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This document contains a discussion of an extremely serious situation
and a proposal to establish and fund a Special Project to be comprised
of a Crisis Control Team and a Policy and Planning Group.
Both the Team and the Group would work under the direct control and
supervision of an ad hoc Committee of four Bishops, all of whom have
civil law degrees. This Committee of four shall control every aspect
of the Special Project, subject to the supervision of a Committee
formed out of the National Conference of Catholic Bishops, under whose
auspices they shall be appointed, receive authority, and serve.
The Project itself, both the Team and the Group, shall be comprised
of professionals and consultants who possess a significant degree
of experience and expertise in their given fields. Some of this group
of experts from different disciplines shall devote the entirety of
their professional endeavor to the Project during its existence. Other
experts shall be retained as required. However, a group of professionals
shall be working full time on the Project.
It is contemplated that the minimum life of the Special Project shall
be five years. It is believed that following the completion of that
term, it would be beneficial to retain some of the elements of the
Project in place as Opposed to dismantling the entire structure. The
cost of the Project is dependent upon the caliber of consultants retained,
their degree of expertise and experience, and the portion of their
professional life to be devoted to the Project. The cost shall be
substantial.
HISTORY OF PROPOSAL:
Some extremely serious issues have arisen which issues presently place
the Church in the posture of facing extremely serious financial consequences
as well as significant injury to its image. As a result of sexual
molestation of children by Clerics (Priests, Permanent Deacons, Transient
Deacons), non ordained Religious, lay employees and seminarians, for
many months there has been continuous confidential communication amongst
some expert consultants and Clergy, all of whom possess hands on experience
with the more serious cases of sexual molestation. Through those discussions,
the idea of this Project was born. The scope of the Project has been
defined and re defined until it reached the final form presented herein.
It is contemplated that the very nature of the Project shall cause
further re definition during its existence.
The Criminal Considerations, Civil Considerations, Canonical Considerations,
and Clinical Considerations are of such magnitude, not to mention
the other substantial considerations such as Insurance and Public
Relations, that it was decided that thepresentation of these extraordinary
issues necessitated an extraordinary response, a response which would
affirmatively and aggressively attack the problems. This is a very
new and narrow area of legal jurisprudence which is developing with
a very adverse effect upon the Church s interests. In addition to
the legal issues, there are unique Canonical Considerations and extremely
complex Clinical Considerations which cannot or should not be addressed
in a piecemeal manner.
It is submitted that time is of the essence. At the moment this is
being read, problems with which the Project will deal are continuously
arising. Many of these problems appear to be old problems, and indeed
some are. However, all now carry con Y-26. What should the Ordinarsequences
never before experienced.
CONFIDENTIALITY OF THIS DOCUMENT:
The necessity for protecting the confidentiality of this document
cannot be overemphasized.
The document was drafted by retained counsel hired for the specific
purpose of communicating to the reader, however, though much of the
language is that of counsel, the document is reflective of the thoughts
of Clergy and other professionals in different disciplines, professionals
who have worked closely with counsel throughout the development of
these ideas. An effort has been made to have this document afforded
the protection and privilege provided under our law for confidential
communications. That privilege shall not apply should the reader discuss
same with anyone other than a recipient of this document.
In an abundance of caution and in consideration of the reader, great
care has been given to protect the anonymity of any case mentioned
or alluded to, and further there is no specific reference herinbelow
nor is there any allusion to any fact in litigation which has not
been publicly reported in the press. This has been done to protect
the reader so that the reader may not be placed in a position of having
received any specific knowledge not generally known to the public
and thereby become the target of a subpoena or other discovery device.
The national press has an active interest in items discussed herein,
and therefore, an abundance of caution is required. It is requested
that each reader return the document to the person from whom they
received same, without copying. It is requested that no copy be retained
by the reader. The rationale for this request is the great interest
of the press. Over the last two weeks there has been national press
coverage of the problem and that coverage is increasing. Security
for the entire Project is extremely important.
INTRODUCTION
AN ILLUSTRATION OF ONE CASE:
Over ONE HUNDRED MILLION DOLLARS (S100,000,000.00) in claims have
been made against one Diocese as a result of sexual contact between
one Priest and a number of minor children. To date the cost of this
catastrophe exceeds FIVE MILLION DOLLARS ($5,000,000.00) and the projected
cost of concluding the civil cases in that Diocese alone is in excess
of TEN MILLION DOLLARS (Sl0,000,000.00).(1)
It is not hyperbolic to state that the dramatic description of the
actual case contained hereinabove is indicative that a real, present
danger exists. That other cases exist and are arising with increased
frequency is evidenced by reports of same. If one could accurately
predict, with actuarial soundness, that our exposure to similar claims
(i.e. one offender and fifteen or so claimants) over the next ten
years could be restricted and limited to the occurrence of one hundred
such cases against the Church,
(1) Settlements for seven cases and fees and expenses exceeded $5,000,000.00.
The average settlement for each case was nearly $500,000.00. Ten cases
remain to be settled.then an estimate of the total projected losses
for the decade could be established with a limit of ONE BILLIION DOLLARS
($1,000,000,000.00).(2)
A TEN BILLION DOLLAR (SlO,OOO.,OOO,OOO.OO) class action lawsuit has
been threatened, which threat is documented, and others who have not
threatened same in writing, including Melvin Belli of San Francisco,
are contemplating same. The suit would be brought on behalf of a number
of children who are alleged victims of sexual abuse by priests and
would be filed against the entirety of the Church. The effort would
be to embroil the whole structure in the controversy and conduct discovery
in each and every Diocese in this country in an effort to discover
all damaging information.
The financial factors mentioned in the preceding paragraphs are actual
and illustrative of what is now occurring in sexual molestation cases
across the country.
In the case cited above, the priest has been charged in a thirty four
count criminal indictment by a Grand Jury and the crimes with which he is charged carry
a sentence
upon conviction of life imprisonment without benefit of pardon or
parole. The estimated cost of criminal defense is one half million
dollars and with the prospect of a lengthy trial.
(2) Approximately thirty cases have been reported in the press involving
approximately one hundred children. At the rate the cases were settled
in the first paragraph, over $400,000,000.00 will be needed just for
these cases. As this was being typed on June 8, 1985, the Associated
Press reported the arrest of a priest in Florida. At the rate cases
are developing, $1,000,000,000.00 over ten years is a conservative
cost projection. The Priest is presently housed at a private mental
institution approved by the Court where he shall remain pending trial
at a cost of ten thousand dollars monthly.
There are a number of civil trials from that case which have been
set to commence beginning September 10, 1985.
Each development of that case has carried with it attendant adverse
publicity. That publicity was local in nature originally but has now
become national.
There are presently a significant number of other sexual molestation
cases involving Priests which exist in other jurisdictions. This document
shall not allude to those out of deference to the reader as many aspects
of same have not been widely reported.
Presently all three major networks (ABC, NBC, CBS) and sub divisions
of same (20/20, 60 Minutes), as well as CNN NEWS have reporters assigned
to developing stories. Some have had crews on location shooting second
unit (background) footage for inclusion in segments to be shown later.
All national radio networks, as well as CBS Evening News and NBC Evening
News have shot filmed reports.
A minimum of six national print publications (NEW YORK TIMES, THE
WASHINGTON POST, NATIONAL CATHOLIC REPORTER, VANITY FAIR, MOTHER
JONES
and ROLLING STONE) have reporters in place trying to tie the isolated,
regional episodes into a national story, presumably one of scandalous
proportions. Several of these publications have already published
lengthy articles (See NCR 7 June 1985). Two previously published authors,
Mr; Jason Berry (author of Amazing Grace and regular contributor to
many magazines of national import) and Mr. Chris Segura (author of
Marshland Brace, which was nominated for the Pulitzer and a former
wire reporter covering European Affairs), are attempting to place
book proposals with publishers on this topic. At least one writer
has applied to the Fund for Investigative Journalism for a grant to
do a full length work on Pedophilia, Priests and the Catholic Church.
All major wire services are now distributing articles and national
commentators such as Paul Harvey have done pieces.
The American Bar Association and other groups comprised primarily
of plaintiff lawyers are conducting studies, scheduling panel conferences,
and devising other methods of disseminating information about this
newly developing area of law. Thus far three plaintiff lawyers representing
children who have sued the Church have agreed to make a presentation
at two national meetings of the Bar to educate other lawyers on methods
of successfully suing the Church.
Our Diocesan lawyers have themsleves addressed this situation and
some of its ramifications as recently as their April meeting in Chicago
and there presently exists an ongoing effort by some to study the
problems. Though these efforts may produce significant studies, it
is believed that the retention of full time professionals and expert
consultants is preferable to relying upon those whose responsibilities
are already full time to takethis task and exert the requisite effort.
It is contemplated that the Project, where feasible, shall avail itself
of already existing resources and in Some instances a coalition between
those within the official structure of the Church and outside consultants
on the Project shall be formed, i.e. where competent professionals
exist within the USCC and other organizations and have ery to make the defendant (in
thwork loads
requiring less than their full attention, then, in those situations
it is possible the Project personnel may reach to those resources
for assistance.
A GENERAL DISCUSSION:
There are many newly developing areas of jurisprudence which deserve
our attention. An example is the newly developing area of Clergy malpractice.
Suits are being filed against Protestant Ministers and Catholic Clergy.
These malpractice cases involve situations where clerics give advice
which is considered by the civil courts to be beyond their sphere
of expertise or competence. This advice allegedly causes catastrophic
consequences (divorce, suicide) resulting in civil suits. This document
recognizes that a vast number of such issues exist separate and apart
from sexual molestation, have been discussed in the confidential consultations
and meetings referred to above. It is contemplated that the Projectwill
deal with those issues as well as all other issues referred to it.
However, this document has largely been restricted to a discussion
of what has been perceived as the pressing problem, the possible cost
to the Catholic Church of many millions of dollars and the potential
devastating injury to its image as a result of inappropriate or felonious
sexual activity between Priests and parishioners, lay employees of
Religious Institutions and third parties, and related areas involving
consequential civil responsibility and criminal sanctions . . . which
situations give rise to Canonical and Clinical Considerations equal
in import to the civil/criminal concerns.
This is the "age of litigation." The potential exposure to the Catholic
Church for the continuation of claimants coming forward in legal jurisdictions
across the country is very great. Already, a large number of damage
claims have been made and more are certain. It might have been unthinkable
a few years ago for a Catholic parent to sue the Church. Similarly,
there was a time when it was unthinkable for a patient to sue a physician.
The analogy with medical malpractice is well taken. This area of jurisprudence,
i.e. the Church s financial responsibility for damages caused by the
sexual conduct of a Priest, is presently situated where medical malpractice
litigation was a quarter century ago. There are absolutely no definitive
appellate court decisions which exist at present on the substantive
questions. The law is waiting to be made! And it will be made, with
or without the Church s involvementin the process. presently the Church
is prepared to participate in the process through the non uniform,
random actions of individuals (local Diocesan lawyers and others)
with the result being a divergent application of the Canonical, Clinical,
Civil and Criminal Considerations. This Special Project seeks to rectify
that immediately by making uniform assistance available to those Bishops
and local lawyers who wish to avail themselves of this offered assistance.
In this age of litigation plantiff lawyers are constantly breaking
barriers down, finding new causes of action, and searching for deep
pockets, defendants to sue who possess great financial wealth. The
Catholic Church is undoubtedly perceived by plaint~ lawyers to have
very deep pockets, to have a very serious interest in its image, and
therefore should become the biggest target in this newly developing
field of jurisprudence, i.e. seeking comp~ sation for an allegedly
abused child from the employer or parent organization of the wrongdoer.
"Pedophilia" and related deviant disorders is an area which has been
closeted in Western Civilization for centuries. Most individuals and
organizations, including the Church and Bishops, who were ever confronted
with the issue of illicit sexual relationships between adults and
children responded in a manner they thought to be responsible in an
effort to protect the injured child and aid the offending Priest.
It is now known because of strides in the Clinical field, that perhaps
those actions insofar as they aided, comforted or enabled the sex
offender to continue his secretlife were irresponsible and injurious
to the sex offender. Though psychological study is still in its infancy
in some respects, much more is known about the long and short term
traumatic injury inflicted on the victim.
In any event, the entire issue of "Child Sexual Abuse," whether same
be categorized as pedophiliac, homosexual or heterosexual, is displayed
prominently across the front pages of newspapers where it shall remain
for at least the balance of the decade (having replaced the sexual
issue of the seventies, homosexuality).
The general awareness and consciousness of the public in regard to
sexual abuse of children has reached a previously unattained level
and shall continue to escalate with each new revelation of discovered
cases of sexual molestation. This increased awareness, widespread
publicity, and the excellent educational programs available to children,
which we all support, shall increase the reporting of such incidents
and increase the likelihood that both civil and criminal actions shall
be instituted against the offender and those sought to be held legally
responsible with the wrongdoer.
For well over a decade the news media of this country has exhibited
a tendency to attack institutions presently or previously held in
high esteem by the public, including the Presidency. The tendency
is ever escalating, particularly in instances where the press can
characterize a situation as scandalous.
Cases of this nature have all of the necessary elements for press
reporters and plaintiff lawyers; there is a significantinjury, psychological
in nature, to a sympathetic victim of tender age, an odious and heinous
circumstance surrounding the infliction of injury which engenders
prejudice and punitive awards from juries against the defendant Church,
an organization perceived by many to be possessed of great wealth.
Also, the secular press attempts to portray the Church as hypocritical,
as an organization preaching morality and providing sanctuary to perverts
. . the attempts are in evidence today and shall escalate.
DESCRIPTION OF POSSIBLE CASE SCENARIOS
Experience has shown that sexual misconduct by the clergy takes a
variety of forms. While the cases have common threads running through
them, there are many dimensions and tangential aspects that could
occur. All of the elements of each case must be given careful study.
Though many hypothetical cases could be considered, the fol lowing
are brief descriptions of five realistic yet hypothetical occurances.
The listing is illustrative only, and intended to provide a basis
for the pertinent questions which follow.
HYPOTHETICAL CASE NO. 1:
As Bishop, it comes to your attention, as a result of a visit from
a parishioner, that an associate Pastor is suspected of having had
sexual relations with one or more children not related to complaintant.
HYPOTHETICAL CASE NO. 2:
As a Bishop, you have confirmed a suspicion that a parish priest has,
over a long period of time, been involved sexually with juveniles.
HYPOTHETICAL CASE NO. 3:
As a Bishop, you have confirmed a suspicion that a parish priest has,
over a long period of time, been involved sexually with juveniles
and further that some of the parents have retained lawyers, some have
gone to the criminal prosecutor and others have contacted various
media representatives.
HYPOTHETICAL CASE NO. 4:
A case involving a pedophile priest arises in a jurisdiction where
the criminal Prosecutor has great animosity against the Church. This
Prosecutor has the most devastating of legal weapons in his arsenal,
the Grand Jury Subpoena, which allows him to bring all of the Diocesan
records and personnel he desires into a closed room, subject to cross
examination, without counsel to advise them. It is the setting for
a witchhunt that the vindictive plaintiff lawyer referred to above
tried to institute in a civil case, i.e. it was his announced intention
to prove a
pervasive pattern of widespread
sexual dysfunction and by implication
argue same has been condoned by the Clergy. A case is now developing
where these explosive elements are present.
HYPOTHETICAL CASE NO. 5:
A case involving a homosexual priest who has been suspended by a Bishop
following the discovery of his sexual activity with a juvenile or
adolescent. In this hypothet, the priest is a Gay Liberationist and
as such retains the services of a Gay lawyer, the support of Gay organizations
. . . and strikes back at us, suing to show, among other things, all
sexual skeletons in our closet across the country. There is a strong
Gay ministry movement as evidenced by the literature and this hypothetical
confrontation can occur.
The following are select questions which should be considered in dealing
with these kinds of cases. They are divided into the following categories:
criminal law questions; civil law questions; canon law questions;
clinical or medical questions.
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?
S. Does the criminal law provide that the Bishop s files or other
diocesan records can be subpoened 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?
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