SB 575: Civil Actions - Child Sexual Abuse - Statute of Limitations Maryland

SB 575: Civil Actions - Child Sexual Abuse - Statute of Limitations Maryland Senate Judicial Proceedings Committee, Annapolis, MD 

Thursday, March 1, 2007 - 1:00 pm 

Pedophilia has no religion. Those who perpetrate sexual offenses come in all shapes, sizes, colors, ages, sexes and religions -- as do the survivors of sex crimes. 

We are here today because the current systems in our schools, institutions, organizations, churches, synagogues, mosques and temples do not work to protect our children. Instead our systems appear to be set up to protect the assets of the organizations and institutions, as well as the rights of those who offend; while ignoring the rights of those have been sexually victimized. 

My goal today is to provide testimony on behalf the survivors who have contacted The Awareness Center, Inc., many of whom were too afraid to provide their own testimony in fear of retaliation. The Awareness Center is the International Jewish Coalition Against Sexual Abuse/Assault. Our world headquarters is located in Baltimore, MD. 

The history of the Jewish People is one filled with a series of traumatic experiences; including one topic that up until now that has been taboo to discuss: Sexual Victimization (childhood sexual abuse, sexual assault, clergy sexual abuse, professional sexual misconduct and sexual harassment). When referring to the Jewish Community I am discussing all movements including: the unaffiliated, Jewish Renewal, Reform, and Conservative, to the Orthodox, 'Charedi' and 'Chasidic' communities. 

Contrary to what we might want to assume, sexual violence is not limited to the gentile population: it is also a Jewish issue and one that needs to be addressed. In the United States one out of every three to five women, and one out of every five to seven men have been sexually abused by the time they reach their eighteenth birthday. This includes Jewish communities in the state of Maryland. 

One of the major problems in discussing the issue of sexual violence in the Jewish community is that doing so threatens the cultural perception of the wholesomeness of the Jewish family. Many survivors have been warned that speaking out would lead to an increase in anti-Semitism and possibly another holocaust.  (Anti-Semitism, Sexual Abuse and The Jewish Community).

The tradition in handling cases of sex crimes in Jewish communities has been to handle allegations quietly and internally. In most cases no police or hotline reports are made. Instead our rabbis attempt to handle situations on their own. An example of this is the case of Samuel (Shmuel) Juravel, who is now sitting in a federal prison, sentenced for 22 years.

Sam is the son of a Baltimore rabbi. His father is highly connected and a teacher at a yeshiva (private boys school). The first allegations of Samuel molesting boys occurred 15 years ago. The rabbis did their job in keeping things quiet, law enforcement was never notified, and Samuel was swiftly sent away to another community. 

Earlier this year Sam was arrested by the FBI in an Internet sting. He confessed and subsequently sentenced to 22 years in prison. Almost a full year after Samuel Juravel’s arrest, the Baltimore Jewish Times finally had the courage to publish his name in the paper. OnFriday, February 23, 2007 one of Sam’s survivor’s was finally able to have his voice be heard. 

What is interesting about Sam’s case is that for many years allegations have been made against the current principal of the boys' school where Sam’s father teaches. Rabbi Eliezer Eisgrau has been accused of sexually abusing students as well as one of his own children. It is a case most adults in the orthodox community of Baltimore are aware of. 

Those who made allegations against Rabbi Eisgrau were virtually chased out of town. The parents of the children making the allegations were told that their children were no longer welcome in the Jewish school. They were also told that they were no longer welcome to pray in their synagogues and were warned that the child victims and their siblings would not find good marriage partners if they remained in the community. The teenage child of the alleged offender basically ended up on the streets. The alleged offender had the protection of the powerful rabbis of the Baltimore community and those rabbis were willing to go to whatever lengths to protect their friend. 

Another case of interest is that of Rabbi Matis Weinberg. Allegations of his offending behavior began when he was about sixteen years old and resided with his parents on the campus of Ner Israel Rabbinical College and Yeshiva (a boys' school). Matis is the son of two very powerful individuals in the Baltimore Jewish community: His father, Yaakov Weinberg, was the Rosh Yeshiva (administrative headmaster and spiritual leader) of Ner Israel Rabbinical College. His mother, Rebbetzin (rabbi's wife) Chana Weinberg has always been highly regarded and over the years became (paradoxically enough) involved in addressing domestic violence in Jewish communities. 

Over the last forty years new allegations against Matis Weinberg have come up. Each time the administration at Ner Israel and the family members of Rabbi Matis Weinberg's seem to do what ever they an to down play Weinberg’s alleged criminal behavior; at the expense of those he victimized. To this day the administration at Ner Israel are actively involved in protecting alleged offenders and their assets, at the risk of forgoing the much needed protection of their students from potential harm. 

Another example is the case of Rabbi Moshe Eisemann, past Mashgiach Ruchani (Spiritual Advisor) at Ner Israel Rabbinical College and Yeshiva. Allegations against Rabbi Eisemann also spans over forty year time period. These allegations have been confirmed by various reliable rabbinic sources. 

It is important to keep in mind that in most Jewish Orthodox circles, sex crimes are not reported to law enforcement or child abuse hotlines. Instead, members of these communities tend to bring such matters to their rabbis; Especially if the allegations involve a community member and even more when someone in a position of power such as a teacher, another rabbi, and/or relative is involved. 

Several months ago, several individuals disclosed their sexual abuse histories to the administration of Ner Israel. These individuals clearly stated their concerns that their offender, Rabbi Moshe Eisemann, was still teaching at Ner Israel’s high school and living on campus. It was a well known fact that Rabbi Eisemann often tutors students privately in his home, putting teenage boys at risk of harm. The disclosing individuals are currently highly respected individuals. 

The Ner Israel administration referred the case to Rabbi Yaakov Hopfer, President, Va'ad HaRabbonim (The Jewish Religious Court of Baltimore). After interviewing the alleged survivors, Rabbi Hopfer made a decree that Rabbi Moshe Eisemann needed to "be retired” from teaching at Ner Israel. Rabbi Moshe Eisemann suddenly resigned, yet continues to lives on the Ner Israel campus. To this day Rabbi Eisemann tutors students. Each day that goes by puts the boys on campus and those he tutors at risk of harm. 

Rabbi Moshe Eisemann continues to work in the field of Russian Jewry. He is providing outreach to Russian immigrants who have children. There is also a realistic fear that Rabbi Eisemann will return to the former Soviet Union. Russian children also need to be protected from harms way.. 

Dealing with sexual violence in Jewish communities is still very much in its infancy. Survivors and their families are still being bullied and intimidated into silence, as are those who advocate for them (See: http://theawarenesscenter.org/bullying.pdf). It takes years for most survivors of a sex crime to be in an emotional space to even think of bringing civil litigation's against their perpetrators. That is especially true in communities where speaking up about sexual victimization still carries a stigma and real risk of shunning. 

Please consider all the information provided and vote YES to SB 575. 

Please give Maryland survivors of childhood sexual abuse a chance to have their voices heard and the opportunity to be compensated for their pain and suffering. 

Sincerely,

Vicki Polin, MA, ATR, LCPC
Executive Director, The Awareness Center, Inc. 

www.theawarenesscenter.org

Court Adopts Legal Test for Therapeutic Hypnosis

Court Adopts Legal Test for Therapeutic Hypnosis
By Helen L. McGonigle, Esq

The United States Court of Appeals for the Second Circuit, in Borawick vs. Shay, /FN1/, set a legal precedent adopting a more flexible test for the admissibility of testimony following therapeutic hypnosis. In adopting a more flexible test, however, the Second Circuit misapplied its new test and excluded the Plaintiff's testimony without so much as an evidentiary hearing. Binding in federal cases in Connecticut, New York and Vermont, the test could be adopted as persuasive authority elsewhere. The Second Circuit's test has broad application for any professional using hypnosis, whether a medical doctor, psychologist, dentist, osteopath, chiropractor, nurse, hypnotherapist, marriage and family counselor, social worker, pain control specialist, or habit control specialist. A petition requesting review of the Second Circuit's decision by the United States Supreme Court was supported by eighteen organizations, including the American Coalition on Abuse Awareness, Believe the Children, Mothers Against Sexual Abuse, National Victim Center, One Voice, SAVE and many others. The United States Supreme Court declined review on May 28, 1996, leaving the Second Circuit's test in place.

The issue on appeal concerned the ability of a civil litigant to testify following therapeutic hypnosis for the treatment of chronic illness and stress, as distinguished from its forensic use as a memory retrieval tool in criminal cases. The Plaintiff underwent hypnosis on the advice of her medical doctor, a Stanford University and UCLA graduate, licensed as a medical doctor since 1970. The Plaintiff was hypnotized on 10-12 occasions over a one year span between the summer of 1987 and the fall of 1988, with most sessions employing hypnotic relaxation techniques. Hypnotic age regression was used in the last three sessions. The Plaintiff left each session with no conscious recollection of having been sexually abused as a child. Months after the hypnosis ended, while driving alone in her car, the Plaintiff regained her first conscious recollection of having been sexually abused. Despite the time gap between the hypnosis and when the memories spontaneously emerged, the Court was guided by cases where the hypnotic subject immediately awakes with a refreshed recollection of what transpired while hypnotized.

The issue of the competency of a previously hypnotized witness to testify, often decided by judges lacking any expertise in hypnosis, traumatic amnesia, or memory, has generated four legal tests: 1) a rule of per se inadmissibility, meaning all post-hypnotic testimony is excluded regardless of the circumstances; 2) the safeguard approach with various inflexible safeguards; 3) the totality of the circumstances approach, which involves balancing flexible factors of admissibility, with no one factor determinative; and 4) a rule of per se admissibility, meaning the circumstances of the hypnosis impacts the weight of the testimony, not its admissibility, leaving the fact of hypnosis the subject of cross-examination. The law has been shaped by a dated 1985 report of the American Medical Association's Council on Scientific Affairs, then chaired by Martin T. Orne, M.D., Ph.D., /FN2/ now a False Memory Syndrome Foundation Scientific Advisory Board member.

In Borawick, the Second Circuit adopted a case-by-case totality of the circumstances approach incorporating the following "non-exclusive" factors:

1) an evaluation of the purpose of the hypnosis, whether investigative or therapeutic;

2) whether the subject received suggestions from the hypnotist or others prior to or during the hypnosis;

3) the presence or absence of a permanent record, which can help the court ascertain whether suggestive procedures were used, ideally the sessions should be videotaped or audiotaped;

4) whether the hypnotist was appropriately qualified by training in psychology or psychiatry;

5) whether corroborating evidence exists to support the reliability of the hypnotically-refreshed memories;

6) evidence of the subject's hypnotizability may also be relevant;

7) consideration of expert evidence offered by the parties as to the reliability of the procedures used; and

8) a pre-trial evidentiary hearing conducted by the district court so the above factors can be applied to a given case.

Several factors militated in favor of the Plaintiff testifying: the purpose of the hypnosis was therapeutic; no suggestions were made about the defendants prior to, during or after the hypnosis; corroborating evidence was offered by two other family members; and unrebutted expert affidavits were submitted supporting the reliability of the hypnotic procedure. In addition, the court determined the hypnotist asked only nonleading questions, concluding "there is no indication that [the hypnotist] added new elements to plaintiff's descriptions while under hypnosis". The court also found the hypnotist "did not use hypnotic suggestions with the plaintiff, as it was not his practice to stimulate memory recall by suggestion with a hypnotized subject" and the "hypnosis was appropriate for the memory loss involved". With suggestibility a nonissue, the court's decision barring the testimony rested on the hypnotist's qualifications and the absence of permanent records of the sessions. The hypnotist kept notes, but had moved his office and the notes could not be located.

The Second Circuit found the hypnotist's qualifications inadequate even though he had nearly fifty years practical experience, education specific to his profession, studied with a Swiss psychiatrist, attended lectures on hypnosis, neurolinguistics, and anesthesiology using hypnosis, lectured in California, Alaska, and Japan, lectured to court personnel at the U.S. Bankruptcy Court for the District of Alaska, was certified as a clinical hypnotherapist by the American Institute of Hypnotherapy, was a member of the American Association of Professional Hypnotherapists, and worked under the supervision and direction of a licensed medical doctor as is permissible in the State of California where the hypnosis took place.

While more liberal than the per se inadmissible rule or safeguard test, the non-exclusive multi-factored test adopted by the Second Circuit is flawed in several respects and was misapplied by the Court. /FN3/  The qualification component is ill-defined and may exclude many professionals who use hypnosis. The legal rights of many could be jeopardized if courts apply the qualification factor in the determinative manner enforced by the Second Circuit. With a "nonexclusive" multi-factored test, even those practitioners who seemingly comply can never be certain their patient's testimony will be admissible. Moreover, in today's mobile society, with conflicting legal tests on hypnosis, compliance with the law in one jurisdiction may not satisfy the legal test adopted in the state where the witness is to testify. It is unfortunate the U.S. Supreme Court declined review of Borawick v Shay, missing the opportunity to settle the conflicting law on hypnosis by adopting a uniform test with nationwide applicability.

Endnotes
1. Borawick v Shay, 68 F.3rd 597 (2d Cir. 1995), certiorari denied 116 S. Ct. 1869, 134 L. Ed. 2d 966 (1996). The author is a practicing attorney in Brookfield, Connecticut and was plaintiff's counsel in Borawick v Shay.

2. The report of the Council on Scientific Affairs to the American Medical Association is published in JAMA 1985 Vol. 253, No. 13, pp. 1918-1923. Martin Orne, M.D., Ph.D. is also on the Scientific Advisory Board of a Philadelphia based organization known as The False Memory Syndrome Foundation (FMSF). The FMSF advocates the interests of those accused of child sexual abuse. At least one source, citing to a 1962 report on one of Orne's laboratories, the Institute for Experimental Psychiatry, showed two sizable grants from what are believed to be CIA front organizations, Human Ecology Society and Scientific Engineering Institute. John Marks, The Search for the Manchurian Candidate (W. W. Norton and Company, pp. 166-167). Orne was the senior research psychiatrist at the Massachusetts Mental Health Center and Director of studies in hypnosis and human ecology projects from 1960-1964. Massachusetts Mental Health Center was a known site for CIA funded human behavorial experimentation, as was the Institute of Experimental Psychiatry in Boston, where Orne was executive director. For more information on this topic see CIA v. Sims, 471 U.S. 159, 85 L.Ed. 2d 173, 105 S.CT 1881 (1985) Free access to CIA v. Sims can be gained at http://www.findlaw.com/casecode/supreme.html,[then typing in "471 US 159" in the search fields].

3. For a thoughtful analysis describing how the Court misapplied its own test see Alan W. Scheflin, Esq., Commentary on Borawick v Shay: The Fate of Hypnotically Retrieved Memories, Cultic Studies Journal Vol. 13, No. 1, 1996, p. 26 and Alan W. Scheflin, False Memory and Buridan's Ass: A Response to Karlin & Orne, "Hypnosis, Social Influence, Incestous Child Abuse, and Satanic Ritual Abuse: The Iatrogenic Creation of Horrific Memories For the Remote Past", published in the Cultic Studies Journal, Vol 14. No. 2, Summer 1997 available thr