McELROY LECTURE

Child Sex Abuse in Institutional Settings: What Is Next

MARCI A. HAMILTON* Reinforcing taboos have kept the topic of child sex abuse in institutions from public discussion in the United States until recently. Those walls are now crumbling, and we are entering an era of better public information and discourse, which, in turn, is fueling a movement for the improvement of the legal systems protection of children. In this Article, I will examine the taboos and the impact of their fall, and then chart the legal reforms that are flowing from their downfall. I. THE FIRST TABOO: DO NOT SPEAK OF CHILD SEX ABUSE Child sex abuse itself has been a forbidden topic of discourse. Children are developmentally unprepared to know how to explain sex, let alone sex abuse.1 There are also formidable psychological barriers to disclosing child sex abuse for the victims. The victims, therefore, have not been able to be the primary source of information and discourse in society. The rest of society, including the media, has held misconceptions about the prevalence or facts of abuse, and has participated in keeping the information from public view. Until relatively recently, the media tended to avoid matters of child sex abuse, except in the most sensational cases. Individual cases, particularly incest cases, were not covered for fear of embarrassing or shaming the young victims. Moreover, editors believed that the topic itself was too unseemly for a general audience.
* Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University. All rights reserved. Thanks to Detroit Mercy for inviting me to deliver the McElroy Lecture, from which this article is derived, and to my outstanding research assistant team, Lana Seligsohn, Eric Babbitt, Gregory Capobianco, Jessica Cohen-Nowak, Michelle Fox, Emma Glazer, Alexandra Manfredi, Jason Rosovsky, and Jason Tsoutsouras. Special thanks to the Dean Lloyd Semple, who stood up to pressure from the Detroit Catholic diocese when they learned I was going to be speaking on this topic at the law school. 1. See James M. Wood & Sena Garven, When Children Talk Crime, N.Y. TIMES, Sept. 12, 1998, http://www.nytimes.com/1998/09/12/opinion/when-children-talk-crime.html (explaining that most child allegations are not false, but that children need special questioning techniques to be able to discuss the sensitive topic of abuse).

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One result of the medias historic reticence to cover the topic has been a skewed public understanding of child sex abuse. For example, it has been a popular assumption that children are unreliable reporters of abuse, and that false claims are common.2 This widely shared misunderstanding is based on a series of child sexual abuse cases where biased investigation and coercive interviewing techniques led to highly publicized false claims. In the McMartin Preschool trial, several hundred children were interviewed in an investigation regarding alleged sexual abuse and satanic rituals occurring at a daycare center.3 The case began in 1983, when a parent, Judy Johnson, accused Ray Buckey, an employee at the McMartin Preschool, of sexually abusing her two-year old son.4 Johnson also alleged that preschool employees practiced satanic worship involving beheading a baby, drinking blood, and flying.5 A four-year pre-trial investigation commenced.6 The Childrens Institute International (CII), hired by the County of Los Angeles, interviewed 400 children during the investigation.7 Methods relied upon by CII have been strongly criticized by later researchers for being overly suggestive. Consequently, children were led to say and believe that abuse occurred when it did not,8 and six years of criminal trials led to no convictions. The media sensationalized the McMartin criminal trial, and this publicity led to a widespread assumption that children are unreliable witnesses. In fact, scientific studies have debunked this notion, as I discuss below. Still, the media and legislators considering legislative reform often inflate the possibility of false claims, which reinforces the taboo against full discussion of child sex abuse in the public square. The media also has misinformed the public by sanitizing reports of child sex abuse through the use of euphemisms, as well as selective coverage that leads the public to believe it is less common than it actually is. Again, this is an editorial problem. It is very different to read that a child has been molested or inappropriately touched rather than raped or subject to deviant involuntary intercourse. Arthur Brisbane, a New York Times reporter dedicated to covering the media, recently examined

2. See id. 3. Doug Linder, The McMartin Preschool Abuse Trial: A Commentary (2003), http://law2.umkc.edu/faculty/projects/ftrials/mcmartin/mcmartinaccount.html. 4. Id. 5. Id. 6. Id. 7. Id. 8. See Nadja Schreiber, Suggestive Interviewing in the McMartin Preschool and Kelly Michaels Daycare Abuse Cases: A Case Study, 1 SOC. INFLUENCE 16, 18 (2006), available at http://digitalcommons.utep.edu/cgi/viewcontent.cgi?article=1014&context=james_wood; see also McMartin v. Childrens Inst. Intl, 261 Cal. Rptr. 437, 44041 (Cal. Ct. App. 1989).

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this phenomenon, finding that newspapers often shy away from publishing the explicit details that really tell the story.9 Brisbane attributes part of the confusion to the inconsistency in how rape is defined, scholastically as well as legally.10 In the interest of telling their readers the truth, Brisbane concludes, journalists should be as specific as possible, they should avoid using the language of consensual sex to accurately portray the victims stories.11 At this point in history, two types of child sex abuse cases do get serious media attention. First, cases involving abduction and/or murder receive intense national attention.12 Such cases constitute a small fraction of child sex abuse victims, so the intense coverage is disproportionate and misleading to readers. Second, since the Boston Globe broke the story of Catholic bishops covering up abuse in 2001, the media has focused on institution-based abuse, including the Catholic cases,13 the Penn State

9. Arthur S. Brisbane, Confusing Sex and Rape, N.Y. TIMES, Nov. 19, 2011, http://www.nytimes.com/2011/11/20/opinion/sunday/confusing-sex-andrape.html?_r=1&pagewanted=all.2011at. 10. Id. 11. Id. 12. For example, Elizabeth Smarts abduction and sex abuse received sustained and continued media attention. Brian Stelter, Elizabeth Smart Hired as ABC News Contributor, N.Y. TIMES, July 7, 2011, http://mediadecoder.blogs.nytimes.com/2011/07/07/elizabethsmart-hired-as-abc-news-contributor/; Kirk Johnson, Verdict Is Guilty in Abduction of TIMES, Dec. 10, 2010, Elizabeth Smart, N.Y. http://www.nytimes.com/2010/12/11/us/11smart.html?_r=0; Teenager, Missing Since June, Is Found Alive, N.Y. TIMES, Mar. 12, 2003, http://www.nytimes.com/2003/03/12/national/12WIRE-SMART.html; Police in Kidnapping of Utah Girl Turn Attention to Handyman, N.Y. TIMES (June 25, 2002), http://www.nytimes.com/2002/06/25/us/police-in-kidnapping-of-utah-girl-turn-attention-tohandyman.html. Just in the last few months, there has been widespread coverage of the disappearance of Lauren Spierer, a student at Indiana University, missing since June 3, 2011, and a string of abduction attempts in northern New Jersey in mid-October. David Lohr, Lauren Spierer Missing: Family of Missing College Student Awaits Identity of Skull Found, HUFFINGTON POST, July 16, 2012, http://www.huffingtonpost.com/2012/07/16/lauren-spierer-missing_n_1676859.html; Parents On Edge After Another Attempted Child Abduction in New Jersey, CBS NEW YORK, Oct. 14, 2012, http://newyork.cbslocal.com/2012/10/14/parents-on-edge-after-anotherattempted-child-abduction-in-new-jersey/. 13. John P. Martin & Joseph A. Slobodzian, Jury Convicts Lynn of One Count, Deadlocks on Brennan, PHILADELPHIA INQUIRER, June 24, 2012, http://www.philly.com/philly/news/20120623_Jury_convicts_Lynn_of_one_count__deadloc ks_on_Brennan.html; John Eligon & Laurie Goodstein, Kansas City Bishop Convicted of Shielding Pedophile Priest, N.Y. TIMES, Sept. 6, 2012, http://www.nytimes.com/2012/09/07/us/kansas-city-bishop-convicted-of-shieldingpedophile-priest.html; Frank Snepp & Tara Kangarlou, Priests Accused of Molesting Children Hiding in Plain Sight, NBC SOUTHERN CALIFORNIA, Feb. 11, 2012, http://www.nbclosangeles.com/news/Catholic-Churtch-Los-Angeles-Archdiocese-PriestsAccused-Pedophile-Molest-Children-139129294.html; Milwaukee Archdiocese Faces 550 Sex Abuse Claims, CBS NEWS, Feb. 2, 2012, http://www.cbsnews.com/8301-201_162-

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cases,14 and the Boy Scout cases.15 This second group of cases was kept secret for decades because of the Second Taboo, but more recently has been covered. It is ironic the abduction and institutional cases have occupied so much of the publics attention, because the vast majority of abuse happens at the hands of family or close family associates, and these more mundane cases do not reach the media and, therefore, the public.16 II. THE SECOND TABOO: DO NOT SPEAK NEGATIVELY OF ESTEEMED INSTITUTIONS Loyalty to beloved institutions has worked in three ways to keep the realities of child sex abuse from surfacing. First, institutions in American culture typically operate under a public relations set of priorities: make the institution look good and avoid scandal. The leaders in these institutions are charged with keeping the image of the institution pristine. That has led them to hide their knowledge of serial pedophiles within their own institutions in a misguided mission to protect the institution. Pedophiles thrive on the secrecy that results. Pennsylvania State University, or Penn State, has provided telling evidence of this cycle. Successful defensive football coordinator Jerry Sandusky was an integral part of Penn States national titles in 1982 and 1986.17 Sandusky was also a serial child sex predator, who established a charity, The Second Mile, from which he culled boys to groom and

57370183/milwaukee-archdiocese-faces-550-sex-abuse-claims/; Jacqueline L. Salmon, Diocese of Wilmington Files for Bankruptcy Before Trial, THE WASHINGTON POST, Oct. 20, 2009, http://www.washingtonpost.com/wpdyn/content/article/2009/10/19/AR2009101903119.html. 14. Jeremy Roebuck, Jeff Gammage & Susan Snyder, Sandusky Found Guilty, PHILADELPHIA INQUIRER, June 24, 2012, http://articles.philly.com/2012-0624/news/32382873_1_judge-john-m-cleland-jerry-sandusky-verdict; Jeremy Roebuck, ExPenn State President Spanier Charged in Sandusky Case, PHILADELPHIA INQUIRER, Nov. 2, 2012, http://www.philly.com/philly/news/homepage/20121102_ExPenn_State_president_Spanier_charged_in_Sandusky_case.html; Schultz, Curley Arraigned on New Charges, CBS PITTSBURGH, Nov. 2, 2012, http://pittsburgh.cbslocal.com/2012/11/02/schultz-curley-arraigned-on-new-charges/. 15. Kirk Johnson, Boy Scout Files Give Glimpse Into 20 Years of Sex Abuse, N.Y. TIMES, OCT. 18, 2012, http://www.nytimes.com/2012/10/19/us/boy-scout-documents-revealdecades-of-sexual-abuse.html?pagewanted=all. 16. Based on statistics gathered of sexual abuse of young children reported to the police, approximately 34% of victims were assaulted by a family member, 59% by an acquaintance, and only 7% by a stranger. Howard N. Snyder, Sexual Assault of Young Children as Reported to Law Enforcement: Victim, Incident, and Offender Characteristics, U.S. DEPT OF JUSTICE, BUREAU OF JUSTICE STATISTICS (July 2000), http://bjs.ojp.usdoj.gov/content/pub/pdf/saycrle.pdf. 17. Penn State Has Won 68 National Team Championships, www.cstv.com/printable/schools/psu/trads/national-champions.html (last visited Dec. 17, 2012).

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sexually abuse.18 In e-mail communications that were turned over by Penn State as part of the internal investigation about who knew what and when about Sandusky, it appears as if top University officials were strategizing to suppress the facts of Sanduskys crimes against children as early as 2001, and knew of a prior incident at least as early as 1998.19 Graduate assistant Mike McQueary advised former Head Coach Joe Paterno on February 9, 2001, that he witnessed Sandusky raping a boy in the locker room showers.20 Paterno testified before the Centre County grand jury that he reported McQuearys allegation to then university Vice President Gary Schultz, and former Athletic Director Tim Curley, who the following day informed former Penn State President Graham Spanier.21 Spanier, Schultz, and Curley initially discussed a three-pronged approach that included reporting the incident to Second Mile and the Department of Welfare.22 As the emails continue, however, after Curley spoke with Paterno, the three eventually decided on the more humane and upfront approach of simply confronting Sandusky himself, and not reporting the incident to any outside authorities.23 In an email dated February 26, 2001, Curley wrote, I am uncomfortable with what we agreed were the next steps, referring to the plan to report the abuse.24 Instead, he stated, I am having trouble with going to everyone, but the person involved.25 Spanier and Curley later met with Sandusky regarding the shower incident; however, no investigation was made into locating the boy McQueary witnessed from the showers, and Penn State officials never contacted the authorities about the incident.26 The same pattern is evident in the Philadelphia Roman Catholic Archdiocese,27 the Church of Jesus Christ of Latter-Day Saints,28 and

18. Susan Candiotti, Disturbing E-mails Could Spell More Trouble for Penn State Officials, CNN (July 2, 2012, 10:05 AM), http://www.cnn.com/2012/06/30/justice/pennstate-emails/index.html. 19. Id. 20. Id. 21. Id. 22. Id. 23. Id. 24. Id. 25. Id. 26. Id. 27. Report of the Grand Jury, In re County Investigating Grand Jury of Sept. 17, 2003, Court of Com. Pl., First Judicial District of Pa., Crim. Trial Div., Misc. No. 03-00-239, at 4 (Sept. 15, 2005), available at http://www.bishopaccountability.org/reports/2005_09_21_Philly_GrandJury/Grand_Jury_R eport.pdf; Report of the Grand Jury, In re County Investigating Grand Jury XXIII, Court of Com. Pl., First Judicial District of Pa., Crim. Trial Div., Misc. No. 0009901-2008, at 1 (Jan. 21, 2011), available at http://www.phila.gov/districtattorney/PDFs/clergyAbuse2finalReport.pdf; Jon Hurdle & Erik Eckholm, Cardinals Aide Is Found Guilty in Abuse Case, N.Y. TIMES, June 22, 2012, http://www.nytimes.com/2012/06/23/us/philadelphias-

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among rabbis in the Orthodox Jewish and Hasidim communities.29 As the Penn State incident drives home, the phenomenon is not isolated to the religious communities. What has made matters worse is that the media has cooperated with the people in power who were trying to keep the image of their institution pure. Until the Boston Globe broke the story of the cover up of abusing priests in the Boston Archdiocese,30 the media routinely cooperated in keeping stories about abuse in the Catholic Church off the front page. For example, there was a time when reporters who pursued the story of abuse in the Catholic Church were reprimanded or fired. In 1998, Ralph Cipriano was fired from the Philadelphia Inquirer after he wrangled with his editors who had knuckled under in the face of tenacious and aggressive efforts by the Church to control news coverage.31 The Milwaukee Journal Sentinel moved Marie Rhode off the church beat when she started to dig too deeply.32 The New York Times religion reporter, Peter Steinfels, was openly hostile to the Survivors Network of those Abused by Priests (SNAP), telling them that your group will never appear in the pages of the New York Times.33 Steinfels proved to be wrong, with SNAP frequently

msgr-william-j-lynn-is-convicted-of-allowing-abuse.html; Ross Levitt & Susan Candiotti, Philadelphia Priest Abuse Trial to Draw Plenty of Attention, CNN (Mar. 25, 2012), http://articles.cnn.com/2012-03-25/justice/justice_pennsylvania-priest-trial_1_priest-abusedefrocked-priest-monsignor-william-lynn. 28. Marci A. Hamilton, The Licentiousness in Religious Organizations and Why it is Not Protected under Religious Liberty Constitutional Provisions, 18 WM. & MARY BILL RTS. J. 953, 96263 (2010). 29. Amy Neustein & Michael Lesher, Justice Interrupted: How Rabbis Can Interfere with the Prosecution of Sex Offenders And Strategies for How to Stop Them, in TEMPEST IN THE TEMPLE: JEWISH COMMUNITIES & CHILD SEX SCANDALS 197 (Amy Neustein ed., 2009); MICHAEL J. SALAMON, ABUSE IN THE JEWISH COMMUNITY: RELIGIOUS AND COMMUNAL FACTORS THAT UNDERMINE THE APPREHENSION OF OFFENDERS AND THE TREATMENT OF VICTIMS 43 (2011); Hella Winston, Hynes Issues Warning to Rabbis on Abuse Policy, THE JEWISH WEEK, May 29, 2012, http://www.thejewishweek.com/news/new_york/hynes_issues_warning_rabbis_abuse_polic y. 30. THE INVESTIGATIVE STAFF OF THE BOSTON GLOBE, BETRAYAL: THE CRISIS IN THE CATHOLIC CHURCH 3 (2003). 31. Andrew Walsh, Catholic Controversy III: Philadelphia Story, 1 RELIGION IN THE NEWS (1998), available at http://www.trincoll.edu/depts/csrpl/rin%20vol.1no.1/rin%20vol.1no.2/Philadelphia_Story.ht m. 32. Bruce Murphy, The Catholic Cover-up, MILWAUKEE MAG., Feb 14, 2007, http://www.milwaukeemag.com/article/242011-TheCatholicCoverup; see, e.g., Marie Rohde, Justice Prossers Link to Priest Case Assailed: As DA in 79, He Decided Not to Prosecute, Records Indicate, JSONLINE, Feb. 5, 2008, http://www.jsonline.com/news/milwaukee/29510659.html. 33. E-mail from David Clohessy, SNAP National Director and Spokesman, to author (July 1, 2012) (on file with the author).

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quoted in the Times in recent years, but it is a demonstration of where the coverage was not so many years ago. To be sure, the tide has turned, with media reporting in detail on the trial of Monsignor William Lynn of the Philadelphia Archdiocese, who was convicted of child endangerment, but this is a relatively new phenomenon.34 Third, when beloved institutions are involved, there is often a backlash against anyone criticizing the institution. Reports of abuse and of cover-ups have led those with strong institutional ties to either attack the victims and their lawyers, or label those supporting the victims as anti-[fill in the name of a revered institution].35 Those devoted to the Church have attacked the victims at times. In one exchange, Catholics threw coins at victims who were demonstrating in favor of legislative reform to aid all sex abuse survivors.36 The Catholic League for Religious and Civil Rights, whose clients are the United States Catholic bishops, has routinely accused victims, their lawyers, and anyone supporting them as being antiCatholic.37 Similarly, Penn State students rioted when football coach Joe Paterno was fired for mishandling reports of abuse by his defensive coach, Jerry Sandusky.38 Each of these factors contributed to the societal taboo regarding discourse about child sex abuse, which is disappearing quickly into history. III. THE SCIENCE OF CHILD SEX ABUSE With the taboos receding, this is an opportune time to move the public discourse to a factual base. There are certain parameters about child sex

34. Maryclaire Dale, Conscience vs. Obedience: The Case Against Monsignor Lynn, DELAWARE COUNTY DAILY TIMES, June 23, 2012, THE http://www.delcotimes.com/articles/2012/06/23/news/doc4fe66d54d74fe590509289.prt. 35. DAVID F. PIERRE, JR., CATHOLIC PRIESTS FALSELY ACCUSED: THE FACTS, THE FRAUD, THE STORIES 6 (2012); Christine M. Flowers, Verdict Showed the Church as a Whole Wasnt Guilty, PHILADELPHIA DAILY NEWS, Jun. 25, 2012, 3:00 AM, http://www.philly.com/philly/opinion/160204925.html. 36. Kay Ebeling, Incident in NY: Church Crowd Throws Coins at Crime Victims, Disrupts Event, Bused in Like Anti-Health Care Reform Hecklers, THE CITY OF ANGELS (Aug. 17, 2009), http://cityofangels5.blogspot.com/2009/08/incident-in-ny-church-crowdthrows.html. 37. Philly Jury Says No to Conspiracy, THE CATHOLIC LEAGUE (June 22, 2012), http://www.catholicleague.org/philly-jury-says-no-to-conspiracy; Bill Donohue, Snap Unravels, THE CATHOLIC LEAGUE, http://www.catholicleague.org/snap-unravels (last visited Sept. 22, 2012); William A. Donohue, SNAP Exposed: Unmasking the Survivors Network of Those Abused by Priests, THE CATHOLIC LEAGUE, http://70.40.202.97/wpcontent/uploads/2011/09/image_2011082233321.pdf (last visited Sept. 22, 2012). 38. Nate Schweber, Penn State Students Clash with Police in Unrest after TIMES, Nov. 11, 2011, Announcement, N.Y. http://www.nytimes.com/2011/11/11/sports/ncaafootball/penn-state-students-in-clashesafter-joe-paterno-is-ousted.html.

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abuse that have been established by scholars in the field who have released hundreds of studies that should be the basis of the public discourse. A. Child Sex Abuse Is Prevalent The facts are straightforward. Studies indicate that about 1 in 4 girls are sexually abused,39 and 1 in 6 boys.40 In addition, there are nearly 40 million survivors in the United States,41 90% of victims are abused by someone they know or trust,42 and 20% of child sexual abuse victims are under the age of 8.43 Thus, the old stereotype of Stranger Danger masks the actual risk to children. Abusers gain access to children by gaining their trust and the trust of those around the children. It seems counterfactual, but children need to be protected from adults who are trusted. Child sex predators are patient and manipulative individuals who groom their targets with gifts, money, and attention, and who lull other adults into complacency through their devotion to the child.44 It is abnormal for an adult to seek time alone with a childand it is typical for the child to be intimidated into silencewhich is why parents and guardians must be on guard against adults spending inordinate amounts of time with children and not adults.

39. See Prevalence of Individual Adverse Childhood Experiences, CENTERS FOR DISEASE CONTROL AND PREVENTION, http://www.cdc.gov/ace/prevalence.htm (last visited Sept. 22, 2012); see also Shanta R. Dube et al., Long-Term Consequences of Childhood Sexual Abuse by Gender of Victim, 28:5 AM. J. PREVENTIVE MED. 430, 433 (2005), available at http://www.annafoundation.org/ACE%20folder%20for%20website/37LTCG.pdf. 40. See Prevalence of Individual Adverse Childhood Experiences, supra note 39. 41. Statistics Surrounding Child Sexual Abuse, DARKNESS TO LIGHT, http://oldsite.d2l.org/KnowAbout/statistics_2.asp (last visited Dec. 17, 2012). 42. See id. 43. Id.; see also Snyder, supra note 16, at 2. 44. KENNETH V. LANNING, NATL CTR. FOR MISSING AND EXPLOITED CHILDREN, CHILD MOLESTERS: A BEHAVIORAL ANALYSIS 27 (4th ed. 2001), available at http://www.cybertipline.com/en_US/publications/NC70.pdf. Except for child prostitution, most sexual-exploitation-of-children cases in the United States involve acquaintance molesters who rarely use physical force on their victims. . . . Although a variety of individuals sexually abuse children, preferential-type sex offenders, and especially pedophiles, are the primary acquaintance sexual exploiters of children. A preferential-acquaintance child molester might molest 10, 50, hundreds, or even thousands of children in a lifetime, depending on the offender and how broadly or narrowly child molestation is defined. Although pedophiles vary greatly in personality characteristics, their sexual behavior is often repetitive and highly predictable. Id. at 9, 51.

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B. Child Sex Abuse Is Underreported and Victims Often Need Decades to Come Forward It is a fact that only 10% of victims report their abuse to legal authorities.45 That means that the authorities have been receiving far less information than they need to effectively stop pedophiles, but it also means the public is ill-informed about the prevalence of abuse. Many victims need decades to come forward.46 One of the primary characteristics is the extreme difficulty they face making a connection between their typically serious problems in adulthood and the sexual abuse that occurred as a child.47 Often it is not until years after the sexual abuse that victims experience negative outcomes. Clinician Mic Hunter observed that:
Some of the effects of sexual abuse do not become apparent until the victim is an adult and a major life event, such as a marriage or birth of a child, takes place. Therefore, a child who seemed unharmed by childhood abuse can develop crippling symptoms years later and can have a difficult time connecting his adulthood problems with his past.48

Years later when the child does experience the injuries arising from the childhood sexual abuse, the victim is disabled from relating the harm to the abuse in a temporal sense, the way that one would expect if the harmful event was closer in time to the realization of the injury.49 Researchers in various studies have foundspecifically in men who were sexually abused as childrenthat long-term adaptation will often include sexual problems, dysfunctions or compulsions, confusion and struggles over gender and sexual identity, homophobia and confusion about sexual orientation, problems with intimacy, shame, guilt and self-blame, low self-esteem and negative self-images, and anger.50
45. Statistics - Child Sexual Abuse, PARENTS FOR MEGANS LAW & THE CRIME VICTIMS CENTER, http://www.parentsformeganslaw.org/public/statistics_childSexualAbuse.html (last visited Oct. 22, 2012). 46. See, e.g., R.L. v. Voytac, 971 A.2d 1074, 1084 (N.J. 2009) (quoting Jones v. Jones, 576 A.2d 316, 321 (N.J. Super. Ct. App. Div. 1990) (long after the cycle of abuse itself has been broken, the victim will repress and deny, even to himself or herself, what has happened.)). 47. See generally Guy R. Holmes, Liz Offen & Glenn Waller, See No Evil, Hear No Evil, Speak No Evil: Why Do Relatively Few Male Victims of Childhood Sexual Abuse Receive Help for Abuse-Related Issues in Adulthood?, 17 CLINICAL PSYCHOL. REV. 69, 72 73 (1997). 48. MIC HUNTER, ABUSED BOYS: THE NEGLECTED VICTIMS OF SEXUAL ABUSE 59 (1990). 49. Id. (explaining that at the time the child is sexually abused he or she is often too young to appreciate the harmful nature of the acts). 50. David Lisak, The Psychological Impact of Sexual Abuse: Content Analysis of Interviews with Male Survivors, 7 J. OF TRAUMATIC STRESS 525, 526 (1994) (internal citations omitted); see also State v. Schnabel, 952 A.2d 452, 462 (N.J. 2008) (observing that

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C. False Claims Are Rare The McMartin Preschool case led many Americans to believe that false claims are pervasive, but the case was the exception to the rule.51 Scholars have contributed to the myth that false claims are common. Harvard Universitys Professor Elizabeth Loftus has written and testified extensively on the theory of false memory syndrome.52 Loftus work has come under fire, though, in part because it is based on situations that are not analogous to actual trauma inflicted on children. The court in the trial of priest Paul Shanley rejected her testimony, because of discrepancies in her testimony and the inadequacies of her research to the case at hand.53 In prior depositions, Professor Loftus had offered testimony that a person is capable of repressing memories.54 However, in the Shanley case, she contradicted herself by telling the jury that she did not believe there is any credible scientific evidence that years of brutalization can be massively repressed.55 Additionally, her research involves planting false memories that are not similar to the traumatic and life-altering experiences of child sex abuse.56 For example, one study involved planting a false memory in twenty-four adult subjects, with the help of the subjects relatives, of being lost in a mall at the age of five.57 In this study, Professor Loftus prepared a booklet containing stories of three events that the subject had experienced and one event that they had not.58 The false memory was the lost in the mall scenario that included different emotional triggers such as crying or being helped by a stranger.59 The subjects were told that their relatives had remembered these three events and the subjects were instructed to write in the booklet if they remembered the events as described.60 Of the twenty-

Child Sexual Abuse Accommodation Syndrome involves five behavior patterns that may be exhibited by a sexually abused child: secrecy, helplessness, entrapment and accommodation, delayed reporting, and recantation). The unexpected fallout from childhood sexual abuse for the typical victim is compounded by the fact that there are many different problems that can flow from sexual abuse. See id. 51. See Nadja Schreiber et al., Suggestive Interviewing in the McMartin Preschool and Kelly Michaels Daycare Abuse Cases: A Case Study, 1 SOC. INFLUENCE 16, 18 (2006), available at http://digitalcommons.utep.edu/cgi/viewcontent.cgi?article=1014&context=james_wood. 52. See, e.g., Elizabeth F. Loftus, Memory Distortion and False Memory Creation, 24 BULL AM. ACAD. PSYCHIATRY LAW 281, 281 (1996); see also Elizabeth F. Loftus, Creating False Memories, 277 SCI. AM. 70, 71 (1997). 53. Loftus Luster Lost, ORANGE CNTY. WEEKLY (Feb. 17, 2005), http://www.ocweekly.com/2005-02-17/news/loftus-luster-lost.html. 54. Id. 55. Id. 56. Loftus, Creating False Memories, supra note 52, at 7172. 57. Id. at 72. 58. Id. 59. Id. 60. Id.

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four subjects, seven claimed to remember the false event to varying degrees.61 Professor Loftus acknowledged that the false memory of being lost is not similar to the trauma of child abuse.62 Furthermore, there were notable differences in the subjects recall of true memories compared to real memories; subjects recalling true memories described the event in more words and recalled the event more clearly.63 More recent studies have discredited false memory syndrome, finding that children rarely concoct child sex abuse stories, and that if there is a false report, it is usually by a parent or other adult in the childs life not the victim. A recent study found that
[w]hen answering questions about sexual abuse, children rarely spontaneously provided evaluative information. However, this could not be attributed to memory failure, inarticulability, or a lack of evaluative reactions, because children were quite likely to produce evaluative content if the question referenced such content and was phrased as a How question.64

In other words, if adults will listen, child victims tell the truth. Nor is there evidence that victims who are now adults make false claims. When California lifted its statute of limitations for a year, over 1,000 survivors of sexual abuse came forward. There were very few false claims among that group. IV. LEGAL REFORMS FOR CHILD SEX ABUSE VICTIMS The disclosure of abuse and cover up in institutions like Penn State and the Roman Catholic Church have made it clear that the legal system must be reformed to protect children more effectively. There is no single fix, but there are several legal fronts where the pace of reform is increasing. A. Statutes of Limitations Legions of victims of child sex abuse have learned that when they were finally ready to talk to a prosecutor or a lawyer, the criminal and/or civil statutes of limitations (SOLs) had already expired. Across the United States, one victim after another has been surprised by these technical, legal deadlines. SOL reform is the one tried and true means that identifies the many hidden child predators, who are grooming other children right now.

61. Id. 62. Id. 63. Id. 64. Thomas D. Lyon et al., How Did You Feel?: Increasing Child Sexual Abuse Witnesses Production of Evaluative Information, LAW & HUM. BEHAV. 4 (Feb. 6, 2012), available at http://works.bepress.com/thomaslyon/80.

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At one time, SOLs were extremely short, compared to the ability of the survivors to come forward, but many states have seen the injustice in keeping a victim from court simply on this arbitrary deadline and have extended and/or eliminated the criminal and civil SOLs. For decades, states have been adjusting their child sex abuse SOLs in response to fresh stories of horror. At one time, states measured SOLs from the date of the abuse, giving victims only a few years in which to sue. Then, many states began to set the age of majority (twenty-one or eighteen, depending on the state and the era) as the moment when the clock started ticking. Now, there is a true fifty-state experiment, with a wide variety of approaches among the states. There is one common theme, however: many states have been working to extend their child sex abuse SOLs, because there is always a new victim with a compelling story that shows lawmakers the folly of having any SOL for the crime of child sex abuse. Bills that would eliminate, extend, or create windows for SOLs covering child sex abuse are pending or have passed in Massachusetts,65 Connecticut,66 Virginia,67 Florida,68 New Jersey,69 New York,70 and Bills were recently introduced in both houses of the Oregon.71 Pennsylvania legislature as well.72 Currently thirty-three states have

65. H.B. 469, 187th Gen. Ct. (Mass. 2011) (pending) (SOLs for child sex abuse runs for three years from when claimant discovers connection between sex abuse and harm suffered). 66. S.B. 784, 2011 Gen. Assemb., Jan. Sess. (Conn. 2011) (pending) (eliminat[ing] the limitation of time for bringing a civil action with respect to a new occurrence of sexual abuse, sexual exploitation or sexual assault in order to recognize the severity of such occurrences and give victims increased access to the civil court system). 67. H.B. 1476, Gen. Assemb., 2011 Sess. (Va. 2011) (passed) (amending VA. CODE ANN. 8.01-243 (2011) by extending the limitations period for actions for sexual abuse committed during the infancy or incapacity of the abused person from two years to 20 years from the time of the removal of the infancy or incapacity or from the time the cause of action otherwise accrues). 68. FLA. STAT. ANN. 95.11(9) (2010) (eliminating statute of limitations for sexual battery if victim was under 16 years old, for claims not barred as of July 2010). 69. S.B. A1164, 212th Gen. Assemb., Judiciary Comm. (N.J. 2006) (pending) (eliminating statute of limitations for sexual assault). 70. S.B. 5488, 2011 Gen. Assemb., Reg. Sess. (N.Y. 2011) (pending) (extending the statute of limitations in criminal and civil actions for certain sex offenses committed against a child). 71. H.B. 3057, 76th Leg Assemb., Reg. Sess. (Or. 2011) (pending) (eliminating criminal statute of limitations for sexual abuse crimes committed against minors); OR. REV. STAT. 12.117 (2011) (extending its civil limitations period regarding injuries arising out of child sex abuse in 2009). 72. Amy Worden, Pa. Child-Sex-Abuse Bill Finally Makes It Out of Committee, THE PHILADELPHIA INQUIRER, June 23, 2012, http://articles.philly.com/2012-0623/news/32369777_1_child-abuse-case-civil-suits-childhood-sexual-abuse.

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removed, to varying degrees, the criminal SOLs for child sex abuse crimes.73 In addition to extending or eliminating the SOLs, states have enacted so-called window legislation that lifts the SOL for a set period of time, which permits victims whose SOL has expired to file suits during that time period. Minnesota, California, Hawaii, Delaware, and Guam have all enacted various windows of time that allow victims to file suits against their abusers, even if the original SOL had expired under the old law.74 On March 9, 2011, Governor Eddie Calvo signed Guams bill removing the statute of limitations and creating a two-year window to file a complaint.75 The window in California led to the public identification of over 300 perpetrators previously unidentified.76 The window in Delaware has also led to the public identification of dozens of perpetrators previously hidden.77 Given that most child perpetrators abuse many children over the course of their lives,78 SOL reform does far more than create justice for victims in the past. It also forestalls future abuse of todays children. It gives victims their day in court and levels the playing field between individual and institutional entities that cause abuse and the victims. B. Mandatory Reporting Laws Penn State, Syracuse University,79 and the Citadel80 have been dealing with abuse of children by coaches. In each scenario, it is clear that had the

73. Chart of Statutes of Limitation on Child Sexual Abuse: 50 States and the District of Columbia, REFORM THE STATUTE OF LIMITATIONS ON CHILD SEXUAL ABUSE, http://www.sol-reform.com/images/sol_criminal.pdf (last visited Oct. 22, 2012). 74. 1989 Minn. Laws. ch. 190 (modifying MINN. STAT. 541.073(2)); CAL. CIV. PROC. CODE 340.1(a) (West 2006); S.B. 2588, 26th Leg. (HAW. 2012) (enacted) (amending Ch. 657 of the Hawaii Revised Statutes); DEL. CODE ANN. tit. 10, 8145 (2010); Guam Pub. L. 31-07 (2011) (amending tit. 7 GUAM CODE ANN. 11306). 75. Bill No. 33-31 (COR), 2011 1st Reg. Sess. (Guam 2011); Bill No. 34-31 (COR), 2011 1st Reg. Sess. (Guam 2011) (removing the statute of limitations and establishing a two-year window of opportunity for child sex abuse victims whose claims have expired under the Guam SOLs to bring their civil claims); Erin Thompson, Sex Abuse Bills Now Public Law, BISHOPACCOUNTABILITY.ORG, Mar. 9, 2011, http://www.guampdn.com/article/20110310/NEWS01/103100301/Sex-abuse-bills-nowpublic-law. 76. What Is Window Legislation, REFORM THE STATUTE OF LIMITATIONS ON CHILD SEXUAL ABUSE, http://www.sol-reform.com/Pages/WhatIsSOL.html (last visited Dec. 18, 2012). 77. Id. 78. LANNING, supra note 44. 79. Pete Thamel, Syracuse Fires Fine After New Allegations in Molestation Case, Nov. 27, 2011, N.Y. TIMES, http://www.nytimes.com/2011/11/28/sports/ncaabasketball/bernie-fine-fired-by-syracuse-inwake-of-molestation-allegations.html.

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abuse been reported to the authorities, subsequent children could have been protected from the abuser.81 States, however, have not always, or even usually, included university employees and officials in reporting statutes. A number of states took action on this issue after the Penn State story surfaced, including Florida, Illinois, Oregon, West Virginia, Virginia, and South Dakota,82 but not including, ironically enough, Pennsylvania83 and New York.84 Ideally, states should mandate that every adult with information about a child victim who has beenor is beingsexually abused report that information to a state hotline. Those with professional associations and contact with children, however, should have a heightened obligation to report and should be subject to steeper penalties in terms of fines and potential jail time. This requires an amendment to the state mandatory reporting statutes and the institution of a reliable, publicly funded and operated hotline. In a well-designed system, the hotline operators would be trained on an annual basis to receive the relevant information by asking the right questions, and then, with each call, would funnel that information to the right state entity or entitiesincluding child protective services, the police, or the foster care oversight agencies. The hotline would keep a record of the name of the person who reported the abuse, but the identity of the person doing the reporting would be kept confidential, unless there was evidence that the report had been made in bad faith.

80. The Citadel Apologizes for Not Reporting Allegation of Child Sex Abuse, CNN (Nov. 14, 2011), http://articles.cnn.com/2011-11-14/us/us_south-carolina-citadelabuse_1_abuse-allegation-abuse-scandal-criminal-sexual-conduct?_s=PM:US. 81. Id.; see also Jo Becker, E-mails Suggest Paterno Role in Silence on Sandusky, June 30, 2012, N.Y. TIMES, http://www.nytimes.com/2012/07/01/sports/ncaafootball/paterno-may-have-influenceddecision-not-to-report-sandusky-e-mails-indicate.html?pagewanted=all. 82. Ana M. Valdes, Sex Abuse Reporting Requirements Taking Effect Nationwide, in Wake of Sandusky Case, WPTV (June 30, 2012), http://www.wptv.com/dpp/news/sex-abusereporting-requirements-taking-effect-nationwide-in-wake-of-sandusky-case; see also Illinois Aims to Head Off Sex Abuse Scandals Like at Penn State, REUTERS (June 27, 2012, 11:57 AM), http://www.reuters.com/article/2012/06/27/us-usa-illinois-law-abuseidUSBRE85Q14S20120627. 83. PA set up a Task Force, which has just recently issued its recommendations in November 2012. The general website for the PA Task Force on Child Protection can be found at http://www.childprotection.state.pa.us/about.cfm. The direct link to their final report with recommendations can be found at http://www.childprotection.state.pa.us/Resources/press/2012-1127%20Child%20Protection%20Report%20FINAL.pdf. 84. See Ken Lovett, Cuomo Indicates Teacher Evaluation Deal Unlikely Today, NEW YORK DAILY NEWS (June 18, 2012, 6:33 PM), http://www.nydailynews.com/blogs/dailypolitics/2012/06/cuomo-indicates-teacherevaluation-deal-unlikely-today (Governor Cuomo was unable to pass a bill by the end of the legislative session that would make coaches mandatory reporters of child sex abuse).

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Moreover, any adult who made a good faith report should be immune from defamation suits, while knowingly false reports would lead to penalties, thereby precluding any objection about false claims. Such a hotline would be vital, but it would not be enough. In addition, the law should impose meaningful penalties upon an adult who possesses information about the sexual abuse of a child and fails to report that information to the hotline. Beyond requirements placed on individuals, institutions should also be placed under an obligation to report abuse, so that the secret of the abuse cannot be bottled up in the organization.85 We have been educated as a society by the struggles of the Catholic Church in ridding itself of the stench of child sex abuse cycling within the institution for decades, if not centuries. Lets learn from this historical lesson at least what is most obvious: containing information about sexual abuse is harmful to everyone. There are many organizations that should have to report abuse, or suffer severe penalties for failing to do so. They include, just to give a set of examples, public and private schools, including universities; day care organizations; gyms and sports clubs; churches, synagogues, and temples; and private clubs. We also need to resist claims that mandatory reporting laws need to have exceptions, which turn the organizations that receive them into unduly dangerous places for children. Some states have exceptions to reporting requirements for clergy if the information was gained in the confessional. And the confessional has been interpreted to mean not just a Catholic confession, but generally a confidential communication between clergy and a believer.86 So, in such states, if a pedophile confesses child sex abuse to a priest, or Mormon bishop, or Orthodox rabbi, the idea is that the clergyperson should not have to report the abuse. But where does that get us? Sadly, it keeps the secret
85. Some mandatory reporting laws do apply to administrative officials in institutions. See ALASKA STAT. 47.17.020, 47.17.023 (2010) (health administrators and administrators of institutions are required to report); FLA. STAT. ANN. 39.201(1)(b)(5) (West 2000) (social workers, daycare center workers, or other professional child care, foster care, residential, or institutional workers are mandated reporters); IND. CODE ANN. 31-33-5-2 (LexisNexis 2007) (mandatory reporters include any staff member of a medical or other public or private institution, school, facility, or agency); MASS. ANN. LAWS ch. 119, 21 (LexisNexis 2011) (persons in charge of a medical or other public or private institution, school, or facility or that persons designated agent must report); MONT. CODE ANN. 41-3201(2)(f) (2011) (foster care, residential, or institutional workers are required to report). 86. For example, in California, clergy are enumerated as mandatory reporters, but a privilege is granted and limited to pastoral conversations. In Utah, clergy members are not enumerated as mandatory reporters but may be included under the any person designation, however privilege is granted and limited to pastoral conversations. Alternatively, in New York, privilege is not addressed in the reporting laws and neither clergy nor any person is enumerated as a mandatory reporter. Clergy as Mandatory Reporters of Child Abuse and Neglect: Summary of State Laws, CHILD WELFARE INFORMATION GATEWAY 4 (2010), available at http://www.childwelfare.gov/systemwide/laws_policies/statutes/clergymandated.pdf.

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in the institution, and no one thrives more on secrecy than a pedophile. With secrecy, the perpetrator can find the next victim in the very same institution and can assume that the cloak of anonymity will cover his or her misdeeds with the next child. Nevertheless, the Catholic and Mormon bishops still lobby for confessional exceptions to reporting requirements, and they still argue for broad interpretations of what counts as confession in the courts. In short, they fight to keep the secrets of pedophiles within the organization. That is very unfortunatefor the children, and for them, ultimately. However, some states do not have a confessional privilege.87 There are also states with legal exceptions to the confessional privilege where the impending harm is serious.88 Preventing child sex abuse is such an important interest, that there should be no privilege when the information can be used to protect children from a potential child abuser. Even with a privilege in place, though, there is no barrier to religious institutions engaging in an independent extra-confessional investigation and taking action to protect children outside the confessional. Using the privilege as an excuse for ignoring the problem is a recipe for more abuse. Many reporters, however, do not fully understand when and to whom they are required to report. Therefore, training on the signs of child abuse and on the legal requirements is absolutely necessary. Victor Vieth of the National Child Protection Training Center, a leading expert on reporting and training, has documented the problem as follows:
In the case of the Penn State scandal, inadequate training of mandated reporters may have played a role in the failure of many adults to disclose evidence of abuse to the authorities. In a survey of 1,400 mandated professionals from 54 counties in Pennsylvania, 14% said they had never received mandated reporter training. Another 24% said they had not received mandated reporter training in the past five years. The professionals that had received training on their obligations as mandated reporters, may not have received quality training. Approximately 80% of the respondents to the survey said the training

87. See Michael J. Mazza, Comment, Should Clergy Hold the Priest-Penitent Privilege?, 82 MARQ. L. REV. 171, 179 (1998) (noting also that the privilege did not exist at common law). 88. See Ball v. State, 419 N.E.2d 137, 13940 (Ind. 1981) (holding that Baptist minister was allowed to testify about parishioners admission to murders, where constitution of church did not require pastoral confession, or confidential pastor-parishioner discussion with respect to crime as exception to Indiana clergy-privilege evidentiary rules); State v. List, 270 N.J. Super. 169, 636 A.2d 1054 (App. Div. 1993) (finding clergy/communicant privilege found at N.J. Stat. Ann. 2A:84A23 inapplicable in murder confession letter written to defendants pastor because it was left in his home); Bonham v. State, 644 N.E.2d 1223 (Ind. 1994) (finding Ind. Code Ann. 341145(4), explaining the clergy privilege, inapplicable where the pastor testified what the defendant told him, when he visited the defendant in jail, how he killed the victim of the charged murder).

Summer 2012]CHILD SEX ABUSE IN INSTITUTIONAL SETTINGS was not approved for continuing education units or they were uncertain.89

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By forcing the information outside the organization, mandatory reporting of child sex abuse saves not just the child, but also the institution. Thus, those who support reporting exceptions in the belief that, in doing so, they are supporting their churchor school, or campget it exactly wrong. Reporting requirements do not cripple institutions; rather, they force them to flush out their wrongdoers, thus making the institution a healthier environment. And without such requirements, abuse has been permitted to flourish, and the institutions weakened. C. Whistleblower Laws Whistleblower-protection laws should also be considered. Any person or organization that punishes someone for reporting child sex abuse should be subject to criminal penalties. Such penalties would, for instance, empower a priest, who lived in the rectory with a fellow priest who brought boys and girls into his bedroom, to report the likely abuse because the bishop would face criminal penalties for punishing the reporting priest. Such laws would also have given support to Penn States administration, and given them a chance to break from their huddle over humane treatment to stop monsters like Sandusky through direct action. Moreover, such laws would hand prosecutors a weapon to eradicate the entrenched patterns of abuse that have been sewn into the very fabric of these types of communities. Louisiana,90 Iowa,91 and Illinois are now among the states with enacted or proposed child sex abuse whistle blower protection laws. Testimony in the Monsignor Lynn trial illustrates that Cardinal Anthony Bevilacqua of the Philadelphia Archdiocese treated a priest whistle-blower more harshly than the accused priest abusers.92 In 2010, Fr. Robert M. Hoatson sued the Archdiocese of Newark after he was denied his normal

89. Victor Vieth et al., Lessons from Penn State: A Call to Implement a New Pattern of Training for Mandated Reporters and Child Protection Professionals, 3 CENTER PIECE, Feb. 2012, at 3, available at http://www.ncptc.org/vertical/Sites/%7B8634A6E1-FAD2-43819C0D-5DC7E93C9410%7D/uploads/Vol_3_Issue_3__4.pdf. 90. Lawmakers Pass Child Sex Abuse Protection Bill, FOX8LIVE.COM (May 24, 2012, 4:40 PM), http://www.fox8live.com/story/18266913/lawmakers-pass-child-sex-abusereporting-protection. 91. Rod Boshart, Panel to Seek Whistleblower Protection in Child Sex-Abuse Cases, GLOBEGAZETTE.COM (Dec. 6, 2011, 9:00 PM), http://globegazette.com/news/iowa/panel-toseek-whistleblower-protection-in-child-sex-abuse-cases/article_101f0ac4-206d-11e1-91ac001871e3ce6c.html. 92. Dale, supra note 34.

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priestly activities, including presiding over a family members funeral mass after Hoatson reported clergy abuse.93 D. RICO-type Laws for Institutions that Cover up Abuse Imagine a large, wealthy, and hierarchical organization that persists in believing it is above the law. It is not hard to do after all of the recent scandals. Over many decades, the organization has employed a tradition of blood-brother secrecy to keep its illegal actions from being analyzed or criticized in the press, or prosecuted and punished by legal authorities. It employs powerful, adept, and highly-paid lawyers, and resists judicial process whenever it can. Meanwhile, the organizations leaders are united in a secret bond that requires them to do whatever it takes to protect the organization from scandal. For them, the cover-up of serious crimes is a way of life, a feature of their everyday business. This description fits both the Mafia, and the Catholic Churchs and Penn States approach to child abuse by their employees. Of course, one might object that there are differences between the two institutions. Most obviously, the Mafia is in the primary business of murder and other serious crimes; the Churchs primary business has nothing to do with sexual abuse, though it was an accessory to it numerous times over the years. But that difference doesnt matter, under the Racketeer Influenced and Corrupt Organizations Act (RICO).94 For example, labor unions are not in the primary business of crime, and they still face RICO prosecutions. Indeed, one major target of RICO is the takeover of a legitimate organization by criminal elements.95 A federal RICO prosecution would be a powerful tool against institutionalized abuse, where local prosecutions do not suffice. Some brave local and county prosecutors have employed conspiracy theories to pursue the Churchs crimes in the interests of the children who have been hurt.96 But the vast majority has not, most because of statutes of limitations

93. Hoatson v. New York Archdiocese, 901 N.Y.S.2d 907, *12 (N.Y. App. Div. 2009). 94. 18 U.S.C. 19611968 (2006). 95. See Sinclair v. Hawke, 314 F.3d 934, 943 (8th Cir. 2003) (explaining that [t]he major purpose behind RICO is to curb the infiltration of legitimate business organizations by racketeers) (quoting Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 990 (8th Cir. 1989)); 18 U.S.C. 1961 (2006). 96. See, e.g., Hurdle & Eckholm, supra note 27; John P. Martin, Defrocked Phila. Priest Pleads Guilty to Sex Abuse Just Before Trial Is to Start, THE PHILADELPHIA INQUIRER, Mar. 23, 2012, http://articles.philly.com/2012-03-23/news/31229879_1_altar-boy-sexualmisconduct-abuse-allegations; Elizabeth Fiedler, With Lynn Convicted, Are Civil Cases Against Philadelphia Archdiocese Up Next?, NEWSWORKS (June 26, 2012), http://www.newsworks.org/index.php/local//item/40554-25lfdiocese; Joshua J. McElwee, Robert Finn, Kansas City Bishop, to Stand Trial in Abuse Case, The HUFFINGTON POST

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barriers but others because of the difficulties of prosecuting conspiracies. The Philadelphia District Attorneys Office learned during the trial of Monsignor William Lynn for the charge of conspiracy to endanger children that jurors have a difficult time understanding a conspiracy theory, even when there is a tremendous amount of evidence.97 Scattershot local prosecutions cannot by themselves bring institutions to full confrontation with their institutional problem. As in the game of whack-a-mole, the Catholic hierarchy has adopted a strategy of using whatever legal means are at its disposal to try to force its problems back underground. Apparently, they hope that, at some point, they will be able to put down the mallet and wander off to the merry-go-round. A federal RICO prosecution would force an institution to confront its problems more directly by forcing it to face a federal prosecutorial juggernaut, as opposed to isolated local actions. While worthwhile, commendable, and necessary, these local prosecutions are not enough to prompt the thoroughgoing national, institutional reforms needed. RICO as it now stands, however, is inadequate, because no predicate act fits neatly with the underlying crime of covering up child sex abuse or child sex abuse itself. Thus, RICO needs to be amended to include as a predicate act the cover up of abuse and/or child sex abuse. CONCLUSION The taboos that have kept information and discourse about child sex abuse out of the public square have fallen. Now, with the public becoming more well-informed and the horrible facts on the front pages, there is a real possibility that the legal system can be reformed to protect children and deter institutions that protect abusers. The four categories of reform in this Article are the places to start.

(April 11, 2012, 12:38 PM), http://www.huffingtonpost.com/2012/04/11/kansas-city-bishoprobert-finn-ordered-to-stand-trial-in-abuse-case_n_1417869.html. 97. John P. Martin, Split Verdict in Priest Case Reflected Jurors Struggles, PHILADELPHIA INQUIRER, June 25, 2012, http://articles.philly.com/2012-0625/news/32394420_1_altar-boy-isa-logan-priest.