Legal Defense

When sued, how should the church behave?

By Mark A. Sargent, dean, Villanova University School of Law

© 2002 Commonweal Foundation, reprinted with permission.  For subscriptions commonwealmagazine.org

How can the Catholic Church justify defending itself against lawsuits brought by those who claim to be the victims of sexual abuse by priests? Should not the church, in all honesty and humility, arid in the spirit of penitence, work things out quietly with the plaintiffs' lawyers, and pay out the cash damages they demand? Isn't legal resistance‑and sometimes vigorous resistance ‑ simply a perpetuation of the pattern of coverups that helped create the problem? Has riot the church, by choosing to litigate many of the claims against it, reduced itself to the level of those corporate malefactors who use their deep pockets to finance relentless legal defenses against the victims of their environmental crimes, defective products, or financial fraud?

Many critics think that the answers to those questions are obvious. A forceful legal defense by dioceses, archdioceses, and the Holy See itself against claims of legal responsibility, it is argued, is flatly inconsistent with the church's claims of moral authority. The church is condemned as hypocritical and irresponsible for relying on "technicalities" such as statutes of limitations‑which bar claims brought too long after the offending act‑to cause claims to be dismissed. A defense lawyer's attempt to undermine the credibility of the plaintiff is. likely to be described as a "scorched earth" tactic or, even worse, blaming the victim. Even the mere attempt to negotiate the amount of a cash settlement to a level lower than that demanded by the plaintiff may be thought of as a nasty, lawyerly trick reflecting the church's basic unwillingness to accept its responsibilities. The church's insistence on its day in court is yet another proof of how the church just doesn't get it.

To hint, furthermore, that the church's defensive legal strategies might be appropriate will lead to the charge of complicity in the hierarchy's denial of the seriousness of the problem, its unwillingness to take decisive action against priestly offenders, and its inability to act aggressively to prevent future problems. Even worse, making such a suggestion lays one open to the charge of insensitivity to the pain of victims.

Nevertheless, the conclusion that the church should not defend itself at law is wrong, or at least dangerously simplistic. The question of the church's legal responsibility, and how it should participate in the process of determining, the nature and extent of its liability, is not an easy one. First of all, legal responsibility must be disentangled from moral responsibility. Although obviously related, they are not coextensive. The church's institutional moral responsibility for the creation and perpetuation of this scandal is obvious. The perpetrators, facilitators, and bystanders stand condemned in the eyes not just of the rest of the world, but of the faithful themselves. The integrity of the church, and particularly of the hierarchy, will be measured by its willingness to respond to this profound moral crisis. That response, which must be comprehensive and multileveled, will have to include payment of substantial cash damages, both to compensate the, victims for their suffering, and as a tangible act of expiation. Those payments, in a small way, will . help restore the moral order of a fractured spiritual world. Acceptance of that moral responsibility, however, does not mean that every church institution must always accept the level of legal responsibility as defined by every plaintiff's lawyer.

It is important to understand what this means. Each complaint filed by a plaintiff's lawyer sets out a narrative identifying who was abused, who committed the abuse, when and how the abuse happened, how serious it was, and how a church institution or individuals within the institution were actively or passively complicit in the abuse or negligent because they failed to deal with it. The plaintiff's lawyer will also put forward a legal theory of why the church institution and its leaders or administrators, and not just the priest who committed the abuse, should be legally liable to the alleged victim, and why the particular level of compensatory or punitive damages sought is justified. In other words, the lawyer representing the victim of sexual abuse will present, as forcefully and persuasively as possible, a definition of the nature and extent of legal responsibility for that abuse.

That definition, however, should not be confused with truth. This is not to suggest that the claims as presented by all plaintiffs' lawyers are necessarily mendacious. It is to recognize that the factual narrative and legal theories presented by a plaintiff's lawyer are highly instrumental expressions of advocacy. They are designed to produce a result: the establishment of liability for the defendants and the maximum possible damage awards. They tend to‑ be black and white, unnuanced and overinclusive. They are, almost by definition, biased. Of course, there is nothing inherently wrong with that. In our adversarial legal system, we expect our lawyers to be zealous advocates. In fact, they have an ethical obligation to act that way. But their narratives and theories, as expressions of advocacy, must be evaluated critically by the defendants and, ultimately, resisted when the defendants determine in good faith that the claims are insupportable factually or legally. Even a church has no moral obligation to assume that every legal claim against it constitutes objective truth. Indeed, to the extent that our legal system can produce anything even remotely approaching objective truth, it will come through working out the conflicting views of the facts and the law. That's what the adversarial process is all about.

Recognition that a plaintiff lawyer's legal claims may bear only an approximate or even distant relationship to truth is not to deny that there was significant sexual abuse by clergy, or that in some cases officials of the institutional church arrogantly, selfishly, or foolishly made the problem worse. It is simply to recognize that not every claim is necessarily meritorious, or at least meritorious. to the. extent asserted, and that the church may be justified in litigating some claims.

Consider, for example, the following possibilities about the type of "facts" asserted. The central assertion in these lawsuits hill be that someone was actually abused by a priest. Among the many actual victims will be those who put forth false claims looking for a quick payday. Is such cynical opportunism un‑ thinkable? Not to anyone with an even casual familiarity with our tort system, particularly when publicity and a receptive environment seem to invite a feeding frenzy. A notorious case in point was the baseless claim made by Steven Cook in 1993 against Cardinal Joseph. Bernardin of Chicago. That type of opportunism may also be facilitated, if not instigated, by unscrupulous, entrepreneurial lawyers who typically stand to gain at least 33 percent of any settlement. Of course, such opportunism will be the exception rather, than the rule; but its possibility justifies a critical approach to any lawsuit and a decision to litigate when appropriate.

The recent experience with allegations of sexual abuse by daycare providers is instructive about the uncertainty of the "facts" alleged in legal complaints. Although the daycare cases mostly involved young children with limited recollection and awareness and the priest cases typically involve adults who were molested as older children or adolescents, both concerned shocking violations of trust by caregivers. As the daycare eases unfolded, the falsity of some of the claims became apparent, and came to be recognized as the result of a kind of hysteria, as well as the. manipulations of well ­intentioned but misguided mental‑health professionals or overly aggressive lawyers. It does not appear at this point that most of the cases involving priests will prove to be as fanciful as some of the daycare cases. After all, the plaintiffs in these cases are mostly adults, and usually remember very well what happened to them. But the possibility that an individual's memory and sense of injury can be distorted by a social atmosphere of hysteria, or the manipulations (conscious or unconscious) of professionals with a stake in the outcome, must be taken into account.

The plaintiff lawyer's narrative of what happened after church officials learned about the alleged abuse is even more questionable. It is usually based on the imperfect knowledge of the victim or his relatives and limited access to the records the lawyer representing the victim of sexual abuse will present, as forcefully and persuasively as possible, a definition of the nature and extent of legal responsibility for that abuse: That definition, however, should not be­ confused with truth or personal testimony of the church officials. Multiple actors, and not just the priest and his victim, will have been involved, and a series of actions will have to be accounted for and described, adding to the uncertainty. The plaintiff lawyer's interpretations of what the church did with the accused priest and why are likely to be conclusory and onesided. Only the legal process of discovery, by which a lawsuit proceeds through the mandatory production of documents, records, and personal testimony, will clarify the facts. Until that process unfolds, the lawyer's story about how the institution responded cannot be accepted at face value.

Even more important, the legal conclusions derived from the facts as presented by the plaintiffs lawyer will have to be rigorously scrutinized, even when the facts are uncontroverted. A decision not to report an accused priest to the criminal authorities may not have been illegal at the time. An agreement with the victim's parents to keep the matter confidential may not have been a cover‑up, but an expression of the parents' true desires. A decision to send a priest to psychological rehabilitation rather than jail may have been based on a then prevalent misconception about the effectiveness of treatment rather than negligent indifference to the risk of repeated offenses. All of these actions may have turned out, in retrospect, to have been mistakes. They may reflect a tragic misunderstanding of the risk of recidivism by compulsive sexual predators. They may show a failure to appreciate the terrible cost of silence, even agreed‑upon silence. Collectively, they may undermine the faithful's trust in the wisdom of their spiritual leaders. But do these actions necessarily, as a matter of law, constitute the type of recklessness or negligence essential to a finding of legal liability? Do they represent the type of malice or extreme disregard for the consequences of one's actions that justify a judicial award of punitive damages?

In some cases they will. The record is replete with instances of horrendous situations that were covered up, and families quietly bought off, because church leaders were more concerned about public embarrassment or protecting the diocesan purse than with justice, pastoral responsibilities, or protecting future victims. In those cases, the facts will support significant legal liability. But in other cases they will not, as the process of litigation will show. As the current crisis unfolds, the church is developing a more sophisticated understanding of the dynamics of sexual abuse and the costs of institutional passivity and silence, and much better practices for the prevention of and response to abuse are being adopted. But current "best practices" will not necessarily be the standard for determining legal liability for decisions made twenty or thirty years ago.

Finally, there may be room for dispute even when the facts are established and the legal basis for liability is clear. The amount of damages sought may be astronomical, particularly in cases involving multiple plaintiffs. The calculation of damages in personal injury cases is more of an art than a science, particularly when the injuries are psychological, rather than physical. How does one calculate, for example, the value of so‑called hedonic injuries, the diminishment of the victim's capacity to enjoy life as a result of the wrongful act? It is not trivialization of the harm caused by sexual abuse to point out that in cases involving psychological injuries reliance on junk science and dubious, result‑oriented expert testimony can raise serious questions about the reliability of the damages deemed appropriate by a plaintiff's lawyer. There is thus plenty of room for reasonable disagreement about how much even a just claim is worth.

In addition, an agreement that the payment of damages is both necessary and just does not mean that the diocese or archdiocese must accede to institutional suicide by agreeing to enormous settlements. Major business corporations indeed have been destroyed by massive tort liabilities for defective products (as in the asbestos cases), with tremendous and justifiable losses for their shareholders. But the church is different. Its resources are gathered and spent not for profit, but primarily for charitable, educational, and spiritual purposes. The deserving victims must get their fair share, but that does not mean that church institutions must be bankrupted to compensate what is, in relative terms, a small number of victims of a small number of priests. This is not just a matter of fairness; the social and spiritual costs of such a wealth transfer would be unsupportable. Good faith negotiation of reasonable settlements is thus entirely appropriate.

For all of these reasons, a decision to litigate a sexual abuse claim may be entirely justifiable and consistent with the church's claim to moral authority. That is an important conclusion, both practically and morally, but it must be contextualized. Decisions to vigorously resist claims because they are unfounded, exaggerated, or excessive in the damages sought cannot be the only responses to this crisis. Where liability is clear and the damages sought are reasonable, resistance for the sake of intimidation of both present and future plaintiffs is unworthy of and dangerous for a religious institution that must seek the moral high ground. More broadly, legal self‑defense is appropriate only in the context. of the church's sweeping recognition of its moral responsibility for this crisis and its obligation to make major changes.

The decision to defend itself vigorously in court will seem legitimate both to the faithful and those outside the church only if the church also investigates rigorously the reasons for the incidence. of sexual abuse among the clergy and the institutional dynamics that prevented more effective and just responses to individual cases, and develops more trustworthy mechanisms of transparency and accountability.

That process of institutional reform must be public, inclusive, and thorough. If it is not, the "solution" to the crisis will be sought precisely where it does not belong: in the American tort law system. The results ultimately will be of little use to the church or to its alienated faithful.