Newsletter: September 2002: When Good Laws Go Bad

Exposing the loosely kept secret of clergymen abusing their young parishioners sent a shock wave through New York, not to mention the rest of the country. While a few high profile cases of similar nature have leaked out of the tightly held files of the church over the years, the plethora of unreported cases that were unearthed in the past few months was truly significant.

So significant, in fact, was the earth-shattering news, that public outcry demanded that something be done.

And something is being done. A bill to somehow curb this unreported wave of molestation has been introduced in the New York State Senate. Although swift governmental response is a positive phenomenon in these times, decisions (such as the bill in question) that have long-term effects might well be delayed - not too long, but simply long enough to avoid many "unintended consequences."

What are unintended consequences? Take for example, Superfund. Superfund is a federal law enacted in 1979 to prevent and clean up toxic waste sites, an obvious issue of concern and one that deserves serious consideration. This bill was rushed from the Senate to the House and passed almost immediately, possibly without the consideration due to all sweeping legislation of its kind. I am a supporter of federally supported environmental clean-up (including Superfund). I use the example here solely to make a parallel between laws that were written in response to public outcry and the dangers of enacting them too quickly.

So what happened? Congress, presumably in its rush to clean up these deadly toxic sites, overlooked a small yet far-reaching portion of the text: joint and several liability (or allowing defendants to name other possible people as contributors to their waste). Suddenly, Superfund lawsuits (intended to make large companies and corporations become responsible for their waste) named as defendants small pizza parlors (for throwing out cardboard boxes in their trash), nursing homes, and exercise gyms. Theoretically under Superfund, a person could be sued for spilling chlorine on their front lawn. Certainly, the inclusion of small time business owners in long, expensive, federal lawsuits was not the goal of Congress. But it was allowed. And it was, therefore, an unintended consequence.

The shortcomings of environmental legislation aside, a similar type of problem can be foreseen in the current bill that was introduced in the New York State Senate. Senate Bill Number 6625 (abbreviated here as the Clergy Abuse Law) defines an abused child as any child under the age of eighteen who engages in a sexual relationship with a person eighteen or older. Members of the clergy, employees of church run organizations, and volunteers of the same would become "mandated reporters." A good proposal, one that is seemingly necessary in light of the current press; however, the unintended consequences may be more than those for which New York bargained.

In order to understand how the Clergy Abuse Law will have negative consequences, it is important to define "mandated reporter." Mandated reporters are individuals required to report child abuse to child protection authorities as part of their jobs. Familiar mandated reporters include doctors, teachers, school nurses, social workers, etc. This act of reporting suspected abuse is a good thing; it allows for abused children to have extra protection and alerts the proper authorities of mistreatment before it gets out of hand. However, with the broadened definition of "abused child" (as set forth by the Clergy Abuse Law), these mandated reporters will be forced to divulge information to law enforcement that would otherwise be confidential. Consider the following scenarios.

Scenario 1 - A sixteen-year-old girl tells her gynecologist that she is having sex with her eighteen-year-old boyfriend. Perhaps she wants advice about the situation. Perhaps she wants to explore birth control options. According to the Clergy Abuse Law, the gynecologist would be mandated to report this to law enforcement or face being charged with a Class A misdemeanor. Why? Because technically the eighteen-year old boyfriend is a child abuser under the law. This consequence infringes on the young womanÕs right to reproductive freedom, and will discourage other young women from seeking advice and check-ups from health care professionals, something every sexually active youth should do.

Scenario 2 - A tenth grader chides his friend in homeroom for finally losing his virginity to his girlfriend "Anne." Unfortunately, Anne is a senior who just had her eighteenth birthday. The homeroom teacher who overheard this conversation is now mandated to report to law enforcement that this young man is being sexually abused by Anne. Anne will have to go through an investigation and possible prosecution for engaging in consensual sex with her boyfriend. No student will be able to speak freely without fear of authorities getting involved, and teachers will be reluctant to speak with students for fear that they will face a Class A misdemeanor if they do not report the right information. The lines of communication between student and teacher, sometimes the last resort for a student with problems at home, will become closed.

Abuse by members of the clergy is a problem - a sad, devastating problem. The enactment of laws intended to curb this abuse is a step in the right direction, however careful planning and consideration should be taken before making that step a hasty, stumbling journey. The road to correcting the unintended consequences can be complicated and expensive. Just ask the "unintended defendants" in the Superfund lawsuits, who have spent 23 years and countless amounts of dollars trying to convince Congress that they were not the targets at which Congress took aim.

← previous article | next article →