Issue Date: March 11, 2005
Vatican asks Rice for help in sex abuse lawsuit
By JOHN L. ALLEN JR.
Alongside predictable exchanges on Iraq, the Middle East and religious liberty, U.S. Secretary of State Condoleezza Rice in her Feb. 8 visit to the Vatican received an unexpected request -- to intervene in a U.S. lawsuit naming the Holy See as the defendant in a sex abuse case.
Church sources told NCR that Rice was asked by Cardinal Angelo Sodano, the Vaticans secretary of state, whether the U.S. government could stop a class-action lawsuit currently before a U.S. District Court in Louisville, Ky., that seeks to hold the Vatican financially responsible for the sexual abuse of minors.
Sources told NCR that Rice explained that under American law, foreign states are required to assert claims of sovereign immunity themselves before U.S. courts.
Vatican spokesperson Joaquín Navarro-Valls, asked by NCR for comment, responded March 2: Its obvious and reasonable that the Holy See would present its positions as a sovereign entity to the American State Department, and recall the immunity for its acts that international law anticipates.
Its not the first time, according to observers, that the Vatican has asked the State Department for help on a legal matter.
Most experts say that lawsuits against the Vatican in American courts, such as the Kentucky case that prompted Sodanos request, are a long shot. At least two dozen previous attempts have gone nowhere, not only because the Vatican is a sovereign state, but also because American courts are generally reluctant to deal with religious matters on First Amendment grounds.
Yet Sodanos decision to raise the matter with Rice suggests concern in Rome that sooner or later its immunity may give way, exposing the Vatican to potentially crippling verdicts.
William F. McMurry, the Louisville attorney who filed the class-action suit, told NCR March 1 that in his view billions of dollars would be required to compensate all the victims of clergy sex abuse in the United States.
The Kentucky case is one of several lawsuits currently working their way through American courts in which the Vatican is named as a defendant. Others include:
The Kentucky case is, however, the only instance in which the Holy See is the lone defendant, and the only class-action suit against the Vatican related to the sexual abuse scandals.
A 1976 law known as the Foreign Sovereign Immunities Act makes it possible to sue sovereign entities in American courts under certain conditions, especially when that entity engages in commercial activity in the United States. The act has been used to sue foreign governments for mistreatment of citizens if some aspect of that mistreatment took place in the United States.
Jeffrey S. Lena, an attorney from Berkeley, Calif., who represents the Vatican in the Kentucky case and other matters, declined NCR requests for comment, referring queries to the Vatican press office.
Mark Chopko, general counsel for the U.S. Conference of Catholic Bishops, told NCR that in his 21 years in that role hes seen at least two dozen cases in which the Vatican, the papal ambassador, or even the pope himself have been sued.
Its extremely easy to name people in lawsuits, Chopko said. Its how modern litigation is done -- just name everyone in the hope that the defendants point fingers at one another.
Chopko said that often the paperwork in these cases is never even served on the Vatican, a complicated step involving transmission through the U.S. State Department and the U.S. Embassy to the Holy See, and the cases end up being dismissed. He said hes not aware of a single case in which the Vatican has suffered a negative judgment in an American court.
Notice has been served on the Vatican in the Kentucky case.
When notice is served, Chopko said, its a fairly routine step for the Holy See to request action from the State Department, which can ask the Department of Justice to recommend against moving forward because of the Vaticans sovereign status. When that happens, Chopko said, its usually enough to bring the matter to a close. For example, he said, a case named Guardian F v. Holy See in the early 1990s was tossed out of a Texas state trial court on this basis.
Legal observers, however, say that the State Department does not generally like to be involved in such cases, intervening only when there is an overriding foreign policy interest.
McMurry and other attorneys suing the Vatican argue that it played a principal role in covering up sexual abuse of children on American territory. McMurry points to a 1962 Vatican document, Crimen Sollicitationis (NCR, Aug. 13, 2003), which he alleges proves that the Holy See ordered American bishops not to comply with civil laws on reporting childhood sexual abuse.
Other experts say that document, which concerned abuse of the sacrament of confession to solicit sexual favors, imposed secrecy on the churchs internal procedures but did not prohibit penitents or others from reporting criminal activity to the civil authorities.
McMurry also argued that the Foreign Sovereign Immunities Act shouldnt enter into his case, because the Vatican was not acting as a sovereign state but as a religious organization in its policies on sexual abuse.
Chopko, however, said that even if attorneys such as McMurry could get past sovereignty and First Amendment considerations, their argument would fail on the merits. The idea that the Holy See is managing directly all these activities of the church is not well taken, he said. Supervision of clergy is vested directly with the local bishops, and nowhere else.
For that reason, Chopko said, the Holy Sees legal exposure is remote.
California attorney Jon Levy, who represents the plaintiffs in the Alperin case, said that of all the legal action against the Vatican in American courts, the insurance commissioners suit may stand the best chance of going forward. In that case, the allegation is that a foundation linked to the Holy See was involved in a scam to loot seven American insurance companies. A former Vatican official, Msgr. Emilio Colagiovanni, was fined $15,000 in federal court and received five years probation on state charges in Mississippi related to the case.
Chopko, however, said that the fraud in the Frankel case had already occurred by the time that the Vatican-linked foundation became involved.
McMurry said that hes awaiting a decision on his request to depose victims. Eventually, McMurry said, he wants to depose Vatican officials, to establish what they knew and when they knew it.
McMurry said hes financing the lawsuit personally, and that he knows its high-risk litigation. Yet he said he has fire in the belly out of his experience of representing 243 victims, whom he said were abused by 38 priests over 30 years.
This wont be over until the party who is directly accountable is brought to justice, and in my opinion thats the Holy See, he said.
A senior Vatican source told NCR some months ago that the possibility of becoming implicated in civil litigation is one reason the Holy See has been reluctant to enter into the details of sex abuse policy in the United States.
John L. Allen Jr. is NCR Rome correspondent. His e-mail address is email@example.com.
National Catholic Reporter, March 11, 2005
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