By Leander James
In 2016, faced with mounting political and legal pressure, the Archbishop of New York, Cardinal Dolan, announced the creation of an “Independent Reconciliation Compensation Program” (IRCP) to compensate individuals sexually abused as children by clergy within the Diocese. Most dioceses in New York State have followed suit by creating their own programs or dusting off similar, past programs. Each diocese establishes the rules for its program, and the diocese appoints and pays the Claims Administrator, who runs the program. The control each diocese exerts over its program raises questions about whether they are independent, fair, just or even beneficial to survivors. We have been asked questions like:
“Are these programs just another political and PR move by the Roman Catholic Church bishops in New York to boost their image and forestall passage of the Child Victims Act?”
“Could they be a PR move, a political move and beneficial to survivors?”
“Should I enter the program?”
These are legitimate questions that I will discuss in this blog based upon our experience processing more than 80 claims through these programs around the state and our experience litigating hard-fought battles with Catholic dioceses and religious orders throughout the United States over many years.
Programs are a product of politics and legal pressure
There is no doubt in our mind that these programs are a product of politics surrounding New York’s Child Victims Act (CVA) and legal pressure generated by cases our legal team and others have prosecuted around the United States uncovering Roman Catholic Clergy child sexual abuse and bishop complicity. Only secondarily are these programs motivated, if at all, by pastoral care and a desire to “reconcile” with survivors.
A more skeptical but reasonable view in our opinion is that the benefits these programs bring to survivors are byproducts of the bishops’ self-serving goals to improve their image, influence state politics and avoid lawsuits. We acknowledge and respect the view of those who hold the opinion that Cardinal Dolan and the bishops created these programs purely out of pastoral care for clergy sexual abuse survivors. But based on our experience, we don’t think that is the case.
Yet, we also know that these programs have, without a doubt, brought meaningful compensation and closure to many survivors. Whether this is by design, a byproduct, or both, can be debated. But we believe an honest assessment of these programs must begin with a discussion of the impure (or not entirely pure) motivation for their creation.
The fact is the Archbishop and bishops of New York State long opposed passage of New York’s Child Victims Act, a law that would bring justice and healing to child sexual abuse survivors and accountability to those responsible for abuse (including New York bishops). In the latter 2000s it became apparent that their opposition to the CVA was not shared by their “flocks” or the state populace. According to a Siena College poll in January 2018, 77% of New York Catholics and 76% of New Yorkers supported passage of the bill.
In 2016, faced with growing support for the CVA (which at this hour has passed both State Houses with only a three-vote opposition and sits on Governor Cuomo’s desk for signing), the Archbishop announced his “Independent Reconciliation Compensation Program” in the press:
Cardinal Timothy M. Dolan, the archbishop of New York, said he was inspired by Pope Francis in forming the program and hoped it would become a model for other dioceses to help victims heal. “I wish I would have done this quite a while ago,” he said in an interview. “I just finally thought: ‘Darn it, let’s do it. I’m tired of putting it off.’”
Even the most ardent supporters of Cardinal Dolan surely recognized the hypocrisy in this statement. He could have created the program at any time, but chose to do so then to 1) send a message to the Legislature that it did not have to pass the CVA because the Catholic Church in New York would clean up its own act, and 2) divert attention away from the heinous acts of perpetrators and bishops by turning the focus on helping the victims “heal.” It was a masterful, if cynical, political and PR move.
As one critic posted on my Facebook page:
Of course some people are going to have to choose the compensation fund, of course they are. That’s the position they’ve been put in. We all know and understand that, and the reasons why. The RCC created those reasons when they connived and lobbied for the statute of limitations laws, when they created survivors and victims in the first place! And now, they’re benefiting from those reasons as well. Because the compensation fund is there, making lemonade out of lemons, and it benefits them much more than having every individual taking them to trial, or better yet, everybody getting together in one giant massive lawsuit against the organization itself. They know this.
We believe there is another self-serving reason for these programs beyond politics and legal pressure. Cardinal Dolan and the bishops created these programs, we believe, to prevent damning evidence from becoming public. Church leaders don’t want their dirty files aired or testimony given that shows they knew they were exposing pedophiles and ephebophiles to unwitting parents and children. They don’t want us to know that priests they held out as sacred and safe were wolves among the sheep. Letting this information become public would undermine their claim to moral authority and that of the entire Church. By creating their own compensation programs, Church leaders have successfully stifled disclosure of dirty information, but this came at a cost, and there are trade-offs that are beneficial to many survivors which we discuss more thoroughly, below.
In sum and at the outset, we acknowledge the impure and self-serving motives behind the recent creation of Roman Catholic compensation programs in New York State. We share the frustration, anger and even outrage that it has taken so long for bishops to address victims and that there are victims at all, for that matter. But stabbing an accusatory finger at the bishops’ impure motives does little to answer the pressing question whether these programs are beneficial to survivors. Despite their origin, can these programs help survivors?
New York State compensation programs bring justice and healing to some, but not to others
The short answer is: yes, they help some survivors. To begin with, these programs provide survivors some degree of empowerment. The programs are voluntary; the survivor chooses whether to enter them or pursue a lawsuit directly. After entering, the survivor can withdraw at any time and retain their legal rights. If offered compensation, the survivor has control whether they want to accept the award and give up legal rights or reject it and file a lawsuit. The survivor has control over what information they provide and whether they want any information to be public. The programs provide for one-sided confidentiality; the diocese maintains confidentiality, while the survivor is free to publish what they want.
Once the CVA passes, survivors will be able to file lawsuits and potentially win more (or less) than what they will be offered in these programs. However, lawsuits are not for everyone. They take longer, as much as four years or more, while the average compensation claim resolves in months. Some cases will not survive a lawsuit. For example, the survivor has a short life expectancy and is unlikely to outlive the lawsuit, the survivor does not want to be subjected to intrusive discovery, the survivor’s emotional state is too frail to withstand a lawsuit, the survivor does not want to be in litigation for years, or weaknesses in the case make it vulnerable to dismissal (in which case the survivor gets nothing).
Some survivors are living in silence and pain, and their circumstances are not suited to lawsuits and the courtroom. They need another way to seek justice, recompense, and healing, and they need to move on. Doing so in a program where we can advocate for the survivor and protect their rights has resulted in meaningful and even life-changing compensation, healing and closure.
In our view, it is generally better for a survivor to have the power of choice than no choice; it is better for them to be able to choose to resolve their claim through a confidential program or a lawsuit. For some, a lawsuit is the way to go. For others, a confidential program is best. The alternative is that a survivor of abuse has no choice and could only seek recompense through a lawsuit subject to their burden of proof, the defendants’ defenses, time and possible dismissal.
Which brings us to important trade-offs Bishops have made to attract survivors to these programs; because, after all, their programs are failures if they cannot attract survivors. They have funded them with tens of millions of dollars. They have removed or lessened burdens of proof in exchange for the diocese not having to produce documents and information. They have abandoned legal defenses, including the statute of limitations defense. They abide by the decision of the Claims Administrator. These are important trade-offs. The frank truth is that some cases, no matter how righteous, have proof problems, are vulnerable to defenses and will be dismissed. Nobody can be sure which cases these are until months and even years into the lawsuit.
On the other hand, some survivors find empowerment and healing through a lawsuit, and they have strong legal proofs and claims. Whether we file their lawsuit in the name of a “Jane Doe” or “John Doe” or the survivor’s name, they gain strength from showing they will hold those who caused their abuse accountable in court. They have the emotional fortitude and life expectancy to justify fighting on to expose their wrongdoers and obtain a potentially large settlement or judgment. They understand and accept the risks-rewards of litigation.
Each survivor heals in their own way. Whether the survivor seeks recovery through a program or a lawsuit, all are seeking empowerment and emotional healing. They are seeking a process to rid themselves of the dark hand of child abuse that has reached out over the years and has been clawing at them, holding them down, holding them back. They seek protection of children. They know that when the Diocese pays significant compensation to them it is:
- a tangible acknowledgment of the Diocese’s wrongdoing
- a recognition of their harm
- money they can use to improve their lives; and
- a deterrent: for dioceses and bishops who pay money for the harm they caused are deterred from causing similar harm in the future.
Sure, no amount of money can fully compensate a sexually abused child. But that is no excuse for not holding wrongdoers accountable and having them compensate their victims. All these goals can be achieved in a program or a lawsuit. Which process is best for the individual survivor depends on the survivor, the facts of their case, the law and the program.
What to look for in the program
We find that the degree to which any one program helps survivors is largely determined by: 1) scope of qualifying claims; 2) independence of the claims administrator 3) the claims process and 4) amount of the award. Programs vary in these essential areas (and programs are changing over time).
Whether a claim qualifies for the program is either determined by the diocese or the Claims Administrator, and there’s a difference. For example, the Archdiocese of New York, Diocese of Brooklyn and Diocese of Rockville Centre deny access categorically to claimants who otherwise have viable legal claims against them. They shut the door to those abused by a religious order priest, even if he is working in the diocese, under the bishop, and doing diocesan work on diocesan property. By contrast, the Rochester Diocese so far has let the Claims Administrator determine whether a claim qualifies, even if the abuse is not perpetrated by one of its diocesan priests. The point here is that if the program does not allow the claimant to even submit a claim based upon arbitrary, non-legal concepts, then that survivor can’t even get their foot in the door of the program. We have argued that arbitrary, non-legal criteria denying access to survivors is not in the best interests of the dioceses (and it certainly isn’t for the survivors), because they will now be subject to lawsuits on these claims once the CVA is signed into law and the window period opens. [See our upcoming blog on the CVA and Window for more details]. Put another way, the claims do not go away if denied by the program; they become a potential lawsuit.
The second factor, independence of the Claims Administrator, is crucial to a functioning program. By “independence” we are not necessarily referring to whether the diocese or bishop directly or indirectly controls the individual they hire as the Claims Administrator, although this is a possibility. A claims administrator may not be able to entirely divorce themselves from the fact they are being compensated by the diocese; the administrator might fear that if they give too big an award they will be fired. Other biases can have strong influence over a decision-maker who does not guard against them. All decision makers come to a decision with bias, be they a juror, a judge or a private claims administrator. However, some do not appreciate their bias and are therefore unable to guard against it, and therein lies the danger. Other potential biases include a claims administrator’s religious or political ties to the Catholic church (which can cut both ways), or their belief the bishop or diocese is motivated solely by goodwill rather than more self-serving motives. There are others.
In some cases, the bias, good or bad, may affect an otherwise objective claims administrator’s view of an individual claimant or claim. For example, some may have the bias that the younger the child is at the time of abuse the greater their damage. This may or may not be true, depending on the case. Others may be biased against a claimant who has a criminal history, even when that history has a causal link to the abuse. Thus, the analysis of a Claims Administrator’s independence goes deeper than just the individual claims administrator and their ties to the diocese.
The Claim Process
The claim process, in our view, has a profound effect on the survivor’s healing and the outcome of the claim. We believe the best process involves the Claim Administrator hearing from the survivor in person in a confidential and protected setting.
We have encountered wide disparity between the claims processes of dioceses. For example, in the Archdiocese, Diocese of Brooklyn and Diocese of Rockville Centre, the Claims Administrator (they use the same one) discourages in-person interviews of the survivor and, in our estimation, gives them little weight when they do occur. The Diocese of Rochester Claims Administrator, on the other hand, encourages such interviews and is fully prepared for, and engaged in, the interview process. [See our blog “View from Inside the Rochester Diocese’s Sexual Abuse Compensation Program” for more on this].
There is no question in our experience that any system that evaluates a child sexual abuse survivor’s claim without hearing directly from the survivor, face-to-face, is badly flawed. Hearing from the survivor is necessary to any meaningful understanding of the nature of the abuse and its effects on the survivor. To the extent a claims administrator is concerned with “corroborating evidence,” as some seem almost obsessed with, hearing from the abuse survivor in person powerfully establishes the truth of the claim, and should remove any doubt the abuse occurred. We have seen even jaded Church attorneys admit the validity of the claim after hearing from the survivor. Survivor testimony is powerful.
Amount of the award
Money makes a difference. Nearly all survivors for whom we have accessed recovery have used the money in a positive way to transform their lives and often the lives of their families for the better. How much are the awards in these programs? Awards in the Archdiocese and Diocese of Brooklyn have generally ranged from $50,000 to $500,000, with some outliers. Less in the Diocese of Rockville Centre. In the Diocese of Buffalo, the awards have ranged from $40,000 to $400,000. We are currently awaiting the first awards in the Diocese of Rochester program, which we will report on soon.
When comparing values in these programs with values that may be obtained through litigation and trial, there is no question that litigation and trial can result in much higher recoveries. But they can also result in lower recoveries and claims being dismissed and receiving nothing. Not all claims in the programs are compensated. While good investigation and advocacy can minimize claim denials, some get denied. But even these retain their right to file a lawsuit.
In our experience, submitting a claim into one of the Catholic compensation programs in the State of New York can result in significant healing and recovery with little or no down-side. Doing so allows the survivor to potentially receive an offer of settlement that they can accept or reject. If they reject it, they retain their legal right to pursue a lawsuit. Having the option of entering a confidential program and potentially receiving meaningful compensation or filing a lawsuit gives the survivor the power to choose which path they want to take to resolve their claim. Choice is better than no choice.
Good investigation, advocacy and claim presentation in the program increases the likelihood of compensation and maximizes recovery. Protecting survivor rights, giving them a voice and assuring the claims experience is as confidential and comfortable as possible furthers survivor healing and closure. While these programs are not for all, many survivors have achieved significant, even life-changing, compensation, healing, and closure and have moved on with their lives as thrivers.