Haredim, Hikind and the Compromise that Really Isn't

When 'compromise' really means sexual predators will remain in haredi schools as haredi leaders and institutions will escape penalty.

Yesterday, in reaction to haredi opposition the Markey Bill, Assemblyperson Dov Hikind released a statement urging compromise on a provision of the bill. Markey.extends the Statute of Limitations for sexual crimes committed against children. It also provides a one year window that allows victims, no matter how long ago they were abused, to sue their abusers and, in some cases, the schools, synagogues or churches the abuser worked for. And it is this window and its potential impact on haredi yeshivot, schools and umbrella organizations, haredim oppose.

Hikind proposed "creating a cap on a litigant’s financial award or on the contingency fees collected by attorneys" as "just two possibilities" which, he wrote, may "prove viable."

But would it be viable?

Not if the goal of Markey is to expose sexual predators and protect children.

Before I explain why this is so, we need to spend a minute understanding what w're dealing with. Look at child sexual abuse this way: Imagine a drug company knew one of its products was harmful to children. Not all children, of course. Just a few. But there was no way for the drug company to tell which children would be harmed and which – the majority – would remain uninjured and would benefit from the drug. Because of the unique way in which the drug damages, parents can't tell what damaged their children or exactly when that damage happened, and the children react to the damage by by becoming mute – they can't explain what is wrong or what happened until years later.

The proper thing for the drug company to do is to immediately warn the public, tell government regulators and recall the drug.

Instead, the drug company does nothing. Its drug continues to be sold. Many children benefit from it. A few others, however, are irreparably harmed. A few of those damaged children kill themselves due the after effects of the drug.

Now imagine a few other drug companies had a similar problem with a similar drug. All react the same way the first company did. Worse yet, a few of these companies decide to dump their toxic drug on another company. So each sells his patent to another without disclosing the danger to children. Some gof these new drug companies discover the danger as time goes by, but none take proper action.

Twenty or thirty years later we find out the drug companies knew the drug was dangerous. They knew it did irreparable damage to some children. They even knew some of those damaged children would commit suicide because of it.

What is the proper course of action for society to take?

Should the drug companies be left unpunished because the Statute of Limitations has long ago run out? Should it be protected from lawsuit as a result?

Or should we allow lawsuits filed during a brief period of time we set, but cap damages and attorneys' fees to protect the drug company from huge liability? After all, the damage to be litigated was mostly done long ago and the drug companies are now taking some limited action to prevent a scenario like this from happening again.

If we don't help out the drug companies now, some of them might go out of business, and the cost of medicines could rise for all of us and their availability might be limited.

Isn't it in the best interest of society to block or drastically limit these lawsuits? Wouldn't it be better for the government to pay a pension to these damaged kids, perhaps out of a pool of money contributed, at least in part, by the pharmaceutical industry?

This is essentially the argument haredim – led by Satmar, Agudath Israel of America and Torah Umesorah – and Dov Hikind are making with regard to child sexual abuse.

They reason haredi rabbis, yeshivot, schools and seminaries are absolutely essential to haredi life. To expose these rabbis and institutions to lawsuits is, in their minds, unacceptable.

The problem is, some of these rabbis and institutions committed crimes that seriously damaged children. And they took no credible steps to stop that damage.

California passed a child sexual abuse window law a few years ago. So far, many lawsuits were filed and hundreds of hidden pedophiles were exposed. But as far as I can tell, the sky did not fall. No institutions have gone out of business and liability insurance for them is still readily available.

Just like the drug companies above, certain haredi rabbis and institutions covered up clear and present dangers to children in their care. Sexual predators were allowed to keep teaching – and to keep molesting – in their schools. These rabbis who cover ed up did not call police. They did not warn parents. And they did not take adequate – or, often, any – precautions to protect the children in their care.

In my mind, the question isn't whether or not attorneys' fees or damages should be capped – they should not – the question is why these rabbis are allowed to walk the streets, keep their jobs, hold community leadership positions and live normal lives. They should all be behind bars, just like rapists – just like the drug company executives above.

Here are the facts of litigation:

1. The cost of going to trial in cases like this is high.
2. Pre-trial expenses for a victim can easily run to $50,000.
3. When an attorney takes a case on contingency, that means he gets 1/3 of any damages awarded.
4. That means an attorney has to gamble that he will recoup the money he pays up front to prepare and litigate the case.
5. In an abuse case, an attorney has to be prepared to lose about $100,000.
6. But, if he wins the case, an attorney might earn ten or more times that if damages are not capped.
7. People around Hikind and the haredim have floated a figure of $500,000 as a damage cap.
8. That would mean an attorney could at most gross $166,667 on each case.
9. That means an attorney, if he wins the case, at most might net between $66,000 and $100,00.
10. Attorneys do not win every case they take, and judges and juries do not always award the maximum damages.
11. Attorneys gamble on cases where the possible return is high or where the outcome is very certain.
12. Litigation of 10 or 20 year old abuse cases is difficult and the outcome is by no means certain. Older cases are even more difficult to litigate and less certain in their outcomes.
13. Litigating cases where the victim was a small child when the tort took place is also extremely difficult – especially if many years ahve passed since the damage took place.
14. Abuse cases can also take several years to litigate.
15. What this all really means is that capping attorneys' fees and damages means few, if any, lawsuits will be filed and make it to trial or settlement. Attorneys won't be able to afford to take the cases on contingency and few victims will have the money to pay out of pocket.
16. This does not mean the lawsuits left unfiled are frivolous or unfounded. It just means the cost of bringing those lawsuits outstrips the potential gain for attorneys.
17. Capping attorneys' fees and damages means many sexual predators will remain in place, teaching children, say, or running a camp.
18. It also means that institutions that enabled sexual predators will not pay a price for those heinous acts, and that makes it far more likely those institutions will make the same evil, self-serving choices the next time around.

Haredim and Dov Hikind essentially want you to let these abusers and their enablers and protectors off with a free pass or a slap on the wrist.

They're gambling that the average person's dislike for attorneys will blind us to the real facts of this matter.

Do not be fooled.

The only viable way to seriously reduce child sexual abuse in our communities is to pass the Markey Bill with the window provision unchanged.

Anything less condemns more of our children to unspeakable horrors committed by sexual predators the Markey Bill, if left intact, would expose.

Dov Hikind's statement released yesterday, Wednesday, April 22, 2009:

New York - On behalf of the countless sexual abuse victims – those whose stories of personal anguish still resonate with me, and those who still have yet to come forward – I respectfully urge you to reconsider your position regarding the statute of limitations bill containing a window provision which is currently before the Legislature.

I assure you it is not the intention of this legislation to bankrupt or otherwise jeopardize “vital communal institutions,” for we all recognize that the existence of yeshivas and the continuity of the Jewish future are irrefutably tied. Indeed, I believe it is our very commitment to providing our children with a solid Jewish education which has sustained us as a people for generations.

Tragically, however, many of our children, our most precious resource, have been sexually violated in a variety of contexts, and for numerous years, these victims were left without any remedy. Their pursuit of justice has, until now, been filled with endless days of shame, silence, and frustration. We are all guilty of not doing more to alleviate their suffering. You have stated that you have, “no objection to legislation designed to give victims of abuse greater recourse against perpetrators." In this regard, we are of the same heart and mindset.

While your concerns are valid, I implore you to reassess your decision about this bill, to take a closer look, and work toward achieving a satisfactory and equitable compromise on the one year window provision. There are potential alternatives to the bill in its present form which may be more amenable to you. Creating a cap on a litigant’s financial award or on the contingency fees collected by attorneys are just two possibilities which may prove viable.

Achieving justice for the victims need not come about as a result of the financial demise of our greatest institutions. But neither can we forsake those who have already sacrificed far too much.

Statement of Agudath Israel of America and Torah Umesorah in opposition to the Markey Bill.

How Child Sexual Abuse Works.