The summer of 2019 promises to be an uncomfortable one for New York’s Catholic bishops and their staffs.
Last fall, the state’s attorney general launched an investigation into the handling of cases of clergy sexual abuse by New York’s seven dioceses and the Archdiocese of New York. The probe is one of nine similar investigations underway by attorneys general across the nation.
Father Daniel J. Condon, diocesan chancellor, described the New York AG’s subpoena as “a tremendously broad and deep demand” for records.
“We have been responsive to the subpoena and continue to be,” the chancellor said, noting that the effort has required the scanning of handwritten and typewritten documents from the past 70 years for electronic submission.
“We gave or are giving them what they’ve asked for, which is everything,” including records plaintiffs’ attorneys frequently refer to as the “secret files,” he said.
As in Pennsylvania, where the grand jury process took two years, New York’s investigation is expected to last several months, as investigators wade through mountains of documents provided by the state’s seven dioceses and the Archdiocese of New York.
A ‘window’ opening
Meanwhile, the Child Victims Act, signed by Gov. Andrew Cuomo Feb. 14, will in August open a one-year, look-back “window” into the state’s statute of limitations on civil suits related to child sexual abuse. During this one-year period, previously time-barred claims of child sexual abuse can be filed against individuals and organizations, no matter how long ago the abuse is alleged to have occurred.
The state’s Catholic bishops had opposed passage of the CVA when it was introduced in the Legislature each of the prior 14 years, in part because the look-back provision in earlier drafts applied only to private entities. The bishops’ other objection had been the extreme difficulty of defending against lawsuits when the alleged perpetrators as well as potential defense witnesses from the era have died or become incapacitated by age.
Indeed, such difficulty is precisely why statutes of limitations exist. As the New York State Unified Court System explains: “Statute of limitations laws are based on fairness. Over time, memories fade, evidence is lost, and witnesses disappear.”
Nevertheless, the bishops dropped their opposition to the CVA when the enacted version (S02440) leveled the playing field, making it possible to file previously time-barred lawsuits against any organization, including such governmental entities as public school districts. Now, “Anybody that works with a child in a trusted environment has exposure, whether or not they’ve been clear about that,” Father Condon observed.
The CVA also permanently extended the statute of limitations under which claims of sexual abuse may be made. Under the Child Victims Act, victims in civil cases now have until age 55 to file claims, and criminal cases can be brought until the victim reaches age 28.
Reconciliation & compensation
Several months before the 2018 elections flipped control of the state Senate and ensured the CVA’s passage, the Diocese of Rochester initiated a program in March of 2018 for the independent reconciliation and compensation of victims. It hired former state Supreme Court Justice Robert Lunn to be an independent arbiter of cases.
“We’ve always tried to enter negotiations (to) seek some resolution for victims who had no other recourse” because their claims were time-barred by the former state statute of limitations, Father Condon said.
But with passage of the CVA, previously time-barred cases can be filed during the one-year window that opens in August. So the diocese announced March 14 that it would conclude the reconciliation and compensation program when Lunn completes the 30-32cases already in the pipeline.
Meanwhile, as August nears, some plaintiffs’ attorneys are preparing cases based on “the theory of dual agency,” asserting that dioceses are responsible for abuse perpetrated by members of religious orders who served at order-operated facilities inside diocesan boundaries, Father Condon explained. For example, “People who received settlements from the Irish Christian Brothers (which formerly operated Bishop Kearney High School) will now sue the Diocese of Rochester because the school was here,” he said.
Listing the accused
Dioceses also have taken heat for declining to include on their published lists of credibly accused clerics the names of credibly accused members of religious orders who have served within diocesan boundaries.
Father Condon said the Rochester Diocese does not want to get into publishing lists of religious because information provided by their orders could be incomplete or out of date. “(Attorneys) want to imagine that there is a universal repository of information on clergy, but there isn’t,” he remarked.
Thus, credibly accused members of religious orders — such as six Jesuit priests and former priests and one former Jesuit seminarian who served at McQuaid — do not appear on the Diocese of Rochester’s dispositions list, but may be on lists published by their respective religious orders.
“The Jesuits are responsible for them,” Father Condon said of the McQuaid Jesuits and former Jesuits, noting that superiors of religious orders are best positioned to make determinations on the credibility of claims against their members.
Asked about the possibility of linking from the diocesan dispositions list to lists posted by religious orders that have served in the diocese, Father Condon said, “We haven’t come to a final determination on that, and I imagine there will be changes to the list in the future.”
But for now, “the list is what it says it is, dispositions since 2002.”
What the future holds
Finally, plaintiffs’ attorneys also have speculated to local media that the Diocese of Rochester will be forced to file for bankruptcy after the CVA window opens in August.
After their states passed laws similar to the CVA beginning in the mid-2000s, nearly a dozen U.S. dioceses and archdioceses filed for bankruptcy amid multimillion dollar claims on cases going back 60 or more years. The spokesman for one such diocese described bankruptcy as the fairest way to ensure all victims who came forward received a monetary settlement. Otherwise, the spokesman said, “the first victims who would have come forward could have received all the money that the diocese had available.”
Father Condon explained that when a diocese files for bankruptcy, “victims become part of the creditors’ committee, and the court treats them like any other creditor” in allocating resources to pay claims, thus ensuring equitable treatment.
Asked how many and how costly claims he expects to receive after the CVA window opens, Father Condon said he did not know. Nor could he predict whether the diocese would be forced into bankruptcy.
So far, the diocese has paid out more than $1.6 million in sex-abuse claims, not counting settlements through the reconciliation process with Lunn, the chancellor said. Settlements were funded from a variety of sources — including the diocese’s pooled, self-insurance program and accumulated reserves — with the largest having been paid by an insurance company, he said.