BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 44 2003 Number 4/5

[Pages 947-948]
INTRODUCTION
John H. Garvey*

[Pages 949-976]
THE IMPACT OF CLERGY SEXUAL MISCONDUCT LITIGATION ON RELIGIOUS LIBERTY
Patrick J. Schiltz*

Abstract:  The harm that the direct victims of clergy sexual misconduct have suffered has been the subject of extensive publicity. By contrast, the harm that the indirect victims suffer has received little attention. This Article identifies and discusses the costs—to those who belong to churches and to those who are served by churches—of using litigation to bring about compensation for victims of clergy sexual misconduct. These costs include loss of monetary resources a church would otherwise use for religious, charitable, or educational purposes; the possibility of a ministry not representative of the people it serves; decreased positive interactions between pastors and their congregants; a changed relationship between bishop and pastor in which bishop is no longer a confidant; changes in the structure of the church’s hierarchy; and finally, a decreased ability for churches to participate in public life. This Article contends that using litigation to compensate victims of clergy sexual misconduct poses a threat to religious freedom. The Article concludes by recommending that churches devise a means of fairly compensating victims with as little harm to religious liberty as possible.

[Pages 977-998]
THE CLERGY SEXUAL ABUSE CRISIS AND THE SPIRIT OF CANON LAW
Rev. John J. Coughlin, O.F.M.*

Abstract:  Recent revelations of cases in which Catholic priests have sexually abused minors over the course of the last five decades have drawn intense media scrutiny and public outrage. But discipline of the clergy for sexual offenses is not novel in the history of the Catholic Church, and canonical structures have long been in place to address the problem. This Article argues that the recent crisis has resulted in part from a failure to respect and enforce the relevant provisions of canon law. If bishops had fulfilled their duty to abide by the rule of law, especially in the cases involving clergy who are serial child abusers, there probably would have been no crisis. This Article proposes that an important aspect of responding to the present crisis must entail re-commitment to the rule of law, thereby allowing injured individuals and communities to heal and forgive.

[Pages 999-1030]
BISHOPS' NORMS: COMMENTARY AND EVALUATION
Ladislas Orsy, S.J.*

Abstract:  In November 2002, the U.S. Conference of Catholic Bishops approved the Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priest or Deacons (“Norms”) in response to allegations of sexual abuse of minors by Roman Catholic Church (“Church”) officials. This Article examines the Norms on the basis of canonical traditions and the concepts, propositions, and positions contained with them. It strives to find the meaning of the individual norms within the broader context of the life and beliefs of the Church and its need to have structures that prevent corruption and promote healthy growth. The author argues that the Norms are not enough to bring local churches back to good health. Genuine healing can only come from the internal resources of the Church’s body through a renewed vision of the Church as a community endowed with gifts which are authenticated and coordinated by the Church hierarchy.

[Pages 1031-1060]
THE PROTECTION OF CHILDREN AND YOUNG PEOPLE: CATHOLIC AND CONSTITUTIONAL VISIONS OF RESPONSIBLE FREEDOM
Angela C. Carmella*

Abstract:  The religion clauses of the U.S. Constitution and the Declaration on Religious Freedom of the Second Vatican Council offer visions of “responsible freedom”—that is, freedom tempered by the moral claims of others and by the laws necessary to the life of the society. Both visions contain a legitimate role for the state in the protection of children, even where this requires scrutiny by the state of the decisions of religious institutions. In the context of the sexual abuse of minors by Roman Catholic clergy, this Article argues that the state’s role necessarily entails some limits on the Church’s autonomy through the imposition of tort liability, and necessarily calls for church-state cooperation on the common goal of protecting minors. Yet in both constitutional and conciliar visions of responsible freedom, the Church has sufficient room for its own internal reforms, and must not grow dependent upon the state as it pursues self-correction. The Church should use its freedom for vigorous new life, neither demanding from the state total deference to its internal decisions nor relinquishing to the state the task of moral renewal and institutional reform.

[Pages 1061-1088]
PROSECUTING DIOCESES AND BISHOPS
John S. Baker, Jr.*

Abstract:  Although the sexual abuse scandals in the Catholic Church and the financial scandals in corporate America have been unfolding side by side over the last few years, federal prosecutors have been more hesitant in prosecuting bishops and dioceses than corporate executives and companies. A recent agreement between the Diocese of Man-chester and the New Hampshire Attorney General, however, has the potential to change this. Bishops have contributed to their current predicament by failing to act more publicly as teachers and judges of Church doctrine and natural moral law; however, this Article argues that bishops and their dioceses are not proper targets for possible criminal indictment for the crimes of individual priests. Regardless of the very serious criminal and moral wrongs perpetrated by some priests, and the terrible spiritual, moral, and psychological damage to the victims, negligence in responding to these crimes does not constitute criminal conduct by a bishop or diocese.

[Pages 1089-1126]
STATING CLAIMS AGAINST RELIGIOUS INSTITUTIONS
Mark E. Chopko*

Abstract:  Although the U.S. Constitution protects the rights of religious institutions, it confers no general immunity from liability for their contracts and torts. This Article’s study of the case law indicates that claims may be stated against religious institutions if those institutions had the corporate power or ecclesiastical responsibility for the specific matter in dispute, or had themselves taken action in the matter. A general assertion of the potential to take action or potential to control is insufficient to result in a claim against the institution. Liability would reside, if at all, in the entity that has both the juridic power (under the religious polity) and the civil duty to answer for the actions of persons or other entities in the religious structure. Departure from these principles could result in an unconstitutional exercise by a court. This Article then applies these principles in a critique of tort liability asserted against religious institutions.

[Pages 1127-1166]
ADDRESSING THE TENSION BETWEEN THE CLERGY-COMMUNICANT PRIVILEGE AND THE DUTY TO REPORT CHILD ABUSE IN STATE STATUTES
Norman Abrams*

Abstract:  Every state provides some statutory form of an evidentiary clergy-communicant privilege to protect certain types of conversations between clergy members and individuals. Likewise, every state imposes a statutory obligation on certain individuals to report suspected child abuse. The relationship between clergy privilege statutes and child abuse reporting requirements has received much attention recently due to the numerous allegations of child sexual misconduct by clergy members. This Article surveys the variations on clergy privileges and child abuse reporting statutes in the fifty states. The Article then discusses the varying approaches the states take in addressing the relationship between the obligation to report and the clergy privilege. A majority of states expressly exempt clergy-privileged information from reporting requirements; some states expressly abrogate the clergy privilege in the child abuse reporting context; and a third group of states do not confront the issue at all. This Article argues that there is a need for uniformity and proposes a partial-abrogation solution that will help alleviate the tension between the clergy privilege and mandatory reporting requirements.

[Pages 1167-1180]
CONSTITUTIONAL LIMITS ON THE LIABILITY OF CHURCHES FOR NEGLIGENT SUPERVISION AND BREACH OF FIDUCIARY DUTY
John H. Mansªeld*

Abstract:  In the many suits against churches during the past several years for alleged misbehavior of clergy, a wide variety of tort theories have been put forward as possible bases for recovery. Among these are breach of fiduciary duty owed to church members, negligence in hiring, supervision and retention of clergy, intentional or negligent infliction of mental distress and vicarious liability for torts committed by individual clergy. This Article explores possible federal constitutional barriers to these tort actions, focusing mostly on the torts of negligent supervision and breach of fiduciary duty.

[Pages 1181-1200]
AVOIDING MORAL BANKRUPTCY
David A. Skeel, Jr.*

Abstract:  Faced with hundreds of clergy sexual misconduct cases last year, the Archdiocese of Boston hinted that it was considering filing for bankruptcy. Although it is hard to imagine an archdiocese or church filing for bankruptcy, bankruptcy has become an important forum for many social issues that cannot be easily resolved elsewhere. This Article explores the implications of a religious organization bankruptcy filing by focusing on four problems with the bankruptcy alternative: the possibility of dismissal for being filed in bad faith; the question of what church assets are subject to the process; the fact that the church might be subject to intrusive scrutiny; and the moral implications. Although these concerns suggest that a religious organization should file for bankruptcy only as a last resort, this Article concludes that, in some circumstances, a bankruptcy filing may be appropriate.

[Pages 1201-1228]
CHURCHES, CHARITIES, AND CORRECTIVE JUSTICE: MAKING CHURCHES PAY FOR THE SINS OF THEIR CLERGY
Catharine Pierce Wells*

Abstract:  The Catholic Archdiocese of Boston faced the threat of large tort judgments as a result of acts of sexual abuse committed by its priests. Because the Archdiocese is a public charity, it has been suggested that the Archdiocese could invoke the Massachusetts charitable immunity statute, which in certain circumstances places a $20,000 cap on the tort liability of a charitable organization. This Article explores the role of charitable organ-izations in our culture, and the distinctive type of state oversight to which they are subject. It then discusses various rationales for the doctrine of charitable immunity. The Article determines that charitable immunity is best understood as a limitation on vicarious liability. Finally, the Article examines these competing policy objectives as applied to the particular facts of the Archdiocese sexual abuse scandal. Although many of the cases involved have recently been settled, the legal and moral propriety of in-voking the charitable immunity statute in such a situation is still an open question.

[Pages 1229-1262]
GETTING EVICTED FOR THE ACTIONS OF OTHERS: A PROPOSED AMENDMENT TO THE ANTI-DRUG ABUSE ACT
Bryan Cho

Abstract:  Section 1437d(l)(6) of the United States Housing Act of 1937 seeks to eliminate the dangerous conditions in America’s public housing complexes by providing housing authorities with the ability to combat the drug crisis through streamlined third-party-action evictions. Both history and substantive due process challenges to this law reveal significant problems, however, with providing management with broad discretion to evict tenants uninvolved in or unaware of a third party’s illegal activities. This Note proposes that Congress amend § 1437d(l)(6) to require that public housing tenants have actual or constructive notice, based on an objective standard, of a non-household member’s prohibited activities in order to be evicted. This proposal effectively balances tenant interests with legislative intent to achieve efficient, effective, and fair public housing reform.

[Pages 1263-1294]
ADMINISTRATIVE INCONVENIENCE AND THE MEDIA'S RIGHT TO COPY JUDICIAL RECORDS
Melissa B. Coffey

Abstract:  English and American common law have long recognized the public’s right of access to judicial records. The United States Supreme Court has acknowledged the importance of this right but has failed to set clear standards for lower courts to follow in evaluating right-of-access claims. This Note explores the disagreement among the federal courts of appeals regarding the appropriate scope of review in right-of-access cases and the force of the presumption in favor of access. This Note argues that federal appellate courts should not limit review to abuse of discretion, but should evaluate the balancing the lower court performed and determine if the lower court appropriately weighed the competing interests in making its decision. This Note concludes that the presumption in favor of access should yield more readily to constitutional concerns than to administrative concerns. Reasonable constitutional concerns would therefore trump the common-law right of access, whereas administrative concerns must be compelling to overcome the presumption favoring access.

[Pages 1295-1322]
DUBIOUS PROTECTED CLASS DISTINCTIONS: ELIMINATING THE ROLE OF REPLACEMENT IDENTITY IN A DISCHARGED TITLE VII PLAINTIFF'S CASE
Karen G. Hong

Abstract:  Title VII prohibits employers from discharging an employee on the basis of the individual’s race, color, religion, sex, or national origin. In cases involving an allegation of discriminatory discharge, the federal circuit courts of appeals have disagreed on whether to consider in the prima facie case the identity of the person the defendant em-ployer has hired to replace the plaintiff. The majority of these courts have held that courts should not require the plaintiff to prove that a person outside of the plaintiff’s protected class replaced the plaintiff in order to establish a prima facie case for employment discrimination. This Note argues that, because the underlying policy of Title VII is to protect individuals, not classes of individuals, from employment discrim-ination, consideration of replacement identity has no valid place in a discriminatory discharge case brought under Title VII.

[Pages 1333-1366]
JAILHOUSE INFORMANTS AND THE SIXTH AMENDMENT: IS THE U.S. SUPREME COURT ADEQUATELY PROTECTING AN ACCUSED'S RIGHT TO COUNSEL?
Matthew J. Merritt

Abstract:  A defendant’s Sixth Amendment right to counsel is a funda-mental pillar of our criminal justice system. The Sixth Amendment guar-antees a criminal defendant the right to a lawyer during any critical stage of a criminal proceeding. There is perhaps no time when an accused party’s right to counsel becomes more important than during an interrogation. It is clear that the government cannot deliberately elicit information from an accused party in the absence of his or her lawyer. “Deliberate elicitation,” however, becomes difficult to define or detect when the government em-ploys indirect methods of interrogation, rather than overt questioning, to obtain information from an accused party. One such indirect method, the use of jailhouse informants, presents special constitutional problems because of the unique dynamics that exist in a jail cell encounter between an unsuspecting defendant and an undercover informant. Courts have struggled to apply the Sixth Amendment’s prohibition on the elicitation of information in the absence of counsel to situations involving jailhouse informants. The U.S. Supreme Court has directly considered the issue twice and has reached conflicting results despite strong factual similarities. This Note proposes a new standard for detecting right-to-counsel violations in the jailhouse informant context, a two-tiered inquiry that attempts to address the unique constitutional problems that the use of jailhouse informants creates.

[Pages 1367-1406]
JUDICIAL ILLUMINATION OF THE CONSTITUTIONAL "TWILIGHT ZONE": PROTECTING POST-ARREST, PRETRIAL SUSPECTS FROM EXCESSIVE FORCE AT THE HANDS OF LAW ENFORCEMENT
Eamonn O'Hagan

Abstract:  Police brutality is one of the most serious and enduring human rights violations in the United States today. One means by which victims may seek redress is under 42 U.S.C. § 1983, which provides a civil cause of action against state actors who deprive individuals of their constitutional rights. This Note examines § 1983 litigation brought by post-arrest, pre-trial detainees alleging the use of excessive force by law enforcement officials. There is currently a circuit split regarding whether such claims must be brought under the Fourth Amendment’s proscription of unrea-sonable seizures of the person or the Fourteenth Amendment’s guar-antee that no State will deprive a citizen of liberty without due process of law. This issue’s resolution has significance as to the plaintiff’s burden of proof, and thus, his or her likelihood of attaining a favorable verdict. This Note contends that the best approach is a hybrid model that involves a synthesis of both Fourth and Fourteenth Amendment standards because it is both practical and mindful of recent lines of U.S. Supreme Court precedent.

[Pages 1397-1430]
THE SCHOOL VOUCHER DEBATE AFTER ZELMAN: CAN STATES BE COMPELLED TO FUND SECTARIAN SCHOOLS UNDER THE FEDERAL CONSTITUTION?
Rita-Anne O'Neill

Abstract:  The U.S. Supreme Court in Zelman v. Simmons-Harris held in June 2002 that a state does not violate the Establishment Clause by pro-viding funding to a religiously affiliated school if the program meets certain criteria outlined in that opinion. One of the questions that re-mains after Zelman, however, is whether a state, once it has initiated some form of tuition voucher program that includes non-sectarian private schools, can be compelled under the federal Constitution to include sectarian schools in its program. This Note analyzes this question under two lines of U.S. Supreme Court precedent—the limited public forum cases and the government-as-speaker cases—and concludes that Zelman does not require a state to include religiously affiliated schools in its school voucher program. This Note then applies this reasoning to the Maine school voucher program that is currently the focus of two lawsuits, and concludes that the Maine program, which excludes sectarian schools, does not violate the federal Constitution.