Semester in D.C.
I have had the distinct privilege, as a law student, to assist with the various Independent Reconciliation Compensation Programs (“IRCP”) administered by The Law Offices of Kenneth Fienberg in the settling of claims against the Catholic Church of New York. Many readers may recognize Kenneth Fienberg as the person responsible for compensation after the 9/11 terrorist attacks, BP oil spill, or any other high-profile disaster or incident of negligence over the past several decades. There are in fact five IRCP’s, each of which represents a different Diocese in the state of New York: New York Archdiocese; Brooklyn Diocese; Diocese of Rockville Centre; Diocese of Syracuse; and Diocese of Ogdensburg. There are eight total Diocese in the state of New York, six of which have implemented compensation programs, but only five of which are overseen by the Feinberg legal team. The Diocese of Buffalo is administering their own version of an IRCP, and the Diocese of Rochester and Albany have not yet instituted an official IRCP, although the Diocese of Albany previously attempted to settle multiple abuse claims over ten years ago.
The first of these funds (New York Archdiocese) began in October of 2016 and all five, in one capacity or another, are still active. All five funds began with set time periods within which those who have previously reported the abuse could participate, known as Phase I. Three of the five funds have also included a phase within which those who had not previously come forward could participate, known as Phase II. Both the Diocese of Syracuse and Ogdensburg, which are the two most recent funds, have not yet agreed to accept Phase II claims. In addition, all of the IRCP’s only cover abuse committed by actual Diocesan priest. Thus, abuse committed by religious order priest, lay members, or nuns is not covered. This has proved frustrating for many victims because religious order priest can account for the majority of the priest in a parish. For example, within the Archdiocese of New York, religious order priest account for 79% of all working priest.
For those who have previously reported the abuse either to the Diocese or to law enforcement, participating in Phase I of an IRCP is generally speaking a relatively quick and streamlined process. First, a claimant registers themselves on-line. Then the Administrators of the fund supply the Claimant a Phase I form. The form is fairly straight forward. It requires the Claimant to name the priest who abused them, as well as the nature of the abuse and its quantity. It also requires the Claimant to list anyone whom they may have previously informed of the abuse. Phase II claimants will likewise first register on-line and then receive a form. The form is identical for Phase I and Phase II claimants, what is different is how those two claims are assessed. It is easier to corroborate a Phase I claim, after all, they have already previously informed either the Diocese or law enforcement of the abuse, which means there is usually a record and possibly a previous investigation into the matter. Since a Phase II claimant is coming forward for the first time, in addition to answering the questions on the form, they also must inform the relevant District Attorney’s office (for some programs), inform the relevant Diocese (for some programs), and provide third-party corroboration for the abuse, such as witness affidavits or therapy records which can show that the Claimant spoke about the abuse to a third-party previous to the start of the IRCP. Once the form and any relevant information is provided it can take anywhere from three weeks to several months to hear back from the Administrators. The Claimant will then receive a settlement offer from the fund Administrators and the Claimant can choose to appeal that amount, accept it, or reject it. Once accepted, the Claimant is required to meet with an attorney (either one of their choosing or if living in New York, one will be provided-free of charge-to the Claimant) who will explain the Release form and witness their signature. The Release stipulates that by accepting the settlement offer, the Claimant forfeits his or her right to sue the Diocese for the abuse. Throughout the process, the Claimant has the right to speak with the fund Administrators, including in-person interviews. Some claimants decide that as part of their review process they would like the opportunity to tell the Administrators face-to-face about the abuse and its effects upon them. Of course, for every claimant who would like a face-to-face interview, there are a dozen who choose to opt out of such an option, they in-fact enjoy the anonymity of the claim process.
There are many criticisms of the various IRCP’s. From the standpoint of victim advocates and attorneys who work for adult survivors of child-hood sexual abuse, the settlement offers are simply too low compared to what they would be able to obtain from a jury, if only the statute of limitation period had not run. From the standpoint of the claimants, the IRCP fails to give them the one thing they may prefer, a public apology and admission of culpability. Lastly, for the various Dioceses’ the IRCP’s have required massive funds, which has led to parish consolidations and loans. As with all settlements, no one party is fully satisfied with the end result, no one side ‘wins.’ It is important to remember though that due to the very short statute of limitation period in New York (three years after reaching the age of majority), all of the claimants who have participated in the various IRCP’s would have been barred from suing the church or their abuser. Thus, the Catholic church is voluntarily offering to settle through the administration of the IRCP and not required. While this appears generous on their part, the motive is colored by the fact that New York is set to shortly pass The Child Victims Act, which would extend the statute of limitations to the age of 53 and provide for a one-year retroactive window, in which all these same claimants could sue the church. Many see the IRCP’s as a way to pay out less now, compared to more when the law changes down the road. For now though, many claimants see this as a chance to finally reveal the secret of their abuse and receive compensation by the organization they hold responsible for the abuse.
Participating in the assessment of claims for the various IRCP’s has been the internship of a lifetime. While many may wonder what I see in the job-after all, as a practical matter, I spend my days reading about minute details of horrific sexual abuse-I see this opportunity as a privilege. For all intents and purposes, I am the first person most of the claimants tell about their secret of childhood sexual abuse. It is no small feat for them to finally speak about such a hard, life-altering experience, much less to a stranger (me), and the Administrators who review my work and make the ultimate decisions regarding an offer for settlement. Every day of work I am in awe at the courage and strength of each claimant. They inspire me to be a better attorney and a more zealous advocate. While not without multiple faults, the IRCP fund programs represent a step in the right direction on the part of the various Catholic Dioceses and meet the needs of the vast majority of claimants, who desire anonymity and compensation.