Robert Klitzkie, Esq.
22 Baki Ct., Yigo, GU 96929
June 27, 2016
Testimony of Robert Klitzkie before the Committee on the Guam Military Relocation, Public Safety and Judiciary on Bill 326-33
Mr. Chairman and honorable members of the Committee:
Justice requires broadening the reach of this remedial legislation to provide relief to those who have suffered at the hands of child sexual abusers to include not only the abusers but also their enablers, aiders or abettors, those acting in concert with them and their religious institutions or corporations sole. The three C’s are referenced here: condonation, cover-up and conspiracy. Recent history tells us that the three C’s were all too prevalent in the worldwide Catholic Church. The institutional hierarchy of the Church condoned, covered up and conspired to prevent victims of child sexual abuse from attaining justice.
Scandal now saturates the Church. Scandal so egregious that the Pope has sent an Apostolic Administrator, Archbishop Hon, to take over the archdiocese in the stead of Anthony Apuron who still retains the naked title of archbishop. Hon came here with tremendous potential to do good. Hon came on personal appointment of the Pope to clean up the mess that befalls our Church. Not only is Hon on personal assignment from the Pope but he holds the number two position of that part of Vatican governance that has primary jurisdiction of the way bishops handle child sexual abuse amongst the clergy.
Hon wasted his opportunity. Hon was greeted by a Catholics who had high hopes for his success in cleaning up the mess and had the authority to start the clean up. Hon almost immediately dashed those hopes. Notwithstanding the command that with respect to child sexual abuse survivors “…priority must not be given to any other kind of concern." Hon has figuratively, and in one case literally, actually turned his back on the survivors. Carrying the analogy a little further, Hon’s minions have literally locked the door on survivors who would file claims dealing with their abuse at the hands of Apuron. Hon hasn’t even taken the time to learn all their names.
While he holds nearly plenary power with respect to child sex abuse and to the survivors thereof, Hon has done nothing but occasionally imply that survivors’ complaints may be resolved against them in favor of Apuron.
Hon has not only retained key members of Apuron’s corrupt regime but enshrined them on committees that have little to do with the reason Hon was sent here. Hon maintains a social calendar and tolerates publications that serve to prop up the naked title of Apuron as though his return is imminent. Hon allowed Apuron’s vindictive, draconian gag order against Faithful Catholics to actually take effect before he reluctantly rescinded it at the same time rescinding another gag order on a Catholic who had blown the whistle on Apuron’s purposely keeping the diocesan child sexual abuse policy weak in order to protect himself.
Hon has demonstrated that if an end be put to child sexual misconduct it won’t be done by Church hierarchy, at least not while Hon is involved. It must be accomplished by laymen. Given the proper tools, i.e. and abatement of the statute of limitations and a clear statement that the child sexual abusers, their enablers, aiders or abettors, those acting in concert with them and their institutions or corporations sole if not the entire hierarchy of the Catholic Church can be held liable for child sexual abuse, we may be forever subjected to the Apurons and Hons of the Church.
Were it not for the abysmal performance of the hierarchy of Rome as evidenced by Archbishop Hon, I would be urging you to adopt the something like the following:
Section **: 20 GCA § 2105 (c) is added to read:
(c) Civil immunity for corporations sole. Every corporation sole organized pursuant to 18 GCA § 10102, shall be immune from civil liability for any act of child sexual abuse committed by any officer, employee, agent, religious functionary or volunteer of said corporation sole giving rise to personal liability to said officer, employee, agent, religious functionary or volunteer.
Hon has shown me the wrongheadedness of that approach. Only a vigorous laity able to invoke the judicial power can be depended upon to root out and keep out child sexual abuse.
A broadened Bill 326-33 is a good start toward providing justice to those who have been sexually abused by clergy, preventing such abuse in the future and eliminating the possibility that abusers be protected by the three C’s. We can thank Sen. Frank Blas for introducing this bill and Sen. Frank Aguon for promptly setting it down for hearing. In the name of justice and protection of children we can all urge our senators to broaden and pass this bill forthwith.
Recognizing that this hearing is a secular proceeding I offer, infra, suggested language set out in secular terms, submitting that child sexual abuse is an abomination wherever and whenever it may occur:
Here’s language that would broadly abate the running of the statute of limitations on child sexual abuse retrospectively and prospectively:
Section 7 GCA § 11301.1 is added to read:
§ 11301.1 No Limitation for Child Sexual Abuse.
(a) An action for child sexual abuse may be commenced against abusers, their enablers, their aiders or abettors, those acting in concert with them and their religious institutions or corporations sole at any time.
(b) Victims of child sexual abuse that occurred on Guam who have been barred from filing suit an action against their abusers, their enablers their aiders or abettors, those acting in concert with them those acting in concert with them and their religious institutions or corporations sole by virtue of the expiration of the civil statute of limitations shall be permitted to file those claims in any court of competent jurisdiction.
It is very important to take note of the failure of the PL 31-07 to be effective in allowing survivors of child sexual abuse to seek justice.
Provisions of PL 31-07 served to discourage counsel from undertaking the representation of child sexual abuse survivors. A sample of the defects in PL 31-07 follows:
- 7GCA § 1106.1(g)”… If the Court finds there has been a failure to comply with this Section, the Court shall order a party, a party's attorney, or both, to pay any reasonable expenses, including attorney's fees, incurred by the defendant for whom a certificate of merit should have been filed.”
“Reasonable expenses” is an undefined term that adds an unnecessary degree of uncertainty to the process, tending only to discourage the filling of meritorious claims.
- 7GCA § 1106.1(d) “A violation of this Section shall constitute unprofessional conduct, and shall be grounds for discipline against the attorney.”
Guam Rules of Civil Procedure (GRCP) Rule 11 already provides for high ethical standards for attorneys in all litigation. The Guam Rules of Professional Conduct already provide high ethical standards for all aspects of the practice of law. Our Supreme Court is the enforcer of ethical standards for attorneys assisted by the Bar Of Guam Ethics Committee pursuant to Rules of Procedure-- Disciplinary Proceedings. 7GCA § 1106.1(d) is either dangerous or superfluous. It’s clearly unnecessary.
- 7GCA § 1106.1(d) “… the motion of a party or upon the Court's own motion, verify compliance with this Section by requiring the attorney for the plaintiff who was required to execute the certificate to reveal the name, address, and telephone number of the person or persons consulted that were relied upon by the attorney in preparation of the certificate of merit.”
The implication here is that the “licensed mental health practitioners” might be dragged into litigation or even incur liability because of their participation.
- 7 GCA § 11306 (c) A person against whom a suit is filed may recover attorney's fees and damages where the Court determines that a false accusation was made with no basis in fact and with malicious intent.
This provision makes it impossible to try any case for child sexual abuse. It creates a cause of action for attorneys fees in the same case in which the cause of action for child sexual abuse is heard. Thus a defendant in the Plaintiff’s case-in-chief could on cross examination or in his own case- in-chief adduce evidence and be entitled to jury instructions that a the plaintiff’s claim was brought on “a false accusation with no basis in fact and with malicious intent.” Only chaos could result from such atrial regime as in effect two different separate trials would be occurring at the same time. A defendant’s appropriate remedy for an improperly filed claim would be a separate action sounding in malicious prosecution, a condition precedent for which would be a favorable termination of the improperly brought child sexual abuse claim.
Including a provision to award damages and reasonable expenses to a defendant for a false claim of child sexual abuse will have such a chilling effect on potential plaintiffs and counsel that it would guarantee that such claims never see the light of day.
NB 7 GCA § 11306 (c) is still the law! § 11306 (c) was obviously put in place to make it more difficult to file claims for child sexual abuse that had been time barred. But the language of subsection (c) applies to all 7 GCA § 11306. Thus the attorneys fees and damages provision applies to claims for assault, battery, false imprisonment, etc. as well as child sexual abuse. § 11306 (c) applies to claims for child sexual abuse that occur in the present thus. In other words even if yesterday Apuron committed the alleged rape of a child as reported on TV and in the papers, § 11306 (c) would still apply.
The chilling effect of the provisions e.g. those set out supra was apparently sufficient to dissuade counsel from bring actions for child sexual abuse no matter how meritorious the claim.
In order to assist the Committee I have set out below suggested language that might be incorporated in a substitute bill that could further the noble intent of the sponsor of Bill 326:
If this body is of a mind to provide attorneys fees to a prevailing defendant in a child sexual misconduct case I proffer, but don’t endorse, the following:
Section**: 7 GCA § 26603.2 is added to read:
§ 26603.2. A person against whom an action is filed pursuant to 7 GCA § 11301.1 may recover attorney's fees where the Court determines that a false accusation was made with no basis in fact and with malicious intent. A verdict in favor of the defendant shall be the sole basis for a determination that an accusation was false and was made with no basis in fact and with malicious intent, but only if the Court, on notice and hearing and for good cause shown, makes an independent finding on clear and convincing evidence that an accusation was false, was made with no basis in fact and with malicious intent in order to award reasonable attorney's fees.
A section providing a separate statute of limitations for the tort of malicious prosecution follows:
Section**: 7 GCA § 11307 (3) is amended to read:
(3) An action for libel, or slander, malicious prosecution based on a false claim brought pursuant to 7 GCA § 11306 (b) or by a depositor against a bank for the payment of a forged or raised check, or a check that bears a forged or unauthorized endorsement.
As an aid toward establishing the bona fides of a claim for child sexual abuse the following is proffered but not endorsed:
Section**: 7 GCA § 15604 is added to read:
§ 15604. A complaint for child sexual abuse must be verified.
I submit this testimony with the humble prayer that this august body take the steps necessary to provide the tools to the laity to root out child sexual abuse (and the three C’s) wherever it may exist.