Openness of Bishops Still at Issue
By Michael Paulson email@example.com and Michael Rezendes firstname.lastname@example.org
June 17, 2003
Church lawyers from Connecticut to California are battling disclosure of documents describing the handling of allegedly abusive priests. Some bishops are resisting legislative changes pressed after the abuse crisis, and a few have balked at working with the national review board they appointed.
Former Oklahoma governor Frank Keating's resignation yesterday from the national review board scrutinizing the sex abuse crisis draws fresh attention to the bishops' actions just days before they are to gather in St. Louis for their twice-yearly meeting, much of which is slated to take place behind closed doors.
Instead of backing down from his comparison of some bishops to members of "La Cosa Nostra," the American branch of the Mafia, Keating, in his resignation letter, spelled out concerns that echo those raised by a number of critics who say too many bishops are not complying with the new spirit of openness they pledged a year ago in Dallas.
"My remarks, which some bishops found offensive, were deadly accurate," Keating said in his letter of resignation. "I make no apology. To resist grand jury subpoenas, to suppress the names of offending clerics, to deny, to obfuscate, to explain away; that is the model of a criminal organization, not my church."
Officials at the US Conference of Catholic Bishops say bishops are trying to walk a fine line, preventing future abuse of children but also protecting the legal rights of dioceses and priests around the country.
Critics say too little has changed a year after the bishops gathered in Dallas and promised an overhaul in the face of revelations that hundreds of priests had abused thousands of minors over a period of decades.
"The disparity between what the bishops say and what their lawyers and lobbyists do is perhaps greater than ever before," said David Clohessy, executive director of the Survivors Network of those Abused by Priests. "These actions are a stark reminder that very little has changed since the bishops approved their charter."
The bishops say there is no such disparity.
"Certainly we are talking to everybody, the bishops are out there, and there is a whole lot more information available right now, and we have pledged to make even more information available as we compile it . . . and that's remarkable considering where we were two years ago," said Mark E. Chopko, general counsel for the US Conference of Catholic Bishops. "But when you jump into the legal arena, everything changes. Litigation is about trial by combat -- it's not about telling the story."
Chopko said that the multiple civil and criminal legal cases that have arisen out of the abuse crisis mean that apologies by bishops can be construed as confessions of liability and that any documents that are disclosed can be selectively used by lawyers. The church, he said, has a duty to defend itself.
"We have an obligation to protect the patrimony of the church, to keep the churches and the soup kitchens and the hospitals open," he said.
The American bishops signed off on a Charter for the Protection of Children and Young People last June at the Dallas meeting. A section of the charter says that "each diocese will develop a communications policy that reflects a commitment to transparency and openness" and that dioceses "will deal as openly as possible with members of the community."
Victims' advocates, however, say that, ever since, church lawyers have fought prosecutors and plaintiffs' attorneys with aggressive legal strategies. These strategies have included taking sworn testimony from therapists treating victims and, in a few cases, attempting to force plaintiffs wishing to remain anonymous to publicly reveal their identities in lawsuits against the church. Most states allow alleged victims of sex crimes to withhold their identities from the public.
The stakes over church records are perhaps highest in Los Angeles, where Cardinal Roger M. Mahony is seeking to withhold nearly 2,000 pages of church records from prosecutors directing a wide-ranging grand jury investigation into sexual abuse by priests.
Lawyers for the archdiocese argued at a court hearing in April that the records are protected under the First Amendment's guarantee of religious freedom. Deputy District Attorney William Hodgman, for his part, said church officials under investigation for child sexual abuse are not entitled to special constitutional privileges.
In an interview, Hodgman also pointed to the arrest earlier this year of former priest John Lenihan, in nearby Orange County, after church officials there gave prosecutors records that included a letter from Lenihan to Pope John Paul II. In the letter, Lenihan asked to be released from the priesthood and admitted having sexual relations with two teenagers.
"It's an example of how these documents can be of very significant evidentiary value," Hodgman said.
Meanwhile, church officials in Cincinnati are citing attorney-client privilege in an attempt to withhold church records from prosecutors directing another grand jury investigation.
In Cleveland, church lawyers are citing privacy rights as they try to prevent public disclosure of thousands of pages of documents collected by prosecutors during a county grand jury investigation that examined evidence of alleged abuse against 145 priests. Cuyahoga County Prosecutor Bill Mason closed his investigation last December after indicting a single priest, and said many other priests avoided charges only because the statute of limitations had lapsed.
And in Bridgeport, Conn., church lawyers are attempting to block the release of thousands of documents produced over the course of 23 lawsuits alleging sexual misconduct by priests serving under New York Cardinal Edward M. Egan when Egan was the leader of the Bridgeport Diocese.
Lawyers for the church say that because the lawsuits have been settled out of court and are now closed, the public has no right to view the records. Several newspapers seeking access to the documents contend that, because the records contain information about the supervision of child sex abusers, the public has a compelling interest in viewing them.
On the legislative front, change has come slowly. A few states, including Massachusetts, have changed laws to require clergy to report suspected abuse, but many states are not contemplating changes. According to the National Conference of State Legislatures, eight states are considering changes to mandatory reporting statutes, while three are considering legislation to change the statutes of limitations.
"I don't think the laws have changed much at all -- what we see around the country is some talk, and maybe some movement to expand the statute of limitations or mandatory reporting laws . . . We haven't seen much in terms of changes to make it easier to prosecute the hierarchy, which would probably be the most important reform," said Victor Vieth, the director of the National Center for Prosecution of Child Abuse, an affiliate of the National District Attorneys Association.
Chopko, the attorney for the bishops' conference, said that bishops have generally supported changing mandatory reporting statutes to include clergy, but that they are insisting on an exemption for information divulged during confession.
Chopko said bishops are warier of changing statutes of limitations, a step advocated by victims' organizations, to make it easier for people to press claims against the church for incidents that allegedly occurred years ago. "To say that anyone, from anytime, can come in and file and claim, when the witnesses are dead, the perpetrator is dead, the records are lost, and now they have to defend themselves -- I think that's kind of discriminatory, and people haven't thought through the consequences of this for all child-caring institutions," he said.
Keating got into trouble last week when, in an interview with the Los Angeles Times, he compared the behavior of some bishops to that of La Cosa Nostra, which is a name used to refer to the American Mafia. In his resignation letter, he said he had been planning to resign soon, but his spokesman said his resignation was hastened by the controversy over his remarks.
Other members of the national review board, although critical of Keating's language, said his basic point was correct. They said they believe that ultimately most, if not all, bishops will cooperate with their board, which is auditing dioceses for compliance with the policy and doing studies of the scope and causes of the abuse.
"Obviously there has been a culture of quiet about all of this . . . and there has been a language of resistance from bishops that to us sounds like that of diocesan attorneys," said Jane Chiles of Kentucky, a board member who supported Keating's resignation. "We're turning on a light in a place that has been dark for a long time, and that can be difficult, but we are tenacious, and we will do that."
Chiles said one bishop, Fabian W. Bruskewitz of Lincoln, Neb., has asserted that "we have no authority because we were not created by the Vatican." A Bruskewitz aide declined to comment yesterday.
Chiles said other bishops appear to be cooperating with the board. "We meet with resistance, but once we spend some time with people, our assurances are satisfactory," she said.
Dr. Paul R. McHugh of Maryland, another panel member, said some bishops have been shocked by the nature of the investigation.
"We're just doing what they asked us to do, which is to commission a study of the nature and scope of this problem, but some of them are now saying, `Holy cow, did we really ask for this?' " McHugh said. "We're saying, `This is going to make things better, not worse,' and I hope we can help them see that, but we're not going to help them see that if we're calling them names."
Board member Michael J. Bland of Chicago said 135 of the 195 dioceses in the United States have responded to a questionnaire that asks about the scope of abuse in each diocese. Initially the bishops had been given a deadline of June 30 for responding, but some have been given extensions of up to several months, in part, board members said, because poor record keeping had made data gathering difficult in some places.
Kathleen L. McChesney, the executive director of the bishops' Office of Child and Youth Protection, said the level of cooperation from bishops with her board "overall has been very good." She said that 80 percent have attended workshops on how to implement the charter and that she believes most, if not all, will cooperate with the study aimed at determining the scope and nature of abuse.
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