Wednesday, July 17, 2013

Richard Joel: Bring In The Hon. Michael Mukasey To Mediate!

The YU Impasse: Putting A Price On Sexual Abuse

In the end I believe YU still has the responsibility — and opportunity — to prove that it is indeed bound by moral and Jewish values to validate the suffering of the victims. Deal with them with dignity, make amends, offer to go to mediation to reach a fair result and move on. It’s a practical solution, but it’s also the right thing to do.

Sorting through conflicting interests when it comes to compensation for alleged victims.

A few days before Tisha b’Av, the saddest day on the Jewish calendar, I sat down and read a modern-day version of Eichah, the Book of Lamentations.

This was not an ancient prophet’s eloquent or poignant rendition of the destruction of the ancient Temple; it was the dry, legalese words of a lawsuit that lays out the case of alleged indifference, and fraud, accorded to high ranking and highly respected members of the administration and faculty of Yeshiva University in the 1970s and ’80s regarding the sexual abuse of high school students.

Centuries apart, the warnings — that immoral behavior, left unchecked, leads only downward — still resonate.

The litany of woes said to have resulted from the abuse, and the lack of acknowledgment that it was taking place, is painful to read: case after case, 19 teenagers at the time claiming physical, emotional and psychological distress and trauma; depression leading to drugs, alcohol or sexual addiction; inability to trust others; loss of relationships with loved ones; loss of faith; and suicidal tendencies.

The mind reels and the heart aches.

But is it true? After all, attorneys can make all sorts of allegations to strengthen their case, just as they can put any price tag on damages they demand — in this case $380 million.

Only a few weeks ago it was said to be $30 million, lending credence to those who suspect the plaintiffs are in this for the money, and to embarrass YU, if not bring it to its knees.

But even those close to YU acknowledge that abuse surely took place and went unreported, and that the suffering was real. Whether the lawsuit can overcome the high hurdle of the statute of limitations is for a judge to decide.

I hope this case never reaches the courts. But how does one sort out the conflicting interests between the alleged victims, insisting on compensation for what they’ve suffered, and YU, which has apologized for past misdeeds and is anxious to establish strong standards of conduct and move forward?

I am not an objective observer on these matters. Far from it.

I have great empathy for victims of sexual abuse in our community and have the journalistic scars to prove it, doing battle on that front for a number of years.

I am also the son, parent, brother and husband of YU graduates, and I am a graduate myself, deeply respectful of the vision and accomplishments of my alma mater.

I appreciate the dilemma faced by the leaders of the current administration of YU, which inherited a scandal that allegedly went on, and ended, long before they arrived on the scene. Now it is costing the institution a heavy price — more than $2.5 million for an internal investigation (due to be completed in about four weeks) and the prospect of greater numbers if the lawsuit proceeds. But the ultimate price could be far more in terms of YU’s proud reputation as the beacon of enlightened, ethical Orthodoxy.

No doubt the school’s leaders feel they are acting with integrity by carrying out the investigation and offering public apologies. President Richard Joel issued his “deepest, most profound apology” after the story broke in The Forward last December, noting that “the actions described represent heinous and inexcusable acts that are antithetical both to Torah values and to everything that Yeshiva University stands for.”

Rabbi Norman Lamm, on retiring from office June 30 as chancellor and rosh yeshiva (yeshiva head) after devoting his professional life to the institution, offered a more thorough and poignant confession than one would see in the corporate world. He acknowledged his personal wrongdoing in handling the matter and said he must do teshuva (repentance).

Some would say, isn’t it enough for the alleged victims to have forced YU to apologize, admit its wrongdoing and ensure such behavior could not happen again? Others would ask, why isn’t YU prepared to back up its public breast-beating with financial compensation for those who have suffered so long? Which leaves us to parse the motivations of those involved on both sides in terms of what they are really seeking.

Putting a dollar value on damages these days, in our litigious society, has become almost routinized. Lawyers are said to have a formula of sorts to work out compensation in cases of sexual abuse — a set amount of dollars per type of immoral act, multiplied by the number of times it occurred, etc. But such calculations for the hurt inflicted on a victim date back to the Talmud, where five categories are established: pain, cost of the cure, loss of earning capacity, loss of time, and humiliation.

The rabbis disagree on the specifics but concur on the concept. Some insist that the amount to be paid for humiliation, for example, should be based on how much one would pay not to have had it happen.

Part of the legal and moral complexities in the YU case is in applying 21st-century standards to behavior of decades past, a time when sexual abuse, as well as racism, bias against women and other forms of prejudice were commonplace and little-discussed or consciously thought about, if not fully accepted. It appears that YU officials at the time were, at best, unresponsive to the complaints from abused students and their parents. This was consistent with the culture of the times, as was the fact that the victims did not speak out.

Once the scandal broke, it appears that the school, no doubt based on legal advice, has hunkered down and gone silent publicly, following the path of the Catholic Church, Penn State University and other institutions accused of inaction in the face of past abuse by employees. YU surely hopes the findings of its internal investigation will put an end to the matter, but critics will insist it proves little and will call for an independent probe.

Those of us on the outside aren’t privy to whether serious negotiations took place between the school and the alleged victims before the lawsuit was filed, in terms of monetary compensation commensurate to pain suffered. But it’s not too late to avoid an ugly showdown in court. There, if the statute of limitations is upheld, the alleged victims will walk away empty and embittered, and YU will be seen by many as having valued dollars over ethics. Further, if a judge rules that the lawsuit can go forward and allows discovery, YU will have to either settle — with the plaintiffs in a better position — or open up its files, have its professional and lay leadership subject to deposition, etc. The results could be disastrous.

It was Reb Nachman of Bratslav who observed: “To arbitrate is to temper justice with charity.”

In the end I believe YU still has the responsibility — and opportunity — to prove that it is indeed bound by moral and Jewish values to validate the suffering of the victims. Deal with them with dignity, make amends, offer to go to mediation to reach a fair result and move on. It’s a practical solution, but it’s also the right thing to do.