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Church under Siege: Suits with No Limits
By Tim Drake
Pittsburgh Catholic [United States]
November 19, 2004
(First of two parts)
The following article is a national overview of lawsuits filed against dioceses across the country in clerical sex abuse cases. While the Diocese of Pittsburgh has not been affected as dramatically as some other dioceses, the lawsuits filed here by two attorneys over the past several months are part of the national pattern in the similarities the lawsuits share.
The lawsuits in Pittsburgh, like those around the nation, attempt to skirt the statute of limitations. The current suits in Pittsburgh recognize that the statute of limitations has run out for charges against individuals, so the attorneys attempt a novel interpretation of the statute by charging the diocese and bishops with conspiracy and a cover-up, and claim that victims were unaware of this until the scandal in the Boston Archdiocese broke in 2002.
First came the Archdiocese of Portland. Then, the dioceses of Tucson and Spokane. It looked for a time that the Diocese of Davenport, Iowa, might soon follow suit. One by one, dioceses across the U.S. have declared bankruptcy as one way of handling creditors brought on by continuing litigation from clerical sex abuse cases.
While they acknowledge the wrongdoing of members of the church, critics are questioning the tactics being used by tort lawyers in what is a full-scale attack on the church. Among those tactics is the ignoring of statutes of limitations. In many of the decades-old cases, those being accused of wrongdoing are long dead, leaving the church with little opportunity to defend itself.
Another frequent tactic of litigators is their practice of notifying the public of accusations prior to notifying the diocese or the accused. No wonder many feel it’s open season on the Catholic Church.
Overwhelmed by creditors and potential creditors, the Archdiocese of Portland on July 6 became the first in the nation to file for Chapter 11 bankruptcy protection.
Mark Chopko, general counsel for the U.S. Conference of Catholic Bishops, told the PBS television program "Religion and Ethics Newsweekly" that the archdiocese felt its back was literally against the wall.
"After having spent more than $50 million to compensate more than 100 people, these lawsuits threatened to wipe out the remaining assets of the archdiocese," Chopko said.
In September, the Diocese of Tucson became the second to declare bankruptcy. It’s a pattern that some see fraught with danger.
"There are enormous church-state implications from this kind of filing," Chopko said. "There’s a real possibility that a bankruptcy court might come and look at the archdiocesan finances and have different ideas about what constitutes the religious mission …"
How have the dioceses reached this point financially? While the church has fully acknowledged the past wrongdoing of members, asked for forgiveness and made significant changes in how it responds to abuse allegations, many affiliated with the church question the tactics and the motives being employed by civil litigators.
The most common tactic being used is for plaintiffs’ attorneys to ignore the state’s statutes of limitations (the amount of time allotted from when the crime occurred to when a case can be filed). While every state has had statutes of limitations in place regarding sexual abuse, in recent years litigation attorneys have attempted to circumvent the statutes.
Statutes of limitations
University of St. Thomas law professor Patrick Schiltz said states relaxing their statutes of limitations are nothing new. From 1987 to 1995, Schiltz defended churches of all major denominations in approximately 500 clergy sexual abuse cases.
"I was defending 40-year-old cases," Schiltz said. "California was one of the first states to do so effectively. Florida tried a few years earlier. Statutes run the gamut from a strict statute of three years after the abuse, to the California statute of last year that victims could bring forth any abuse, no matter how old."
In some states, the statute of limitations begins at the point when the victim remembers and understands that the physical acts were abusive.
Litigation attorneys, such as Jeffrey Anderson of St. Paul, Minn., assert that because religious institutions have tried to cover up the crimes and created a climate where victims could not come forward, that renders the statute of limitations irrelevant. Anderson has been involved in more than 1,000 cases. His cases frequently surpass the 25-year statute of limitations set in place by the states.
Long history of action
The Diocese of Pittsburgh has had a published policy on clergy sexual misconduct since 1993, which specifically "encourages and supports complainants to report the matter in question to the proper civil authorities."
The public record of action by the Diocese of Pittsburgh against those who committed abuse of minors is clear and has been well documented in media reports going back as early as one case in 1969. Several months before Bishop Donald Wuerl arrived in the diocese, three priests in 1987 had been banned from public ministry; a fourth had been given an administrative position.
Soon after being named bishop of Pittsburgh in 1988, Bishop Wuerl met with victims. He then told diocesan priests that anyone who sexually abused a minor would be permanently removed from ministry. One highly publicized case involved reversal of a Vatican decision involving Anthony Cipolla, who was banned from ministry in 1988 and forcibly laicized by Pope John Paul II in 2002.
Some states, such as California, have repealed their statute of limitations to allow victims to bring forward their cases.
"California created a window that said that any survivor of sexual abuse by anyone has a one-year window in which to bring a cause of action," Anderson said. As a result, more than 500 cases have been brought in southern California with another 160 in the northern part of the state.
"The clear trend is to make it easier to bring old cases by any victim of sexual abuse," Schiltz said. "When they are brought, the pastor is almost always dead." Schiltz admitted that in some of his cases it was common for the alleged abuser, his superiors and the bishop all to be dead. "As a result, a diocese is left trying to disprove that alleged abuse occurred by a priest in 1958, who died in 1967. It’s tough to defend such a lawsuit."
How do you defend yourself?
Such tactics were called into question by a number of prominent local attorneys and a retired judge in a letter to the editor published in the Pittsburgh Post-Gazette and the Pittsburgh Catholic.
The letter said, in part, "How do you defend yourself against lawsuits based on claims that occurred 40 years ago? There is considerable legal suspicion that such claims may be the product of fraud or mistake. To protect against unfair and unjust claims, the law provides protection through statutes of limitations. In many lawsuits, the statute of limitations is only two years to avoid placing the defendant in a position of not being able to discover witnesses or information that is no longer available. If the law protects you against claims only two years old, imagine what it must be like to attempt to defend against a claim over 40 years old. Such a claim is not merely stale, it is petrified."
Anderson disagreed that dioceses are defenseless.
"That’s a tune that the dioceses have played," Anderson said. "It’s not a well-founded proposition. Even if the priest or bishop is dead, the diocese maintains evidence of the crimes in their files. Every bishop, under canon 489, is supposed to keep any material that is scandalous in a secret archival file for the bishop’s eyes only."
Anderson failed to note, however, that canon law also calls for the bishop to regularly purge archives.
Information is accessible
Canonist Pete Vere described Anderson’s response as incomplete.
"He is obviously quoting from the first paragraph of Canon 489. The second paragraph states: ‘Each year the documents of criminal cases concerning moral matters are to be destroyed whenever the guilty parties have died, or 10 years have elapsed since a condemnatory sentence concluded the affair,’" said Vere, a canon lawyer and the co-author of "Surprised by Canon Law: 150 Questions Laypeople Ask About Canon Law."
Anderson’s response is also misleading in that materials are placed into the secret archives only as the result of a canonical process, and in many instances have nothing to do with abuse cases. The information is usually much smaller in volume than information in other files that are typically discoverable through legal processes.
In other words, information in clerical sex abuse cases is accessible. "Secret archives" is being used as a catch phrase to make it seem that the church is hiding something when, in fact, that information is available through other means.
Schiltz added that the easing of statutes is not being used solely against the church.
"School districts, the Boy Scouts and other non-profits are in the same boat as the church," Schiltz said. "But because of the publicity and the size of the church, it is a large target."
Drake is a staff writer with National Catholic Register and the author of "Young and Catholic: The Face of Tomorrow’s Church" (Sophia Institute Press, 2004).
Any original material on these pages is copyright © BishopAccountability.org 2004. Reproduce freely with attribution.