Revised NH Youth Center Settlement Plan Allows Final Vote

This story was originally produced by the New Hampshire Bulletinan independent local newsroom that allows NHPR and other media to republish its stories.

A new framework approved by lawmakers on Tuesday will allow the state to begin settling claims in January with hundreds of people sexually and physically abused while at the state’s former youth development center .

The vote came after Attorney General John Formella made what he described as “major” changes to address lawmakers’ concerns.

But Democrats on the Joint Legislative Fiscal Committee and a victims’ attorney opposed the revised plan, arguing that it fails to fairly compensate victims.

Under the new rules, awards to victims who have been photographed while being abused will increase from $50,000 to $125,000, Formella told the committee. Another change decreases the number of times a victim must be abused to receive higher compensation, but retains a tiered system for calculating compensation. The rules are now final with Tuesday’s vote.

“We recognize, from a value perspective, that, for example, seven or eight incidents are more harmful than one or two,” Formella said. “As I’ve said many times throughout this process, there’s really no perfect way to do something like this. There’s no amount of money that really compensates someone for having suffered sexual or physical abuse, and there will never be a perfect way to arrive at an estimate of the compensation someone should receive for this type of harm.

An attorney representing nearly 800 victims of abuse while at the state-run detention center has joined committee Democrats in opposing the new rules. But lawyers for the other victims called them a reasonable compromise.

The Legislature allocated $100 million in May to compensate victims who were abused as children while in the state-run detention center, and directed the Formella office to create a settlement process that offered victims a friendlier and more quick to a court battle.

The state must begin accepting applications on January 1 and have an administrator in place before that. Formella told the committee that his office and the victims’ attorneys were close to agreeing on who to appoint.

About $4 million of the $100 million fund will cover the salaries of the administrator, administrative staff and consultants, if needed. Formella estimated that the administrator will be paid up to $160,000 to $180,000 per year, depending on whether the person is full-time or part-time.

The Attorney General’s Office is updating its website with the latest rules and guidance for victims and attorneys interested in filing claims.

The committee cast a vote on Formella’s original proposal in Augustasking him to address a number of concerns ranging from how the state would assess different types of rape to how to prevent the exclusion of victims unable to navigate such a complicated claims form without an attorney.

Formella returned Tuesday with revisions that satisfied Republicans on the committee but not Democrats. In a 7-3 vote, the three Democrats on the committee, senses. Cindy Rosenwald of Nashua and Donna Soucy of Manchester and Representative Mary Jane Wallner of Concord voted against them.

In a joint statement after the vote, they raised concerns about sexual assault compensation that makes the difference between touching the genitals and penetrating the genes; the former carries a lower reward. Rosenwald told Formella that the math unfairly discriminates against men because their anatomy makes them less likely to be penetrated.

The three Democrats also took issue with how the awards will be calculated.

“Once again, the Attorney General has presented us with a proposal that is still not trauma-based, nor victim-centered,” the statement released by the Senate Democratic Office reads. “As proposed, this distribution model discriminates against male victims of abuse, awards less money to victims who were repeatedly raped over a shorter period of time than to victims whose sexual abuse spanned a period of 12 months, and always envisages an average payment far below the legal ceiling.

The statement continued: “This process is simply too important to get wrong. At-risk children have been abused while in the custody of this state. While we cannot right the wrongs these children have suffered, we can and must prioritize these child victims and their lived experiences over attempts to mitigate state financial responsibility.

Nixon Peabody attorney David Vicinanzo, who represents nearly 800 victims with his partner Rus Rilee, also released a statement reiterating his longstanding objections to Formella’s proposed settlement.

He said the attorney general’s office did not consult with victims before creating the process and did not contact him for comment after the committee filed the proposed rules in August. Vicinanzo said his clients would go to court rather than file claims.

“We are seriously disappointed with the condition. We were hoping for moral leadership from the (Office of the Attorney General), but instead we see dishonest play, not engagement or negotiation,” the statement read.

Vicinanzo’s statement continues: “The state abused these people when they were children. Now it is abusing them again playing political games, pretending it is a victim-friendly process while ignoring and disrespecting the real child victims.

Michael Garrity, spokesman for the attorney general’s office, said staff contacted Nixon Peabody and Rilee during the early drafting phase of the settlement process “…and received no constructive response.”

He said the office reached out to other attorneys representing victims after the committee voted to file Formella’s proposal.

“During this second phase, we instead chose to work closely with other claimants’ attorneys who were willing to engage with us constructively, and the claims process is better for him, as evidenced by the support from these attorneys and committee approval of the revised process today,” Garrity said in an email.

Lawyers representing other victims told the committee they support Formella’s revised settlement rules.

“…We realize that some rewards may seem inadequate,” Michael Rainboth wrote in a letter to the committee, citing the base reward of $200,000 for a single incident of abuse. But he also noted that the claims process administrator can increase this amount by considering aggravating factors, such as abuse resulting in sexually transmitted infections or pregnancy, abuse by multiple staff members, and duration of the abuse.

“We believe that most, if not all, claimants will weigh their options and agree that the time savings, procedural benefits and certainty provided by the program will result in high uptake and offer these victims closure and the compensation they deserve,” wrote Rainboth.

Attorney Anthony Sculimbrene told the committee in a letter that Formella’s office has addressed some of its concerns, including reducing the number of incidents needed to achieve the highest rewards. He also said he appreciated the office’s agreement to increase outreach methods to make victims aware of the settlement opportunity.

But other concerns remain, he wrote. He said the process remains too complicated and the payment caps, which were set by the legislature, remain too low. Still, he expressed his optimism.

“Despite the flaws…I believe the current process will help child victims of sexual assault by state actors,” Sculimbrene wrote. “I also believe that the informal nature of the settlement process will expedite collections while doing so in a way that does not expose the state to greater liability.”

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