And at the end of the day it is eminently fair to survivors to have this limited opportunity to get a modicum of justice – even though it will only be financial.

For those who accuse the Agudah (and perhaps Rabbi Dratch as well) of being concerned only for the welfare of their institutions while abandoning survivors - I would disagree. I understand where Agudah is coming from. Their disagreement is a principled one and should not be mistaken for not having enough concern for the abused. That may have been the case in the past. But I don’t think it is any longer. One must be fair in their criticism. While there is room to criticize the Agudah in their requirement to report credible suspicions of sex abuse to a rabbi first, this is not that.