Suing Priests for Sexual Abuse
By Linda Bean
New Jersey Law Journal
March 21, 1994
In Burlington County, four young women allege that a sexually abusive Catholic priest has cost them eternal salvation. In Camden County, the Roman Catholic diocese has paid almost $ 2 million to settle a racketeering claim that alleged a diocesan coverup of widespread sexual misconduct. And in Morris County, where a priest from the Paterson Diocese was convicted of sexually assaulting two boys, the Catholic Church is accused of fraud.
Each case involves untested theories of liability against the Roman Catholic church, which the Legislature has three times declared immune from standard claims of negligence.
While the New Jersey Charitable Immunity Act prohibits findings of negligence, it doesn't bar the filing of suits on other grounds. A small group of specialized plaintiffs' lawyers is learning to rely on alternative theories, such as racketeering, fraud and breach of contract -- and unconventional claims like loss of faith and loss of salvation -- to seek recovery on their clients' behalf.
Since 1985, when a sexual-abuse scandal exploded in Louisiana, headlines have shouted the names of priests accused of illicit sexual contact with young boys -- Gilbert Gauthe, Louisiana; James Porter, Massachusetts, Minnesota and New Mexico; Thomas Adamson, Minnesota; and Nicolas Aguilar Rivera, California -- and trumpeted accusations of concealment and coverup on the part of high-ranking church officials.
Jason Berry, the New Orleans author of Lead Us Not Into Tempatation, a book about the Louisiana case and the church's response to pedophilia, estimates that the church nationwide has paid $ 400 million in settlements to victims of sexual assault, although the number of plaintiffs is unknown. Mark Chopko, general counsel to the National Conference of Catholic Bishops in Washington, D.C., says his organization estimats the national figure at closer to $ 80 million. But he acknowledges that the national conference does not keep track of settlement figures or the numbers of cases outstanding. That's a discrepancy that continually troubles plaintiffs' attorneys because, during discovery, the church repeatedly claims it is unable to provide hard figures.
Lawyers for New Jersey dioceses say that regardless of the cost, the litigation has miscast church leaders as unwitting or uncaring accomplices to child abuse; misrepresented the church leaders' duties; faulted the church for failing to understand a disease -- pedophilia -- which few really comprehend; stepped dangerously close to the line between church and state; and attempted through discovery to violate religious confidences.
But plaintiffs' lawyers say that litigation, however unorthodox, is still the best hope of a recovery for clients who allege they were harmed by clergy. It is also, they say, some of the hardest work they will ever do.
"The psychological damage is beyond belief. Families are destroyed," says Joseph DeLorenzo, a partner at Catanzaro & DeLorenzo in Mount Holly, who represents the four young women who say they were assaulted by the Rev. Florencia Peneda Tumang at St. Mary of the Lakes Church in Mount Holly.
"They are very difficult, emotional cases," echoes Gerald Kelly, a solo practitioner in Denville whose clients are the parents of a young boy assaulted by the Rev. John Pisarcik in the Paterson Diocese.
"It's hardball," says Stephen Rubino, a solo practitioner in Ventnor who alleged the RICO violations in federal court and has won from the Camden Diocese three settlements totaling $ 3.2 million on behalf of 19 clients. "The church is aggressively defending and using whatever technical defense they have to defeat the claims."
Rubino also represents Steven Cook, 34, of Philadelphia, who, on the basis of "repressed memories," accused Chicago Cardinal Joseph Bernadin of sexually assaulting him at an Ohio seminary in the mid-1970s. Cook later recanted, but Rubino has faced blistering criticism, much it from other plaintiffs' lawyers who fear their own clients will experience a backlash.
In New Jersey, however, Rubino's settlement record with the church is unmatched, and his expertise is undeniable. He is the chairman of an American Trial Lawyers Association litigation group on child sexual abuse, and in 1990, when he edited ATLA's magazine, Trial Lawyer, he authored a nine-page primer for attorneys involved in litigation against the church. In March, the magazine published an extensive analysis of statutes of limitation across the United States, coauthored by Rubino and Ellen Levy, a student at Temple University School of Law.
Rubino, raised as a Catholic in Washington, D.C., estimates that he is handling 40 cases against the church now, most of them in New Jersey but some in other states, where he serves as co-counsel.
That's an almost "surreal" departure from his youth, he says, when he watched his parents treat priests "like Gods" and learned how to block and tackle from neighborhood clerics. "They were the good guys," says Rubino. "When a priest was close to your family, you were something special."
Lawyers who represent the church are resolute in their view that the church can best police itself:
* They uniformly condemn acts of sexual assault. "Do I want priests who are not doing the right thing, who have violated the law and violate children, removed? I would certainly think so," says Thomas Sharlow, a solo practitioner in Metuchen and counsel to the Metuchen Diocese.
* They note that dioceses nationwide have adopted policies requiring them to provide counseling for victims, even victims who have sued. "Is that wise, legally? Well, I don't think you would find GM providing that policy," says Martin McKernan, a partner at Camden's McKernan & McKernan, who represents the Camden Diocese.
* They stress that the church is attempting to assure -- through increased scrutiny of priests-in-training for example -- that priests do not abuse children. "I am not going to sit here and try to justify molestation," says William Cambria, general counsel to the Archdiocese of Newark for the past 11 years. "I do think that the church in general and in New Jersey has recognized that problem and has taken steps to minimize the possibility it can happen again."
* They say the church has a duty to protect the financial interests of parishioners and maintain their good works -- missions, schools and hospitals, for example -- that are clearly jeopardized by litigation. "That means we are not going to just open our pockets when someone accuses a priest," says Chopko, a lawyer for the bishops' conference.
* They also say they worry that litigation divides church communities. "If you want to pave a parking lot, you get a fight. How much worse is it to have a pastor accused of misconduct?" says Chopko. "Some parishioners say, 'My pastor right or wrong,' and others ask, 'Why are we harboring a criminal?'
"The focus becomes fixed on the bizarre and not on the good that is done," says Sharlow.
* Finally, they say that, for the most part, dioceses are being sued for alleged attacks and coverups that date back as far as 20 or 25 years ago when the church relied on medical information that declared pederast priests could be treated and reassigned. "Underlying all this is the concept that pedophilia is a disease, a sickness, something we didn't know years ago," says James Evers, a Hawthorne solo and counsel to the Paterson Diocese. That's a contention plaintiffs' lawyers hotly dispute.
Concealment of clergy crimes has been motivated by money, not medical theory, Rubino says. "They were protecting the continuous stream of contributions."
Bruce Pasternak, an Albuquerque, N.M., solo, has assembled studies done in the 1950s and 1960s on pedophilia. He says experts then had stated pedophilia "is a compulsion that does not respond well to therapy and causes tremendous damage to the victims."
"Our opponents did know, 20 years ago, that we shouldn't put the fox in charge of the hen house," Pasternak says.
And, regardless of the quality of the data on pedophilia, dioceses 20 years ago were subject to virtually the same mandatory child-abuse reporting laws that are on the books today, notes DeLorenzo.
Cambria, general counsel to the Archdiocese of Newark, says the decision to report such cases doesn't always rest with the church. Parents, he maintains, often prefer to have crimes against their children privately resolved. "Were mistakes made?" Cambria asks. "In hindsight, it might be easy to say that criminal authorities should have been notified, but I'm not so sure that it would have made a big difference."
A Charity's Role
Ten years ago this month, the state Supreme Court ruled, 4-3, that the Archdiocese of Newark could not be held liable for negligent hiring, even though a priest in its employ had raped a child and the boy had later killed himself. That opinion, Richard Schultz, et al., v. The Roman Catholic Archdiocese of Newark, upheld the N.J. Charitable Immunity Act, N.J.S.A. 2A:53a-7-11.
"Others must reconcile the issues of moral responsiblity," the Court's opinion states. ". . . Under New Jersey's Charitable Immunity Act, a charity is not liable for negligence."
"I think it's a shame," says plaintiff's lawyer DeLorenzo. "The Legislature needs to take note of how this is being utilized and carve out some exceptions."
"The law provides protections that shouldn't be there," echoes Fred Ira Eckhaus, a partner at Cohan & Eckhaus in Parlin. Eckhaus is suing the Trenton Diocese on behalf of a man who claims he was molested by a priest from the time he was 12 until he turned 14. "We are alleging there were other priests and supervisors who knew what was going on and didn't do anything, perhaps even conspiring not to do anything. That makes it more than negligence -- now it is intentional."
In 1958, a trio of Court decisions abolished the common-law doctrine of charitable immunity which in essence barred recipients of the charity from bringing negligence claims. A Catholic hit by falling statuary as he entered his own cathedral could not claim negligence, for example, but a Baptist hit by the same falling object while on the way to his own church, could.
Within a week of those decisions, the Legislature had enacted emporary legislation and, a year later, passed the current act. There was no contest to the act until the Schultz case.
In 1988, national publicity about sexual abuse was increasing and there was an unsuccessful legislative attempt to eliminate charitable immunity in cases where the charity was sued for the negligence of an employee -- an attempt that appeared aimed at providing a remedy in cases of sexual abuse.
New Jersey dioceses were strongly opposed. "There can be no question that acts of abuse committed against minors are intolerable," Elmer Matthews, a lawyer for the New Jersey Catholic Conference, wrote to members of the state Senate. Even so, Matthews wrote, ". . . it would be patently unfair to penalize the charitable employer where, as here, the flaw that gives rise to the tortious act is not discernible. There exists no psychological testing which would uncover an individual with a proclivity for child abuse. Absent the ability of the charity to determine in advance that a prospective employee has such a proclivity, it would be unfair to hold the charity liable."
Charitable immunity is not the only bar to a successful case, plaintiffs' attorneys say.
A suit against the church also may involve overcoming clergy-communicant and priest-penitent privileges, gaining access to confidential diocesan files and tracking down a priest's former co-workers and friends of the alleged victim: discovery aimed at determining whether the accused priest has a documented history of problems.
"A common theme that I've found is that the church will maintain it doesn't have to fully engage in discovery because it has certain privileges," DeLorenzo says.
In the case DeLorenzo filed, Richard Clark et al., v. Diocese of Trenton, Burlington County Superior Court, No. 00695-93, four young women, one of them still a minor, allege they were sexually assaulted by Rev. Florencia Peneda Tumang. One claims she was assaulted in 1987 or 1988. Two say they were assaulted in 1990 and the fourth alleges Tumang assaulted her in 1992, when she was 14. DeLorenzo says the alleged victims of the 1990 assaults reported Tumang to his superiors shortly after the incidents.
Had they been taken seriously, he says, "the fourth assault would never have happened."
Tumang fled the area after a second priest, Rev. Joseph LaForge, allegedly gave him $ 5,000 from a parish account and he is still at large. LaForge was indicted on charges of aiding Tumang's escape and has entered a pretrial intervention program, DeLorenzo says.
DeLorenzo maintains that "clergy personnel" made statements to law enforcement officers investigating the charges against Tumang and LaForge, effectively waiving any clergy-communicant privilege. "When you have communicated with a third party, it is our contention you have waived," he says. Discovering documents means knowing what to ask for, says plaintiffs' lawyer Rubino. Each diocese, he says, keeps two sets of personnel records, one "secret" and one public. "You have to know to ask for the 'secret' file," he says.
Archdiocese general counsel Cambria says bishops do keep confidential files on each employee. "'Secret' probably has a bad connotation," says Cambria. "It is meant to imply limited access within the church, accessible only to the bishop."
In his book, Berry printed a transcript of remarks made by Auxiliary Bishop A. James Quinn of Cleveland to a 1990 meeting of the Midwest Canon Law Society. "Now, what files have been subpoened," the bishop said, ". . . cannot be tampered with, destroyed, removed. That constitutes obstruction of justice and contempt of court. Prior, however, thought and study ought to be given -- if you think it is necessary, if you think there is something there you really don't want people to see -- you might send it off to the Apostolic Delegate [the Pope's representative in Washington, D.C.] because they have immunity to protect something that is potentially dangerous. . . ."
Once a record is in the custody of the Apostolic Delegate, Rubino says, "that's it." In his own files, Rubino keeps a letter written by a bishop in New Mexico to a priest: "The only thing that needs to be destroyed that I am aware of," the bishop wrote, "is material that comes from . . . treatment centers.
This is to protect the individual should someone seek an investigation."
In his 1990 article on bringing suit against the church, Rubino advised lawyers engaged in discovery to look for church officials ignoring parental complaints that a child has been molested; failing to report abuse to authorities in violation of most state's mandatory reporting laws; transferring an offending priest without warning parents in the priest's new parish "of trouble in the old parish; failing to provide psychological help to priests who ask for it; or failing to seek out other possible victims of a priest. Rubino says lawyers should also look for sealed settlements orders in other cases.
Plaintiffs' lawyers also need a clear understanding of where recovery might be obtained.
Until 1987, most of the country's 188 dioceses relied on some type of self-insurance plan with excess coverage provided by firms like Lloyd's of London or Interstate Fire & Casualty.
In 1987, however, the insurance industry began writing into its church policies specific exclusions for sexual abuse. At that point, some dioceses dropped their coverage altogether, while others maintained their self-insurance and found another excess carrier and some joined a self-insurance group, the National Catholic Risk Retention Fund.
In Dallas, plaintiff's attorney Sylvia Demarest recently succeeded in joining the National Conference of Catholic Bishops -- an organization to which all bishops belong -- in a suit there.
The NCCB is protesting. "We are a trade organization," says NCCB lawyer Chopko. The NCCB, he says, doesn't make hiring decisions and doesn't supervise priests.
Plaintiffs' lawyers are hopeful that, if the tactic worked in Dallas, "it will work anywhere," Rubino says.
Discovery is easier, says plaintiffs' lawyer Kelly, if there has been some kind of criminal investigation.
Kelly represents the family of a young boy assaulted by Rev. John Pisarcik of the Paterson Diocese, who pleaded guilty in 1992 to two counts of sexual assualt. He was sentenced to five years at the Adult Diagnostic Center and Treatment Center in Avenel.
Karin Kelly-Wisert, head of the sex crimes unit in the Morris County prosecutor's office, brought the case against Pisarcik. She and her investigator, state police Sgt. Kevin Loughman, say the criminal prosecution was hampered by the same discovery hurdles that plaintiffs' lawyers face. "I wanted to know of his past," says Kelly-Wisert, who is not related to Kelly. "That was barred by privilege."
The prosecutors were also frustrated, they say, because no one within the diocese reported Pisarcik to authorities. Instead, they were contacted by the parents of the child who was abused. "The point needs to be driven home,"
Loughman says, "that they have no business investigating what is clearly a crime."
Kelly was hired by his young client's family just after police arrested Pisarcik. He guided the family through "initial negotiations with the prosecutor's office," he says. It was a "disappointing" experience for a man who once studied for the priesthood.
"I grew up in the old days," says Kelly, "when people wanted their sons to grow up and be altar boys, when they thought the best place to hang out was at church with the priest."
Rubino, too, was raised in the church, and he watches his clients struggle to come to terms with both the church and their faith.
Rubino figures that any lawyer who accepts a priest's victim as a client will hear things he doesn't want to hear. "Their stories are heart-breaking."
Some plaintiffs recount assaults with shame. Others find their memories of abuse interwined with bitter recollections of unhappy homes.
"The vast majority do not come from solid, nuclear, two-parent homes and there has been some form or another of family crisis," Rubino says, the kind of crises that make them vulnerable to affections of a trusted family priest.
In some cases, plaintiffs' lawyers say, abuse victims have embraced alcohol, drugs or promiscuity, destroying their own relationships with loved ones.
Others are almost too embarrassed to speak about the incidents while still others are so furiously angry that they cannot say enough. "You become part father, part friend," Rubino says.
The first time Rubino met with a priest's victim, he was both puzzled and dismayed by the account he heard: "It was a terrible story, and I thought something must have happened, but it couldn't have involved a priest. Priests are celibate."
"I tell you the story," Rubino says, "to tell you how far I've come."
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