RELIGION IN THE NEWS Spring 2003

Not so long ago, it was a common complaint that reporters covering controversies involving religion and law understood the law but knew little about religion. Coverage of the recent sexual abuse scandals in the Catholic church indicates that there are now many journalists who can write knowledgeably about religion but few of them appear to be at home with legal affairs.

Of course, journalists cannot be experts in everything. Without an understanding of the legal context, however, the Catholic church’s response to sexual abuse litigation seems like nothing more than an evasion of moral responsibility.

Increasingly the Catholic crisis resembles one of those mass tort cases like tobacco or asbestos in which a relative handful of illegal acts are alleged to violate the rights of hundreds or thousands of individuals. In April the diocese of San Bernardino even filed suit against the archdiocese of Boston over transferring a priest who allegedly committed abuse, exactly as companies involved in other mass tort litigation sue one another to shift blame and responsibility.*

But the Catholic crisis has been written about with barely a reference to the larger issue of mass torts—as if elected officials throughout the country were not currently wrestling with it under the politically partisan rubric of “tort reform.” In mass tort cases the tort system is often unfair to defendants. But without it, many wrongs would go without legal redress.

Victims’ rights. How should courts balance claims of victims to redress against the social utility of keeping valuable institutions operating without facing bankruptcy for long-ago wrongs? Should victims be generously compensated even if the result is to bankrupt a company and cost hundreds or thousands of workers their jobs to remedy torts committed 40 or 50 years ago, as has happened in the asbestos litigation?

What course should the courts follow to insure that the first to sue in a mass tort situation do not get disproportionately large awards, leaving little or nothing for those who sue later, perhaps because their injuries are manifest only later? This has been a substantial concern in asbestos litigation, but is a problem in the church sex abuse cases as well. (The issue was explored in an article in Fortune, a business publication, in its April 29 issue.)

How does one apply rules of tort law to events that occurred years, even decades, before, when the rules were different and when what is common knowledge today was not common knowledge, and when the tendency was to award far smaller sums? It is now known that pedophiles are likely to repeat their crimes—but 20 years ago that was not commonly recognized. Can juries put aside what they now know and rule on the basis of what the defendants should have known then? This issue seems wholly unexplored.

Liability. How does one apportion liability between multiple actors who have varying degrees of culpability and pockets of different depth? Sometimes the party with the least culpability has the most money. Is it fair that that a wealthy party is forced to assume greater financial responsibility than indicated by that party’s own wrongful conduct?

Bishops did not abuse children; priests did. Yet it is the hierarchy and the church as an institution that is the focus of the current wave of litigation on a theory—not often enunciated in the stories—that the church was negligent in not removing pedophiles from the priesthood.

A notable exception was a June 23 story by Gregory Keish of the Portland Press-Herald that explored the basis of legal liability by looking at a plaintiff who rejected a settlement offer in order to create a precedent facilitating suits against the church. What is the responsibility of an institution when one of its employees commits a great wrong in violation of corporate policy?

The priests who actually molested children are almost all dead, in jail, or lacking substantial assets. Litigation is in part motivated by a demand that those who have done wrong be condemned. But without the church as a defendant, many—perhaps most—lawsuits seeking redress for child abuse would not make economic sense.

Victims are indeed outraged that the church knew of the abuse and did nothing to stop it. Yet the harsh fact is that if the church did not have money and the abusing priests did, there would be far less litigation against the church. The search for a defendant with deep pockets is a common feature of mass tort litigation, often leading to bold legal theories stretching the law and sometimes distorting moral responsibility in search of a defendant worth suing.

In many states, the rule is that all parties contributing to a wrong are liable to the plaintiff for the whole of the damages she has suffered. This is the idea of joint and several liability.

Assume two parties—say, a speeding drunk driver and the hotel bar that sold one drink too many—are responsible for a plaintiff’s injury. A jury finds the drunk 80 percent responsible and the bar 20 percent responsible for plaintiff’s injuries. The intoxicated driver lacks insurance and has no significant assets. The hotel would be liable for the whole award jointly with the judgment-proof primary wrongdoer, well in excess of its true responsibility. The rule insures that innocent parties are made whole, and proceeds on the theory that it is better that a wrongdoer run the risk of excess liability than an innocent victim go uncompensated.

The joint and several liability doctrine is understandably hated by corporate America. It is high on the target list of every tort reform proposal. As controversial as the doctrine is elsewhere, its application to the church sex abuse cases seems to have aroused little controversy. Why not?

Fraud. How does one weed out fraudulent cases (e.g. charges of abuse against the late Cardinal Bernardin) from the much larger number of genuine ones? It is not true that childhood sexual abuse charges are never fabricated. Dorothy Rabinowitz of the Wall Street Journal and the courts exploded that myth in examining cases of “recovered memory.” In the current atmosphere, how can the church protect itself against false accusations?

As I write this, lawyers for the Archdiocese of Boston announced that they would not seek the pretrial testimony of the therapists of abuse victims. Abandoning such inquiries—routine where a plaintiff demands damages for emotional harm—has been a major demand of victim groups. The victims’ demands have been sympathetically reported, but from a legal point of view -a point of view that has gone unmentioned-the demand is without merit. Why should not a defendant test the veracity of claims of crushing emotional damage before paying out substantial sums in damages? No competent lawyer would consider forgoing that opportunity—and if she were prepared to do so, the defendants’ insurer would likely insist upon it.

Going to Trial. Another troublesome feature of mass tort litigation—whether in the form of class action lawsuits or many individual cases consolidated for various procedural purposes—is whether any defendant can risk defending such an action on the merits. The economic costs of defeat are so great that the very filing of such a suit—if it passes a threshold laugh test as the sex abuse cases surely do—practically compels settlement regardless of the merits of the suit. Thus on May 7, 2002, the Los Angeles Times, in a rare editorial addressing this issue, criticized the archdiocese of Boston for pulling out of settlement talks with victims on the grounds that this “could endanger not only the reputation but the finances of the U.S. church itself.”

Corporate attorneys often complain that the class action lawsuit is fundamentally unfair because it is so expensive to defend and runs the risk of a drop-dead-sized verdict. Conversely, in the absence of the ability of numerous plaintiffs to band together to share the costs of litigation, relief would be financially impracticable and large-scale tort-feasors would escape justice. None of this is discussed with regard to the litigation arising from the abuse scandal.

Insurance. Without understanding the role of insurers, the legal behavior of the church is virtually incomprehensible. Other than such rare exceptions as the excellent pieces by the AP’s Rachel Zoll April 23 and the New York Times’ Laurie Goodstein July 3, reporters paid virtually no attention to whether a given diocese has coverage for claims that it was negligent in not removing pedophile priests; whether that coverage has been exhausted by already settled or litigated claims; or whether efforts like California’s to extend the time in which victims can sue exposes the church to liability for which its insurance coverage long ago expired? (Do policies cover liability as of the time of the occurrence of the wrong or when claims are made?) .

Occasionally church officials will be quoted explaining that their supposedly hardball litigation tactics came at the insistence of their insurance carriers. Although this is made to sound like an excuse, in fact the extent of insurance company control over litigation is a live and controversial one in the legal community.

Ignoring the role of insurance can, moreover, leave the public mystified about why certain laws are on the books, and why they might be changed. For example, both the Boston Globe and the Boston Herald accurately and repeatedly reported on a Massachusetts court decision in a medical malpractice case that upheld a state law limiting the liability of charitable institutions. The articles explained the decision’s potential impact on settlement negotiations over the failures of the Boston archdiocese to deal with abusive priests.

What they didn’t explain was why such charitable immunity may no longer be necessary: the fact that when it was instituted in the 19^th century, insurance was far less available—so any judgment would have been paid out of charitable assets. Nowadays, not-for-profit institutions can readily purchase insurance coverage, and most do.

Because the Catholic church is a highly visible hierarchical organization, the incomprehensible failings of its leadership are particularly evident. Institutions that purport to be moral exemplars generally do not get very far when they explain away their shortcomings with technical legal excuses.

As Robert S. Bennett, the Washington lawyer who serves on the bishops’ review board, told the New York Times June 13, “Those bishops who are not cooperating must start acting like pastors and shepherds of their flock, and stop acting like risk assessment officers of insurance companies.”

Nevertheless, when the church is sued, it must function in a legal as well as a moral environment. The public at large may expect it to do nothing but turn the other cheek. The news media are obliged to explain why it doesn’t.

* San Bernardino dropped its suit in July in what Bishop Gerald R. Barnes called a show of support for the new archbishop of Boston, Sean P. O’Malley.