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Getting Out : Seeking Justice

HIP HIP HOORAY! Changing the legal system!

from moon beam - Friday, October 22, 2004
accessed 2304 times

D.A.'s clever tactic in child sex abuse wars
Bringing, then dismissing indictment against bishop
By Marci Hamilton, FindLaw Columnist
Special to
Saturday, October 9, 2004 Posted: 12:29 AM EDT (0429 GMT)

(FindLaw) -- Last week, a Hampden County, Massachusetts prosecutor indicted
Bishop Thomas L. Dupre for child rape with two boys .Dupre was the first
Roman Catholic Church bishop to be charged with the crime.

As soon as the charges had been made public, Dupre resigned and checked
himself into St. Luke's, an institution that specializes in treating
substance abuse and sexual perversions. The indictment was laudable -
finally, and rarely, a victim of clergy abuse seemed likely to get some

However, within hours, District Attorney William M. Bennett withdrew the
indictment .Why? Apparently, because Dupre's attorneys filed papers arguing
that the statute of limitations had run.

These events left many observers scratching their heads .Wouldn't the
prosecutor have looked into the statute of limitations issue before he

Interestingly, it's possible that the prosecutor indicted even knowing the
statute of limitations issue, and knowing the indictment had to be
withdrawn. Indeed, this tactic - if it was used - in light of existing law
was praiseworthy.

It was right to indict.

An indictment's main function is to initiate a criminal case. But this
indictment served other worthy functions, too. It expressed the prosecutors'
view - and hence the people's view -- that Dupre indeed committed these
loathsome crimes. And it set forth the evidence supporting that view.

The facts, as set out in the indictment, were horrifying. According to the
indictment, Dupre showed two boys pornography, gave them alcohol, and
sexually penetrated them. Each boy was victimized over a five-year period,
with a two-year overlap.

Beyond Dupre, the issuance of the indictment warned other abusers that the
fact that they belong to a religious institution will not insulate them from
the criminal law. It was a long-overdue warning shot.

Dismissal taught a key legal lesson.

What about the dismissal of the indictment? Did it also send a message? Yes,
but it was hardly an exculpation of child rapists .The issuance and
dismissal of the indictment, together, said that prosecution would have been
appropriate but for a technicality. They sent a message of condemnation -
and a promise to indict if similar facts arise in the future.

Prosecutors were also wise to issue the indictment - even if they
subsequently had to dismiss it - because the press coverage of the dismissal
taught the public a key legal lesson. It also forced the defendant to raise
the statute of limitation defense, starkly showing the impact they have on
substantive results. The spotlight has been directed to the crucial issue
and the right individual to educate us all on a fault in the legal system.

Here's the problem:The statutes of limitations on childhood sexual abuse
operate as a haven for scoundrels of every stripe. As long as we continue to
have them, wrongdoers will continue to invoke them, religious or not. When
the crime is heinous, and the victim a child, the injustice is especially

Editorials advocating the abolition of child sexual abuse statutes of
limitations appeared not long after the Dupre indictment was brought and

Murder is one crime for which there is no statute of limitations - and
rightly so. We don't want to allow a murderer to rest easy, content with the
knowledge that he is forever free of prosecution merely because time has

Nor should we let a child sex abuser rest easy due to the mere passage of
time. He has committed the worst kind of abuse - killing the child's
innocence and disabling his soul. So why in the world should we offer him
what the law deems the "repose" offered by the statute of limitations?

Abolishing the child sexual abuse statute of limitations is necessary to
give victims' justice .It's also necessary to send the strongest possible
message to abusers:If you commit this heinous crime, you will never rest
easy; it will always haunt you and someday, you will be jailed for it.

Why statute of limitations doesn't make sense.

It's important to stress that not only the heinousness of the crime of child
rape, but also the youth of the victim, counsel in favor of abolishing the
statute of limitations.

Here is what typically happens in such a case: A child's moral and spiritual
world views are still developing. The childhood sex abuser's predations
radically deform these world views - and often permanently alter the child's
view of love and sexuality. For the child abused by a trusted adult, the
incident is so cataclysmic, the child's response is typically to repress or
deny the abuse. Often, the molester encourages the repression or denial with
threats - warning the child that if he tells, his life (or afterlife) will
be in severe jeopardy.

The abuse then takes its toll. Perhaps the child cannot tell his family -
and there is a wedge of silence between them. Perhaps he does tell his
family - and is not believed. There are no witnesses, and the abusing priest
denies it; it is the child's word against the priests, and the parents too
often believe the priest. Or perhaps the child's parents believe him, but do
not report the incident, for fear of being exiled from their religious
community. Now the child has learned that he not only cannot trust his
priest, he also cannot trust his family.

Later in life, the child - now grown-up - may pay the cost in failed
relationships and dreams, compounded by alcohol or drug abuse. Finally, he
may come to terms with both the fact that he was abused, and the need to go
to the police.

In the end, the measure of the statute of limitations for childhood sexual
abuse must be the ability of the victim to come forward. That takes decades.

Arguments against abolition of time bars.

Just as the argument for abolishing the child sexual abuse statute of
limitations is strong, the contrary arguments are weak. Two defenses were
laid out in a Christian Science Monitor story following the Dupre dismissal.

Massachusetts Attorney General Thomas F. Reilly, who earlier disappointed
victims with his lukewarm, no-action report on the clergy scandal, is now
arguing in favor of keeping the statute of limitations. He has trotted out
the typical defense of the statute of limitations: It must be retained
because evidence becomes stale -- memories fade, or witnesses disappear. But
that is only an argument for wise prosecutorial discretion, not for giving
every pedophile the ability to sleep easy.

There are plenty of cases where the evidence is there. A formerly
disbelieving parent may come to understand that the child's injuries were
the result of sex abuse. Other victims may have come forward, or may come
forward when the investigation or indictment is announced. Perhaps a sibling
knew, but did not understand. Perhaps a teacher noticed a child's dramatic
change in demeanor, and suspected. Maybe a mother suspected, but feared
confronting her abusing husband. There is a tremendous amount of untapped
evidence out there, because the issue has been so taboo that obvious
evidence that could not be fruitful was studiously ignored in the past.

With respect to clergy abuse, doubtless, fellow priests and rectory
housekeepers must sometimes have known. No one lives in a rectory with
another man, and fails to notice that he is taking children into his bedroom
and closing the door. Even more know that a priest frequently took children
to the beach or a vacation home without their parents.

Rather than abolishing the statue of limitations, Reilly proposes increasing
the fines for failure to report child abuse from $1,000 to $25,000. The
problem with this argument is that there's no reason not to opt for both
proposals .Let's increase the fine, and abolish the time-bar.

And if we did have to choose only one remedy - which we do not -- certainly
the stronger medicine of criminal prosecution is the best: There is no
better deterrent to crime than the prospect of jail time. And as we have
learned in recent decades, sometimes jail is the only way to stop the
pedophile's persistent search for the next child victim.

Argument that sexual abuse is on the downswing is absurd.

The Christian Science Monitor's story also focused on the theory that there
is no need to abolish the statute of limitations now, because child sexual
abuse is on the downswing, and reached its height in the permissive 1970s
. This argument is absurd.

(The newspaper's contention that abolition would be unconstitutional is
equally absurd: Prospective - as opposed to retroactive - abolition of
statutes of limitations is plainly constitutional. The Supreme Court in
Stogner v. California held that the Ex Post Facto Clause is a limitation on
reviving statutes of limitations--not on abolishing them for future crimes.)

Child sexual abuse is not diminishing:It is an ugly, permanent reality. Even
the claim that childhood sexual abuse is diminishing in the Catholic Church,
in particular, is premature at best. Many known pedophiles were removed from
ministry only within the last two years, after the Boston Globe blew the
Church's cover. A six-year-old boy and his family pressed charges against a
priest just last week in Long Island. In the Pennsylvania church I attended
with my family, the priest there pled to having sexually abused an
11-year-old as recently as the 1990s.

The truth is that the Church has struggled with pedophilia within its ranks
ever since its first century. That means it has known about the problem for
centuries .Canon law directly addresses the issue. If one knows the history,
it is laughable to claim that such abuse was confined to a particular decade
in the twentieth century - and will never again be repeated .Would that it
were true, but it is not.

In addition, we now know that child sexual abuse is hardly limited to the
Catholic Church - or, of course, to religious contexts. And if the claim is
that childhood sexual abuse in general is on the downswing, reality says
otherwise. The vast majority of such abuse is perpetrated by family members,
and they continue to garner the trust of children and to have the
opportunity to abuse. The abolition of the statute of limitations would help
them every bit as much as the victims of clergy abuse.

The prevalence of abuse in all kinds of contexts makes it all the more
appalling when religious entities mount the bully pulpit (or skulk in the
legislative hallways) to ensure that statutes of limitations for childhood
sexual abuse remain limited. The lobbyists who argue against abolishing the
statute must know - or must learn -- that it's not all about them, or their
churches: The fates of countless children abused in secular contexts are at
issue, too.

In an attempt to protect their own, will religious entities simply leave
these children to their fates? The question is the abolition of the statute
of limitations for child sexual abuse, in general - not for clergy child
sexual abuse in particular .One wonders, as I suggested in an earlier
column, why religious institutions are not at the forefront of helping
children avoid devastating harm.

Any religious institution's knee-jerk reaction to discovered internal child
abuse by defending legal limits on the prosecution of criminals - merely
because some of these criminals happen to be religious -- is unseemly, to
say the least. The issue is children, and children alone.

Marci Hamilton is a Visiting Scholar at the Princeton Theological Seminary
during fall 2004. She is the Paul R. Verkuil Chair in Public Law at Benjamin
N. Cardozo School of Law, Yeshiva University .An archive of her columns on
church/state issues can be found on this site. Her email is

Reader's comments on this article

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from Another Fine Piece by Prof. Hamilton
Tuesday, May 24, 2005 - 16:39


"Meanwhile, victims of the Family -- a religious group that was founded in the 1960s on a belief in free-wheeling sex for all, children included -- are now coming of age with all the torment childhood sexual abuse inflicts. Only recently, the designated "messiah" of the group shot his former "nanny" and then killed himself. "

Read On:

The Long and Difficult Road to Protecting Children from Sexual Abuse:
A Tale of Three States, and How They Revised Their Statutes
Thursday, May. 19, 2005

Over the last decade, concern about childhood sexual abuse has grown.

Megan's Laws -- which put convicted sex offenders on public registers, so that parents can know if a neighbor has a record -- have become popular. Child abuse reporting statutes that mandate that certain professionals contact the state with knowledge of child abuse have also been passed.


And of course - in the most high-profile development - suits against clergy and religious institutions for childhood sexual abuse have been filed, and their filing has sent shock waves through the Catholic Church and (as I will discuss below) other religious institutions.

Even the press - which was unforgivably lax in covering this issue -- is starting to cover children's issues as though they are an important part of public policy.

What are the reasons for this trend? One is that experience has shown that pedophiles are incurable. It is a sexual predisposition, not a treatable psychological condition.

Another is that society has come to recognize that children have a great deal of trouble telling others about their victimization, and that, later in life, they suffer serious ill-effects from abuse. The victim pays for life, and society pays in lost capacities and contributions.

It is crucial that the United States find ways to protect children from these predators, and to assist those whom its legal system has let down over the years.

Three states -- Florida, Ohio, and California -- are currently undergoing transformations in their statutory approaches to childhood sexual abuse. In this column, I will examine exactly what is happening on the ground in each of those states.

Unfortunately, my conclusion is that when religious entities enter the legislative mix, all too often the result is bad for childhood sex abuse victims -- past, present, and future.

Florida : A Smart Law That Includes An Absurd Distinction

In March, nine-year-old Jessica Lunsford was murdered in Florida by a registered sex offender. In April, thirteen-year-old Sarah Lunde also was murdered in Florida by a registered sex offender.

These terrible crimes spurred the Florida legislature to take fast action. By May, the Jessica Lunsford Act was enacted into law. It states that for certain sex crimes committed against children under twelve, the perpetrator must serve a sentence of twenty-five-years-to-life, and, if freed, must wear a GPS tracking anklet for the rest of his life.

The speed of the enactment is a testimony to the fact that sexual predators of children do not have a powerful lobbying voice. There was no one to voice any meaningful opposition, making the law easy to pass in a moment of shared outrage.

The law itself is admirable, but its distinction between children under and over twelve is absurd. Under the law, if the victim is over twelve, the abuser's sentence would be shorter, and he would only have to wear the anklet during probation.

What could possibly be the rationale for this distinction? Was Sarah Lunde's murder less heinous than Jessica Lunsford's murder? Of course not. It is a mystery why the Florida legislators thought adolescents suffer any less than children when sexually abused by adults.

The Florida experience underlines a sad truth: Sometimes it takes public outrage to shock legislators out of their usual inclination to jawbone and delay, but even then legislatures are still woefully uneducated on the actual impact of sexual abuse on adolescents, as well as young children.

But at least, here, some legislation aiding children was quickly passed, and is properly harsh - at least for victims under twelve.

California : Religious Entities Litigate to Get Reform Declared Unconstitutional

The situation is very different, however, when religious entities are implicated in childhood sexual abuse - for then, a powerful constituency does exercise its muscle to slow or stop legislative action.

Because of its size and its former public stature, the Catholic Church has been the focus of attention, when it comes to childhood sexual abuse, since the Boston Globe 's breaking of the story in 2002. But the Catholic Church is hardly alone on this score. The Jehovah's Witnesses and the Church of Jesus Christ of Latter-Day Saints have had their share of lawsuits.

Meanwhile, victims of the Family -- a religious group that was founded in the 1960s on a belief in free-wheeling sex for all, children included -- are now coming of age with all the torment childhood sexual abuse inflicts. Only recently, the designated "messiah" of the group shot his former "nanny" and then killed himself.

In addition, the nephew of a leader of the Fundamentalist Latter-Day Saints has alleged that he was repeatedly sodomized by his uncles.

Abuse within religious institutions knows no geographical boundaries. Ireland, Austria, and Australia have been rocked by revelations of sexual abuse by Catholic priests and nuns, and Chile is home to a religious commune where the leader regularly and repeatedly sodomized the young boys of the group.

Like murder and robbery, childhood sexual abuse by trusted clergy is apparently an integral part of the human condition. In light of the evidence, no civilized society can fail to take every effort possible to protect children when they are at their most vulnerable - in the presence of an adult they have been taught to revere and trust.

As I have discussed in a previous column, the statutes of limitations for childhood sexual abuse, in most states, are scandalously short - especially in light of the reality that children generally are not in a position to come forward while they are still children; often, it takes decades before they can begin to understand and then come to terms with the abuse.

California is the nation's leader in trying to do something for children who grew up, were ready to seek justice, but found that the statute of limitations was an insuperable barrier. First, California tried to make the criminal statute of limitations for childhood sexual abuse retroactive -- but the Supreme Court, in Stogner v. California , found that this violated the Constitution's Ex Post Facto Clause.

California also made the procedural adjustment of suspending the statute of limitations in civil actions involving childhood sexual abuse, Sec. 340.1. The law lifted, for one calendar year, the statute of limitations on childhood sexual abuse for lawsuits against institutions that knowingly permitted their employees to work with children. The law applies to all childhood sexual abuse victims, whether familial or religious, and many did come forward. The California Catholic Archdioceses have claimed the law is unconstitutional on due process and First Amendment grounds, but courts have rightly held that it is not.

They also have tried to argue that it is unconstitutional on the theory that they were "targeted" by the legislation, even though the legislation is neutral and generally applicable. (When will the Church quit saying it is all about the Church??) That's like saying a state can't outlaw religiously motivated medical neglect just because it only knows about the death of children in one sect. The evil California sought to redress was the evil of child abuse by trusted adults, and the outrage and quick enactment were well justified on public policy grounds.

One might think that, both financially and public relations-wise, the Church might welcome 340.1. The law's effect was to flush out a finite number of past victims - with whom the Church could settle. Then, the Church could amend its ways, as it claims to have already done, and move on into its pedophile-free future.

The California Archdioceses' scorched earth litigation strategy has only underscored that what matters most here is money and keeping their secrets. They have not objected to settling with victims as a per se matter; what they are fighting in 340.1 is having to settle with victims who have legal leverage to obtain fair compensation for the injuries done to them.

Ohio : An Uphill Battle Against Religious Institutions' Lobbyists

In Ohio, meanwhile, victims are fighting an uphill battle to follow California's example against a legion of religious lobbyists.

In March, after a deeply moving floor debate, the Ohio Senate passed SB17. The law would extend the statute of limitations for all current and future childhood sexual abuse, and - like California's law -would open a one-year window during which the statute of limitations does not apply. The law also would mandate that clergy - like others who come into contact with children in their jobs - must report childhood sexual abuse.

In a remarkable moment for clergy abuse victims, who have been invisible to the legal system for so long, those victims who were in the chambers received a standing ovation from the Senators. Then one Senator after another said what must be said: Churches must be held accountable when the issue is childhood sexual abuse.

Now the bill is mired in the Ohio House, because the Ohio Catholic Conference and the Ohio Bishops have called out the heavy artillery in an attempt to kill the window provision. The Bishops have importuned the most "influential" members of each parish to write or pressure personally their members in the Ohio House. And flyers have been distributed throughout the parishes, arguing that the law is unconstitutional and supposedly bad public policy.

As a result, though the constitutional argument here is weak - just as it is in the California context -- various members of the House have suddenly become deeply devoted to constitutional principles. Of course, they are using these "principles" as a cover, to do what the Church has insisted must be done.

Parallel to the Bishops' lobbying against the changes to the statute of limitations, there is the evangelical Christian churches' lobbying against the mandatory reporting provision.

This provision ought to be a no-brainer. Professionals such as doctors, teachers, and psychologists, must report known child abuse. Like them, clergy are in a good position to observe signs of abuse, or hear about it.

The evangelicals' argument, however, is that if a pastor must report known child abuse, then members won't confide in him. In other words, let the children suffer so the pedophile can speak to his pastor worry-free.

If we knew a lot less about childhood sexual abuse than we do now, this concern might carry some weight. But the truth is that religious groups have been horrendous at addressing child abuse when they learn about it. The balance between making sure ministers hear everything their members want to say and rescuing the children enduring child abuse is a no-brainer. The Catholic Church's infamous see-no-evil transfer-the-pedophile-elsewhere police is perhaps the most blatant example, but it is far from the only example, as new victims emerge on a regular basis.

There was a time when each religious institution stood for its individual beliefs in the public square, and fought what it believed was morally wrong - even if the moral wrong came from another religious institution. It seems that time is gone. One waits in vain for the religious institution that will stand up to either the Catholics or the evangelicals in these battles over much-needed changes to childhood sexual abuse laws. Their silence is deafening.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is Professor Hamilton's book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press, June 2005), catalogues the ways in which religious institutions have harmed the public good.

(reply to this comment)

From moon beam
Tuesday, May 24, 2005, 18:12

Brilliant-very interesting, thanks.(reply to this comment
from Question
Tuesday, February 08, 2005 - 10:32

Any one in the US know anything new, regarding this case?
(reply to this comment)
from sarafina
Tuesday, October 26, 2004 - 09:57


Speaking of child abuse Moonbeam I was going to comment in regards to the last two pictures you posted of Berg in bed with Techi. Many of us have that book ourselves and many have seen that picture but there is a reason it's not been posted on here before. I think (I could be wrong) but I remember Jules mentioning something before on here about it being Illegal to post child pornography on the website.Or such pictures as this one and the one in the Dito book.
(reply to this comment)
From smashingrrl
Tuesday, October 26, 2004, 14:44


Virtual child pornography is neither illegal nor considered pornography by ruling of the supreme court. It doesn't seem to me that children have any business perusing this site. I find child porn as distastful as the next person. However, the image in question serves a historical purpose. I really don't see the big deal. (reply to this comment

From Nancy
Tuesday, May 24, 2005, 18:07

Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5(Agree/Disagree?)

The images for which this case is referring and the images in the Family publications are not the same. Many of the images, both illustrated and photographed, in the Family publications are pornographic.

Canada has some of the strictest pornography laws in the western world. Andrea Dwarkin's own academic publications in which she describes and condemns pornography have been intercepted at the Canadian border because her descriptions were too vivid and met the definition for pronography under a law she helped draft. Her publications, if I am recalling correctly, did not include actual images.

That said. Indecency law considers the purpose of the publication, at least in the United States. Academic or scientific or legal purpose makes a difference as well as use.

I don't see any legal problem with posting these images in order to expose the organization which subjected us to them. I am not an expert on Canadian law, however. (reply to this comment

From Jules
Tuesday, October 26, 2004, 16:20

Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5(Agree/Disagree?)

Drawn images of children depicted in pornographic images are not illegal in Canada, however, this web site is physically located in the US. That link was interesting and as horrible as it is for this loophole for perverts, I don't have a problem with these images being uploaded. My main concern is with photographs, as apart from the legal ramifications, victims should be protected.

For purposes of documentation I think that this stuff should be posted. Moon Beam is exactly right that the younger kids in the Family have no idea about the documents that show where their "godly heritage" really came from. Academics have been denied these materials and Family leaders have even spoken to the media denying that these publications ever existed. I have a fairly extensive library of this stuff myself that I will be posting on version 3 of MovingOn.

My neck is already pretty far out there in terms of liability, so I don't think the Heaven's Children documents will make too much difference. I posted Heaven's Girl some time back and it's still up on the server.

If you have rosy memories of this book, believe me, this will creep you out. These people were very sick and I agree completely with the person who said that Apollos (who wrote this) owes us an apology almost more than anyone else. (reply to this comment

From smashingrrl
Tuesday, October 26, 2004, 22:53

Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5(Agree/Disagree?)
I'm wholeheartedly in agreement over the sick nature of these images. I posted that link in defense of their being posted based on the intent behind posting them. We grew up seeing these images so often that, for too long, they seemed "normal". I'm just tired, as I'm sure many of us are, of being told that I'm exaggerating or even lying. If these were posted for the purpose of someone getting their rocks off, Id have just as much a problem with the posts as I would with the original publication thereof. I simply think this all has been buried for too long and to the detriment of too many.(reply to this comment
From sarafina
Tuesday, October 26, 2004, 16:36

Well thats good to know. I happen to have all this stuff including the original True comics and Heavens children and girl all unpurged with the famous drawings of women hanging on hooks for FFing and all sorts of stuff. Let me know if you want to see any of the pictures posted. All this time I thought we couldn't.(reply to this comment
From moon beam
Tuesday, October 26, 2004, 12:47

Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5Average visitor agreement is 5 out of 5(Agree/Disagree?)
Yes, the older gen have seen these pictures, but the younger ones probably haven't. It is part of our history and as you know they have tried to hide it.
Of course Jules has the absolute right to take it down if it is actually classed as pornography and is illegal.

That said I think it's high time those really incriminating pieces of evidence, (which they have tried to destroy) which can leave no doubt (researchers, new members, those who have lost their memories etc.. in anyones mind just what was fed to us, in regard to our education by MO Letters as young children.
I leave it at Jules discretion! (reply to this comment
From sarafina
Tuesday, October 26, 2004, 13:20

Someone else once wanted to post some of the old pictures like that and here was Jules reply. to this comment
From sarafina
Tuesday, October 26, 2004, 13:24

Sorry I meant "NOT" ok She says " am liable for all the content on here though, and since the company that hosts this web site specifically prohibits adult content, I request that pornographic images are not posted online by users. "
(reply to this comment
From sarafina
Tuesday, October 26, 2004, 13:22

So I guess it is ok. =)(reply to this comment
From moon beam
Tuesday, October 26, 2004, 13:30

I was thinking " Two? " Then I had a look as I had only mean't it to be the one, whoops. ;((reply to this comment

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