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A Legal Cross to Bear

by fred bayles

Illustration, catholic with scalesThe clergy sexual misconduct scandal has opened the church to unprecedented public scrutiny and cast a shadow on religious liberty

(Illustration: Ray Bartkus)

The sexual abuse scandal within the Catholic Church has had a profound and unprecedented impact on the institution. Scores of priests have been removed from the ministry. American bishops have held two publicly humbling meetings on the church’s failure to address the problem. The Vatican has taken up the subject, issuing a mea culpa for the past. But the larger repercussions for the church are still playing out in the legal arena. Hundreds of lawsuits, some seeking seven-figure reparations for thousands of alleged victims, are making their way through courts from Boston to Los Angeles. On the criminal side of the law, prosecutors are looking into the culpability of church leaders and, in some cases, flirting with the once-taboo idea of bringing charges against the church itself. Two states, Arizona and New Hampshire, have begun monitoring how well the church is implementing its new sexual abuse policy.

While none of these measures is a direct attack on religious belief, some legal scholars fear the legal actions are chipping away at the constitutional wall that separates church from state and threatening the religious freedoms traditionally guarded by the Constitution.

“Nobody disputes that the priests involved in the abuse of children should be criminally liable for their actions,” says BC Law School Dean John Garvey. “I think you can even hold the bishops and dioceses responsible. But there is a significant question about the boundaries between church and state. The idea of the government overseeing the behavior of the bishops and watching their assignments makes most people pretty nervous.”

What makes constitutional scholars like Garvey nervous is the seeming intrusion of the state—be it by prosecutors or civil juries—into the church’s business. The free exercise clause of the First Amendment has long been interpreted as a line not to be crossed by government. Religious institutions are given great latitude to preach and practice their faith without interference. The Constitution prohibits the state from meddling on questions of belief; it also gives the church the freedom to set its own internal rules and laws. In the Catholic Church, that takes the form of canon law, a religious legal system that operates separately from the state’s law. But, as the events of the last year have shown, canon law does not supercede or substitute for the laws of the state.

Horrendous stories about priests abusing children with seeming impunity have pushed state interests closer to the line of church-state separation. Several states have ended exemptions for ministers and priests from laws that require the reporting of child sexual abuse. Judges who once sealed information about church-related sexual abuse cases have ordered churches to lay open their private files to plaintiffs’ attorneys and the media. Perhaps the most significant impact has been the threat of large damage awards, which has had a subtle, but chilling effect on what the church does and how it does it.

The financial judgments have forced many dioceses and ministries to cut back on the traditional pastoral missions of education and health care. Church leaders complain that the transfer of funds from collection plates to plaintiffs and their attorneys has limited charitable works for the old, the sick, and the poor. As a result, the threat of a crippling liability suit has affected once sacrosanct church decisions on matters of personnel and administration. Just as doctors, cautious of malpractice suits, practice a defensive form of medicine, church leaders say they now face the prospect of practicing a kind of defensive ministry that has less to do with the spiritual good and more to do with a good legal defense. “If a jury could decide you have made a mistake in a personnel choice, your lawyers are now going to say, ‘I’m not going to let you make that assignment,’” Garvey says.

The effect of the church crisis on religious freedom was the subject of a symposium held in April at Boston College Law School. As part of Boston College’s “Church in the 21st Century” initiative, the Law School assembled some of the nation’s leading legal authorities on church-state relations to discuss the constitutional implications of the church scandal. For many of the speakers, the conclusions were sobering.

New laws have placed greater civil responsibilities on church administration. Prosecutors and judges have taken a new, aggressive stance toward the church. Religious organizations might now seek bankruptcy protection from the blood-letting of civil litigation.

The most common theme of the conference was the impact on church practices of the plethora of lawsuits filed by victims of sexual abuse. Patrick Schiltz, associate dean of the University of St. Thomas School of Law in Minneapolis, believes the effect of liability suits against churches and ministries is more dangerous to religious freedoms than the actions of a repressive ruler. “Litigation has the potential to do to churches what many a tyrannical government could not,” says Schiltz, who has defended churches in more than 500 civil suits. He finds the subtle effect of liability suits more damaging. “When the totalitarian regime says you can’t go to Mass, the beliefs are still there. But when a government doesn’t forbid certain religious practices but says everything a religion does has to be reasonable as decided by a jury three years later, it makes you look over your shoulder and forces you to see your church through the eyes of the government.”

The issue of sexual misconduct by clergy is, unfortunately, nothing new. Schiltz has defended such cases for years. He says the more typical cases involved sexual relationships between ministers and female parishioners. While the abuse of children by priests made headlines over the past two decades in places like Louisiana, Texas, California, and New Mexico, such cases were seen more as anomalies—the action of a single bad priest. The priests were tried in criminal court and the dioceses were ordered to make restitution to victims in civil court. Little national attention was paid.

The case of former Rev. James Porter serves as an example of how times have changed. The priest, who served in Texas, Minnesota, and Fall River and other dioceses in southeastern Massachusetts, was accused of abusing scores of children in the 1960s. While he pleaded guilty in criminal court in 1993, civil lawsuits against the church were settled quietly, with records sealed by the court. What brought the clergy sexual abuse issue to the forefront over the past year were the revelations about the spectacular failings of the Boston Archdiocese. The court’s decision to unseal church documents opened the public’s eyes to the machinations of the archdiocese in its attempt to cover up the scandal. A half dozen priests, most notably the former Rev. John Geoghan and the Rev. Paul Shanley, allegedly abused scores of young boys despite the knowledge of archdiocesan officials. These serial abusers were moved from parish to parish without a word of warning by their superiors. When church officials were approached by victims’ families, they advised against going to the police, offering hush money instead.

The disclosures from the court files triggered a nationwide response. Additional victims came forward in Boston and other dioceses around the country, bringing a flood of lawsuits and more bad publicity. The scandal led to the resignation of Cardinal Bernard Law, who admitted he failed to protect the children of the Boston Archdiocese by allowing known abusers to continue in the ministry.

Angela Carmella, a professor at Seton Hall Law School, says Law and other church leaders felt that the traditional autonomy enjoyed by religious leaders allowed them to handle abuse cases as administrative problems. “The churches might have gotten very comfortable with that constitutional position,” she says. “But that is not the case when religious conduct threatens the public order. Then it is rightfully in the state’s jurisdiction.”

The autonomy assumption has been costly. The Boston Archdiocese paid a $10 million settlement last fall to eighty-six of Geoghan’s victims. The archdiocese still faces a joint lawsuit brought by more than 300 alleged victims of Shanley and several other priests. The financial impact of the settlements and pending cases has been felt throughout the archdiocese. Parochial schools are being closed, budgets are being cut. Charitable services are suffering. The archdiocese has drawn up a list of properties it may have to sell. It has even explored the idea of filing for Chapter 11 bankruptcy protection.

The news reports out of Boston created a cascading effect in the rest of the country as alleged victims came forward, emboldened by the realization that they weren’t alone in their shame. Other dioceses, including Louisville, Kentucky; Milwaukee, Wisconsin; and San Bernardino, California, are also feeling the pinch from similar civil suits. Several states, most notably California, have expanded statutes of limitations on civil and criminal cases, opening the church to lawsuits for abuse alleged to have happened decades ago.

Mitchell Garabedian, the attorney whose dogged pursuit of the Geoghan case broke the years of silence about sexual abuse, says victims are coming forward not for the money, but for vindication. “The primary concern is to get an acknowledgement, through money, that the church was wrong for allowing the wrongful abuse of thousands of children,” Garabedian says. “This is a very spiritual concern that my clients have. They’ve lived with this nightmare for decades. It was time to take some of the burden off their shoulders.”

Civil litigation is only one of the legal issues facing the church. Other legislative and legal steps have put the church itself in danger of criminal prosecution. A half dozen state legislatures have stripped away religious exemptions to laws that require professionals, including teachers and doctors, to report any hint of child sexual abuse. Failure to comply could result in fines and even jail time.

Grand juries have convened to investigate the role of church leaders in the scandal, raising the specter that the actions of the Boston Archdiocese were not anomalies. A Massachusetts grand jury quizzed Cardinal Law and six other archbishops who once served in Boston to see if the archdiocese should be charged for failing to stop the abuse. The panel’s report is not finished, but Massachusetts Attorney General Thomas Reilly, citing the statutes of limitations among other things, has said he doubts criminal charges will be brought. In New York, Westchester County and Suffolk County grand juries issued blistering reports critical of church leadership that stopped short of legal action, also largely because the statutes of limitations had passed for the offenses. Other grand juries are still conducting their own inquiries in Cincinnati, St. Louis, and other cities to see if coverups similar to those in Boston took place.

As this article was going to press, Bishop Thomas O’Brien, leader of the Phoenix archdiocese, faced with the possibility of being charged with obstruction of justice, publicly conceded he allowed priests he knew had been accused of sexual abuse to continue working with children. As part of the deal with county prosecutors, O’Brien also ceded oversight authority on the issue of sexual abuse by priests to his chief of staff and representatives of the prosecutors’ office.

The closest the church has come to a criminal prosecution as an entity took place in New Hampshire—one of the few states that has always required the clergy to report cases of sexual abuse to civil authorities. Last December state officials reached a kind of plea bargain agreement with the Diocese of Manchester. The state’s attorney general’s office, then headed by Philip T. McLaughlin ’74, dropped plans to bring child endangerment charges against the diocese in return for the admission by church officials that such a prosecution would have likely succeeded. The diocese also agreed to release thousands of pages of church documents related to its handling of sexual abuse allegations against its priests. Moreover, the diocese agreed to permit state officials to monitor the church’s new sexual abuse policy over the next five years.

McLaughlin says certain unique factors about New Hampshire “put us in position to bring a case”—from its proximity to Boston to the fact that all criminal prosecutions in the state are conducted by the attorney general’s office.

Speakers at the Boston College symposium called the New Hampshire case a troubling precedent. John S. Baker Jr., the Dale E. Bennett Professor of Law at Louisiana State University Law Center, says New Hampshire’s action sidestepped issues, including statutes of limitations and the degree of responsibility the present diocese had for the actions of individual priests and their supervisors some twenty to thirty years ago. “They layered novel theory upon novel theory to get a novel agreement,” he says. “Basic criminal law principles should say you don’t bring this case.”

More unprecedented, says Carmella, was the diocese’s acquiescence to state monitoring. Such an agreement, she says, puts the state clearly into the church’s business. “I can understand oversight to enforce a state policy, but to have the oversight to monitor the compliance of the diocese of its own policies is unusual,” she says. Baker doesn’t expect to see a repeat in other states of New Hampshire’s criminal case against the church because of the high hurdles involved in prosecution. Many of the cases go back decades and involve church leadership that is now dead or retired. Proving criminal culpability of present-day officials for the past is nearly impossible. “At the end of the day, all you really have is tort liability,” he says.

But others at the conference believe that given public anger against the church, civil lawsuits may present an even greater, hidden risk to religious freedoms than direct action by the state. “The biggest problems are the excessive demands by plaintiffs and the unwillingness to negotiate them,” says Mark Chopko, general counsel for the US Conference of Catholic Bishops. “In these cases the tort system is acting as the civil analog to the criminal system. It lets juries and courts act on their emotions.”

Often those emotions seem to go beyond common sense when assessing blame to a ministry, Schlitz says. He listed a number of suits where churches have been punished for acts of sexual abuse they may not have had the power to prevent. In one case, an Alaskan protestant church was held liable for an attack on a child by a volunteer in a Sunday day-care program. In the course of discovery, it was learned that the volunteer had herself been abused at an early age, a warning sign, the plaintiffs argued, that she was at risk to abuse children. The Alaska Supreme Court found for the plaintiffs, ruling that the church should have asked volunteers if they had been sexually abused. “It boggles the mind to think a church must ask every volunteer if they have been sexually abused and assume it will get a truthful answer to the question,” Schiltz says.

In another case, a Colorado protestant church was hit with a judgment for hundreds of thousands in compensatory and punitive damages because its minister touched the side of a woman’s breasts helping her down a stepladder. Although the church had no knowledge of previous problems with the pastor, it was found liable because he had a past drinking problem and a marriage that was ended by an adulterous affair.

Garvey worries that such court-set standards could have a chilling effect on the clergy, denying the pulpit to many men and women whose earlier struggles may have given them greater insights into personal and spiritual life. “What some courts are saying is that you are liable if someone has a history and he does another bad act after taking the job,” Garvey says. “If that becomes the case then St. Augustine, who led a dissolute life before he joined the church, would be a risk.”

Schiltz agrees. “When you feel at risk to use pastors who have had struggles in their lives, it takes away a big swath of people whose voices should be heard,” he says. “In effect, that has a tremendous impact on religion. When you change leaders, you change beliefs.”

For many people, however, there is a clear distinction between a St. Augustine and a John Geoghan—a distinction that prosecutors, judges, and juries can easily make. “There has been an institutional expectation of deference on the part of some church officials,” says McLaughlin. “That quickly disappears when you view it through the prism of children who have been abused.”

Garabedian sees the new legal attitudes toward the church as a long-overdue balance to years of unquestioned autonomy granted to the church by civil authorities. “These liability suits are real,” he says. “They involve real abuse and real damages. And you prevent this from happening with a balance of power between the institutions. If the government did not let me get involved in discovery, the media would not have been able to expose the harm the church did to children.”

Whatever the arguments, the realities of institutional responsibilities will be a fixture within the future church. The US Conference of Catholic Bishops has adopted new rules to make sure its clergy meets the same standards required of teachers, day-care workers, and others whose jobs bring them into contact with children. The bishops have pledged to inform civil authorities of any accusation of sexual abuse. They have also sharpened their vetting system for new priests and plan to improve teaching and training on issues of sexuality.

Despite the current climate, some of the legal experts see the crisis coming to an eventual end. Schiltz believes there may be a backlash against continuing litigation once people see the damaging effects on religious institutions of big-figure awards. He also hopes the horror of cases like Geoghan’s and Shanley’s will reduce the outrage—and jury awards—in lesser cases such as that of the Colorado pastor.

Garvey also notes that most of the cases now making their way into the courts involve incidents that came before the early 1990s, when Catholic bishops began to set standards and protocols for handling abuse.

“The bishops are doing a better job of screening priests before ordination and monitoring them afterwards,” he says. “We’re still unsure what kind of liability rules will apply to cases after the 1990s, and what standard of proof the courts will apply.”

But there is no doubt that whatever the future brings, religious leaders face a challenging new world, one that no longer offers blanket protections from the laws of the state and the lawsuits of victims. Carmella believes civil and religious leaders will find a middle ground. “It is inappropriate for the church to wrap itself in the First Amendment, but that doesn’t mean the First Amendment is gone,” she says. “There is still broad freedom for the church to get its own house in order.”


The following were the opening remarks presented by Dean Garvey at BC Law’s April symposium, “The Impact of Clergy Sexual Misconduct Litigation on Religious Liberty.”

Clergy sexual abuse is the most serious legal and moral problem facing the Catholic Church today. It would be hard to overstate the harm to victims, the discredit to the priesthood, the loss of moral authority by the institution, or the scope of the potential financial liability. It behooves us as lawyers to think clearly about this problem. Let me begin by stating a few points that I think are clear, or not worth fighting over.

First, the Church should give its attention first and foremost to the victims of this abuse. It is bound by norms of charity, and it should show contrition and repentance for its misdeeds. This is not the way other corporations behave, but the Church is not like other corporations.

Second, there is no creditable legal argument that priests who engage in this kind of behavior deserve any better treatment at the hands of the law than ordinary criminals and tortfeasors. They should go to jail for their crimes and pay compensation to the limits of their ability.

Third, the Church should cooperate with civil authorities in the identification and punishment of criminal clergy, as the Boston Archdiocese has recently begun to do.

Fourth, no one suggests that we should abandon the priest-penitent privilege as a way of gathering evidence in these cases. Like the Fourth Amendment exclusionary rule, the privilege against self-incrimination, and the husband-wife privilege, this sort of evidentiary rule inhibits proof of crimes. But like those rules, the seal of confession serves important social purposes that we should not ignore in our haste to convict the guilty.

There are, however, several difficult legal questions that arise from this scandal. At bottom they concern the legal liability not of the offending priests (people like James Porter, John Geoghan, and Paul Shanley) but of the institutional Church (the diocese of Fall River, the archdiocese of Boston).

There are, I think, five important and fairly unsettled questions:

1. TORT. What is the theory of tort liability, the standard of fault, and the standard of proof? Are there effective statutory limitations on liability?

2. CRIMINAL LAW. Can the bishops, or the institutional church, be held criminally liable? Under what theory?

3. EVIDENCE. In a civil or criminal case against the diocese, what evidence within the church is privileged against discovery or use at trial?

4. BANKRUPTCY. If, as seems likely, civil cases are successful and return large judgments against a diocese, can it go bankrupt?

All of these questions are at bottom First Amendment questions. The outside limits on tort and criminal liability, the limits on discovery and proof, will be determined by the strength of our commitment to religious liberty—just as in defamation law the limits on tort liability, discovery, and proof are determined by our commitment to the freedom of speech and press.

I said that there were five questions, and the fifth is not a First Amendment question because it arises in a different legal system. Because the church did such a poor job of policing sexual misconduct a decade ago, it has no credibility on the subject today. It will be judged harshly if it ever again makes the mistake of leaving an offending priest in place. This in turn means that the church must now lean toward assuming the worst about any accused priest, regardless how old or unreliable the evidence. This is unfair to accused priests, and I repeat that it is the Church’s own misdeeds that leads her to treat them so. What sort of protection should the system of canon law give these priests?