May 28, 2005  ·  Lessig

The comments to Living With Ghosts have done more for me than anything could. “Thank you” is too weak, but thank you.

Many have written asking, “What can I do?” Here’s a map for anyone interested.

As the story recounts, we’re waiting for a decision from the New Jersey Supreme Court about whether New Jersey’s law, which immunizes charities from “negligence,” is subject, as the trial court said, to a “judicial gloss,” making the statute “absolute,” and therefore excusing the organization:

“from liability for any degree of tortuous conduct, no matter how flagrant that conduct may be. Accordingly, plaintiffs’ contentions that employees and agents of the American Boychoir School acted willfully, wantonly, recklessly, indifferently – even criminally – do not eviscerate the School’s legal protections.”

There is — and there should be — nothing that can be done about that case while the Court is considering it.

But New Jersey has a legislature as well as a Supreme Court. And the real hero in this case — John Hardwicke, who has given everything he has not just to his case, but to changing the law in New Jersey — has, with others, started a movement to get New Jersey to FixTheLaw in a part that is unrelated to the case before the Supreme Court.

Even if we win our case, the law in New Jersey would still immunize a charitable institution from “negligence” in the hiring of a teacher. That means if a school hires a teacher without taking any steps to verify the teacher’s past — for example, asking why the teacher was fired from his last job — the school is immune from liability.

Assemblymen Cohen, Chiappone, and Bateman have introduced a bill to remove that immunity, so that a school would have the same duty that all of us have — to take reasonable steps to avoid foreseeable harm, at least if that harm is sex abuse. Yet this bill has been stalled by the very powerful lobbying of some — actually, primarily, one:

Leaders from the Catholic Church have opposed the change. Some of the same leaders, representing the “Catholic Conference of Bishops,” also filed a brief in our case asking the Court to affirm the “absolute” immunity — even for intentional acts — that the trial court had found.

It is completely beyond me why the Church spends its resources to make children less safe. No doubt, the Church has its own issues about liability. But is money really a church‘s only concern? Do its values really say that it is more important to avoid its own liability than to protect children in the future? Or more accurately — that it is right to protect its assets by making children in the future less safe?

In any case, there are more voices in New Jersey than this one. I’ve hesitated before about the appropriateness of noncitizens addressing New Jersey’s issues, but that may just be prudishness. And anyway, I assume the “Catholic Conference of Bishops” is not located in Trenton.

So: Hardwicke has a comprehensive site with links to contact legislators, and to contribute. If you are looking for something to do, I’d be grateful if you followed those leads. Or if you would lead others to them. Or, if you’re a Catholic, I’d be grateful if you would follow your own leads to the conscience of your church.

  • AKMA

    Prof. Lessig, as a non-resident of New Jersey and as a non-Roman Catholic, I’m not sure how I can help — but I’ll follow the link, and I’ll blog about it. If there’s any way an Illinoisian Anglican theologian/priest can be helpful, I expect that you can see it better than I, so feel free to enlist me in whatever capacity you need.

  • james mcmurry

    Prof Lessig

    (following AKMA.. :) )
    As a non-resident of New Jersey and as a Roman Catholic, I was wondering if you could point me to the filing done by the US Conference of Catholic Bishops as I could find nothing of the sort on their web site

    As a father, and a Catholic, I strongly believe that NO ON should have any immunity, especially when it comes to our Children.

    Having this filinf will make it easier in pressing the issue with the USCCB, and of knowing of the intent of the filing.

    thank you


  • james mcmurry

    I can type forgive me….


    NO ONE


  • james mcmurry


    I did find where not the US Conference of Catholic Bishops, but the New Jersey Catholic Conference is:

    “The New Jersey Catholic Conference (NJCC), the lobbying arm of the state’s Catholic bishops, is urging lawmakers to set time limits on how far back the legislation would apply retroactively.”

    Since they feel that changing the law retroactively would cause them undue harm probably. It is an interesting thing, I always thought you could not change a law retroactively??? Like making something Legal, now Illegal (I am not in any way connected to Law, so this is why I am confused on this part???)

    Since New Jersey is only one of three states that have this immunity, there needs to be pressure applied by the residents of those states to ensure this never occurs again by removing immunity. As for going retroactively, I have no idea. Has this been done before? (retroactively changing a law, and thus opening up people to lawsuits that they were not before under the old law?) If it does happen retroactively, can this be applied by the state or federal government as precedence in other cases totally not related to child molestation, but in drug cases (ie – the state saying they are retroactively changing drug laws to say there is no longer a misdeamnor but all drug charges are now federal felony cases and that applies to everyone who has already been arrested in the past????)

  • anon

    Is Hardwicke doing anything about the other two states as well? That would be useful.

  • Eric Eldred

    My comments to follow pertain to the Roman Catholic Church, so they may not be strictly on topic.

    I don’t have the links at hand, but the London Observer ran a couple of stories about the Roman Catholic Church and child sex abuse.

    One of their revelations was, from a lawsuit in Texas, that the church’s office of the congregation of the faith (inquisition) issued a secret order in 1986 I believe requiring any sex abuse cases that involve the confessional (a sacrament) to be handled by a secret tribunal of the Inquisition. It seems the confessional has been a favorite tool of pedophile priests to recruit new victims.

    The U.S. Conference of Bishops later issued a statement ordering church members to report cases of sex abuse to the police or authorities. I don’t believe they addressed cases involving the confessional. The 1986 order was I believe reaffirmed by Cardinal Ratzinger before he became Pope Benedict. The Pope has been accused of covering up cases of sex abuse in Mexico that were reported to him as head of the Inquisition.

    I am not a Catholic but I have to believe that the Church wishes to maintain its own control over sacramental matters, including cases of sex abuse that relate to the confessional.
    This may include not involving the police in a timely fashion.
    Perhaps this is a reason thousands of priests have been implicated in sex abuse and bishops have in the past not reported cases to the police but instead transferred them to other parishes, in an effort to avoid public scandal.

    I have no answer to child sex abuse. But I am disturbed by the way it is being handled in Florida, where I spent the winter. There the authorities are putting up posters in neighborhoods of convicted sex offenders, including their pictures and addresses. One offender committed suicide because of this. The state has passed a law requiring lifetime GPS ankle bracelets to track offenders. I wonder if homosexuals and homeless people will be next. Anything to preserve property values, I suppose, and civil liberties go out the window even if the measures to control abuse are not effective, only punitive.

    Anyway, I would encourage district attorneys to subpoena bishops and priests to uncover these secret orders from Rome and testify before grand juries as to what cases involving Catholic priests have not been reported. Victim organizations can do the same, but perhaps the statute of limitations would have run out in some cases.

  • Cairo Otaibi

    without the p- and b- words there is much to be learned from the story. to me it is also a case of leadership, or the answer to the question “what can i do?”

    after reading your blog i did go and read the inital story: it is painful to read, it is deeply touching, it is violently real.

    there is no legislation that will ever discharge you of responsability, the question remains, what can i do?

    you are being responsible.

  • Peeter P. Mõtsküla

    Money is really not the only concern of the church. The main concern is control, and money closes in as second.

    A true believer doesn’t need a church to act as a middleman between him/her and his/her god. The church is not established FOR believers, but in order to control them while at the same time allowing the controllers to benefit from those controlled.

    The church follows the same old communication model that is so much cherished by totalitarian states, big media corporations, major record labels and the ??AA-type organisations: one-to-many (“WE know the ultimate truth, YOU shall listen and obey) as opposed to many-to-many communication between free people.

  • SongZilla Blogger

    Do all adults have fear? I fear only mountain lions, great white sharks, prison, paralysis, cancer, and Man’s dark side. Mostly I fear for my boys, 10 and 12.

    I have worried, and still worry, whether something of this nature has or will happen to my sons, and there seems to be no quarter in any institution, public or private.

    Our experience has been that religion can be a great cloak that will conceal true evil, and that private institutions run the range from the rare embodiment of true altruism, to the more common relflection of the dark side of Man’s soul. Public institutions, meanwhile, work to cull independent thinking and creativity from the herd, to catgeorize those who have it diseased.

    It should not be this dangerous to be a child.

    There is a need for heros, thank you, sir.

    And I understand there is no substantial accountability for private educational institutions in my state, California.

  • Robert

    Prof. Lessig: What a story, you are incredibly brave. You represent a great role model for future generations.

    I hope you are successful in your fight.

    Robert in Indianapolis

  • Hiro Gekko

    Wanna know what the peds themselves are saying? You yourself seem to be gagging slightly on all the accolades of “bravery” and “heroism”. Because maybe you fear that you don’t REALLY deserve them.

    I don’t suppose you are religious. But what if you have to meet the shade of Don Hanson? Or Benjamin Britten? Are you being honest? What makes great music? Great art? How are boys to become men? Are boys the sexless little darlings of the contemporary liberal imagination? Think back — you seem capable of it.

    Who fucked up John Hardwicke’s life? Was it Don Hanson? The American Boychoir School? Or Emily Samuelson? Is it ALWAYS somebody else’s fault?

    You know something about music. And you know how tedious unrelieved euphony can be. Try a dissonant chord. It worked for Haydn; maybe it will work for you. Read the following thread — the whole goddammned thread. Maybe — just maybe — it will keep you from wrecking the only first rate boychoir in the United States.

    Or do you just want to listen to a crowd of vacuous cheerleaders tell you how “wonderful” and “brave” and “heroic” you are?

    Does music still mean anything to you? You might try listening to Britten’s The Turn of the Screw and then ask yourself, “Who killed Miles?”

  • anon

    I took the time to look at the post Hiro suggests:

    The site is — it seems to be a boy lovers site though I could be wrong, I found it to disturbing to examine the site. But, as I say, I looked at the post Hiro referred to:

    The author writes:

    “I can’t honestly say that I would be immune to the temptations to which Hanson was exposed if I found myself in his position. I would like to think so; I think I have a strong sense of ethical and moral values that precludes taking advantage of other people — including other people sexually, but in the face of overwhelming temptation? A school full of gorgeous choirboys?”

    The author continues: “Hanson’s observation that to get a great boychoir, you have to sexualize the boys. Well, that’s self-serving and an exaggeration, but there is truth to it…”

    In a follow up to his original post the author concludes: “The American Boychoir will not survive this and we will not see another boychoir of its calibre emerge in the U.S., not until the hysteria ends and boylovers again take their rightful place in society — not something I expect to happen in my lifetime.”

    This is pretty sick stuff. If its the attitude of the current administration of the boychoir…

    Hiro Gekko, get a life!!!