Plenty of blame to go around in crisis
By JAMES G. McMANUS
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 Laws 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 havent 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 dioceses 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 havent 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. Im 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 dont 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 arent brought forward.
How does the archdiocese benefit by aggressively litigating these claims?
Im not sure that I would call its litigation to date aggressive. It hasnt, 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 churchs 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. Marys 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. Thats higher than earlier estimates made by the Rogers law firm. Whether thats 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 charitys purposes. The activity in question here is the cardinals supervision of diocesan priests -- assigning them to parishes, pulling them out for retooling, etc. That is at the heart of a bishops 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. Annes 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 its 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 dont 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 Laws 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