Kelly Clark, Esq.
O’Donnell and Clark Annual Firm Dinner
September 19, 2007,
A Defense of Our Work.
Mark asked me to speak to you tonight about the work on the child abuse cases that I and the litigation team at O and C have done for the last several years. Many of you know something about these cases, some of you probably know very little. Anyway, I told MOD I was happy to do it, but that it didn’t seem to me to fit the general context of our dinners– which have always been concerned with some aspect of public policy. "Well," he said, "you blame everything else on the Democrats; I’m sure you can find some way to blame them for child abuse." Hmmm… tempting.
As I thought about it, however, it did occur to me that, while these cases against churches, schools, youth groups and such do not lend themselves directly to a political discussion, yet there are aspects of this work that, I have come to believe, do raise interesting questions of public consequence. It will be my goal tonight to explain what is at stake in these cases, why it is important to bring them– first of course for the survivors, for whom it is all about justice and healing. But also, more to the context of our dinner, why it is important for society that the institutions of trust in which these cases usually happen regain and retain our trust. For I will argue that these institutions of trust– elsewhere called Mediating Structures, elsewhere called 1000 Points of Light– are a critical component of any free society, an important guardian of liberty. And I will also argue that the litigation we bring against them is necessary, a radical surgery, but one unavoidable if the infection of child abuse is to be healed and these entities cleansed.
Now if it sounds like this thesis is a bit defensive, I confess defensiveness. So often I am confronted by those who, of course do not condone child abuse, still seem confused or even angry that we would regularly sue such rightly revered institutions as the Catholic Church, the Boy Scouts, the Mormon Church, schools, athletic leagues, youth organizations and others. I know very few people who are not loyal to one or more of these groups, and I often sense they are troubled in some way that they seem not to be able fully to articulate. Well, I will try tonight to articulate what it is that troubles them, and you, about these cases, and at the same time to offer a defense of our work– an apologia pro labore sua, to borrow a phrase from John Henry Newman.
I will offer three primary themes: first, what it is you need to know about the child abuse cases– what they are about, what they are not about, and why they are both tragic as a matter of human drama but also fascinating as a matter of the search for justice and healing? What nerve is it that these cases tap into? Second, I want to explore what we mean by the phrase "institutions of trust": what are they and why are they important to society? And third, why it is that the blunt instrument of civil litigation is the right medicine for the sickness that sometimes infects these organizations? Finally, I will conclude with some thoughts about the significance of institutions of trust for partisan politics… so stay tuned: maybe I really will find some way to blame the Democrats.
1. The dynamics of a child abuse case– common understandings and misunderstandings.
As I have listened over the last fifteen years to the stories of these boys and girls– now men and women– who were abused by priests, nuns, teachers, scout leaders, coaches and others they trusted from organizations they loved, and then as I have heard comments from outsiders about these cases, I am reminded that there is still much misunderstanding about the nature of child sexual abuse. So here, perhaps, is what has been troubling you; here are answers to the questions I have been asked:
** Yes, it really happened. People often ask me: how do you know they are telling the truth? How do you know it really happened? And I say– the same way you know if anyone is telling the truth. You sit across the table and you look them in the eye. Does the story make sense? Does their demeanor have that pallor of guilt and fear that tells me I am in the presence of an abuse survivor? But there are other indicators of truth. In the Catholic context, just as an example, numerous priests themselves acknowledged that they abused children. To its credit, the Church acknowledged, publicly and privately, that a number of its priests were serial pedophiles. In negotiations, defense lawyers make it clear that they find my clients credible. Mediators–often retired trial judges with decades of experience evaluating witnesses– find these claims truthful. Most importantly, the lawyers involved on both sides understand that the credibility of a person can be tested by placing him before a jury of twelve citizens tried and true. While not perfect, the jury system is the oldest and surest route to the truth known to human kind. So cases settle. Because everyone involved in the case knows it happened.
** They didn’t “wait so long;” most survivors had intended to take their secrets to the grave. The single most confused question I get asked is — ”Why did they wait all these years?” The answer is best given in the words of a client of mine, who testified to the effect that: “I wasn’t waiting. I never intended to speak of this to anyone. I planned to carry it to my grave.” Most child abuse survivors do not ever consider bringing legal claims or even obtaining counseling. They carry too much shame and guilt; they still believe that it was somehow their fault. Then something happens–the psychologists call it “a triggering event,” and they begin to understand. They begin to see the connection between their childhood abuse and their damage–a lifetime inability to trust, or to experience religious transcendent faith, or to stay unaddicted. Prior to that, they say: “I kept it stuffed away,” or “I kept it on the back burner,” “I pretended it didn’t happen,” and other similar phrases, all indicating that the pain, guilt, confusion, and shame of the event was too great for them to house in their conscious mind. The psyche literally splits, and walls off the trauma. The psychological literature is loaded with the science explaining this dynamic, but the reality on the ground is that child abuse survivors do not wait. They have a mental block that releases later in life.
** No, they are not just “in it for the money.” It is radically unfair to a child abuse survivor to to say that, because they seek justice for their pain and betrayal that they are only in it for the money. I can assure you that if we had the Blue Button System–whereby nine of twelve jurors could push the Blue Button and undo everything that had been done to these survivors–every client of mine would be seeking the Blue Button Justice. But we don’t have that system, and so they cannot be blamed for seeking the only kind of justice we have. Moreover, for every one of my clients, this has always been about more than money: it was about telling their story, finding accountability, and changing an institution that they had once loved.
** Child abuse survivors are not the enemy. Some people loyal to these institutions tend to treat the abuse victims as the enemy– “they are just trying to destroy the Church, or the Scouts, or whomever…” Not so. Most of these people still have some emotional bond with the entity they loved as a child. At some level, they want to be invited home. They simply wanted to be heard, healed and made whole, by their childhood community of trust. Too often they have been treated like enemies. Those scars– kind of second abuse–will also take a long time to heal. To paraphrase the parable of Jesus, the Good Shepard leaves the 99 sheep to find the one that is lost; He does not stay with the 99 and leave the one to die in the wilderness alone. I have urged the bishops and leaders of these institutions of trust to go find that sheep–the least, the last, the little, the lonely, the lost.
2. Why Institutions of Trust Are Important as a Matter of Public Policy–
So let’s now look a bit more closely at these institutions of trust. The fact is that, outside the institutional context, child abuse cases are relatively unremarkable. Of course, any time a child is sexually abused by a trusted adult, it is a tragedy, but oftentimes these cases carry no real public moment: I mean, if a stepfather abuses a stepchild, it is awful, but it usually does not make the front page. So why, when the incident occurs in the context of a church or a little league does it become newsworthy? Of course, the media like scandal, and hypocrisy, and anything having to do with sex and religion, but here, for once, it seems that the media have a nose for something important. It was occasionally quiet news when over the past decades a wayward priest abused a child. But it became a worldwide scandal when we learned that the Archdiocese of Boston had engaged in a decades-long cover-up of abuse. We cringe when we read that the Boys Scouts had a massive child abuse problem, that they knew it as early as the 1960’s and that it took them 20 years to do anything about it besides bury it. Why it is so devastating to us? It strikes a nerve. It is akin to a kid learning that his sports hero is a thug and a fraud. "Oh, say it ain’t so!" we say of these cases. "Tell me that my favorite charity or my Sacred House of Worship was not a place for pedophiles to hang out, and please tell me that we didn’t cover it up. Say it ain’t so." We are devastated. But apart from our personal loyalty, we also know instinctively that these institutions of trust are critical to society, and we are loathe to believe that they may have forfeited our trust.
About 25 years ago the noted Catholic writer Michael Novak argued in a small but influential book entitled "Mediating Structures" that there are certain organizations in a democratic culture that are important buffers, mediating structures, between the individual, on the one hand, and large, impersonal, corporate or governmental power, on the other. The family, neighborhoods, churches, civic organizations, labor unions, nonprofits, chambers of commerce, service clubs, the artistic movments, a free press– all these are entities that protect our liberties from being eaten up by Leviathan– Big Brother, those massive corporate structures that all of us instinctively distrust, things that St Paul calls the "Principalities and Powers of this dark age." Any institution that by size or power or influence threatens our freedom– political, economic, intellectual, spiritual freedom. Big Government; Huge Corporate and Economic Interests, the old Military-Industrial complex, Big Labor, the Materialist and Narcisstic Entertainment world, Big Media– these are all Principalities and Powers that can overtake us, coerce us, seduce us into political or spiritual slavery.
And it is the mediating structures of society, Novak argued, that serve as a buffer between us and the Leviathan.
This is true as a matter of history as well as theory. It was true in first Century Palestine, where both the Jews and, later, the Christians, drove the Romans crazy because they refused to bow to the Power of Caesar– those pesky Hebrews insisting on their holidays and Temples, those bizarre Christians refusing to say Caesar is Lord because they insist that Jesus is Lord. It was true in 1930’s Germany, where the Nazis demanded that churches, unions, parties and the press either became loyal to the Fuhrer or be abolished. A young Bishop and Cardinal in Poland named Wojtyla – we later knew him as Pope John Paul II– knew it in the 1970’s and 1980’s, and he engaged in a tug of war with the Communists for the hearts and souls of that nation. And he won– using mediating institutions of trust– church and theatre and youth organizations and universities and, ultimately– and most ironically in a system supposedly dedicated to the worker– labor unions. What he called "culture"– what I’m calling Institutions of trust, what Novak called Mediating Structures, what George HW Bush called 1000 Points of Light– won out over the Principalities and Powers of Communism.
Without these mediating structures of family and church and civic organizations, there is nothing between us and the Principalities and Powers. And if that remains so for very long, we lose our economic and spiritual and political liberties. We know this intuitively. And I have no doubt that the organizations that we at O and C regularly sue are Mediating Structures, Institutions of Trust, 1000 Points of Light. And I suggest that this is why you raise an eyebrow when we sue them. But let me tell you why you, and they, should be glad we do.
3. Litigation as a Tool for Institutional Change.
It is perhaps not just because I am a trial lawyer that I argue that child abuse litigation is a good thing. I have seen how it works, not only for the survivors, but ultimately and eventually, also for the institutions of trust.
So let’s start with the idea that civil justice in this Republic can help to change and improve civic and corporate entities. If you don’t believe this, think for a moment about the automobiles you drive. They are safer than they were 30 years ago, safer not because the automakers decided out of the goodness of their hearts to make them safer, and not because Congress suddenly got enough guts to take on Big Auto, but because some brassy trial lawyers sued GM and Ford for exploding gas tanks and top-heavy SUV’s. The mega-entities that make up Big Finance in this country now are more honest when they loan us money, not because they got religion, but because they got sued for fraud over and over again. And I say without doubt that the Catholic Church is a better institution, safer for kids and truer to the Gospel, than it was 25 or 30 years ago, because of sustained and systematic litigation brought against it by men and women now numbering in the thousands. They do better screening for priestly candidates; they train better; they follow the law concerning mandatory reporting of abuse allegations– none of these things they were doing even 10 or 15 years ago. And, yes, it was the blunt instrument of civil lawsuits that changed the culture of the Church.
I have written and spoken elsewhere about the hesitations I as a Christian have had in suing a church for which I have great regard, and in fact have twice nearly joined. But even with those scruples, I would do it again.
Of course civil litigation is a blunt instrument. And yes, there are unscrupulous lawyers who use it unwisely. And it is even true that there are runaway juries in our courtrooms. But for every runaway jury, there are 10 defense verdicts. And for every large punitive damage award, there is usually some appeals court all too ready to overturn it, or adjust it. The power of punitive damages– the threat to any corporation or institution of trust– is in its deterrence. Very few of us get audited by the IRS for tax fraud– but it is a pretty powerful deterrent for rational citizens. So are punitive damages a deterrent for rational civic organizations.
If you do not believe in the civil justice system, let me ask you this: where in the world would you like to be if a member of your family were, say, wrongfully killed by a police officer– Italy? Russia? Iran? Or the good ol US of A? It ain’t perfect, but we like our judicial system over anyone else’s. We know that our jury system may be the worst system of justice ever invented except any other system of justice ever invented.
Ask Cherie and Greg Sprando of Fred’s Marina why they finally got fair treatment from Multnomah County several years ago: it wasn’t because the County suddenly decided to do the right thing– it was because a federal judge ruled that a jury would decide how much money the County owed them for violating their economic and civil rights. Ask Dick and Gayanne Courter what it felt like to have a jury of their peers order the City of Portland to pay them a fair value for their property– more than 3 times the City’s best offer– plus their lawyer fees, because after a week of trial the jury understood how for a decade the City had run roughshod over these fine people.
I am amazed at my Republican friends who do not trust juries– yet also insist that the voters of this land are full of common sense, just I am amazed at my liberal buddies who trust citizens in the jury box but not at the ballot box– say, on key initiatives or referenda. They are elitists, all– they don’t trust the wisdom of the common man. Well I trust him in the jury box and at the ballot box. Not because he always gets it right, but because his is a better average than any elitist system that has ever been tried. With Edmund Burke I say that, “I am not one of those who think that the people are never in the wrong. But I do say that in all disputes between them and their rulers, the presumption is at least upon a par in favor of the people…” And so our jury system works because of the presumption in favor of the common man’s common standards.
That is why I say that the Boy Scouts and the Catholic Church and the Mormon Church and the Oregon Gymnastics Academy and Open Bible Christian School and dozens of other insitutions of trust are better off in the long run by being sued for child abuse. It is because they know that their actions will be judged by a jury of citizens– with the common sense and common decency of the community– because they know that, they offer justice to victims, and they review their policies and talk to their insurers, they improve their screening and tighten their supervision. And kids are safer because of it.
Conclusion: What it All Means.
Now. What does all this have to do with partisan politics? Is there any way to blame the Democrats? Well, only if I also blame the Republicans. I spoke a moment ago about how Republicans don’t trust the common man in the jury box, and Democrats don’t trust him at the ballot box. That’s because they are all elitists. So now it is election year and the Republican Party and the Democrat Party want your vote. So now they will try to convince you that they– and only they– stand between you and the big bad thing, the Leviathan. The only difference is that they disagree about what that big bad thing is: Democrats think it is corporate America and Republicans argue it is Big Brother Government. And so from the 1930’s til the 1980’s the Democrats held sway because we were convinced that the greatest threat to our liberty was monopolies and big business. Then in the Age of Reagan, from about 1980 until today, we gave power to the Republicans because we thought only they could tackle the huge monster of Government and its infinite interest groups and constituencies and the public unions and the monopoly known as public education.
But now we may be in a time of transition. Now we don’t know where to go. George W Bush’s “big government conservatism” (whatever that is), his domestic spying, his cronyism– and the Republicans’ willingness to carry the water of big corporate America– has us wondering again if our liberties wouldn’t be less threatened if we went back to the bumbling, incompetent and do-gooder Democrats who think free enterprise the cause and government the answer to every social problem.
Truth is, both parties want you to believe that they are mediating structures, and neither really is, because neither are willing to take on their biggest constituencies. But that’s what’s at stake. And if either party ever figures out that these mediating structures of family and neighborhoods and nonprofits and churches and a truly free press– the 1000 Points of Light that O’Donnell and Clark keep suing –need to be protected and strengthened in our public policy, in legislation and in public trust… if either party ever figures that out, and has the guts to stand up to their own big constitu4encies to do it, well, then, they will win elections, over and over again. Because we know that these institutions are important, and worth preserving. For our kids and for our liberties.
So. That’s what child abuse has to do with politics.