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Issue Date:  June 2, 2006

Chaput's case: correct but not sufficient

Denver Archbishop Charles Chaput is correct. It is inherently unfair, and bad public policy, when governments exempt themselves from lawsuits of a kind that can bankrupt their private counterparts engaged in exactly the same behavior.

In Colorado, the issue arose over a piece of legislation that as originally crafted would have lifted the civil statute of limitations on child sex abuse. A key problem with the legislation, argued Chaput, was that the state’s public schools would not be subject to its more punitive provisions. Instead, under its modified exercise of “sovereign immunity,” the state limits school district liability and requires that suits be filed within 180 days of the occurrence of the abuse.

“Some of the worst adult sexual misconduct with minors occurs in public institutions, particularly public schools,” wrote Chaput in First Things. “But in most states, those schools enjoy some form of governmental immunity. In other words, it’s far easier to sue a private institution, such as a Catholic diocese, than it is to sue a public-school district. It’s also a lot more lucrative since, even if governmental immunity were waived, public schools and institutions usually enjoy the added protection of low caps on damages (in Colorado, $150,000). For exactly the same sexual abuse in a public school and a Catholic parish, the difference in financial exposure is millions of dollars.”

Chaput’s argument, say his critics, was not only convincing, but convenient. In the rush of the short annual legislative session -- where even good bills fail due to time constraints and other pressing priorities -- the question of private-public equity pushed by the Colorado church was tactically brilliant. Legislative attempts to amend the measures in the session’s closing days generated additional opposition, not least from the school districts that, naturally enough, did not welcome additional liability.

But it’s hard to fault the archbishop and his advisers (including a well-connected outside lobbying firm) for marshaling persuasive arguments in the public arena.

Others argued that “sovereign immunity” exists for a reason, specifically to ensure that essential and mandatory government services like public education are not threatened with insolvency. In fact, goes the argument, the notion of government immunity is embedded in the Constitution (see the Eleventh Amendment).

All of which is true, but also largely irrelevant. While state governments have the right to invoke their immunity, the overwhelming majority allow alleged victims of government negligence or incompetence to have their day in court. Yes, Colorado caps awards and limits the time period for lawsuits, but in doing so it acknowledges limits to its immunity. It’s a question of degree, not principle.

Chaput’s other arguments -- that some of the bill’s supporters were motivated by anti-Catholic bigotry and that civil claims should not be retroactive -- were, to our ears, less than convincing. And his contention that public school systems are enablers of child abuse is backed by questionable data, more than anecdotal, less than empirical. While there are some eerie similarities between the church’s reaction to abuse in its ranks and that of public school systems (substitute “principal” for “bishop” and “teacher/coach” for “priest”), it’s an area crying for more research. We simply don’t know the extent of sexual abuse, nor efforts to cover up such crimes, in the public schools of the United States. There’s a lot of smoke, but not quite the fire that has engulfed the church.

On May 24, Chaput announced formation of a three-member mediation panel charged with reaching out to the approximately 30 victims of clergy sex abuse by Denver priests and arriving at settlements. The victims, however, say they want more than money -- they want diocesan records and files regarding their perpetrators and the cover-ups that facilitated their crimes.

That’s the more difficult part for the church to face, yet that information is really at the heart of the issue. What really went on? What kind of correspondence exists? What did bishops and others know and when did they know it? They are the unanswered questions that keep eroding the trust between Catholics in the pews and the hierarchy.

Chaput’s point is well taken. In one sense good stewardship would demand a leader try to protect the church’s holdings for future generations. At the same time it is essential to keep in mind that church leaders are the ones who initially abandoned their pastoral instincts and started down the legal path. It is also important to keep in mind that putting the church on an equal footing with public schools in the legal arena, while an admirable strategy, does little to address the larger ethical and moral issues within the Catholic community.

National Catholic Reporter, June 2, 2006

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