| Mitered in the
What RICO lawsuits could mean for the Catholic Church in the United States
By Rod Dreher
March 28, 2002
Are the American Catholic bishops a lavender mafia involved in a conspiracy of vice? That's what is charged in a massive federal RICO lawsuit filed last Friday against pederast former Bishop Anthony O'Connell, two other bishops, three dioceses, and every Catholic bishop in the country.
If the plaintiff — a former seminarian claiming years of abuse at O'Connell's hands — prevails, the financial cost in punitive damages to the Church could be enormous. Even if he doesn't win, the devastation to the Church's prestige and moral authority by courtroom revelations could be incalculable.
The anonymous plaintiff, a 34-year-old Missouri man, claims Bishop O'Connell sexually assaulted him from 1983, when he was a 14-year-old seminarian in Hannibal, Mo., and continuing until his adulthood. He brought the suit under civil provisions of the Racketeering Influence and Corrupt Organizations (RICO) law, a broadly written set of statutes initially drafted to help prosecutors shut down organized crime operations.
That's precisely what Jeffrey Anderson, the attorney representing the alleged victim, says the Church has become with regard to sex abuse by priests. Anderson, a Minnesota attorney who has handled nearly 500 priest sex-abuse cases, says he can draw on two decades of research to prove his client's claim.
"Nobody would ever think you'd call the bishops mobsters, but look, if they act like criminals and they do the activity that looks like organized crime, then they are criminals," says Anderson.
Why RICO? Because, the lawyer says, his client's case includes bribery, use of the mail and wires to defraud and keep victims from reporting these crimes to police, and obstruction of justice — all of which are covered by RICO.
Furthermore, Anderson says he can prove that each diocesan bishop, in obedience to Church canon law, keeps a top-secret file of accusations against his priests (which was confirmed to NRO by the Rev. Thomas Doyle, an eminent canon lawyer). Anderson claims the secret file is illegal. Anderson also claims bishops knew O'Connell was a molester before and after he became a bishop — and did nothing to stop him.
"I think [Anderson] is on to something," says Fr. Doyle, a longtime advocate for victims in clergy-abuse cases. "The conspiracy might not have been formalized, but the fact that there is such massive and far-reaching evidence of protection, promotion and cover-up leads to some obvious conclusions."
(Speaking of conspiracies, Auxiliary Bishop James Quinn of Cleveland told attendees at a 1990 meeting of the Midwest Canon Law Society that bishops should consider removing from their secret archives evidence of criminal activity. They should send it to the Vatican embassy in Washington, he said, where the files would become diplomatic property, and thus protected from subpoena.)
There may in fact have been some sort of conspiracy, but it will be difficult to prove in this case under civil RICO provisions. Attorneys have tried twice before in priest sex-abuse cases. A New Jersey attempt failed because in the court's view, no material damages were demonstrated (as the law requires), and a Dallas try was withdrawn when the plaintiff's legal team changed strategies.
What obstacles stand in the plaintiff's way? Not the First Amendment. It is not true that the constitutional guarantee to freedom of religion offers blanket protection to churches, as the Jesuit order found out when it unsuccessfully claimed First Amendment immunity from a sexual-harassment suit several years ago.
"I don't see a religious freedom concern here," says John Whitehead, president of the Rutherford Institute, a nonprofit legal organization that defends religious rights. "This is dealing with something criminal, just like if they were laundering money."
Jeff Grell, a Minneapolis attorney and nationally recognized RICO expert, has not seen the specifics of the lawsuit, but says there are several likely pitfalls in this lawsuit.
"The plaintiff has to have proof that there was a directive from a fairly high-up source of authority, an official policy adopted by the institution itself to keep this activity quiet, with knowledge that this was potentially criminal," Grell says. "Just because other bishops may have known and tried to protect the individual wrongdoer doesn't mean the Church itself can be held liable."
A second concern for the plaintiff: Unlike the criminal RICO law, the civil statute does not allow one to recover for personal injury, only material damages. "This is what kept individual plaintiffs in the suits against the tobacco industry from collecting," says Grell.
Third, there is a four-year statute of limitations to civil RICO claims. There are exceptions that "toll," or suspend, the statute of limitations. One of these is "fraudulent concealment," which describes a situation in which the defendant acted to prevent the plaintiff from knowing that he was being damaged.
"In a case like this, I would find it hard to see how the physical abuse of a minor can be concealed," says Grell. "If you've been abused, you know you've been abused."
Answering these points, Anderson says his client will claim that material damage took place when the alleged abuse by O'Connell made him unable to progress into his chosen occupation, the priesthood. And he will claim that O'Connell's attempts to dissuade his client from filing suit by trying to convince the man as recently as last week that what O'Connell did to him were not acts of abuse but of love, amounts to fraudulent concealment, thus tolling the statute of limitations.
The case will probably come to trial early next year, and if it gets that far, look for Church lawyers to move that the proceedings and evidence be sealed. This would have been a safe call in the past, but in the wake of the Boston case and subsequent revelations of clerical misconduct around the country, all bets are off.
The chief reason the scandal has mushroomed into a national story is because a lone Massachusetts judge decided that the public's right to know trumped the Church's right to keep its sex files secret. Given what we now know about the extent of the scandal within the American Church, what we are almost certain to learn in the coming months, and the intense public interest, Church lawyers will be hard-pressed to convince a judge to keep these proceedings under wraps.
"If the judge is him or herself Catholic, and they're personally offended by the accusations against the Church, that could have a huge effect on how this is tried," says Grell. "If I were the Catholic Church, this is one case where I'd try to get a non-Catholic judge."
The ire of the Catholic laity may rob the Church hierarchy of the kind of political protection it has formerly enjoyed. "As a Roman Catholic, it disgusts me to have to talk about this," fumes former U.S. Attorney Joseph di Genova, who says that the Church is in more serious jeopardy, legally and otherwise, than its top leaders seem to understand.
"If men like Cardinal Law and Cardinal Egan don't quit looking at this as primarily a canonical and legal matter, but one of civic duty and civic responsibility, the pain is going to be prolonged," he says.
Di Genova, who is now in private practice in northern Virginia, says the success Church lawyers have had in keeping clergy sex scandals quiet over recent decades has, ironically, become a Trojan horse.
"If all of this had been made public over the past 30 to 40 years,
the problem would have been dealt with, the bad priests would have been
removed, and it all would have been taken care of," he says.
Original material copyright © BishopAccountability.org 2004. Reproduce freely with attribution.