A PROPOSED STRATEGY TO REFORMS IN SEXUAL ABUSE LEGISLATION
By David Mandel, CEO of OHEL
There is legislation pending to extend the statute of limitations on reporting and prosecuting child molesters. There is general agreement this change in the law would be good. Victims of child molestation even older adolescents are often not ready to disclose or confront their offenders until years later.
A second piece of legislation to open "a window" of one year permitting victims, even those molested decades ago, to file civil lawsuits against molesters has drawn strong support and equal strong opposition.
As is often the case with legislation drafted in local, state or Federal government victim advocates will favor while institutional systems may oppose.
Victim advocates are favoring the Markey Bill, which includes this window. The Catholic Church and some groups representing yeshiva institutions favor the Lopez Bill, which extends the Statute but has no window.
It is noted that Assemblyman Dov Hikind supports both bills. How could that be as they are different? He explains he would like to work on a compromise position.
Several victims who have spoken publicly of their ordeals along with a victim advocacy group have been prominent in pushing for the passage of the window. This advocacy is important and well intentioned. But to express it in a way that if you're not in support of the window you're not supporting victims of sexual abuse is misguided as it undermines our communities’ ability to have an open honest discussion about child abuse.
THE KEY POINTS
● OHEL see’s importance in both Lopez and Markey Bills and suggests a possible compromise.
● OHEL is not in agreement with some of the positions taken by certain organizations who oppose “the window” provision.
● While OHEL suggests a one year amnesty, we believe a one year window should be instituted thereafter.
● OHEL suggests a one year amnesty from civil claims with required risk assessment, treatment and some form of probation and monitoring. Certainly no amnesty from any criminal proceedings.
The passage of such a window provision in California is often cited as a case in point by both sides, those in favor and opposed. In that instance several years ago the legislation led to the disclosure and reporting of several hundred pedophiles in California. This was important and no doubt led to untold hundreds (and thousands) of potential victims not being molested. It also led to hundreds of lawsuits most notably against the Catholic Church which eventually cost them hundreds of millions in settlements.
It is this issue of potential of lawsuits that is pitting institutions against victim advocates. On all other issues there is general agreement.
In a now infamous phrase former President George Bush said to the world concerning Al Qaeda that "you're either with us or against us". He came to appreciate it was more complicated than drawing a line in the sand. People can at times be supporting of a position but when asked to give their "all or nothing" many defer. It is not a good way to negotiate.
For this reason Assemblyman Dov Hikind is correct in stating he is seeking a compromise.
The following suggestions are offered that may be incorporated and serve the best interests of all.
1. Victims of child molestation have consistently stated they want the perpetrator to be accountable, to take responsibility and acknowledge his actions.
Victims wanted the world to know it was the perpetrators fault not theirs.
Victims have expressed this as an important aspect of enabling them to move on with their lives. They generally don't speak of revenge but of goodness and responsibility.
Open a one-year window for perpetrators to disclose their acts that were committed and that exceed the criminal statute of limitations. Provide them amnesty from future civil suits. This is similar to amnesty offered with illegal guns and delinquent taxes.
The gain here is to identify as yet unknown perpetrators and place them under watchful eye with required risk assessment, treatment, some form of probation and monitoring.
The penalty for those perpetrators who do not come forward may be subject to (potential) future civil claims, stated another way, a window.
2.Institutions (Church, Day schools, yeshivas) are understandably concerned they will be inundated with lawsuits. The Catholic Church's exposure in California and Boston forced them to sell property and likely close some schools.
Schools may be sued for acts committed by their staff that they may have been completely unaware of. That of course is not a consolation to the victim who may understandably seek recourse. Nevertheless the schools financial liability may be great.
A school losing even one lawsuit requiring them to pay any sum in the millions that exceeds their liability insurance may bankrupt them. How can a school protect itself in an insurance claim from 25 years ago or more when insurance coverage may have been wholly different? How does that serve the best interests of their student body, parents and community? In the end who wins and loses?
How then to mitigate these lawsuits to be reasonable?
A. Cap the lawsuits, for example, not to exceed a $500,000 payout
B. Cap the percentage contingency by attorneys to 10pct.
There is a tendency by attorneys to throw out a huge number in a lawsuit in the tens or hundreds of millions. This is what is creating a backlash against the window provision. This may be part of an overall strategy at Tort reform.
3. Insurance companies have generally stayed on the sidelines by not wanting to be involved in any aspect. They need to be brought in even as unwilling partners.
A. Many victims avoid treatment fearing they will get a diagnosis on their insurance that will "label" them and further their stigmatization.
This is true of Offenders as well, hence they avoid seeking treatment.
B. Insurance companies have in the main refused to provide coverage for treatment of sexual abuse. This is similar to the Insurance industry a decade ago choosing to significantly raise liability premiums for physicians thus effectively reducing the number of OB/GYN, Anesthesiologists and other specialties.
Victim advocates should lobby the Insurance industry to provide coverage thus broadening the entry of professionals into this complex field of work.
C. The lack of Insurance coverage prevents many victims from obtaining good treatment.
Aside from the forty million uninsured Americans, countless with insurance have only limited mental health coverage.
Treatment for a small number of victims of sexual abuse often requires the services of clinical professionals with specialized training and may last one or several years.
Evaluation and treatment of pedophiles also requires highly specialized work and generally lasts two-three years.
Inadequate insurance coverage is a serious obstacle to adequately supervising child molesters who want help and thereby protect the public.
Advocates for Infertility treatment successfully lobbied two years ago to require the Insurance industry to include payment for fertility treatment. These often cost $10,000- $20,000 per course of treatment. It is common for many couples to go thru multiple treatment cycles over several years.
Victim advocates should place this in their sights. This is a critical issue.
4. Through our work at OHEL with victims over many decades and in consultations with community groups throughout the country the issue of a victims fund arises.
There does exist compensation funds in many local governments for crime victims. This should be expanded to include victims of sexual abuse. Such compensation would further encourage victims who come forward and offer concrete validation for their pain and suffering.
Two victims now in their forties have repeatedly stated to me this is their primary interest. They as many others will not speak out because of their personal shame and privacy.
A victim Fund needs to be established especially for those lacking insurance as well as others who cannot or do not want these diagnostic categories listed in their insurance history.
With an air of compromise and deliberations it is possible some institutional groups would consider establishing such a fund and to initiate a process of reconciliation between victims and institutions.
Our work at OHEL has brought us into contact with significant numbers of victim survivors of sexual abuse as well as perpetrators. This is one of the most complex areas of work in the field of mental health.
In the last ten years, OHEL has conducted numerous seminars in communities throughout the country on prevention and response to sexual abuse. Invariably, at every such gathering at least one individual would privately disclose their experience as a victim some ten, twenty, even thirty years earlier or more. It is fair to say that sexual abuse ranks very high on the list of secrets and memories not forgotten.
Many victims have said that by listening to tapes by prominent Rabbonim and community leaders speaking out on this issue and by attending such seminars they have been empowered.
There are few issues in life that are black and white even though we would like them to be. Much more are shades of grey.
These suggestions could move our system another step to protect our children, provide victims with renewed strength and support and put perpetrators on notice that with every passing day we will shut them down.