Suing the Church

Charles J. Chaput, O.F.M. Cap.

Copyright (c) 2006 First Things 163 (May 2006): 13-14.

Last summer, attorneys in Colorado filed the first sex-abuse lawsuits against the archdiocese of Denver since the national clergy abuse scandal began four years ago. All of the suits involved two men: one, a laicized former priest who left active ministry more than a decade ago, and the other, a priest dead for more than a decade. Several of the suits have since named individual parishes as targets along with the diocese. Every claimed incident of abuse occurred more than twenty-five years ago. Nearly all occurred in the 1960s and 1970s.

Under Colorado law, plaintiffs’ attorneys have a problem. So many years have passed since the incidents claimed by their clients that their suits may be barred by the statute of limitations. This frustrates victims who seek what they perceive as justice and closure. It also stymies attorneys who know that suing the Catholic Church can be extremely lucrative. Since the early 1990s, the flow of current abuse cases has steadily declined. Breaking open the past could provide a new and profitable frontier for continued sex-abuse litigation. But that requires changing the rules—and applying them retroactively.

And so in Colorado, and a dozen other states, a new and unsettling legal struggle has opened to eliminate or sharply revise the current statutes of limitations that govern lawsuits concerning the sexual abuse of minors. The outcome will have enormous implications for the future of Catholic life in the United States.

Statutes of limitations exist for good reasons: to protect justice, not prevent it. They were created to encourage a timely and fair resolution of claims, which is why law-enforcement officials support them. Over time, memories fade, witnesses die, evidence grows stale, and fraudulent claims increase. But state laws involve two different kinds of statutes of limitations: criminal and civil. Criminal statutes cannot be amended and then applied to past actions, since the United States Constitution expressly forbids retroactive criminal laws, known as ex post facto law. But some lower courts have ruled that civil statutes can be extended into the past. Civil lawsuits have a much lower threshold for proof than criminal cases. As a result, retroactive civil liability puts a huge defense burden on any accused individual or institution. In fact, just the possible cost of a legal defense can force a diocese into settlement talks. This serves plaintiffs’ attorneys and the persons they represent quite well. Whether it really serves justice is another matter.

Plaintiffs’ attorneys and victims’ groups often work together in this new strategy of amending the statutes of limitations. Victims’ groups may act as stimulants to sympathetic news media and state lawmakers. Plaintiffs’ attorneys may then offer help in drafting new legislation from which they themselves hope to benefit. This happened in California with Senate Bill 1779, which became catastrophic state law. The bill opened a one-year window to revive expired California sex-abuse claims, some from seventy years ago, and more than a thousand plaintiffs then filed previously expired claims. The California bill was developed with the direct assistance of attorney Jeffrey Anderson, who has very profitably sued Catholic dioceses and institutions across the country for years. A proposed Colorado version of the legislation is modeled directly on California’s.

Once the public is suitably sensitized by news media in a target area, pressure on lawmakers grows to provide “justice” for those victims whose claims have expired due to statutes of limitations. Some victims may say they were too frightened to come forward until now. Others may say they were so traumatized that they couldn’t remember their abuse until recently. Typically, attorneys will then argue that the only way their clients will get closure and peace is by litigating their expired cases. It’s an effective, appealing argument, and no one can dispute the real suffering that goes with the experience of abuse.

In judging it, however, we need to consider the bill’s basic fairness. Any revision to civil statutes of limitations must be comprehensive, fair, and equally applied. This almost never happens. The data clearly show that the sexual abuse of minors is not a disproportionately Catholic problem. In fact, some of the worst adult sexual misconduct with minors occurs in public institutions, particularly public schools. But in most states, those schools enjoy some form of governmental immunity. In other words, it’s far easier to sue a private institution, such as a Catholic diocese, than it is to sue a public-school district. It’s also a lot more lucrative since, even if governmental immunity were waived, public schools and institutions usually enjoy the added protection of low caps on damages (in Colorado, $150,000). For exactly the same sexual abuse in a public school and a Catholic parish, the difference in financial exposure is millions of dollars.

This has a clearly prejudicial impact on Catholics. But it’s also bad law for everybody. Hofstra University’s Charol Shakeshaft, the leading expert on public school sexual misconduct, testified to the Colorado General Assembly earlier this year that nearly 7 percent of students nationally report “being sexually abused in a physical manner by an educator in public schools.” That means, according to Shakeshaft, that “of the approximately 45 million students attending public and private K-12 schools, more than 3 million will have been the target of physical sexual exploitation by an employee of the school by 11th grade.”

If the sexual abuse of minors is so grievous—and it most certainly is—why should its punishment be harsh for Catholic and other private institutions, but soft for public schools where it occurs more frequently? Ironically, most current state laws hold public schools and institutions less accountable—precisely because citizens pay taxes for them. That makes no sense.

Worse, as Shakeshaft points out, “national data indicate that few [public school] administrators report educator sexual misconduct to the police or district attorney. When this abuse is reported to the criminal justice system, it comes from parents or others.” And reporting patterns in public schools “show that when students do report [educator sexual misconduct], they are often ignored. Teachers and other staff in public schools are often moved from school to school when allegations emerge, rather than the school attempting to remove the teacher from the district.” This is exactly what many Catholic dioceses have been accused of in the past, but with devastating financial consequences for the dioceses.

There is an inequity hardwired into the whole national discussion of sexual abuse. Catholics can live with hard laws if they serve the common good—but the laws need to be equally hard for all offending persons and institutions, with the same rules and penalties and no hidden escape clauses.

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Revenge, Francis Bacon once warned, is “a kind of wild justice, which the more man’s nature runs to, the more ought the law to weed it out.” It makes no sense to hold innocent people accountable today for the evil actions of a small number of individuals from decades ago. Diocesan insurance policies, when they apply at all, cover only a modest portion of the crippling sex-abuse settlements that have now become routine. No secret vault of gold exists to bail Catholics out of this attorney-driven legal siege. The people paying for these abuse settlements are innocent Catholic families who had no part in events of the past. Revenge is not justice, no matter how piously one argues it. Punishing the innocent is wrong, yet that’s exactly what laws imposing “retroactive liability” are designed to do.

Then, too, settlements should be based on balanced restitution. They should be rooted in the facts of what will help a wounded person heal and find a fresh start—and not on a litigation “market price” based on the last highest settlement paid by another institutional defendant. Justice is a right balance of competing legitimate rights and obligations; it is not a form of auctioneering. Communities of faith have an obligation to generously help the people who have been hurt by their members, past or present. But they also have a right to maintain their mission of serving others and to be protected from predatory judgments designed to gut their resources and identity.

The current effort to amend the civil statutes of limitations governing sexual abuse—which really involves an effort to impose retroactive liability and a new wave of lawsuits on Catholic communities—will continue in more states in the coming months. It could easily decimate the remaining resources of the Catholic faithful in the United States and steal the religious future from a generation of Catholic young people.

In working to protect the future of the Catholic community, we always need to remember that innocent people and innocent families were hurt in the past by some members of the clergy who did terrible things. Some victims have recovered and moved on. For others, the wounds never heal. All of their lives are precious in the eyes of Jesus Christ, and therefore also in the eyes of Christ’s followers. Helping them, supporting them, praying for them, and seeking to understand their suffering—while also defending the Church—cannot be mutually exclusive, since all these things serve the truth. Caring for the victims of abuse and assisting them sacrificially is a good and urgent thing. So is fighting bad laws. We need to focus earnestly on both.

Most Reverend Charles J. Chaput, O.F.M. Cap., is the archbishop of Denver.