Not so long ago, it was a common complaint that
reporters covering controversies involving religion and law understood the
law but knew little about religion. Coverage of the recent sexual abuse
scandals in the Catholic church indicates that there are now many
journalists who can write knowledgeably about religion but few of them
appear to be at home with legal affairs.
Of course, journalists cannot be experts in everything.
Without an understanding of the legal context, however, the Catholic
church’s response to sexual abuse litigation seems like nothing more than an
evasion of moral responsibility.
Increasingly the Catholic crisis resembles one of those
mass tort cases like tobacco or asbestos in which a relative handful of
illegal acts are alleged to violate the rights of hundreds or thousands of
individuals. In April the diocese of San Bernardino even filed suit against
the archdiocese of Boston over transferring a priest who allegedly committed
abuse, exactly as companies involved in other mass tort litigation sue one
another to shift blame and responsibility.
But the Catholic crisis has been written about with
barely a reference to the larger issue of mass torts—as if elected officials
throughout the country were not currently wrestling with it under the
politically partisan rubric of “tort reform.” In mass tort cases the tort
system is often unfair to defendants. But without it, many wrongs would go
without legal redress.
The clergy sex abuse cases raise questions typical of
Victims’ rights. How should courts balance
claims of victims to redress against the social utility of keeping valuable
institutions operating without facing bankruptcy for long-ago wrongs? Should
victims be generously compensated even if the result is to bankrupt a
company and cost hundreds or thousands of workers their jobs to remedy torts
committed 40 or 50 years ago, as has happened in the asbestos litigation?
What course should the courts follow to insure that the
first to sue in a mass tort situation do not get disproportionately large
awards, leaving little or nothing for those who sue later, perhaps because
their injuries are manifest only later? This has been a substantial concern
in asbestos litigation, but is a problem in the church sex abuse cases as
well. (The issue was explored in an article in Fortune, a business
publication, in its April 29 issue.)
How does one apply rules of tort law to events that
occurred years, even decades, before, when the rules were different and when
what is common knowledge today was not common knowledge, and when the
tendency was to award far smaller sums? It is now known that pedophiles are
likely to repeat their crimes—but 20 years ago that was not commonly
recognized. Can juries put aside what they now know and rule on the basis of
what the defendants should have known then? This issue seems wholly
Liability. How does one apportion liability
between multiple actors who have varying degrees of culpability and pockets
of different depth? Sometimes the party with the least culpability has the
most money. Is it fair that that a wealthy party is forced to assume greater
financial responsibility than indicated by that party’s own wrongful
Bishops did not abuse children; priests did. Yet it is
the hierarchy and the church as an institution that is the focus of the
current wave of litigation on a theory—not often enunciated in the
stories—that the church was negligent in not removing pedophiles from the
A notable exception was a June 23 story by Gregory Keish
of the Portland Press-Herald that explored the basis of legal
liability by looking at a plaintiff who rejected a settlement offer in order
to create a precedent facilitating suits against the church. What is the
responsibility of an institution when one of its employees commits a great
wrong in violation of corporate policy?
The priests who actually molested children are almost
all dead, in jail, or lacking substantial assets. Litigation is in part
motivated by a demand that those who have done wrong be condemned. But
without the church as a defendant, many—perhaps most—lawsuits seeking
redress for child abuse would not make economic sense.
Victims are indeed outraged that the church knew of the
abuse and did nothing to stop it. Yet the harsh fact is that if the church
did not have money and the abusing priests did, there would be far less
litigation against the church. The search for a defendant with deep pockets
is a common feature of mass tort litigation, often leading to bold legal
theories stretching the law and sometimes distorting moral responsibility in
search of a defendant worth suing.
In many states, the rule is that all parties
contributing to a wrong are liable to the plaintiff for the whole of the
damages she has suffered. This is the idea of joint and several liability.
Assume two parties—say, a speeding drunk driver and the
hotel bar that sold one drink too many—are responsible for a plaintiff’s
injury. A jury finds the drunk 80 percent responsible and the bar 20 percent
responsible for plaintiff’s injuries. The intoxicated driver lacks insurance
and has no significant assets. The hotel would be liable for the whole award
jointly with the judgment-proof primary wrongdoer, well in excess of its
true responsibility. The rule insures that innocent parties are made whole,
and proceeds on the theory that it is better that a wrongdoer run the risk
of excess liability than an innocent victim go uncompensated.
The joint and several liability doctrine is
understandably hated by corporate America. It is high on the target list of
every tort reform proposal. As controversial as the doctrine is elsewhere,
its application to the church sex abuse cases seems to have aroused little
controversy. Why not?
Fraud. How does one weed out fraudulent cases
(e.g. charges of abuse against the late Cardinal Bernardin) from the much
larger number of genuine ones? It is not true that childhood sexual abuse
charges are never fabricated. Dorothy Rabinowitz of the Wall Street
Journal and the courts exploded that myth in examining cases of
“recovered memory.” In the current atmosphere, how can the church protect
itself against false accusations?
As I write this, lawyers for the Archdiocese of Boston
announced that they would not seek the pretrial testimony of the therapists
of abuse victims. Abandoning such inquiries—routine where a plaintiff
demands damages for emotional harm—has been a major demand of victim groups.
The victims’ demands have been sympathetically reported, but from a legal
point of view -a point of view that has gone unmentioned-the demand is
without merit. Why should not a defendant test the veracity of claims of
crushing emotional damage before paying out substantial sums in damages? No
competent lawyer would consider forgoing that opportunity—and if she were
prepared to do so, the defendants’ insurer would likely insist upon
Going to Trial. Another troublesome feature of
mass tort litigation—whether in the form of class action lawsuits or many
individual cases consolidated for various procedural purposes—is whether any
defendant can risk defending such an action on the merits. The economic
costs of defeat are so great that the very filing of such a suit—if it
passes a threshold laugh test as the sex abuse cases surely do—practically
compels settlement regardless of the merits of the suit. Thus on May 7,
2002, the Los Angeles Times, in a rare editorial addressing this
issue, criticized the archdiocese of Boston for pulling out of settlement
talks with victims on the grounds that this “could endanger not only the
reputation but the finances of the U.S. church itself.”
Corporate attorneys often complain that the class
action lawsuit is fundamentally unfair because it is so expensive to defend
and runs the risk of a drop-dead-sized verdict. Conversely, in the absence
of the ability of numerous plaintiffs to band together to share the costs of
litigation, relief would be financially impracticable and large-scale tort-feasors
would escape justice. None of this is discussed with regard to the
litigation arising from the abuse scandal.
Insurance. Without understanding the role of
insurers, the legal behavior of the church is virtually incomprehensible.
Other than such rare exceptions as the excellent pieces by the AP’s Rachel
Zoll April 23 and the New York Times’ Laurie Goodstein July 3,
reporters paid virtually no attention to whether a given diocese has
coverage for claims that it was negligent in not removing pedophile priests;
whether that coverage has been exhausted by already settled or litigated
claims; or whether efforts like California’s to extend the time in which
victims can sue exposes the church to liability for which its insurance
coverage long ago expired? (Do policies cover liability as of the time of
the occurrence of the wrong or when claims are made?) .
Occasionally church officials will be quoted explaining
that their supposedly hardball litigation tactics came at the insistence of
their insurance carriers. Although this is made to sound like an excuse, in
fact the extent of insurance company control over litigation is a live and
controversial one in the legal community.
Ignoring the role of insurance can, moreover, leave the
public mystified about why certain laws are on the books, and why they might
be changed. For example, both the Boston Globe and the Boston
Herald accurately and repeatedly reported on a Massachusetts court
decision in a medical malpractice case that upheld a state law limiting the
liability of charitable institutions. The articles explained the decision’s
potential impact on settlement negotiations over the failures of the Boston
archdiocese to deal with abusive priests.
What they didn’t explain was why such charitable
immunity may no longer be necessary: the fact that when it was instituted in
the 19th century, insurance was far less available—so any
judgment would have been paid out of charitable assets. Nowadays,
not-for-profit institutions can readily purchase insurance coverage, and
Because the Catholic church is a highly visible
hierarchical organization, the incomprehensible failings of its leadership
are particularly evident. Institutions that purport to be moral exemplars
generally do not get very far when they explain away their shortcomings with
technical legal excuses.
As Robert S. Bennett, the
Washington lawyer who serves on the bishops’ review board, told the New
York Times June 13, “Those bishops who are not cooperating must start
acting like pastors and shepherds of their flock, and stop acting like risk
assessment officers of insurance companies.”
Nevertheless, when the church is sued, it must function in a legal as well
as a moral environment. The public at large may expect it to do nothing but
turn the other cheek. The news media are obliged to explain why it doesn’t.