A Humane Legal Strategy for Children’s Theatre

Summary

One of the recommendations we made to Children’s Theatre Company’s (CTC) leadership was that they reorient the theatre’s legal strategy to prioritize compassionate and humane treatment of survivors. What would that legal strategy look like?

We believe the theatre should take the following course:

Background

In the 1970s and 80s, a culture of rape and sexual exploitation was rampant at CTC. Survivors estimate that there were at least twenty abusers on staff and over one hundred children were victimized. Three years ago, sixteen lawsuits were filed against CTC by sexual assault victims; seven have been settled and one went to trial, with CTC found negligent but not liable (in other words, owing no damages to the survivor, Laura Stearns.)  Eight more cases may potentially go to trial. 1

We are concerned about how Laura Stearns was treated in court, beginning with CTC’s apparent attempt to recover costs from her at trial’s end. (We assume this will not happen again. CTC, after defending its course of action, eventually backed down.)  As we have learned more about how this case was conducted, we offer some thoughts on how CTC could proceed so as not to re-victimize survivors.

Recomendations

CTC should work harder to settle cases. 

No-one wants to go to trial. Negotiation is almost always a better option. And, in fact, CTC did negotiate settlements with some victims: six men, four of whom had been abused as boys by John Donahue, the theatre’s former artistic director; and one woman, “Jane Doe 76” who was scheduled for jury trial in late October.2

But why wasn’t the theatre willing to settle with Laura Stearns?

Did CTC think they had a winning case? 

Many defendants with strong cases settle out of court. But CTC didn’t. The theatre partially prevailed against Laura Stearns using this story: Jason McLean, the man who raped Ms Stearns, was a rogue employee, and no-one at the theatre was aware of his crimes. We’ll discuss that narrative more below.

CTC’s aggressive negotiation strategy may have to do with the theatre’s legal representation. Although CTC is the defendant, their attorneys are paid by the theatre’s insurance company. Therefore, spiraling legal costs will never be a factor in persuading the theatre to settle.

The theatre’s relationship to its attorneys and insurers—part client, part supplicant—also seems to have contributed to its intransigence on a matter of great importance to survivors:  public admission and apology. CTC leadership expresses regret about the sexual assaults but refuses to concede past institutional wrongdoing, presumably to avoid admitting liability. 

But there is another choice: admit liability, and go to trial only to determine damages, if negotiations fail. Such an admission, although a tough pill to swallow, would fit better with known facts about the culture of the theatre in the past. And as more survivors’ stories become public, it will become ever harder to claim that the institution was blameless.

So, although CTC technically prevailed against Laura Stearns, each subsequent trial in which they defend the past will cost the theatre more credibility and community goodwill. This isn’t a good path forward.

Did the theatre abandon negotiations because the victims’ demands for money were exorbitant? 

CTC made that claim in a pre-trial press release. We assume that monetary damages are covered by insurance, but it is still possible that the theatre may have to pay survivors out of pocket.

This question of money raises a couple of important points:

First, we believe the survivors when they say that justice, not money is the most important thing for them. Justice, for them, means a clear acknowledgment of the past, and reform of the present institution. In fact, before the short window opened for victims to sue, survivors had approached CTC leadership from time to time, asking for honest dialogue about the abuse they had suffered. According to survivors, the administration’s dismissive attitude  convinced some of them to file suit. A demand for money, unfortunately, seemed to be the only way to get the theatre’s attention.

Second, it may be that CTC will face losses. We maintain that any financial threat CTC faces still will not excuse a “blasted earth” defense. We believe the community will step up to support CTC if they act kindly and fairly toward the survivors.

In subsequent trials, CTC should not repeat some of the tactics used against Laura Stearns.

The trial narrative

We referred above to the story CTC’s attorneys told at trial, briefly: In an otherwise wholesome environment, a rogue employee abused a student; no-one knew anything about it until suddenly, everyone did; and, according to an expert witness3, back then people were on edge about false accusations of abuse and CTC, by treading lightly around repeated accusations, was doing the best they could.

A trial is like a stage play; the testimony of certain witnesses is presented to the jury, and a story gets told which may resemble what really happened—or may not. When former employees testify that they saw nothing amiss, this may be the truth…as they remember it. But it’s certainly not the whole truth.

We can be certain from press reports and the memories of survivors and other alumni, that CTC was an unwholesome environment where children’s physical and emotional safety was not taken seriously. The founder and artistic director was jailed; survivors count at least twenty abusers on staff in the ‘70s and ‘80s; the institution was riddled with denial and cover-up. Therefore, although CTC’s trial story may be legally admissible and technically defensible, it is not true and should not be told.

If this story holds up in court, it may save CTC and its insurance companies from paying settlements. But it will not change the past, and the theatre’s reputation will be damaged every time these untruths are repeated. CTC would be better off admitting liability, and taking its lumps.

Treatment of survivors at trial

We know that one in four women is sexually assaulted, that childhood sexual assault victims suffer from PTSD, and are often victims of subsequent assaults. Although this is perfectly understandable, it can also be used to paint a survivor as “damaged goods,” an unreliable witness, or someone who does not deserve recompense.

CTC’s attorneys questioned Laura Stearns extensively about other sexual assaults she had endured, apart from those associated with CTC. Whatever purpose this served at trial, it certainly could be interpreted as a warning to other survivors: if you take the theatre to court, shameful personal information may be publicly bared.

This tactic is legally defensible—a judge allowed it. But it is an example of inhumane treatment of a survivor; the theatre’s reputation and moral standing were damaged by having allowed this line of questioning.

So what should CTC do?

Survivors and their allies have many opinions about what the future should hold. These range from “Tear it down!” to “Keep it afloat, somehow.” Most of us in our group agree that, if the original scandal had been properly addressed, the theatre would not have survived. But here we are; no-one who perpetrated abuse is currently in charge, and yet the stain of abuse is on all of us, at Children’s Theatre Company and throughout the Twin Cities theatre community.

The theatre’s leadership has, up to this point, held institutional survival as its highest good. They have dealt with the survivors through a legalistic framework, under the sway of insurance companies who aim to limit the amount they pay out. In the process, they have damaged the theatre, contributing to an atmosphere of distrust and scandal.

CTC’s moral standing in the community cannot be resolved at trial, but it can be diminished. Acting more humanely may contradict a lawyer’s advice, but it will create goodwill, and this is more precious than winning in court.

So, the theatre should take some risks, and bank on community support.

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  1. Oddly, the theatre did not announce the settlement with the six male victims until after several months had elapsed. [↩]

  2. The survivor known as Jane Doe 76 made the following comment on her settlement:

     “While ctc, the board, their numerous attorneys and law firms may have followed the letter of the law, it is my opinion and experience that they did not honor the spirit of the law that is in place to assist victims of trauma; nor the process of restoration.

    The callous and calculated way they legally made their way through the system left me with more pain than I began with. If something was legal, they took full advantage – stalling or proceeding – as the law allowed, despite knowing the pain it would do to me.I think they handled the process badly. I felt I had little way to turn, if any. I hope they treat the other victims better.”[↩]

  3. The fee for this expert was part of the “taxation of costs” against Laura Stearns that set off the present boycott and picketing of Children’s Theatre Company by survivors and their allies.[↩]