"The panel decision mocks the law, ignores the facts, insults the survivors of childhood sexual abuse and diminishes the dignity and integrity of this court. The panel decision is grossly flawed, intellectually dishonest and antithetical to well-settled Supreme Court and Second Circuit jurisprudence.…If the Second Circuit Court upholds the panel decision, it will diminish its own honor and prestige," the alleged victims' attorney, Kevin Mulhearn, reportedly wrote, accusing the three-judge panel of having acted like a "a kangaroo court" because the position it adopted was not presented by YU and was, he claimed, in fact specifically rejected by it.
Alleged YU Victims’ Lawyer Lashes Out At Appeals Court Panel In Bid To Have New Appeal Heard
Shmarya Rosenberg • FailedMessiah.com
In a new court filing, Kevin Mulhearn, the attorney for 34 former Yeshiva University mens high school students who allege that while they were students at the school they were sexually abused by two YU rabbis, lashed out the three-judge appeals court panel that struck down the former students’ lawsuit against YU because it found the statute of limitations (SOL) had long since elapsed, the Daily News reported.
The case is unusual for two reasons. One is that many of the alleged victims – some of whom are now in their 60s – faced no strong communal retribution or sanction if they had come forward earlier. This is different from many haredi child sex abuse cases in which rabbi and haredi community leaders mercilessly persecute alleged victims and their families. The second difference is that the alleged victims’ attorney is claiming the clock for filing suit should only have begun counting when the Forward published an exposé on the YU sex abuse in December 2012. However, some of the alleged victims knew, most for decades, that YU had done nothing to stop the abusers and that there were likely more victims being abused every year.
(And there was also a terrible flaw in the Forward’s exposé Mulhearn continues to rely so heavily on. Its key damning evidence was obtained by ambushing an elderly, frail and senile man, former YU president and then-chancellor-in-name-only Rabbi Norman Lamm, likely with the help of one of the alleged victims who is close to Lamm’s family. Despite being told by YU that the elderly and visibly frail rabbi would not be available for an interview, and despite the widespread knowledge in the Modern Orthodox community that Lamm was frail and senile, the Forward ambushed Lamm at his apartment and used the quotes it obtained in its exposé. Journalism ethics experts attacked the Forward’s unethical and likely illegal behavior. The alleged victims’ attorneys used the Lamm quotes as the heart of their lawsuit anyway. When Mulhearn sought to depose Lamm, YU objected, claiming accurately that Lamm had dementia and was incompetent. Mulhearn insisted YU was lying and Lamm was perfectly fine. The court ordered an independent psychiatrist from a local university not affiliated with YU to evaluate Lamm. The evaluation found that Lamm had dementia and was not mentally competent. Lamm was not deposed. There are those who believe – likely correctly – that a small number of the alleged victims set Lamm up by helping the Forward ambush the ailing rabbi and then lied about Lamm’s competency to help the Forward’s reporter obscure his unethical behavior.)
YU’s attorney previously argued that the SOL count began when the crime took place. The three-judge appeals court panel ridiculed that notion.
But it also rejected the alleged victims’ claim that the clock on the SOL should only have begun to tick when the Forward published its piece. Instead, it ruled – reasonably, according to many – that the SOL’s clock started ticking when the boys graduated or left YU and were then free to pursue a lawsuit.
Mulhearn, the alleged victims’ attorney, ridiculed that ruling in a court filing this week asking for a hearing for the case before the entire Second Circuit Court of Appeals in a bid to get the $680 million suit reinstated.
"The panel decision mocks the law, ignores the facts, insults the survivors of childhood sexual abuse and diminishes the dignity and integrity of this court. The panel decision is grossly flawed, intellectually dishonest and antithetical to well-settled Supreme Court and Second Circuit jurisprudence.…If the Second Circuit Court upholds the panel decision, it will diminish its own honor and prestige," Mulhearn reportedly wrote, accusing the three-judge panel of having acted like a "a kangaroo court" because the position it adopted was not presented by YU and was, he claimed, in fact specifically rejected by it.
Mulhearn told the Daily News that the three-judge panel's ruling encourages institutions and organizations to cover up sex abuse until the statute of limitations expires.
"All they have to do is beat the clock. If they do that, they face no accountability whatsoever.…What kind of atrocious signal does this send to schools and churches? If you cover up abuse long enough and well enough, you can run out the clock and escape any and all potential legal liability,” Mulhearn said as if this is some new problem that had never before been shown the light of day.
But, in fact, it isn’t – and Mulhearn knows it.
Anti-abuse activists – including New York State Assemblywoman Margret Markey – have for years very publicly been trying to greatly extend New York’s SOL for child sex abuse. These attempts have so far been successfully blocked by lobbying from the Catholic Church and by politicians close to Agudath Israel of America and the Satmar hasidic movement.
Should the SOL be extended by years or even decades?
Researchers and therapists who deal with child sex abuse and its victims note that for many reasons, psychologically it is extremely difficult for many child sex abuse victims to report their abuse to authorities or acknowledge it, and many do not take steps to try to stop their abusers until a trigger event – their marriage or the birth of a child or a child reaching the age that the parent-abuse-victim was abused, for example – takes place. Add to that serious communal retribution for reporting abuse (as is common in haredi communities, for example) and that reporting can be delayed even further.
The medical and scientific evidence strongly argues for a much longer period of time before the SOL expires and legal action can no longer be taken, and perhaps it could be argued that too short SOLs – like New York’s – deprive child sex abuse victims of their civil rights. In an increasing number of states, some related crimes, like rape, have no SOL at all.
But Mulhearn’s claim is also based on what many see as a fallacy – that the 34 alleged victims of sex abuse did not know YU wasn’t dealing properly with the abuse until the Forward’s report came out. But in many of these cases this is arguably false.
At some point in time, alleged victims have to take responsibility and act – not just to get justice for themselves, but to prevent more kids from being sexually abused. When abuse victims do not do this because of the psychological damage the abuse caused, as law now appears to stand, the only recourse these alleged victims have is to work to lengthen the SOL or to remove it altogether.
But when alleged victims don’t act because they have a credible fact-based fear of severe retribution against them or their families if they do; or because they truly believed based on what they were told by an institution or organization that it had taken specific steps to prevent further abuse from happening, but that claim made by the institution or organization was false; perhaps an argument can be successfully made that the clock on the SOL doesn’t start ticking until those threats have ceased (or been handled by law enforcement), or until the alleged victims discover the coverup and the lies.
So far, I don’t believe anyone has successfully argued this with regard to child sex abuse. Will Mulhearn?
For the sake of children everywhere, one can – and one probably should – hope he is successful, however unlikely that seems.
But it is also correct to hope that anyone who abused a frail, demented old man is also brought to a court of law and made to answer for their actions. The idea that Lamm’s alleged bad actions taken a decade or two ago to cover up abuse justify abusing the frail vulnerable adult Lamm has become is untenable and, frankly, evil. And that needs to be made clear to the men who allegedly did it and to those who now seek to profit from it.
[Hat Tip: The Lion.]