Kelly Clark: Child Sex Abuse Attorney, Portland, Oregon

Mediating Structures

Litigation can improve institutions of trust

Brainstorm NW, February 2008

By Kelly Clark

I am often asked, not always in friendly ways, about the many lawsuits I have filed on behalf of survivors of childhood sexual abuse against churches, charities and other civic organizations serving children.

I will argue that these institutions of trust — elsewhere called mediating structures, sometimes called 1,000 points of light — are a critical component of any free society, an important guardian of liberty. And I will also argue that the child abuse litigation we bring against them is necessary, a radical surgery, but unavoidable if these entities are to be cleansed from infection of child abuse.

If it sounds like this thesis is defensive, I confess defensiveness. Often I am confronted by those who seem confused or angry that we would sue such rightly revered institutions as the Catholic Church, the Boy Scouts, or the Mormon Church. 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 they seem unable fully to articulate. So here I will try to articulate what it is that troubles them about these cases, and in so doing also justify this work.

Why institutions of trust are important as a matter of public policy

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: If an adult relative abuses a child, it is awful, but it usually does not make the front page. So why, when the incident occurs in the context of a church league does it become newsworthy? Well, we know the media like a scandal, and they like anything having to do with sex and religion, but here, for once, it seems that they are onto something important. It was occasionally quiet news, for example, when in the past a wayward priest abused a child. But it became a worldwide scandal when we learned that the Archdiocese of Boston and others, including Portland, had engaged in a decades-long cover-up of abuse. We cringe when we read that the Boys Scouts for decades had a massive child abuse problem that they knew about.

Why is this so devastating to us? Because it strikes a nerve: It is akin to a kid learning that his sports hero is a thug. “Oh, say it ain’t so!” we say. “Tell me that my favorite charity was not a place for pedophiles, and please tell me that we didn’t cover it up. Say it ain’t so.” We are disappointed at a personal level, of course, but even beyond that we know that these institutions of trust are critical to society, and we are loathe to believe that they may have forfeited that awesome trust.

About 25 years ago the Catholic writer Michael Novak argued in his book, “Mediating Structures,” that there are certain organizations in a democratic culture that are important buffers or 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, service clubs, the artistic movements, a free press — all these are entities that protect our liberties from being devoured by Leviathan, or Big Brother, or Mordor. These are the corporate structures (governmental or not) that all of us instinctively distrust, things that Saint Paul calls the “Principalities and Powers of this dark age.” Any institution that by size or power or influence threatens our liberties — political, economic, intellectual, spiritual freedom — all are Principalities and Powers that can overtake us, coerce us, seduce us into political or spiritual slavery. These include government, huge corporate interests, the old military-industrial complex, big labor, the materialist and narcissistic entertainment world, and big media.

And it is the mediating structures of society, Novak argued, that serve as the best 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, when the Jews, and later the Christians, drove the Romans crazy because they refused to say that Caesar was Lord. It was true in 1930s Germany when the Nazis demanded that churches, unions and press either became loyal to the Fuhrer or be abolished. In Eastern Europe in the 70s, a young Bishop named Wojtyla — we later knew him as Pope John Paul II — arm-wrestled the communists for the hearts and souls of those nations. And he won, using mediating institutions of trust: church and theatre and youth organizations and universities and, ultimately and ironically, labor unions.

 

What Wojtyla called “culture,” what I’m calling institutions of trust, what Novak called mediating structures, what George H.W. Bush called 1,000 points of light, without these mediating structures of family and church and civic organizations there is nothing between us and the Principalities and Powers. And we stand to lose our economic, spiritual and political liberties. We know this intuitively.

It is plain that the organizations I regularly sue are mediating structures, institutions of trust, 1,000 points of light. Which is why folks raise an eyebrow at these lawsuits.

Litigation as a tool for institutional change If you don’t believe that litigation can change a corporate culture for the better, 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 Ford and GM for exploding gas tanks and top-heavy SUVs. The mega-entities that make up Big Finance now are more honest when they loan us money, not because they got religion, but because they got sued.

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 child abuse reporting laws — things they were not doing even 15 years ago. And, sad as it is to contemplate, it was the flood of civil lawsuits that changed the culture of the Church.

Of course litigation is a blunt instrument. And yes, there are unscrupulous lawyers who use it unwisely. It is even true that there are runaway juries in our courtrooms. But for every runaway jury, there are half a dozen defense verdicts. And for every large punitive damage award, there is an appeals court ready to overturn it. The power of punitive damages, the threat to any institution, 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 litigation and punitive damages a deterrent for rational civic organizations.

If you do not believe in the civil justice system, let me ask you this: Where would you choose to be if your teenage son or daughter were, say, arbitrarily beaten to brain damage by a police officer? Japan? Iran? Ecuador? Or the good old US of A? It ain’t perfect, but we like our judicial system over anyone else’s. 

 

I am amazed at my conservative friends who do not trust juries, yet insist that the voters of this land are full of common sense. And I am flummoxed by my liberal buddies who trust citizens in the jury box but not at the ballot box on citizen initiatives. They are elitists, all. They don’t trust the wisdom of the common man. Well, we’d better 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. I agree with Edmund Burke when he says, “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 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 institutions of trust are better off in the long run for being sued for child abuse. Because these institutions know that their actions will be judged by a jury of citizens with the common sense and common decency of the community, they offer justice to victims, review their policies and talk to their insurers, improve their screening, and tighten their supervision. And children are safer because of it.

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