The Problem of Sexual Molestation by Roman Catholic Clergy, Part 2
CRIMINAL LAW QUESTIONS
1. Does sexual contact with minor children constitute a criminal offense? Which types of sexual contact are considered felonious (involving maximum imprisonment at hard labor) and which are classified as misdemeanors (involving fines and minimum incarceration)?
2. At what age is a child considered to be an adult? At what young age is a child considered to be so tender as to cause a sexual crime to be considered by criminal law to be an aggravated crime, one which carries the most serious sentences such as life imprisonment?
3. What is the requirement in criminal law for one who has knowledge that a sexual crime has been committed to report that knowledge to the authorities? To which authorities (District Attorney, State Child Welfare Agency) must the report be made? What criminal law penalty, fine or jail term, would be given to a Bishop who failed to comply with the reporting law?
4. Is there any privilege which attaches to the communication between the Bishop and the Priest under criminal law? Can the Bishop be made to testify before a Grand Jury, give statements to police detectives or give evidence in a criminal trial against the priest?
5. Does the criminal law provide that the Bishop's files or other diocesan records can be subpoenaed and utilized in a police investigation, Grand Jury hearing, or a criminal trial?
6. Is there an obligation to provide constitutional due process to the Priest accused of sexual crimes, and furnish an attorney for the Priest prior to eliciting any incriminatory information? Must the Priest be provided this protection and can the priest reasonably refuse to answer questions posed by his Ordinary?
7. Should a criminal lawyer be retained for the Priest or by the Priest? A lawyer separate from Diocesan Counsel? At what stage should this be done? What financial obligations exist for payment of legal fees, expenses, bonding costs, etc?
CIVIL LAW QUESTIONS
1. What specific provisions for insurance coverage exist in regard to the civil law consequences of the sexual conduct between the Priest and child?
2. What contractual obligation, if any, exists in regard to notification of insurer? At what point should the insurance companies be told of the exposure?
3. What rights, if any, does the Bishop have in relationship to the civil law defense of the Diocese? Can the Bishop either select or reject the particular attorneys to be utilized? Can the Bishop dictate any aspect of the handling of the case to ensure that the image of the Church is protected from injury?
4. If the Bishop is aware of sexual misconduct, or a propensity for sexual misconduct, that took place at an earlier date, does this fact become a critical question in subsequent litigation involving child molestation? In other words, if the Bishop has knowledge that a Priest sexually abused a child in 1970, does this knowledge affect his liability in the event of a similar incident in 1980? Does this prior knowledge by the Bishop constitute negligence on his part independent of Diocesan negligence? Can the Bishop be financially liable to the suing parties, independent of, or in addition to, liability of the Diocese?
5. What civil law obligations exist toward the child-victim and the family of the child?
6. Can suits be brought against only the Corporate Entity, i.e. the Diocese, or can the superiors, including the hierarchical superiors (Pastor, Vicar General, Bishop, Metropolitan Archbishop, Papal Representative, Holy Father, Holy See) be named in the suits as well with some possibility of success?
7. Can the civil law suit be restricted to the one Priest and his actions, or will the suing parties be able to expose all other sexual misconduct of every other priest in the Diocese? Can the civil law courts cause the Bishop to give information regarding all aberrant sexual practices of Priests in the Diocese? Can all this information be subpoenaed, and will the Diocese be forced by civil law to provide the information?
8. Which parties can bring a civil law suit? Will the child be the only person entitled under civil law to a recovery of money? Can the parents sue and recover money?
9. What are the factors in civil law which determine what damages were incurred by the parties and what sums they shall receive?
10. Is there any provision in civil law for restricting the access of the press to the civil proceedings? Will all of the civil law proceedings be reported?
11. Which Canonical and Clinical procedures instituted at this juncture shall be later viewed favorably by the civil law courts and which shall be viewed unfavorably and why?
12. Which initially instituted measures will later be deemed prudent and reasonable by the civil law courts and which will be classified as imprudent and negligent?
13. In which civil law cases should the Diocese attempt to force its insurance companies to either settle cases quietly without public disclosure or, in the alternative, admit liability to prevent public disclosure or damaging information? What are the civil law effects of such settlements or admissions? What are the key factors which cause a Bishop to consider these alternatives? What effect will settlements and admissions have on future insurance premiums?
14. Which civil law cases should be defended through trial and appeal courts? What factors are to be considered in determining whether a case should settle or be tried? Most importantly, at what stage should the decision be made?
15. Does the Diocesan attorney have expertise and experience in trial law generally, and specifically does the Diocesan attorney have civil law and criminal law experience in the area of these sexual conduct cases? Should additional lawyers be hired? Should counsel be sought from lawyers with expertise and hands on experience in this field?
16. What civil law precedents, if any, exist? What was the experience of prior cases and trial court decisions? What data bank, if any, exists which might contain accurate information from prior cases and circumstances in Dioceses across the country? Which individuals (lawyers, psychiatrists, canon lawyers, etc.) have expertise, experience, and information on the civil law cases and how does the Bishop contact the people and gain access to the information?
CANON LAW QUESTIONS
1. Should the bishop investigate the incident?
2. Does he have an obligation to conduct an investigation?
3. Does Canon Law provide a format for any type of investigation?
4. Is it necessary that an investigation proceed the Bishop's confrontation of the cleric?
5. If there is a confrontation, are there any canonical procedures that should or must be followed?
6. If the Priest admits the allegations, and he is the only priest in the parish, how should the Bishop proceed?
7. Is the Bishop limited in any way, because of confidentiality, in his ability or freedom to consult with others concerning the alleged incidents?
8. In studying the source of the allegations, or suspicions, is there a preferable method for assuring credibility/reliability of the source?
9. May/should the Bishop delegate the power to investigate to a Vicar or some other person?
10. Should a record be kept of the allegation and investigation?
11. Where should such a record be kept?
12. How secure is such a record from civil authorities?
13. Should the Bishop confront the Priest? Alone or in the presence of someone else?
14. If the Priest admits the incidents, what action should the bishop take: transfer, removal, suspension?
15. Can the Priest be suspended? Without a process? What are his rights to recourse?
16. Is the Bishop canonically responsible for the Priest's support while he is suspended? If he is living in another diocese? If he is laicized?
17. Is such a priest suspected of any canonical delicts and liable to canonical penalties?
18. Does the Bishop have any canonical/moral/pastoral obligations toward the victims and their families?
19. Should the Bishop inform the Metropolitan and/or the Apostolic pro-Nuncio?
20. Does the canon law clearly define the Bishop's relationship to his Priests and Deacons (permanent and transient)?
21. What will the civil law perceive this relationship to be, based on ecclesiastical documentation available to the courts?
22. Should an expert in canon law be retained to assist in the case, possibly by helping prepare witnesses or appearing as an expert witness himself?
23. Where can such a canonical expert be found? Should he be affiliated with the NCCB, Nunciature, Holy See, etc.?
24. Does the law provide for any general method of vigilance over the activities of Priests and other church employees?
25. Does the law provide for any method of investigation and consequent action in cases of complaints of misconduct?
26. Is there a canonical entity known as the Roman Catholic Church in the United States?
27. If a class action were so filed, would the National Bishops' Conference qualify as the canonical entity?
28. What is the canonical relationship of each Diocese and its Bishop to other ecclesiastical entities such as the Metropolitan See and Archbishop; the National Conference of Catholic Bishops; the United States Catholic Conference; the Apostolic Nunciature and the Pro-Nuncio; the Holy See and the Holy Father?
29. What is the canonical authority of the NCCB over individual Bishops and their dioceses?
30. Is there any protection for diocesan files, secret archives and tribunal records?
CLINICAL/MEDICAL QUESTIONS
1. Are psychiatrists, psychologists, and social workers equally qualified, both professionally and legally, to examine Clerics who have a suspected problem of sexual molestation of children?
2. If you ask a social worker, psychologist, or psychiatrist to examine and evaluate your Cleric, is he obliged under your state law to report this to the District Attorney or the Child Abuse Agency?
3. What is the difference between pedophilia, homosexuality and the sexual abuse of adolescent males or females?
4. Does the age of the offending Priest (older or younger) create a significant difference in his diagnosis and treatment?
5. Are there mitigating psychiatric disorders of which it would be important to be aware before proceeding with a decision on a treatment facility or a treatment program?
6. If there is a problem of alcohol or drug abuse complicating the problem of sexual abuse of children or adolescents, would any alcohol treatment center be capable of treating both the alcohol or drug abuse and the sexual abuse issues?
7. Are the treatment centers presently used for Catholic Clergy and Religious, i.e. the Houses of Affirmation, Guest House, St. Luke Institute, the institutions of the Servants of the Paraclete and Southdown (near Toronto) equally qualified to treat both the alcohol/drug abuse and dependence as well as cases of sexual abuse of children or adolescents? Do they all have follow-up programs for two or more years that would monitor the Cleric's activity and report to the Ordinary?
8. If the case involves a repeat offender and prior psychiatric or psychological intervention has been useless, what drug therapy would be considered in the treatment of the sex offender, whether or not alcohol or other mitigating psychiatric disorders were present?
9. What constitutes sexual abuse? Does touching the buttocks of a fully clothed nine year old child constitute sexual abuse either in the law or from a psychiatrist's viewpoint? Does touching the covered genitalia of a fully clothed youngster constitute sexual abuse? Does masturbation of the child by the Priest or of the Priest by the child constitute sexual abuse?
10. Does the age of the child at the time of the abuse and the extent of the abuse have any effect on long term function or dysfunction of this child with adults?
11. At what age would an abused child be expected to fully comprehend and be cognizant of the long term effects of prolonged and severe sexual abuse by a lay-person or by a Cleric?
12. If the juvenile were a sixteen year old boy, would this imply that the abuse would have a lesser impact in the adult life of this victim?
13. If the teenager appeared to initiate the sexual contact and seemed to continue to enjoy it over a period of time, would this change the offense in the eyes of the law or in the eyes of a psychiatrist?
14. If the sexual contact is mainly with juvenile boys or adolescent boys, does this imply that the boys are more likely to be homosexually oriented in their future adult life as compared to abuse of pre-pubertal children?
15. Clinically, in cases involving Cleric-sexual offenders, is there a difference if the offender regularly abused children as opposed to adolescents? Is there a difference if the victims are pre-pubertal girls as opposed to adolescent girls?
16. Would there be more likelihood that the adolescent boy or girl would “not tell the truth” as compared to a pre-pubertal child?
17. If there is a “mitigating” psychiatric disorder or psychological disorder, would it make any difference in where you would send this priest for treatment?
18. Of the facilities listed in number 7 above, which offers a complete neurological and neuropsychological as well as complete physical and medical evaluations as well as psychological testing? Would the facility and the variety of evaluations be important in determining the presence of mitigating medical or psychiatric disorders?
19. What kind of pre-intervention strategy should the Ordinary consider?
20. How soon should a complete evaluation be done?
21. Should the alleged Priest-offender see anyone else before the evaluation?
22. What are the causes of sexual abuse by Roman Catholic clergy?
23. What should an Ordinary look for and expect in an adequate evaluation of a cleric?
24. How can an Ordinary know which treatment center is best for the needs of the alleged offender?
25. Can a Priest/cleric ever return and function in the Diocese?
26. What should the Ordinary do with regard to the families of the victims?
SIGNIFICANT CRIMINAL AND CIVIL LAW CONSIDERATIONS
The following criminal and civil law considerations follow upon the pertinent question in the same area, posed elsewhere. These are not to be construed as answers to these questions. Rather, they expand upon the questions and suggest the importance in dealing effectively with the various aspects of these two dimensions of this problem.
SUMMARY OF CONSIDERATIONS
Insurance Considerations:
1. Loss of Liability Insurance Coverage to Each and Every Diocese. It is highly probable that specific, exclusionary language shall begin to appear following a few years experience in all Diocesan liability policies which shall exclude coverage to the Diocese, the Bishop, Vicars, Clergy and other personnel for “coverage of claims arising as a result of sexual contact between a Priest and parishioner, an employee and any member of the public . . .”
Such an exclusion was adopted as an insurance industry standard on January 1, 1985 for the psychiatric and psychological profession. Coverage for those professions and the entities, partnerships, corporations, and associations which employ them is no longer available for “claims arising as a result of sexual contact between patient and therapist or other employee.”
The exclusion was a reaction to payment of large claims by insurance companies over several years and an inability actuarily to predict the risk that a physician might have sexual contact with a patient.
The estimated cost of the loss of coverage correlates to the remarks contained in the introduction. The cost could be hundreds of millions.
This threatens the very economic viability of the Church's mission in many areas.
2. Interim Increased Cost of Liability Insurance Coverage. Following the experience by insurance companies of a number of claims resulting in large monetary court awards or cash settlements involving insurance funds and prior to the cancellation of coverage referred to above, a significantly higher acturial value would be assigned to the risk, resulting in a significantly increased premium cost.
One Diocese which experienced insurance losses as a result of a Priest sexually molesting children has been notified that the insurance premium shall increase more than 25 percent.
According to Time Magazine (June 3, 1985) a day care center which suffered a child molestation experience was forced to pay a liability premium which increased nearly 750 percent, from $600 dollars per year to $8,000 dollars per year.
This individual increase to each Diocese, weighted in aggregate will cost many millions.
CIVIL CONSIDERATIONS:
l. Liability of Bishops.
Some debate exists in the civil law's understanding of the relationship between a Bishop and his Priests and major religious superiors and their subjects.
The extent of responsibility a Bishop or religious superior has in regard to tortious or felonious conduct of his Priests/subjects has not been defined in the original sense by the higher courts of the civil law system, and thus, the exceptions to such original definition do not exist. There are absolutely no reported civil court decisions on the issues. This body of law is just beginning to develop with the filing of these cases.
The Bishop's responsibility beyond incardinated Priests, for the actions of non-incardinated Priests assigned for study, special work, visiting (or having been suspended by another) as well as a Bishop's responsibility for one whom he has suspended who is residing elsewhere, including a treatment center without appropriate supervision . . . the questions await definition.
2. Impact of Code of Canon Law on Civil Courts.
The Canon Law shall play an important part of the Civil damage cases. The interpretation of Canon Law by plaintiff lawyers in litigation has already been experienced. No court has yet made rulings in this regard.
It is well founded in civil cases that operation manuals, policy and procedure memoranda, and other documents generated as guidelines by the civil defendant may be utilized in evidence.
That the Code of Canon Law actually has the effect of Law over our personnel shall make it more relevant than some civil document which constitutes no more than a guideline.
The impact may be negative or positive depending on the preparation of the civil lawyer and the participation of a canon lawyer in cases where the issue presents itself.
3. Liability of Larger Ecclesiastical Entities
Presently there are efforts to sue, successfully, not only a diocese but also a bishop, diocesan vicars, the metropolitan archdiocese, the Holy See's representative in the United States and the Holy rather himself. These cases are being partially settled by the insurance companies without first attempting to settle the question for the civil jurisdiction in question.
The trend to expand the circle of responsibility beyond the diocese of the priests in question but to the National Conference of Catholic Bishops, the Apostolic Pro-Nuncio and the Holy Father himself shall continue.
In great measure the courts shall look to both the civil law and the canon law to comprehend the relationship of these other ecclesiastical entities with the diocese in question, the bishop and the priest-offender himself.
It is highly probable, nearly certain, that each and every Ordinary in the United States shall be made a party - defendant in a federal class action suit, the threat of which has been documented in correspondence to the General counsel's office of the USCC-NCCB. In a class action every Ordinary in the country would have to testify about every instance of aberrant sexual conduct in their diocese, produce all records relating to aberrant sexual practices, and defend their actions or inaction in each instance.
The Papal representative in the United States, the Holy Father, and the NCCB will be the primary target of lawsuits seeking to establish their direct responsibility for the grave injury suffered by the child-victims. In these efforts plaintiff lawyers will utilize, possibly to their advantage, the structures set forth in the Code of Canon Law describing the inter-relationship and inter-dependence of these various ecclesiastical entities. The project proposed herein shall address these extremely serious issues and attempt to provide acceptable solutions.
4. Responsibility for Seminarians
The responsibility for seminarians is two-edged in that there is a responsibility on the part of the Ordinary for things done by the seminarian and things done to the seminarian.
Depending on the geographic location of the seminary as well as the canonical and corporate structure, more than one bishop may be involved in answering the questions of responsibility. It is also possible that the wider ecclesiastical entities may be involved if the seminary has some direct connections to the Holy See (i.e., a Pontifical seminary, inter-diocesan seminary etc.)
5. Responsibility of Bishops for Visiting Clergy
A bishop may extend hospitality to a priest who is not incardinated to his diocese and allow said priest to live and work as a priest in his own diocese. If the priest has a history of problems involving sexual misconduct and the bishop is aware of this and allows the priest to live and work in his diocese anyway, there are serious questions regarding his responsibility to act in the event of a subsequent incident.
A legal agreement between the host bishop and the priest's own Ordinary may provide a partial remedy to problems pursuant to an incident.
6. Maintenance of Diocesan Records
A paramount concern is the security of diocesan records and the limits of confidentiality that may be successfully claimed by church authorities. This issue is governed by complex discovery decisions in the state and Federal law.
In civil law the courts allow lawyers who bring suits to use the process called “discovery” to make the defendant (in these cases, bishops and/or dioceses) produce records and personnel who may be compelled to give sworn testimony.
In the event of a class action suit such as the one that is threatened, the lawyers bringing the suit shall try to obtain records from each and every diocese in the country. They shall also try to obtain testimony from each and every bishop. All this shall be an attempt to document each and every known instance of sexual misconduct by a priest.
It is important to know what matter should be contained in a priest's personnel file, considering the very probable discoverability of these files.
The idea of sanitizing or purging files of potentially damaging material has been brought up. This would be in contempt of court and an obstruction of justice if the files had already been subpoenaed by the courts. Even if there has been no such subpoena, such actions could be construed as a violation of the law in the event of a class action suit. On a canonical level, to sanitize the personnel files could pose a problem of continuity from one diocesan administration to another.
One other suggestion regarding files has been to move them to the Apostolic Nunciature where it is believed they would remain secure, in immune territory. In all likelihood such action would ensure that the immunity of the Nunciature would be damaged or destroyed by the civil courts.
The canon law law speaks of secret archives. Are these safe from civil discovery whereas ordinary files might not be? Thus far it appears that the secret archives afford no more security from discovery than regular diocesan archives.
7. Uniformity of Case Management
At this time there is no uniformity of case management. It is desirable that such uniformity be developed in order to provide optimum assistance to bishops and diocesan lawyers. The same issues are present in similar cases in the different diocese such as:
* The confidentiality of diocesan records
* Legal arguments against liability
* The criminal defense posture to be developed for a priest-offender
* The responsibility of insurance companies to act in a manner that is not detrimental to Church interests
* Legal pleadings to be filed on behalf of all defendants and their contents
* Potential conflicts between defendants and with insurers
* The public posture of all parties in relationship to the general public and the wider church community as presented in press announcements and stories, statements of the bishop and other authorities related to the case as well as pulpit announcement.
All of the above legal efforts and the many others that arise should be coordinated so that a single, carefully choreographed theme is presented. This theme or posture should be consistent in character and design and produce a result that is advantageous for the Church, victims and the public.
8. The Discovery of Information that is Circulated About This Problem
If all of the possible questions related to this problem are posed and a suitable and complete set of answers drawn up and set forth in the form of a policy manual or procedural guideline, it would not be advisable to release such a manual/document to the Bishops of the country or to the diocesan lawyers.
Such information could fall into the hands of either the plaintiffs or the press and the document itself could be deemed discoverable and used as evidence.
Nevertheless it is virtually impossible at this time to compose a document or manual which a) adequately addresses the problem with all of its vitally important aspects and b) would not cause damage if it fell into the hands of the press or plaintiffs.
Only two major insurance considerations and eight civil law considerations have been noted for the sake of brevity. This is because the purpose of this entire document is to provide a basis for understanding both the enormity and the gravity of the total situation. To continue to list the hundreds of civil law considerations and the many insurance issues would expand this document beyond its intended format. Accordingly a limited listing of the criminal law considerations, clinical and medical considerations and canon law issues follows.
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1. Does sexual contact with minor children constitute a criminal offense? Which types of sexual contact are considered felonious (involving maximum imprisonment at hard labor) and which are classified as misdemeanors (involving fines and minimum incarceration)?
2. At what age is a child considered to be an adult? At what young age is a child considered to be so tender as to cause a sexual crime to be considered by criminal law to be an aggravated crime, one which carries the most serious sentences such as life imprisonment?
3. What is the requirement in criminal law for one who has knowledge that a sexual crime has been committed to report that knowledge to the authorities? To which authorities (District Attorney, State Child Welfare Agency) must the report be made? What criminal law penalty, fine or jail term, would be given to a Bishop who failed to comply with the reporting law?
4. Is there any privilege which attaches to the communication between the Bishop and the Priest under criminal law? Can the Bishop be made to testify before a Grand Jury, give statements to police detectives or give evidence in a criminal trial against the priest?
5. Does the criminal law provide that the Bishop's files or other diocesan records can be subpoenaed and utilized in a police investigation, Grand Jury hearing, or a criminal trial?
6. Is there an obligation to provide constitutional due process to the Priest accused of sexual crimes, and furnish an attorney for the Priest prior to eliciting any incriminatory information? Must the Priest be provided this protection and can the priest reasonably refuse to answer questions posed by his Ordinary?
7. Should a criminal lawyer be retained for the Priest or by the Priest? A lawyer separate from Diocesan Counsel? At what stage should this be done? What financial obligations exist for payment of legal fees, expenses, bonding costs, etc?
CIVIL LAW QUESTIONS
1. What specific provisions for insurance coverage exist in regard to the civil law consequences of the sexual conduct between the Priest and child?
2. What contractual obligation, if any, exists in regard to notification of insurer? At what point should the insurance companies be told of the exposure?
3. What rights, if any, does the Bishop have in relationship to the civil law defense of the Diocese? Can the Bishop either select or reject the particular attorneys to be utilized? Can the Bishop dictate any aspect of the handling of the case to ensure that the image of the Church is protected from injury?
4. If the Bishop is aware of sexual misconduct, or a propensity for sexual misconduct, that took place at an earlier date, does this fact become a critical question in subsequent litigation involving child molestation? In other words, if the Bishop has knowledge that a Priest sexually abused a child in 1970, does this knowledge affect his liability in the event of a similar incident in 1980? Does this prior knowledge by the Bishop constitute negligence on his part independent of Diocesan negligence? Can the Bishop be financially liable to the suing parties, independent of, or in addition to, liability of the Diocese?
5. What civil law obligations exist toward the child-victim and the family of the child?
6. Can suits be brought against only the Corporate Entity, i.e. the Diocese, or can the superiors, including the hierarchical superiors (Pastor, Vicar General, Bishop, Metropolitan Archbishop, Papal Representative, Holy Father, Holy See) be named in the suits as well with some possibility of success?
7. Can the civil law suit be restricted to the one Priest and his actions, or will the suing parties be able to expose all other sexual misconduct of every other priest in the Diocese? Can the civil law courts cause the Bishop to give information regarding all aberrant sexual practices of Priests in the Diocese? Can all this information be subpoenaed, and will the Diocese be forced by civil law to provide the information?
8. Which parties can bring a civil law suit? Will the child be the only person entitled under civil law to a recovery of money? Can the parents sue and recover money?
9. What are the factors in civil law which determine what damages were incurred by the parties and what sums they shall receive?
10. Is there any provision in civil law for restricting the access of the press to the civil proceedings? Will all of the civil law proceedings be reported?
11. Which Canonical and Clinical procedures instituted at this juncture shall be later viewed favorably by the civil law courts and which shall be viewed unfavorably and why?
12. Which initially instituted measures will later be deemed prudent and reasonable by the civil law courts and which will be classified as imprudent and negligent?
13. In which civil law cases should the Diocese attempt to force its insurance companies to either settle cases quietly without public disclosure or, in the alternative, admit liability to prevent public disclosure or damaging information? What are the civil law effects of such settlements or admissions? What are the key factors which cause a Bishop to consider these alternatives? What effect will settlements and admissions have on future insurance premiums?
14. Which civil law cases should be defended through trial and appeal courts? What factors are to be considered in determining whether a case should settle or be tried? Most importantly, at what stage should the decision be made?
15. Does the Diocesan attorney have expertise and experience in trial law generally, and specifically does the Diocesan attorney have civil law and criminal law experience in the area of these sexual conduct cases? Should additional lawyers be hired? Should counsel be sought from lawyers with expertise and hands on experience in this field?
16. What civil law precedents, if any, exist? What was the experience of prior cases and trial court decisions? What data bank, if any, exists which might contain accurate information from prior cases and circumstances in Dioceses across the country? Which individuals (lawyers, psychiatrists, canon lawyers, etc.) have expertise, experience, and information on the civil law cases and how does the Bishop contact the people and gain access to the information?
CANON LAW QUESTIONS
1. Should the bishop investigate the incident?
2. Does he have an obligation to conduct an investigation?
3. Does Canon Law provide a format for any type of investigation?
4. Is it necessary that an investigation proceed the Bishop's confrontation of the cleric?
5. If there is a confrontation, are there any canonical procedures that should or must be followed?
6. If the Priest admits the allegations, and he is the only priest in the parish, how should the Bishop proceed?
7. Is the Bishop limited in any way, because of confidentiality, in his ability or freedom to consult with others concerning the alleged incidents?
8. In studying the source of the allegations, or suspicions, is there a preferable method for assuring credibility/reliability of the source?
9. May/should the Bishop delegate the power to investigate to a Vicar or some other person?
10. Should a record be kept of the allegation and investigation?
11. Where should such a record be kept?
12. How secure is such a record from civil authorities?
13. Should the Bishop confront the Priest? Alone or in the presence of someone else?
14. If the Priest admits the incidents, what action should the bishop take: transfer, removal, suspension?
15. Can the Priest be suspended? Without a process? What are his rights to recourse?
16. Is the Bishop canonically responsible for the Priest's support while he is suspended? If he is living in another diocese? If he is laicized?
17. Is such a priest suspected of any canonical delicts and liable to canonical penalties?
18. Does the Bishop have any canonical/moral/pastoral obligations toward the victims and their families?
19. Should the Bishop inform the Metropolitan and/or the Apostolic pro-Nuncio?
20. Does the canon law clearly define the Bishop's relationship to his Priests and Deacons (permanent and transient)?
21. What will the civil law perceive this relationship to be, based on ecclesiastical documentation available to the courts?
22. Should an expert in canon law be retained to assist in the case, possibly by helping prepare witnesses or appearing as an expert witness himself?
23. Where can such a canonical expert be found? Should he be affiliated with the NCCB, Nunciature, Holy See, etc.?
24. Does the law provide for any general method of vigilance over the activities of Priests and other church employees?
25. Does the law provide for any method of investigation and consequent action in cases of complaints of misconduct?
26. Is there a canonical entity known as the Roman Catholic Church in the United States?
27. If a class action were so filed, would the National Bishops' Conference qualify as the canonical entity?
28. What is the canonical relationship of each Diocese and its Bishop to other ecclesiastical entities such as the Metropolitan See and Archbishop; the National Conference of Catholic Bishops; the United States Catholic Conference; the Apostolic Nunciature and the Pro-Nuncio; the Holy See and the Holy Father?
29. What is the canonical authority of the NCCB over individual Bishops and their dioceses?
30. Is there any protection for diocesan files, secret archives and tribunal records?
CLINICAL/MEDICAL QUESTIONS
1. Are psychiatrists, psychologists, and social workers equally qualified, both professionally and legally, to examine Clerics who have a suspected problem of sexual molestation of children?
2. If you ask a social worker, psychologist, or psychiatrist to examine and evaluate your Cleric, is he obliged under your state law to report this to the District Attorney or the Child Abuse Agency?
3. What is the difference between pedophilia, homosexuality and the sexual abuse of adolescent males or females?
4. Does the age of the offending Priest (older or younger) create a significant difference in his diagnosis and treatment?
5. Are there mitigating psychiatric disorders of which it would be important to be aware before proceeding with a decision on a treatment facility or a treatment program?
6. If there is a problem of alcohol or drug abuse complicating the problem of sexual abuse of children or adolescents, would any alcohol treatment center be capable of treating both the alcohol or drug abuse and the sexual abuse issues?
7. Are the treatment centers presently used for Catholic Clergy and Religious, i.e. the Houses of Affirmation, Guest House, St. Luke Institute, the institutions of the Servants of the Paraclete and Southdown (near Toronto) equally qualified to treat both the alcohol/drug abuse and dependence as well as cases of sexual abuse of children or adolescents? Do they all have follow-up programs for two or more years that would monitor the Cleric's activity and report to the Ordinary?
8. If the case involves a repeat offender and prior psychiatric or psychological intervention has been useless, what drug therapy would be considered in the treatment of the sex offender, whether or not alcohol or other mitigating psychiatric disorders were present?
9. What constitutes sexual abuse? Does touching the buttocks of a fully clothed nine year old child constitute sexual abuse either in the law or from a psychiatrist's viewpoint? Does touching the covered genitalia of a fully clothed youngster constitute sexual abuse? Does masturbation of the child by the Priest or of the Priest by the child constitute sexual abuse?
10. Does the age of the child at the time of the abuse and the extent of the abuse have any effect on long term function or dysfunction of this child with adults?
11. At what age would an abused child be expected to fully comprehend and be cognizant of the long term effects of prolonged and severe sexual abuse by a lay-person or by a Cleric?
12. If the juvenile were a sixteen year old boy, would this imply that the abuse would have a lesser impact in the adult life of this victim?
13. If the teenager appeared to initiate the sexual contact and seemed to continue to enjoy it over a period of time, would this change the offense in the eyes of the law or in the eyes of a psychiatrist?
14. If the sexual contact is mainly with juvenile boys or adolescent boys, does this imply that the boys are more likely to be homosexually oriented in their future adult life as compared to abuse of pre-pubertal children?
15. Clinically, in cases involving Cleric-sexual offenders, is there a difference if the offender regularly abused children as opposed to adolescents? Is there a difference if the victims are pre-pubertal girls as opposed to adolescent girls?
16. Would there be more likelihood that the adolescent boy or girl would “not tell the truth” as compared to a pre-pubertal child?
17. If there is a “mitigating” psychiatric disorder or psychological disorder, would it make any difference in where you would send this priest for treatment?
18. Of the facilities listed in number 7 above, which offers a complete neurological and neuropsychological as well as complete physical and medical evaluations as well as psychological testing? Would the facility and the variety of evaluations be important in determining the presence of mitigating medical or psychiatric disorders?
19. What kind of pre-intervention strategy should the Ordinary consider?
20. How soon should a complete evaluation be done?
21. Should the alleged Priest-offender see anyone else before the evaluation?
22. What are the causes of sexual abuse by Roman Catholic clergy?
23. What should an Ordinary look for and expect in an adequate evaluation of a cleric?
24. How can an Ordinary know which treatment center is best for the needs of the alleged offender?
25. Can a Priest/cleric ever return and function in the Diocese?
26. What should the Ordinary do with regard to the families of the victims?
SIGNIFICANT CRIMINAL AND CIVIL LAW CONSIDERATIONS
The following criminal and civil law considerations follow upon the pertinent question in the same area, posed elsewhere. These are not to be construed as answers to these questions. Rather, they expand upon the questions and suggest the importance in dealing effectively with the various aspects of these two dimensions of this problem.
SUMMARY OF CONSIDERATIONS
Insurance Considerations:
1. Loss of Liability Insurance Coverage to Each and Every Diocese. It is highly probable that specific, exclusionary language shall begin to appear following a few years experience in all Diocesan liability policies which shall exclude coverage to the Diocese, the Bishop, Vicars, Clergy and other personnel for “coverage of claims arising as a result of sexual contact between a Priest and parishioner, an employee and any member of the public . . .”
Such an exclusion was adopted as an insurance industry standard on January 1, 1985 for the psychiatric and psychological profession. Coverage for those professions and the entities, partnerships, corporations, and associations which employ them is no longer available for “claims arising as a result of sexual contact between patient and therapist or other employee.”
The exclusion was a reaction to payment of large claims by insurance companies over several years and an inability actuarily to predict the risk that a physician might have sexual contact with a patient.
The estimated cost of the loss of coverage correlates to the remarks contained in the introduction. The cost could be hundreds of millions.
This threatens the very economic viability of the Church's mission in many areas.
2. Interim Increased Cost of Liability Insurance Coverage. Following the experience by insurance companies of a number of claims resulting in large monetary court awards or cash settlements involving insurance funds and prior to the cancellation of coverage referred to above, a significantly higher acturial value would be assigned to the risk, resulting in a significantly increased premium cost.
One Diocese which experienced insurance losses as a result of a Priest sexually molesting children has been notified that the insurance premium shall increase more than 25 percent.
According to Time Magazine (June 3, 1985) a day care center which suffered a child molestation experience was forced to pay a liability premium which increased nearly 750 percent, from $600 dollars per year to $8,000 dollars per year.
This individual increase to each Diocese, weighted in aggregate will cost many millions.
CIVIL CONSIDERATIONS:
l. Liability of Bishops.
Some debate exists in the civil law's understanding of the relationship between a Bishop and his Priests and major religious superiors and their subjects.
The extent of responsibility a Bishop or religious superior has in regard to tortious or felonious conduct of his Priests/subjects has not been defined in the original sense by the higher courts of the civil law system, and thus, the exceptions to such original definition do not exist. There are absolutely no reported civil court decisions on the issues. This body of law is just beginning to develop with the filing of these cases.
The Bishop's responsibility beyond incardinated Priests, for the actions of non-incardinated Priests assigned for study, special work, visiting (or having been suspended by another) as well as a Bishop's responsibility for one whom he has suspended who is residing elsewhere, including a treatment center without appropriate supervision . . . the questions await definition.
2. Impact of Code of Canon Law on Civil Courts.
The Canon Law shall play an important part of the Civil damage cases. The interpretation of Canon Law by plaintiff lawyers in litigation has already been experienced. No court has yet made rulings in this regard.
It is well founded in civil cases that operation manuals, policy and procedure memoranda, and other documents generated as guidelines by the civil defendant may be utilized in evidence.
That the Code of Canon Law actually has the effect of Law over our personnel shall make it more relevant than some civil document which constitutes no more than a guideline.
The impact may be negative or positive depending on the preparation of the civil lawyer and the participation of a canon lawyer in cases where the issue presents itself.
3. Liability of Larger Ecclesiastical Entities
Presently there are efforts to sue, successfully, not only a diocese but also a bishop, diocesan vicars, the metropolitan archdiocese, the Holy See's representative in the United States and the Holy rather himself. These cases are being partially settled by the insurance companies without first attempting to settle the question for the civil jurisdiction in question.
The trend to expand the circle of responsibility beyond the diocese of the priests in question but to the National Conference of Catholic Bishops, the Apostolic Pro-Nuncio and the Holy Father himself shall continue.
In great measure the courts shall look to both the civil law and the canon law to comprehend the relationship of these other ecclesiastical entities with the diocese in question, the bishop and the priest-offender himself.
It is highly probable, nearly certain, that each and every Ordinary in the United States shall be made a party - defendant in a federal class action suit, the threat of which has been documented in correspondence to the General counsel's office of the USCC-NCCB. In a class action every Ordinary in the country would have to testify about every instance of aberrant sexual conduct in their diocese, produce all records relating to aberrant sexual practices, and defend their actions or inaction in each instance.
The Papal representative in the United States, the Holy Father, and the NCCB will be the primary target of lawsuits seeking to establish their direct responsibility for the grave injury suffered by the child-victims. In these efforts plaintiff lawyers will utilize, possibly to their advantage, the structures set forth in the Code of Canon Law describing the inter-relationship and inter-dependence of these various ecclesiastical entities. The project proposed herein shall address these extremely serious issues and attempt to provide acceptable solutions.
4. Responsibility for Seminarians
The responsibility for seminarians is two-edged in that there is a responsibility on the part of the Ordinary for things done by the seminarian and things done to the seminarian.
Depending on the geographic location of the seminary as well as the canonical and corporate structure, more than one bishop may be involved in answering the questions of responsibility. It is also possible that the wider ecclesiastical entities may be involved if the seminary has some direct connections to the Holy See (i.e., a Pontifical seminary, inter-diocesan seminary etc.)
5. Responsibility of Bishops for Visiting Clergy
A bishop may extend hospitality to a priest who is not incardinated to his diocese and allow said priest to live and work as a priest in his own diocese. If the priest has a history of problems involving sexual misconduct and the bishop is aware of this and allows the priest to live and work in his diocese anyway, there are serious questions regarding his responsibility to act in the event of a subsequent incident.
A legal agreement between the host bishop and the priest's own Ordinary may provide a partial remedy to problems pursuant to an incident.
6. Maintenance of Diocesan Records
A paramount concern is the security of diocesan records and the limits of confidentiality that may be successfully claimed by church authorities. This issue is governed by complex discovery decisions in the state and Federal law.
In civil law the courts allow lawyers who bring suits to use the process called “discovery” to make the defendant (in these cases, bishops and/or dioceses) produce records and personnel who may be compelled to give sworn testimony.
In the event of a class action suit such as the one that is threatened, the lawyers bringing the suit shall try to obtain records from each and every diocese in the country. They shall also try to obtain testimony from each and every bishop. All this shall be an attempt to document each and every known instance of sexual misconduct by a priest.
It is important to know what matter should be contained in a priest's personnel file, considering the very probable discoverability of these files.
The idea of sanitizing or purging files of potentially damaging material has been brought up. This would be in contempt of court and an obstruction of justice if the files had already been subpoenaed by the courts. Even if there has been no such subpoena, such actions could be construed as a violation of the law in the event of a class action suit. On a canonical level, to sanitize the personnel files could pose a problem of continuity from one diocesan administration to another.
One other suggestion regarding files has been to move them to the Apostolic Nunciature where it is believed they would remain secure, in immune territory. In all likelihood such action would ensure that the immunity of the Nunciature would be damaged or destroyed by the civil courts.
The canon law law speaks of secret archives. Are these safe from civil discovery whereas ordinary files might not be? Thus far it appears that the secret archives afford no more security from discovery than regular diocesan archives.
7. Uniformity of Case Management
At this time there is no uniformity of case management. It is desirable that such uniformity be developed in order to provide optimum assistance to bishops and diocesan lawyers. The same issues are present in similar cases in the different diocese such as:
* The confidentiality of diocesan records
* Legal arguments against liability
* The criminal defense posture to be developed for a priest-offender
* The responsibility of insurance companies to act in a manner that is not detrimental to Church interests
* Legal pleadings to be filed on behalf of all defendants and their contents
* Potential conflicts between defendants and with insurers
* The public posture of all parties in relationship to the general public and the wider church community as presented in press announcements and stories, statements of the bishop and other authorities related to the case as well as pulpit announcement.
All of the above legal efforts and the many others that arise should be coordinated so that a single, carefully choreographed theme is presented. This theme or posture should be consistent in character and design and produce a result that is advantageous for the Church, victims and the public.
8. The Discovery of Information that is Circulated About This Problem
If all of the possible questions related to this problem are posed and a suitable and complete set of answers drawn up and set forth in the form of a policy manual or procedural guideline, it would not be advisable to release such a manual/document to the Bishops of the country or to the diocesan lawyers.
Such information could fall into the hands of either the plaintiffs or the press and the document itself could be deemed discoverable and used as evidence.
Nevertheless it is virtually impossible at this time to compose a document or manual which a) adequately addresses the problem with all of its vitally important aspects and b) would not cause damage if it fell into the hands of the press or plaintiffs.
Only two major insurance considerations and eight civil law considerations have been noted for the sake of brevity. This is because the purpose of this entire document is to provide a basis for understanding both the enormity and the gravity of the total situation. To continue to list the hundreds of civil law considerations and the many insurance issues would expand this document beyond its intended format. Accordingly a limited listing of the criminal law considerations, clinical and medical considerations and canon law issues follows.
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