Attorney General John Formella defended his proposed $100 million Youth Development Center abuse settlement fund Monday, pushing back against complaints that it excludes victims of emotional abuse and sexual abuse with no physical contact, including some who were the subjects of child abuse images.
“We saw a lot of discussion that this bill excluded victims, or that it excluded claims, or that it cut victims off from pursuing some types of claims,” Formella said in an interview. “We are not trying to cut anyone off from the claims they have. We are just trying to say for a certain scope of claims, we want to provide a much more trauma-informed, victim-centered process.”
House Bill 1677, which passed the Senate Thursday night, sets aside $100 million to settle claims of abuse alleged by former victims of the Youth Development Center in Manchester. Formella and Gov. Chris Sununu have said it’s an important and necessary first step in the state’s acknowledgement of its role. Critics have faulted the fund’s limits on awards and types of abuse covered.
Formella said HB 1677 will offer victims of physical and sexual abuse a “gentler,” faster, and less-adversarial option for settling claims than they would get from the traditional settlement process, which can take months or years and involve more evidence and scrutiny of victims. But that standard process is still available for other abuse claims, he said.
“We are committed to doing the right thing here,” Formella said. “We think this bill provides a good alternative option for victims. But we also understand that there will be victims that don’t want to use this process and want to turn to litigation. We respect that and we are still going to address those (other) claims.”
Dave Vicinanzo, one of two attorneys representing more than 500 victims, 450 of whom have filed lawsuits against the state, has already said he will discourage his clients from using the fund because he believes it favors the state.
Vicinanzo also raised concerns about the settlement process, saying the bill requires that victims give up their right to take the state to court if they dislike their settlement offer. Formella clarified that part of the process Monday.
Under the bill, victims have three options: They can accept the offer from the Attorney General’s Office; they can reject it and go to court; or they can reject it and ask the fund’s administrator to decide on a settlement amount.
If they go through the administrator, they must waive their right to sue the state afterward, Formella said.
Shaheen and Gordon attorney Anthony Carr on Monday called the reassurances from the Attorney General’s Office a “facade” of victim sensitivity. He declined to say whether he would advise his more than a dozen clients to pursue their claims through HB 1677’s proposed fund.
“They want clients to see that guaranteed amount of money available here and now,” he said, “when it’s one-tenth of what they could get (from a jury.)”
The bill, headed to Sununu’s desk, excludes the type of abuse alleged by Dwayne Underwood, one of Carr’s clients. Underwood said he was forced to undress regularly and expose himself to guards and swim naked on and off property.
“I should never have put faith in the state to create a fair settlement process,” Underwood said in the statement. “One time, a guard took me by van to a campsite by a river and he made me swim naked with him. This has caused me great trauma over the years, and I just don’t see why the state would not recognize what I went through as sexual abuse.”
Formella’s assurances did little to mitigate the concerns of victim advocates.
“We already know this,” said Vicinanzo of Formella’s reminder that victims have two settlement options. “I think that he is coming up with something that most people in the public don’t understand to make it sound better than it is.”
Carr said of the bill: “It’s ultimately all charades. We haven’t seen anything of substance in our mind.”
Vicinanzo’s and Carr’s lawsuits are on hold, however, while the court system determines how to handle such a vast number. Formella — along with Sununu and most lawmakers — see HB 1677 as a good alternative for those claimants.
“Setting up a process like this with a $100 million initial appropriation is something the state has never done before,” Formella said. “And I’m not aware of any other state that has done anything like this. This process allows for a potentially very quick and smooth and victim-centered and trauma-informed path for those victims who have been through a lot and I’m sure would not want to go down the traditional litigation process.”
But the process has drawn significant opposition from the victims’ lawyers, the New Hampshire Association for Justice, the New Hampshire Coalition Against Domestic and Sexual Violence, two national child advocacy groups, and Senate Democrats. After HB 1677 cleared the House on a bipartisan voice vote in March, it passed in the Senate with no Democrats supporting it.
Critics want the settlement caps — $150,000 for physical abuse and $1.5 million for sexual abuse — increased. Most want emotional abuse included, and there’s agreement that it must be expanded to cover all sexual abuse.
Formella said his office did not advocate for expanding the bill to include more types of sexual abuse but also told lawmakers he would not oppose it. In urging colleagues to pass HB 1677 Thursday without changes, Sen. Jeb Bradley, a Wolfeboro Republican, echoed Formella’s argument that all victims still have an avenue to settle their claims.
Amanda Grady Sexton, public affairs director for the New Hampshire Coalition Against Domestic and Sexual Violence, isn’t convinced by Formella’s assurances toward victims unable to use the settlement fund.
“I think what the statement shows to me is that the (Department of Justice) has heard clearly from the plaintiffs’ attorneys that this bill clearly did not meet the needs and expectations of the victims,” she said. “Clearly there wouldn’t have been a need for this bill had the settlement process with the lawyers and plaintiffs moved forward. What is the likelihood that is going to happen now?”