Legislation needs changes to be fair

By | November 4, 2009

AB 453 was scheduled to be debated in the Assembly this week.

While no one denies the need for victims of sexual abuse to have recourse that will help them seek justice and bring closure and healing to their lives, the proposed legislation seems weighted against private organizations such as churches and non-profit community groups. For it does not, as you might think, cover governmental bodies, including public schools. Only private groups.

Why?

Because of something called “sovereign immunity,” which dates back to the fifth century and refers to the immunity of kings from legal actions in civil courts.

“Sovereign immunity” excludes – and would continue to exclude under this proposed legislation – public schools from being sued for negligence because of sexual abuse committed by their employees. Governmental agencies are also generally protected from negligence lawsuits regarding supervision of their employees, even if they knew about the employees’ past history and ignored potential risks, because supervision of government employees is a “discretionary act,” which is also protected by sovereign immunity.

However, even if you could still find a way to bring a civil suit against a public school system, you would find yourself limited to a judgment not to exceed $50,000.

Likewise, teachers, coaches and other public school employees are similarly protected, if the abuse they committed happened in the course of their employment.

Private entities – such as churches or private charitable camps – have no such protection.

(There was a time when charities enjoyed “charitable immunity,” but that protection has been removed by most states, including Wisconsin.)

So these bills clearly seem directed at private institutions and their employees. Attorney James Birnbaum told legislators that these bills in effect create two classes of victims and institutions – depending on whether someone was abused by public agents or by someone employed by a charity or private group. Likewise, charities, such as scout groups, would be open to lawsuits and uncapped financial judgments that would never be faced by public agencies.

Birnbaum, who serves as the attorney for the Diocese of La Crosse and who has practiced law for 34 years, testified before the Wisconsin Assembly Committee on Children and Families regarding AB 453 on Oct. 21. A copy of his testimony was provided to The Compass by the Wisconsin Catholic Conference.

“If you are sexually abused by a public agent,” Birnbaum told legislators, “you have no recourse and the public entity has no obligation. The same actions by an agent of a private entity could be subject to suit without limitation and victims compensated.”

If such a law should be considered, why not do so after removing immunity from public sector organizations, or returning charitable immunity to the legal code? That would level the playing field, while still addressing the needs of victims. Otherwise, this proposed law will continue to look as if it is primarily formulated not to aid victims, but to attack churches and charitable entities.

That does nothing to help the healing process, at any level.

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