OMNIA Q&A: Victim-Centered Legislation

Marci Hamilton, Robert A. Fox Leadership Program Professor of Practice, has waged a career-long effort to protect and find justice for victims of child abuse.

Thursday, August 15, 2019

Marci Hamilton, Robert A. Fox Leadership Program Professor of Practice

Marci Hamilton has waged a career-long effort to protect and find justice for victims of child abuse. The Robert A. Fox Leadership Program Professor of Practice is the founder and CEO of CHILD USA, a non-profit dedicated to interdisciplinary, evidence-based research to prevent child abuse and neglect. She was one of the first to speak out publicly about the sexual abuse of children by Catholic clergy, and is a staunch advocate of the establishment clause in the First Amendment, which prohibits the establishment of religion by Congress. She has fought legislation like the Religious Freedom Restoration Act, which she says has been used by religious officials to avoid producing evidence of abuse.

Hamilton was recently invited to the Aspen Ideas Festival, a gathering of academics and influential minds from other sectors, like the business world, to discuss how those in positions of power can work to improve the common good.

Below she discusses the unique challenges of taking on religious and private institutions, fighting in court for progressive legislation on policy like statutes of limitation (SOLs), which set an arbitrary deadline for filing a case or pressing charges, and explaining why aggressive effort is needed to understand the mechanisms and consequences of child abuse.


How did your quest for child advocacy begin?

I was a law clerk for Supreme Court Justice Sandra Day O'Connor for the 1990 October Term. A mere five years later, when I was a law professor, the first case I ever had fell into my lap—a case about the Religious Freedom Restoration Act, or RFRA, which enabled the churches to hide behind newly expanded religious “rights” to shield themselves from the laws that apply to everyone else.

So, I started hearing from child protection advocates, mayors, state attorneys general, and organizations like the National Association of Regulatory Agencies—people all dealing with child abuse—and was force-educated. The upshot of my Supreme Court case was that I was on the opposite side of every religious group in the U.S., but that was balanced out by what I was learning about those at risk of religious actors.

Then, when the clergy sex abuse crisis broke in 2002 with the Boston Globe Spotlight series, I was really the only First Amendment scholar willing to take the side of the victims against the churches.


Was there blowback during these cases?

Working on all these issues against organized religion had never been part of any plan. My husband's Catholic and I'm Presbyterian. We're not atheists by a long shot. But when all the clergy sex abuse reporting started happening, I got a call about cases in California. One of them involved a case where all four children were sexually abused by the same priest, and the mother was sexually assaulted by him. Two of the children were able to sue and two weren't, and it was because of SOL policies. It was outrageous this artificial deadline could have such unfair consequences. When I was on a sabbatical at Princeton, I thought, "You know? I'm just going to write a book, explaining to everybody this is a no-brainer. Let's just stop this.”


We all agree on the importance of religious liberty, but the fundamental problem that the framers understood is that religious groups are perfectly capable of abusing their powers.


I wrote Justice Denied: What America Must Do to Protect its Children, and the Catholic Church came down hard on me. A prominent Catholic publication published a review entitled “MarciWorld” which was misogynist and filled with unbelievable things. I realized I had touched a nerve. That set me up for a war, and I just started hiring more and more research assistants to document and promote access to justice for child sex abuse victims. After a number of years, I finally realized that if I didn't start a nonprofit, I couldn't do anything more than I was doing.


That nonprofit is CHILD USA. Tell me more about its role in the fight against child abuse.

CHILD USA is a nonprofit think tank dedicated to end child abuse and neglect through the best legal and social science research. We are pursuing a number of initiatives. The Sean P. McIlmail Statute of Limitations Research Institute at CHILD USA is funded by a remarkable family whose son died of a drug overdose when he was trying to prosecute his perpetrator, a priest. We're invested in all types of child protection issues. We are also interested in educating the public and in empowering victims. We are the leaders in SOL reform.

We've just started a CHILD USA Fellows program, where we'll have two new college graduates, one of whom is from Penn. We'll also have two lawyers starting in the fall as Legal Fellows to join forces with our current Staff Attorney. There’s a wealth of expertise; we have social science researchers, and we also have outstanding Fox Fellows every semester. I hear from victims, and I hear from their families. What they're looking for is support and information, and that helps us to understand what we need to do better in terms of explaining things.


Why are child abuse victims less likely to come forward?

There is a remarkable study out of Germany that found the average victim doesn’t speak out until age 52—that's pretty amazing. Even today, people view sex abuse like a broken leg—an injury that should be obvious and can be treated. But we have to keep in mind that victims are usually threatened, and the humiliation and shame keep them quiet, as does the trauma. They have to get around depression and PTSD and substance abuse. It's asking a lot of any victim.


We are at a tipping point where powerful men who expected society to protect them are going to be held to account.


One of the big problems right now is that the #MeToo movement came after these child sex abuse movements. It persuaded many survivors that they have an obligation to go public. And while I understand that, many child abuse victims are not going to get justice due to unfairly short SOLs. And so, in some ways it's been cruel to have this social message out there that says, "You must come forward," or, "You're not doing what you owe society.” They should only have to come forward when they are ready. We need a more victim-centered system.


Since your early cases, SOL policy reform has been one of your main focuses. Can you provide a brief history on past and current legislation?

At one time, kids had only 2 years from the date of the sex abuse to go to court. Given the decades it takes most victims to come forward, that was very unfair. Yet, as knowledge has improved, and as the rights of women and children have improved, there is now a movement to extend and eliminate the SOLs. I mark the 2002 Boston Globe Spotlight investigation series as the beginning of talking really forcefully about SOL reform, because that's when we first learned about the cover-up. Before that, we knew about abusers—we didn't know about the cover-up in trusted institutions. After the series broke, California had the first “open window,” which granted one year where there’s no SOLs for child sex abuse. There were about 1,150 claims. About 850 were Catholic. So, all of a sudden, the public starts learning that it's not just Boston.

In 2005, Lynne Abraham published her District Attorney's report on sex abuse in the Philadelphia Archdiocese. I was brought onto that team as the only non-staff person to work on the legal recommendations. The 2005 report was the first recommendation in Pennsylvania to eliminate and revive expired SOLs. And the arguments for opening the doors to justice got better and better. In 2007, Delaware put into place a window that was open for two years. The significance of that window is not just that it revealed sex abuse in many areas, but we learned about abuse by a pediatrician named Earl Bradley, and about a thousand victims came forward. Then Hawaii came into the picture, then Minnesota came into the picture, but it was a heated battle for each of those states. Now, we have 17 jurisdictions that revived expired civil SOLs for the victims from the past and 44 states that have eliminated the criminal SOL. And 2019 is a banner year! So, the dam has opened—it's just extraordinary.


Jeffrey Epstein was recently indicted on child-trafficking charges, which you’ve written about. What kind of impact will these reforms have on cases like his?

The story of Epstein started in Palm Beach, but it turned out that he was taking girls from Miami up to New York as well as pursuing victims in New York itself. He had associates and employees that made sure there was a supply of young girls when he got there, for him and his guests. New York opened a SOL window on August 14, so all of the victims who were abused in New York are going to be able to sue him, and the co-conspirators. Of course, he recently passed away in prison so now they will be suing his estate rather than Epstein personally, but the civil lawsuit is essentially the same. So, if Clinton, or Dershowitz, or Trump ever touched these girls, they're going to be in trouble. And frankly, in my opinion, if they looked the other way, they ought to be in trouble, too. I think you're a co-conspirator if you didn't do anything to stop it.


Early on, the bishops and the elders would refuse to produce discovery in clergy sex abuse cases. They wouldn't produce their files, saying that they had a “sacred privilege.”


We are at a tipping point where powerful men who expected society to protect them are going to be held to account. And it's not going to be any more sensational than the Epstein cases in New York. The federal prosecutors need to forge ahead against the network of people Epstein brought together who put these children at risk. There will also be the civil cases that force the information now held by co-conspirators and in computers and other devices into the public square—there shouldn't be any secrets left.


You are a staunch defender of the establishment clause in the First Amendment of the U.S. Constitution, which prohibits the establishment of religion by Congress. Can you provide some background?

We all agree on the importance of religious liberty, but the fundamental problem that the framers understood is that religious groups are perfectly capable of abusing their powers. Therefore, there must be a limit. In James Madison's “Memorial and Remonstrance,” he quite clearly talks about the dangers of clericalism, and the dangers of religious groups that use their power to the detriment of the common good.

To this end, my career dramatically changed when I took on the Religious Freedom Restoration Act, which passed in 1993—legislation that prohibited the federal government and the states from “substantially burden[ing] a person’s exercise of religion.” RFRA was empowering people to break the law simply for religious reasons, which includes everything from prisoners using religious liberty claims to demand steak and sherry on Fridays, to priests and bishops covering up sex abuse.

Early on, the bishops and the elders would refuse to produce discovery in clergy sex abuse cases. They wouldn't produce their files, saying that they had a “sacred privilege.” They would say that every conversation they ever had was a confession, even if it was among multiple clergy members. And even when they release lists of known abusers, it’s coming from a closed society, where the Church is the one vetting these lists and deciding whom to name. We were victorious in 1997 when the court ruled RFRA was unconstitutional, but unfortunately it was re-enacted in 2000, which I think was a grave mistake.


Justice O’Connor, your mentor, was also a defender of the establishment clause. What is her legacy when it comes to the issue?

Justice O’Connor created a litmus test for government being coopted by religious pressure, called the Endorsement Test, that became a mainstay. What she said is that when the government gets behind a particular religious viewpoint, it makes those who aren't part of that religion feel disenfranchised. I believe that she had devised an ingenious and practical way to deal with government abandoning neutrality to support particular religious interests. Sadly, the current Supreme Court recently jettisoned the principle.  The new, defining case centered on the Bladensburg Cross in Maryland, a World War I memorial. It’s a humongous cross at a tiny intersection on land that is now owned by the government. It raised concerns from a Jewish coalition, which correctly pointed out that the Star of David is also on the gravestones of the fallen soldiers. The fact that you have a coalition that is offended by its presence, and that it is on federally owned land, means it fails the Endorsement Test.

So, I was asked by SCOTUSblog to write a symposium piece on the Bladensburg case, in which I supported O’Connor’s test, because I thought she was absolutely spot-on. My greatest fear in this case was that the newly configured conservative Justices, including Brett Kavanaugh, would scuttle Justice O'Connor's Endorsement Test, which they did. What I didn't expect is that they would do it without even giving her the credit she deserved. The only time they ever mentioned her was in a parenthetical that said she wrote a concurrence. I will be speaking at the Ronald Reagan Foundation in Washington, DC, this fall as part of a day-long tribute to Justice O'Connor. And one of the things I'm going to talk about is that she deserves better.


CHILD USA is involved in one of these institutional abuse cases: the Nassar gymnastics scandal. Can you discuss that?

CHILD USA has formed the Game Over Commission to Protect Youth Athletes. It is led by a group of 16 national experts that we brought together to independently examine the scandal at the institutional level to see what systemic problems allowed the abuse of Larry Nassar to continue for so long. Our Commission is significant because the only other studies to date have been by hired guns, essentially lawyers for the defendants. We're the only independent commission to study the Nassar scandal. None of us is being paid by, or represents anybody in this universe. So, it's a combination of the leading forensic psychiatrists, child traumatologists, social scientists, and lawyers—people who have spent their whole careers on these issues.

We will have hearings here at Penn in the fall, in which we'll hear either public testimony or private testimony, depending on what people need. We just found out that we have received a significant grant to be able to scientifically survey the victims, and be able to divine the failures and their causes so that we can establish what really did happen, because we don't have anything scientific so far.

Our concern is not only gymnastics, but a dozen other sports. We're in the midst of surveying elite athletes to find out how they've been abused and neglected. Have they been denied food? Have they been denied sleep? Have they been denied team placement because they were a whistleblower? Have they been abused? So, we're really passionate about the sports issues. In this society, there is too often a reason to protect the adult, and especially their livelihood and their reputation, at the expense of children.


CHILD USA is also investigating child medical neglect, as well. Can you talk a bit about that?

Both medical neglect and the failure to vaccinate are important issues. Anybody who was watching New York this year got a great example of the challenges. One religious group that had not vaccinated caused a lot of people to get sick. But for me, what was most interesting is the public doesn't fully understand, why you need almost all children to be vaccinated. It's not just to protect the children.

It's the pregnant women, and the elderly people, and the kids who can't get vaccinated. It's the common good—it's the public good.