Another level of coverup’: How a Mass. law prevents clergy abuse survivors from getting justice

New England Public Media [Springfield MA]

January 18, 2024

By Nancy Eve Cohen

It can take decades for an adult who survived sexual abuse as a child to bring a lawsuit. That’s the case for many who were abused by trusted members of the community, like Catholic priests. But in Massachusetts, even if a survivor of clergy abuse decides to sue, state laws can stand in the way of justice.

The first hurdle is the statute of limitations. If a victim is older than 53 and it’s been more than 7 years since they realized the abuse harmed them, the statute of limitations applies — meaning it’s likely too late to bring a lawsuit.

The second obstacle is known as the charitable immunity law, which applies to nonprofit charities. It generally limits the liability of charitable organizations, including Catholic dioceses, to $20,000. (Medical malpractice lawsuits against a nonprofit provider are capped at $100,000.)

Eric MacLeish has been one of the lead attorneys on clergy abuse cases against the Archdiocese of Boston and has sued all the dioceses in the state.

“This law artificially caps the liability of religious organizations and other charitable organizations, making it far more difficult to obtain a just and fair result for survivors of sexual abuse or people who are bringing any type of cause of action against a nonprofit corporation in Massachusetts,” he said.

MacLeish called it an illegitimate law.

“You’re looking really at not only an anachronistic law, that is not supported by any consideration of public policy, but one that cuts off arbitrarily the rights of survivors to hold religious organizations accountable for their misconduct,” MacLeish said.

‘Worst’ charitable immunity law ‘in the country’

Kathryn Robb is the executive director of Child USAdvocacy, which lobbies lawmakers to pass legislation that protects children. Robb said most states have abolished charitable immunity or limited it to what an insurer would cover.

“Massachusetts has the worst charitable immunity statute in the country,” she said.

Robb said her group is working with state lawmakers to eliminate the $20,000 cap for child sexual abuse claims.

“It’s time for Massachusetts to come out of the dark ages,” she said.

Massachusetts used to give nonprofits complete immunity from all liability, based on the idea that charities get their money from public donations and those funds should be used only for charitable work. In 1971, lawmakers took away this blanket immunity, but capped damages.

When the charitable immunity law was enacted, most charities were shoestring operations. And it was to protect these do-gooders from having a slip-and-fall case that would would prevent them from continuing their good deeds,” said John Stobierski, a lawyer who has represented survivors in Springfield.

That purpose has long passed,” he said, “because most charities — I shouldn’t say all — but a charity like the Catholic Church is a very wealthy, powerful organization, just like a hospital. They’re not little Podunk entities that would wither if they had a significant lawsuit.”

For years, Massachusetts lawmakers have filed bills to do away with the charitable immunity cap or change it. This session, a set of House and Senate bills would eliminate it. Another set of proposals would amend it so it does not apply to child sexual abuse cases.

The Massachusetts Nonprofit Network said in a statement the current law balances the charitable purposes of a nonprofit and donor intent with an ability for plaintiffs to be compensated.

“The bills proposed to change charitable liability law would disrupt this balance, and run contrary to the long held standard that charitable assets be dedicated to advancement of the missions of nonprofit organizations,” the organization said in a statement. “Therefore we do not support those bills.”

The nonprofit network also noted that the charitable cap does not apply if the claims are about activities “outside or incidental to a nonprofit’s charitable mission and other non-tort claims.”

Catholic leaders also support keeping the cap in place, to ensure the church spends donations on services identified by its donors.

“[S]uch as [on] tuition assistance, charitable operations such as food pantries and homeless prevention, and individual parish support, to name but a few,” Raymond Delisle, chancellor and director of communications for the Diocese of Worcester, said in a statement. “The charitable immunity cap on lawsuit damages is critical to allow all charities, including the diocese, to make an impact for the public good in our communities.”

‘I cannot take your case’

Robb said because of the $20,000 cap, most attorneys won’t take child abuse cases against dioceses or any nonprofits.

“So it essentially stops all of these claims from coming forward, exposing bad actors, exposing bad practices and institutions,” she said. “It creates another level of coverup, which is really dangerous for our children and for our communities.”

Lynne Pottle said she was abused by a priest for more than four years starting when she was 12, in 1975, at Our Lady of Lourdes Church in the Worcester Diocese. She had gone to the priest for help because her own father was drinking and had abused her.

Decades later, she caught a TV news story showing survivors standing with their lawyer. The memories of abuse flooded back — and she contacted an attorney in Framingham about taking legal action against the Diocese of Worcester.

“He said, ‘I cannot take your case,'” Pottle said.

She can’t remember the attorney’s name, but she remembers what he said.

“The lawyer actually said to me that $20,000 is not enough for him to be doing so much work,” Pottle said.”I felt just devastated. And I said, ‘No one cares. I can’t get any  help for this. I can’t get any validation for it.'”

Skip Shea, now 63 years old, also tried to sue the Worcester Diocese.

“They started the deposition process and then I got a call from the lawyer saying, ‘There’s a charitable immunity cap, so we can’t continue to work,'” Shea said.

Shea said he was sexually abused by more than three priests in the diocese, starting at age 11 until he was over 16. He said the diocese offered him some money — even less than the cap.

They offered “$10,000 and I said, ‘I’ll take it if I can have a private meeting with the bishop,’ which I got,” Shea said.

Shea met with Bishop Robert Joseph McManus, who still leads the Worcester Diocese today.

“Told him everything that happened. Made him sit there and listen. I named the priest, everything I went through,” Shea said. “He had to hear it. It was a very uncomfortable meeting for him. However my battles with the church go, I have to give him credit for sitting there and taking it — because I know it wasn’t easy.”

The diocese said meetings with the bishop last as long as the survivor wants and can involve multiple meetings.

Pottle also met with McManus, in November 2016.

“I met with him just for a few minutes. And It was somewhat helpful, but not really,” she said. “What I said to the bishop was that it’s not what happened to us back then — it’s how we are managing our lives now as a result of what happened, people who are on medication, people who can’t work. Myself included.”

People who are addicted to alcohol or drugs — or who try to end their own lives.

The spokesperson for the Worcester Diocese, Ray Delisle, said in email that the diocese does not answer questions about specific survivors.

“A focus on the charitable immunity cap on damages in a lawsuit is far too simplistic for the response that our diocese has made for more than two decades to those who have been abused,” he said.

Delisle said the diocese’s response to people who have been abused can go well beyond the cap on legal damages. It has a licensed social worker who meets with victims and can authorize therapeutic support. He said the diocese has helped victims pay for medical and dental bills, housing and utilities — for years.

According to a Feb. 2023 report, Delisle said, only about a third of people who go to the diocese about abuse are seeking legal recourse.

The ‘worst of the four dioceses’

Attorney Carmen Durso represents people who are victims of child sexual abuse. He has had, and still has, cases in Worcester.

“In Massachusetts, they’re the worst of the four dioceses. There’s no two ways about it,” Durso said.

There’s nothing stopping a diocese from paying more than the cap.Durso said most do if they feel it’s a legitimate claim. But in his experience, he said, the Diocese of Worcester won’t pay more than $20,000 — and sometimes they pay less.

Lawyers’ fees take a third of what’s awarded, plus filing fees, the cost of a deposition and a report from a mental health professional, as Durso explains to his clients.

“‘It’ll take a year and a half to two years,'” he said he tells potential clients. “‘You will have to be deposed. It will be an unpleasant experience for you. At the end, you may or may not get a judgment. No one can guarantee what a jury will do. And if and when that happens, the net sum available to you will be $10,000 or less.'”

Even if a jury awards much more, a diocese can legally invoke the cap, so that’s all that can be collected.

Delisle, the Worcester Diocese spokesperson, pushed back on the criticism.

“While it is easy to view the institution as complicit when named as a defendant in a suit, the diocese is often caught in the middle between the alleged perpetrator of the abuse and the survivor,” Delisle said. “The diocese does not defend the priest who is represented by his own attorney. At times we will agree to a settlement, either with or without our insurer’s participation.”

Alternate strategies

There is a legal strategy Durso and other attorneys have used to get around the cap.

Trial lawyer Laura Mangini, who has about five cases against the Springfield Diocese, said this strategy involves suing an individualfor negligence — someone who worked for the diocese and who superviseda pedophile priest.

“Say there was a priest that knew another priest was abusing [a] child but didn’t do anything, didn’t tell anyone, and just kind of brush[ed] it under the rug. If you get a judgment against that priest, then they are not subject to the cap,” Mangini said.

That claim could be covered by the diocese’s insurance.

Some lawyers will also sue the abuser directly, though many priests don’t have any assets. And because the victims were abused as children, often the alleged pedophile priest and supervisor have died.

“Right now, the charitable immunity cap in Massachusetts still covers the intentional torts of priests,” Mangini said, noting a recent case before the state’s Supreme Judicial Court indicates the justices may limit the cap’s application so it does not apply to child sexual abuse cases. “So there there is a growing sense that that might be changing in the next couple of years.”

Mangini recommends clients first report the abuse to the Springfield Diocese, which is required to report it to prosecutors. If there are no criminal charges, the case would go before a diocesan review board.

The case could be settled at that point or the survivor might file a lawsuit. If that happens, she said, the diocese will sometimes use the cap as leverage in negotiations.

Mangini said Springfield has paid more than $20,000 in some cases as part of a settlement. But, for a lot of survivors, she said, a lawsuit is not about the money.

“It’s about finally standing up for themselves and taking back their own control in the situation,” she said. “And for the jury and a community to say, ‘Yes, we acknowledge what happened to you. It was wrong.'” 

The Diocese of Springfield said it does not assert charitable immunity for any case its review board finds credible unless a victim files a lawsuit. Then it said it’s “required by its insurers” to assert all legal defenses, including charitable immunity.

The diocese said it would not comment on the amount it pays without permission of survivors.

“The [Springfield] diocese negotiates in good faith in all its dealings with survivors,” a spokesperson said. “Evidence of that exists in the diocese’s granting reimbursement for health and mental health services to survivors regardless of whether or not he or she participates in the settlement program and even if he or she sues the diocese.”

‘A degree of validation’ or just ‘insulting’?

The Boston Archdiocese has its own compensation program. According to victims’ attorneys, an arbitrator, like a former judge, hears a complaint, decides if it’s valid, and how much money to award.

Attorney Mitchell Garabedian said Boston pays about $75,000, plus the cost of therapy and medication that insurance doesn’t cover.

“To some victims it helps them gain a degree of validation to move on,” Garabedian said. “To other victims it’s insulting, thinking that, ‘Well, my being sexually abused 30 times or 20 times was only worth this amount of money in the eyes of the diocese, which allowed the sexual abuse to happen.’”

The archdiocese has not provided answers to questions — sent more than a month ago — about its compensation program. In early January, a spokesperson acknowledged receipt of the questions and said the archdiocese was working on a statement.

“It’s a private process,” Durso, a victims’ attorney, said. “It’s not appealable. You waive any court rights. But if you have a case, in which the likelihood is, if you go to court you can’t recover more than $20,000, it’s an appealing process for people who don’t have other options.”

Similarly, the Fall River Diocese has a mediation program.

Dan Martin, 60, said he was abused by a priest in Taunton starting when he was about 12. He said the $20,000 cap minimizes the damage caused by the abuse.

“When I think about the cap, I think that it’s laughable. To me, it’s a joke. The crime and the punishment don’t match,” Martin said.

Martin’s lawyer, Paula Bliss, said he brought his case to a mediation program at the Diocese of Fall River. She said that was really the only option due to the charitable cap. Bliss said it would have cost more than $20,000 in expenses just to bring a lawsuit.

“What this actually does, it keeps litigants out of a courtroom and it forecloses their ability to have their case heard by a jury of their peers,” Bliss said.

She said the Fall River program used the $20,000 cap as leverage when it offered an award. She wouldn’t say how much it was, but called it “peanuts.”

The Diocese of Fall River issued a statement saying it’s “resolved to do all it can to help survivors heal and make certain the diocese is accountable.”

“We have a process in place to evaluate claims and encourage survivors to come forward, even if those claims are from many decades ago,” the statement said. “If a claim is found to be credible, we routinely work to resolve claims above the charitable cap.”

In addition, the diocese said it offers supportive services to survivors of clergy sexual abuse and their families, including therapy.

‘You feel like you’re shot’

Pottle, who survived sexual assault in a Worcester church in the 1970s, said she deserves money, validation and a big apology. She said when the lawyer told her he could not take her case because of the cap, it robbed her of all hope.

“It was  one of the moments in my life you feel like you’re shot,” she said. “You feel like you have a hole. And then you start to go on and search and search for help to heal that hole.”

Pottle hasn’t found a legal recourse for healing. She said when she met with a support group of other survivors, that helped. But she still suffers.

Nancy Eve CohenNancy Eve Cohen is a senior reporter focusing on Berkshire County. Earlier in her career she was NPR’s Midwest editor in Washington, D.C., managing editor of the Northeast Environmental Hub and recorded sound for TV networks on global assignments, including the war in Sarajevo and an interview with Fidel Castro.