Damages Sought from Diocese; Did Bishop Have a Duty to Act?
Piercing the Veil of the Confessional
By David Ranii
National Law Journal
May 16, 1983
CAN A Roman Catholic bishop and his diocese be held liable for negligence if someone allegedly is injured because the bishop failed to act on information he obtained from one of his priests in the confessional?
That thorny question is at issue in a Duluth, Minn., lawsuit — apparently the first of its kind — in which damages are being sought from a diocese whose priest previously pleaded guilty to fourth-degree sexual misconduct after being charged with a September 1980 homosexual assault on a 15-year-old boy.
The suit, which seeks in excess of $50,000 each in actual and punitive damages, was filed by the youth, now 18, and his parents.
The suit charges that officials of the Diocese of Duluth were negligent because they allegedly were aware of past homosexual contact between the priest and juveniles but did not take steps necessary to protect youths in the diocese from similar incidents, said the family's attorney, Dennis J. Korman of the Cloquet, Minn., firm of Newby, Dodge, Korman, Lingren, Warp & Newby Ltd.
Anderson v. Puhl, 159581 (St. Louis County District Court).
Defendants named in the suit are a former Cloquet priest, Dennis Puhl, his parish, St. Casimir's Catholic Church, the Diocese of Duluth and Bishop Paul Anderson.
Precisely what the diocese knew about the priest's past homosexual conduct is shrouded in the priest -penitent privilege.
The Rev. Puhl, in his mid-30s, is now receiving psychiatric treatment in Milwaukee, a condition for the suspension of the 21-month jail term he received for the 1980 incident, according to a local paper. The priest has admitted in a deposition in the civil case against him that he had homosexual contact with several youths in 1977 while he was co-pastor of a parish in Virginia, Minn., and that he had received treatment for sexual problems at that time, according to Mr. Korman. But he claimed that conversations about his problem with Bishop Anderson and his co-pastor in Virginia were protected by the priest -penitent privilege because they occurred in a confessional setting.
Canon Law Requirements
The bishop, according to Mr. Korman, has denied ever having any such conversations, but Mr. Korman believes that this discrepancy is due to the canon law requirement that a confessor cannot reveal any information learned during confession.
The bishop also stated while being deposed that canon law forbids him from taking any action whatsoever based on information acquired during confession, said Mr. Korman. He said the bishop's position is that, under church law, "what is heard there, stays there . . . He is saying he cannot even admit he talked to the priest in the confessional."
However, said Mr. Korman, "civil law can hold [the bishop] to a different standard." He said he will argue before a jury that the bishop's inaction "may be fine as a matter of religious practice. But as a matter of civil law, the law cannot allow him to get away with that" and, consequently, the bishop and the diocese should be held liable.
Mr. Korman said he also is optimistic about finding an expert witness to testify that, under church law, the bishop could take certain actions based on information obtained in the confessional — such as transferring the priest to a position where he would not have contact with children — "as long as the reasons for the moves" are not disclosed.
Lawyers representing the diocese declined to comment on the case. However, the Rev. James Provost, executive coordinator of the Canon Law Society of America in Washington, D.C., said Canon 890, Sec. 2 of the Roman Catholic Church's canon law provides that confessors are not allowed to use any information about sins obtained in the confessional "in their external governance." The newly revised code of canon law, scheduled to take effect Nov. 27, says essentially the same thing in slightly different language, he added. (NLJ, Feb. 7.)
The Rev. Provost said that a confessor's "hands aren't totally tied" but his influence is restricted to the spiritual arena. For example, he said, a confessor can require a penitent to take certain action as a condition of absolution.
Mr. Korman asked St. Louis County District Judge Donald Odden to force the Rev. Puhl to provide more information about his conversations with the bishop, claiming that under state law the penitent has the burden of proving that the communication at issue falls within the priest -penitent privilege. However, Judge Odden ruled April 27 that this issue should be dealt with at trial.
A trial judge has yet to be assigned to the case.
If the priest provides sufficient information at trial to prove that the conversations at issue took place in a confessional setting, said Mr. Korman, "I am not going to go any further to pierce the veil of [confidentiality]. I don't think it can be pierced." However, he said he plans to use any additional information about the conversations to convince the jury that the diocese should be held liable for negligence.
In his April 27 order, Judge Odden ruled that the Rev. Puhl's medical records should be turned over to the court for an in camera inspection. Mr. Korman contends the records may contain information proving that the diocese knew that the priest was being treated for a sexual problem.
The judge also ordered that the plaintiffs must be provided with the names and addresses of the juveniles the priest had homosexual contact with in 1977.
The Rev. Puhl invoked his Fifth Amendment rights when he refused to provide that the information was not protected because the statute of limitations has expired.
In addition to seeking to prove that the diocese was aware of these prior incidents, the family is also suing on a respondeat superior theory. Mr. Korman said that the Rev. Puhl is an employee of the diocese and therefore, under Minnesota law, the employer is liable even if the employer has no knowledge of the employee's "prior propensities
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