Tuesday, November 23, 2010

Lawlor’s Jihad

Rep. Michael Lawlor, co-chairman along with Sen. Andrew McDonald of Connecticut’s Judiciary Committee, has indicated he might resurrect House Bill 5473 in the new session.

HB 5473, which bordered on a bill of attainder, was defeated in the legislature during the last term, and even Mr. McDonald, who tends to march in lockstep with co-confederate Lawlor, voted against the measure. Bills of attainder, legislation carefully crafted to apply narrowly to specific targets, and ex post facto laws are proscribed by the U.S. Constitution.

There will always be occasions for violations of the letter or spirit of the Constitution, and the occasion that launched HB 5473 was particularly horrendous. A doctor who had practiced out of St. Francis Hospital in Hartford was accused of having molested young children in the 1960s. His deeds came to light when the wall of a house in which the doctor had lived, then under reconstruction, was torn down and a cache of pictures and films of young children under his care spilled out, the pictographic equivalent of a tell tale heart.

In circumstances like this, instinctively one wants to reach for one’s revolver, as Hermann Goering was reputed to have said on a quite different occasion. But the doctor now is dead, and the hospital apparently did not learn of his base deeds until word reached administrators through media stories. Lawyers understandably became involved, and the question arose: What to do about those victims placed outside the justice box by a statute of limitations?

Mr. Lawlor’s answer to this question was, and is, extend or eliminate the statute of limitations.

The Catholic Church was exposed to litigation on this occasion because St. Francis Hospital is a Catholic institution. In fact, the Catholic Church itself has been in the dock, literally and figuratively, for decades – owing to the wicked deeds of some of its priests. Watching the ordeal of their church from the witness box, so to speak, both the church’s enemies and friends have often enough snarled their assent to what they regarded as the institution’s self inflicted and well deserved punishment. What matter that the sins of some fathers of the church should fall on the shoulders of other fathers of the church, not to speak of the laity, who were innocent and greatly offended by what might be called the treason of, for the most part, aggressive non-celibate homosexual priests? Does the church not deserve its punishment, even though that punishment may in some circumstances be misapplied?

Everyone will answer this question to his own satisfaction. But much of the public animus towards the Catholic Church is driven forward by those who, for reasons of their own, simply choose not to acknowledge recent history. In 1992 the church adopted zero tolerance practices. And since 2002 the church has conducted over 2,500 classes on identification of early warning signs and on mandatory reporting trained 234,000 clergy, lay employees, parents, and youth, in addition to conducting over 68,000 criminal background checks.

HB 5473 raises a quite different question, put long ago by another lawyer to his son-in-law. Robert Bolt, in his play “A Man For All Seasons,” dramatized the central question at issue very effectively when, responding to son-in-law Roper’s avid declaration that he would cut down every law in England if it were necessary to cage the devil, St. Thomas More replied, as avidly:

“Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”

The legislature wisely rejected HB 5473 because the bill was narrowly constructed to apply chiefly to St. Francis Hospital and the Catholic Church. To be just, laws must be general and non-specific. The bill also applied monetary punishments retroactively.

The Roperish Mr. Lawlor does not “get” the objection.

"I would certainly initiate it and push for it,'' Mr. Lawlor said of HB 5473.” I would do it again.'' And, Mr. Lawlor urges, the bill must be raised from its coffin quickly too, because St. Francis is on the verge of making a settlement with lawyers representing those who may have been injured by the dead doctor and who fall outside the current statute of limitations, which extends to 30 years after one has reached the age of 18 or up to age 48.

“The reason for the bill,” Mr. Lawlor says, “is a broader policy issue than this one case. Some of the pressure to do it would disappear if there is some kind of settlement.”

But the bill Mr. Lawlor hopes to resurrect does not have a broad compass. For instance, it may not give relief to the violated charges of public school teachers, because teachers are public employees and as such are protected from suits within a statutory structure in which the state may claim sovereign immunity against charges raised by lawyers representing sexually abused students.

In fact, both sexual and physical violence against children is far more prevalent in public institutions than it is presently within Catholic institutions, largely because the Catholic Church has redrafted its policies.

Since 1992, more than a hundred Connecticut public school teachers and coaches have lost their licenses due to sexual misconduct with students, and nineteen Connecticut foster parents, paid by the state, engaged in childhood sexual abuse since 2006. Juvenile detention facilities in Connecticut were reluctant to supply figures on child abuse to the state legislature, but national figures show that about 12%, or 3,220 young people in state juvenile facilities, have complained of sexual victimization in a12-month period, most of the victimization having been committed by government employees.

It has been assumed that Mr. Lawlor’s jihad against Catholic institutions cannot not touch the public purse, owing to the sovereign immunity doctrine claimed by public institutions.

However, sovereign immunity came under attack some time ago by an Ohio Supreme Court, which ruled that the state’s reporting statute imposed liability on mandatory reporters for negligent failure to report instances of child abuse, thus opening the door to lawsuits against public school teachers should they have knowledge of possible child abuse and fail to report such incidents to appropriate children services agencies.

A similar ruling by Connecticut’s Supreme Court, in combination with a new bill extending or eliminating the statute of limitation on abuses against children would hit Connecticut in the pocket book, at which point the state may need to copy from the Catholic Church its considerably more effective child protection procedures.

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