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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.
Coveraqe 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
rex paraphilia disorders.
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.
I. 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 o~ 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 metopolitan archdiocese, the
Holy See s representative in the United States and the Holy Father
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 aberrrant 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 per suant 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 obtam 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 subpoened 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 desireable
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 insurors
*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 advantageious 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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