Church in
Crisis
‘Plenty of blame to go around’ in crisis
By JAMES G. McMANUS
Boston
The dramatic resignation of Cardinal Bernard Law as archbishop
of Boston in December did nothing to change the legal liability of individual
priests implicated in the child sex-abuse scandal. But the controversial legal
strategy of the archdiocese -- to aggressively defend itself against civil
claims that could result in payments of hundreds of millions of dollars to
victims -- may end with Law’s departure. The apostolic administrator,
Bishop Richard G. Lennon, has indicated he wants to settle approximately 500
suits pending against the archdiocese.
In the state courts, criminal cases will continue as long as
victims come forward with evidence that individual priests have committed
crimes. NCR spoke with John Garvey, dean of Boston College Law School in
Newton, Mass., to clarify the legal status of the civil and criminal cases
against individual priests and the archdiocese.
NCR: How many civil and criminal cases have been filed
against the archdiocese of Boston?
Garvey: To date about 500 alleged victims have filed claims
against the archdiocese of Boston. There haven’t been any criminal charges
against the archdiocese.
How is Bishop Lennon approaching these cases
differently?
Bishop Lennon got good press last week for directing the sale of
some church properties. This was taken as a sign of his willingness to settle.
On the same day the diocese’s lawyers filed a motion to dismiss all claims
on First Amendment grounds. I actually think this motion has merit where
plaintiffs are unable to prove recklessness. But lawyers for various plaintiffs
took it more lightly -- as a step the diocese had to take to satisfy its
insurers.
The Manchester, N.H., diocese reached a settlement with victims
of priest abuse recently. Why haven’t other dioceses been able to do the
same?
In October the diocese of Manchester settled with 16 claimants for
about $1 million. In November it settled with another 62 for about $5 million.
I’m not sure what accounts for the success of these negotiations and the
failure of others. Plaintiffs are more willing to settle when they know how
much money the diocese has -- in insurance and other assets -- to pay claims
off. One cause of failure might be a lack of information. I think that delay
has also favored the plaintiffs in these cases because the steady stream of
disclosures has made the church look worse and worse. So waiting has improved
the plaintiffs’ chances of prevailing on the merits.
If the archdiocese reaches a settlement with all outstanding
civil plaintiffs, does that end the dispute?
Not if new plaintiffs come forward. It is a rule about judgments
in civil lawsuits that they don’t bind people who are not parties. This
explains, in part, the appeal of bankruptcy. A bankruptcy judgment pays off
outstanding claims (to the extent it can), and extinguishes those that
aren’t brought forward.
How does the archdiocese benefit by aggressively litigating
these claims?
I’m not sure that I would call its litigation to date
“aggressive.” It hasn’t, for example, asserted the limitation on
liability that Massachusetts gives to charitable organizations. And Cardinal
Law -- though not his finance council -- was willing last spring to pay $15 to
30 million to 86 plaintiffs. I think that the church’s first concern
should be making peace with the victims of clerical misconduct. But there is a
limit on what it can do. My family and I are parishioners at St. Mary’s in
Dedham. We and our parish church are innocent of misconduct. But the church we
attend on Sunday is one of the assets of the archdiocese. It is not obvious
that a court should order the archdiocese to sell that building in order to
compensate victims of sex abuse. Concern for the beneficiaries of charitable
institutions -- people like us -- is what lies behind the Massachusetts
limitation on tort liability.
Does the archdiocese have enough to pay a huge settlement? How
much is available?
Goodwin Proctor, a law firm advising the archdiocese, has
estimated that its insurance coverage amounts to about $90 million. That’s
higher than earlier estimates made by the Rogers law firm. Whether that’s
enough to cover 500-plus claims depends on the ambition of the plaintiffs.
Certainly $90 million dollars would be enough to pay $180,000 to each of 500
plaintiffs. The New Hampshire plaintiffs who settled in October and November
got less than half that per person.
What is the limit on damages for charitable institutions in
Massachusetts?
In 1971 the Massachusetts legislature enacted a statute limiting
the tort liability of charitable organizations to $20,000 for any cause of
action. I think this limitation on liability applies to these cases. Section
85K [of the law] says the limitation does not apply to “activities
primarily commercial in character.” This is meant to lift the cap for
moneymaking ventures entirely disconnected from the charity’s purposes.
The activity in question here is the cardinal’s supervision of diocesan
priests -- assigning them to parishes, pulling them out for retooling, etc.
That is at the heart of a bishop’s job.
You might also wonder whether the limitation on liability is
somehow waived or nullified where the activity in question is particularly
outrageous. Can the legislature really have meant to shelter acts like the
transfer of Paul Shanley to St. Anne’s in San Bernardino, Calif., with
assurances that he had no problems in his past? But 85K is based on the idea of
immunity, not justification or excuse. The point of charitable immunity is to
preserve the funds of charitable institutions so they can be devoted to
charitable purposes. The Supreme Judicial Court has held that that is a
constitutional aim, even if it’s achieved at the expense of tort victims.
And this goes for the victims of intentional torts no less than victims of
negligence.
Are individual priests’ assets available for victims’
compensation?
Sure. There is plenty of blame to go around in this crisis, but
the most reprehensible characters are the individual priests who have abused
children. They are liable to criminal prosecution and tort liability. They are
less attractive as targets in civil lawsuits than the dioceses they work for,
because priests don’t make much. But they should pay what they can.
Could Cardinal Law or other bishops face criminal charges in
Massachusetts or other states?
I think the chance of criminal prosecution in Massachusetts is
remote. Our state attorney general has said as much. The reason is that
Massachusetts laws relating to conspiracy and similar crimes require proof of
intentional wrongdoing, not just gross negligence, and no one -- not even
Cardinal Law’s harshest critics -- suggests that he was trying to promote
child abuse. In other states the story might be different. Bishop McCormack in
Manchester reached a settlement with the attorney general of that state rather
than see his diocese face misdemeanor charges under a New Hampshire child
endangerment statute. He agreed that the diocese would probably have been
convicted, had those charges been filed.
James G. McManus, former NCR news editor, is a lawyer
and journalist in Boston.
National Catholic Reporter, February 7,
2003
|
