A virtual conference organized in partnership with Brigham Young University Law School, Emory University Law School, Notre Dame Law School, St. John’s University School of Law, and the Villanova University Charles Widger School of Law. View the full video and browse all essays here.
Section C. Legal and Religious Practice(s) (Michael Moreland, moderator)
“Revival Statutes, Clergy Sexual Abuse, and COVID-19”
In the months before COVID-19 struck, Google news searches on the terms “religion” and “epidemic” returned two sets of stories the pandemic has largely eclipsed. One cluster of articles chronicled the opioid addictions sweeping U.S. communities, while the second reported on revelations about sexual abuse by clergy and other religious workers. The nation’s two largest religious groups, the Roman Catholic Church and the Southern Baptist Convention, confronted patterns of abuse and concealment that victim-survivors and commentators in both traditions characterized as “epidemic” in proportion. Some state legislatures responded by extending statutes of limitations for child sexual abuse and other forms of sexual misconduct, by reviving expired civil claims up to a certain age, and/or by creating revival windows during which victims could pursue any claims against alleged abusers and the institutions that employed them.
In 2019, 23 states and the District of Columbia reformed their limitations periods. Nine states revived at least some claims. These revival statutes balance the interests of three sets of parties: victim-survivors who are often unable to comprehend the scope of their injuries in time to comply with traditional limitations periods, individual and institutional defendants who object to the litigation of historic claims and at minimum desire certainty about the potential extent of their liability, and the state. In debating whether to open revival windows, lawmakers weighed the competing imperatives of vindicating and compensating the injured, deterring future wrongdoing, providing contending parties with finality, and fairly allocating the limited resources of the judicial system. The history of several revival statutes shows that legislators wrestled, sometimes at length, with divergent perspectives on the relative value of these goods, as well as on such operational details as the duration of the revival window, the categories of claims to be revived, and the possibility of punitive damages.
But what happens when a pandemic disrupts the finely honed balances that legislators struck? Victim-survivors and their advocates have reported that the COVID-19 pandemic has hampered their ability to initiate litigation regarding historic abuse. They have said that the changed circumstances the coronavirus has brought about have made it more difficult to identify and contact witnesses, locate documents, and work with clinicians to process painful episodes from the past. In the Catholic Church, both victim-survivors and advocates inside the hierarchy have complained that concerns about abuse have “moved out of the center of attention,” with communications delayed and trials postponed. Victims’ advocates have also expressed concern that the pandemic will give rise to higher rates of present-day abuse, pointing to statistics that illustrate sharp increases in reports of domestic violence and child abuse since countries around the world began to lock down.
Three U.S. jurisdictions’ revival windows have been scheduled to close in the months since COVID-19 reached this country. Hawaii opened a two-year revival window in April 2018, Montana a one-year window in May 2019, and New York a one-year window in August 2019. Each state’s political circumstances and experience of the pandemic affected whether and how it adjusted its revival period.
Montana’s story is the simplest. Its legislature meets biennially and has been out of session throughout the course of the pandemic. With no chance for lawmakers to amend the state’s revival statute, its window closed as scheduled in May.
Hawaii considered but ultimately did not adopt further reform to its laws governing historic sexual abuse claims. It was one of the first states to open a revival window and has done so repeatedly, enacting three statutes since 2012. Prior to the pandemic, Hawaii lawmakers had introduced bills that would liberalize the state’s approach to child sexual abuse in a different way, expanding the civil statute of limitations by forty or even fifty years. These bills were pending when the legislature recessed due to the pandemic; the revival window closed while it was out of session. After lawmakers returned, victim-survivors and advocates testified in favor of the extended limitations period but did not advocate that the expired window be reopened. The two chambers were unable to reach consensus on several points, including the law’s effective date and whether it should include a cap on punitive damages. The legislative session adjourned without agreement.
In contrast to Montana and Hawaii, New York extended its revival window after the virus struck.
The New York revival statute had long been controversial. Legislation was first introduced in 2006, but bills repeatedly died in committee or on the legislative floor, in the face of persistent opposition from the New York State Catholic Conference (the policy arm of the state’s Catholic bishops), other religious associations, the Boy Scouts of America, and insurance companies. In March 2018, Cardinal Timothy Dolan, the state’s highest-ranking Catholic clergyman, protested that the legislation was “targeted” at the Catholic Church and that the “lookback would be toxic”. Later that year a new round of revelations concerning sexual abuse in the church emerged, and sponsors amended the pending legislation to permit suit against public as well as private entities. The Child Victims Act (CVA) passed nearly unanimously, opening a one-year revival window in August 2019.
Lawmakers had proposed bills to extend the CVA window, as well as to open a separate window for claims of abuse against adults, well before New York became a global epicenter for COVID-19. Both pieces of legislation languished, while several thousand plaintiffs began to file suit under the CVA and one of the state’s Catholic dioceses unsuccessfully challenged the revival window under the due process clause of the New York constitution.1As did the disgraced film mogul Harvey Weinstein. After the pandemic struck, Governor Andrew Cuomo issued an executive order that extended the CVA’s window by six months. When objections arose that the governor’s order exceeded his emergency powers, the legislature took back up the extension bill and passed it overwhelmingly. Governor Cuomo signed the bill into law weeks before the original CVA window was scheduled to close, extending the claims period by a full year.
In the months ahead, other revival windows are slated to lapse: Arizona’s in December 2020, Washington, D.C.’s and New Jersey’s in May 2021, and North Carolina’s in December 2021. Conversations about extending these windows have yet to become public.
What lessons should lawmakers and advocates in these states draw from the experience of the jurisdictions that went before them? Public and media attention to child sexual abuse has dropped steeply in the pandemic. In the face of death and life-threatening illness, economic collapse and unemployment, police violence and protests for racial justice, and a hyperpartisan election season, the concerns of victim-survivors have lost salience. Absent conscious efforts to draw attention to the pandemic’s effects on the survivors of abuse, revival windows will likely expire as scheduled. This outcome disproportionately impacts would-be plaintiffs, who lose entirely their opportunity to seek recompense for injuries they may have spent years finding the courage to disclose. Extending a revival window affects putative defendants less severely, as it provides plaintiffs additional time without enlarging the kinds of claims they may bring. But defendants, institutions in particular, have a legitimate interest in being able to rest confident that the time for historic claims to be brought has passed. So legislators should consider carefully the length of any extension, timing it to compensate for, but not exceed, the delays the pandemic has wrought. In this view, New York’s one-year extension may prove to have been longer than necessary.
But it may not be the duration of a revival window that will most circumscribe plaintiffs’ ability to obtain recompense. Many religious institutions have felt the economic consequences of the pandemic acutely, and some now find themselves with insufficient assets to pay judgments. While organizations across the religious and nonprofit sectors have trimmed their budgets, the intersection of the pandemic with revival windows for abuse litigation has been particularly damaging for the Catholic Church. Dioceses have closed schools, shuttered newspapers, and laid off or furloughed staff. Three of New York’s eight dioceses have initiated bankruptcy proceedings since the CVA took effect, and a fourth diocese unsuccessfully sought a stay in sexual abuse litigation as it considered bankruptcy. One New Jersey diocese withdrew from a statewide victims’ compensation program, citing the “precipitous decline in revenue” that has accompanied the pandemic.
While some religious institutions’ finances appear to be stabilizing, if not quite recovering, the future remains uncertain. The best course of action for historic sexual abuse plaintiffs and those who counsel them is to file claims at the earliest opportunity, within existing window periods. There is no guarantee of political will to extend expiring windows, nor is there any assurance that religious and nonprofit organizations will have (or admit to having) the resources to satisfy judgments against them. For those abused by spiritual leaders and betrayed by institutions, it may be an unexpected pandemic that at last denies them justice. ⬥
Patrick Hornbeck is Professor of Theology at Fordham University, where he is also a third-year, part-time J.D. student in the School of Law. Hornbeck has written or edited eight books and numerous articles regarding the history of Christianity and the intersection between Christian faith traditions and legal traditions, both contemporary and historical.