By Peter Steinfels
New York Times
July 5, 2003
When it comes to sexual abuse by the clergy, "I have as much experience with this issue as just about anyone," Patrick J. Schiltz said.
Mr. Schiltz is associate dean of the University of St. Thomas School of Law in Minneapolis. From 1987 to 1995, when he left private practice to become a law professor, he represented not only Roman Catholic dioceses, but almost every major Christian denomination in cases of sexual misconduct by the clergy — more than 500 of them, throughout the United States and in several foreign countries.
He has spent hundreds of hours listening to victims of such abuse describe their pain. Just listening can be unbearable, he said, adding, "How much worse it must be to experience that pain." Mr. Schiltz said he had also spent hundreds of hours "being frustrated by the decisions of some of the bishops I have advised."
That is not, however, the part of Mr. Schiltz's outlook that is likely to meet with resistance these days.
In several recent talks, an article in the current issue of America, the weekly Catholic magazine published by Jesuits, and a forthcoming article for the Boston College Law Review, Mr. Schiltz makes some other points that challenge conventional sentiments.
His first argument is that current litigation over sexual abuse by the clergy, besides posing economic peril for religious institutions, is rife with implications for religious freedom. He worries that emerging legal theories in sexual abuse cases, which are not limited to cases involving minors, could greatly expand the notion of what constitutes "reasonable" supervisory duties of religious leaders.
These theories, he argues, may cripple those leaders' ability to extend pastoral care to victims of abuse because doing so would create new fiduciary obligations and consequent legal risks for those church leaders.
Mr. Schiltz also says the theories growing out of litigation could chill the willingness of religious groups to engage in public controversies or take chances on flawed leaders with any sexual misbehavior in their histories. (By today's standards, even St. Augustine would not be considered a safe bet for clerical ranks, he notes.) And these theories may justify unprecedented government intrusion in internal church matters.
Is Mr. Schiltz exaggerating these dangers? Possibly. Still, it seems that those who normally exercise great vigilance about any risks to First Amendment liberties should pay attention to these concerns.
Mr. Schiltz has also said that, over the past year or so, the news media, in covering reports of sexual abuse by the clergy, "have grossly distorted the problem and thereby left the public terribly misinformed."
"Despite devoting thousands of articles to clergy sexual misconduct, 99.9 percent of reporters missed the most important story," he told a Rotary group in Minneapolis on May 9.
That story, he said, began with the fact that "in the late 1980's and early 1990's, churches got sued a lot." They responded with a host of changes and by investing hundreds of millions of dollars and hours of work in combating sexual misconduct.
"And churches had remarkable success," he said.
As an example, Mr. Schiltz cited a report done last fall by The Courier-Journal in Louisville, Ky., analyzing 185 sexual assault lawsuits filed against the Archdiocese of Louisville, which he said was "perhaps the worst of all the Catholic dioceses in terms of the number of abuse cases per Catholic."
"Do you know how many of those lawsuits involved abuse that had occurred since 1990?" Mr. Schiltz asked. "One. One of 185."
What about the claim of plaintiffs' lawyers and victims' advocates that this statistic merely reflects the time it takes before victims are willing to report abuse and that, a few years from now, it will become clear that nothing really changed in the 1990's?
"This is hogwash," Mr. Schiltz said. Some victims do wait for years to report their abuse, but others do not, he said, adding, "I worked on hundreds of cases in which the abuse had been reported promptly."
Today, moreover, victims of sexual abuse are much more likely to be believed and given support than in the past. Where many people, even parents of victims, once discounted evidence of abuse out of the conviction that a clergyman could not do such a terrible thing, "no one is laboring under that illusion today," Mr. Schiltz said. All of that means that more victims, not fewer, should be reporting abuse if it has continued at the old levels, he said.
In Mr. Schiltz's eyes, the fact that abuse might be on the decline does not diminish the anguish and harm done to those who were abused, at whatever date. Nor does it remove churches' moral obligation to help victims or excuse the crimes of abusers or the negligence of church leaders who ignored credible accusations.
Rather, he said it puts the problem of abuse, especially in the Roman Catholic Church, in sharper focus. As he wrote in America magazine: "Because most dioceses got their act together in the 1990's, there aren't a lot of new abuse cases. But because most dioceses did not get their acts together until the 1990's, there are a lot of old abuse cases."
Mr. Schiltz has a positive proposal for addressing clergy abuse. "The church should set up a national tribunal, a group of extremely well-respected people who are completely independent of the church, to arbitrate sexual abuse claims," he wrote.
In his plan, dioceses would pay whatever the tribunal determined was fair compensation to any victims who appeared to be telling the truth (and Mr. Schiltz thinks that is about 98 percent of them) and who agreed to forgo litigation.
Cases could be resolved quickly, he said. Dioceses would save millions of dollars in legal costs, he pointed out, and victims would keep all their compensation, "rather than turning over one-third to one-half the amount to pay an attorney and thousands of dollars more to pay the expenses of litigation."
One great challenge, of course, would be to ensure that the tribunal was truly independent. In a phone conversation, Mr. Schiltz suggested that including a representative of one of the victims' advocacy groups "would give it instant credibility."
Even when Mr. Schiltz's arguments are read in full, they clearly remain debatable.
But at a time when former Gov. Frank Keating of Oklahoma can command headlines with his departure from the Catholic bishops' national review board and when Bishop Sean P. O'Malley can grab attention with his arrival in Boston, the hard-to-categorize views of this experienced litigator and legal scholar deserve a wider and fuller hearing.
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