Priest Files Can Remain Secret
Archdiocese Protected in Abuse Cases

By Michael Hirsley and Terry Wilson
Chicago Tribune
November 17, 1992

The Roman Catholic Archdiocese of Chicago, girding for a courtroom war with prosecutors over priests accused of sexually abusing children, won a legal battle Monday to protect information it feels is confidential in those cases.

Presiding Judge Thomas Fitzgerald of the Cook County Circuit Court upheld the archdiocese's attempt to quash subpoenas filed by the state's attorney's office seeking information on priests suspected of sexual misconduct.

The archdiocese had cited "pastoral privilege" as a protective shield against outsiders getting access to private conversations between parishioners and priests or priests among themselves.

Further, it had asserted that the shield covers more than what is said in church confessions. In announcing his ruling, Fitzgerald agreed.

"I believe pastoral privilege as it applies to the Roman Catholic Church is broader than disclosures made during the sacrament of confession," he said.

Patrick O'Brien, chief deputy prosecutor for the state's attorney's office, said the ruling will be appealed to the Illinois Appellate Court.

"We believe in this instance the chief judge interpreted the statute too broadly," O'Brien said. "Rather than spiritual confidences being exchanged, there was an acquiring of information and investigation and determining what action to take.

"We respect the ruling, but we disagree with him."

The archdiocese released a statement indicating it was "satisfied" with Fitzgerald's ruling "that confidential portions of records sought by the Cook County state's attorney are not subject to subpoena."

"In particular, the archdiocese appreciates Judge Fitzgerald's acknowledgment that the archdiocese acted responsibly in respecting the confidentiality of communications which are protected under the law."

The judge said his ruling was most concerned with protecting the privacy of accusers who tell their stories to church officials with the expectation of confidentiality.

"This protection exists not for the priest but for the protection of the individual who comes forward for whatever reasons and seeks guidance from the pastor," Fitzgerald said.

In its statement, the archdiocese insisted that the ruling would not change the way it handles cases of alleged sexual abuse by priests and that it would "continue to cooperate with law-enforcement authorities in fulfilling their responsibilities for the prosecution of crime, while respecting the rights of all parties."

Under a policy announced in September by Cardinal Joseph Bernardin, a nine-member board headed by a non-clergy administrator replaces the previous priest-managed investigation system.

The policy also calls for a 24-hour hot line to accept abuse reports, assistance for victims and abusers, better record-keeping on priests, and better psychological screening of seminarians.

Attorney Carrie Huff represented the archdiocese in the 35-minute hearing before Fitzgerald, after which he took a 10-minute recess before announcing his decision.

The ruling was "not very broad at all. It's a very narrow category," Huff said. "The litigation here is focused entirely on the past. The system now in place is different."

O'Brien, however, was not certain how the archdiocese's new policies for dealing with sexual-abuse allegations against priests would change the way the church's internal investigations are reported to authorities.

In arguments before Fitzgerald, O'Brien contended that what is told to a priest in the confessional is confidential, but any repeating or sharing of that information should constitute a waiver of pastoral privilege.

Fitzgerald said the language of the state statute on pastoral privilege "seems to go well beyond confessions and admissions. I read the words of this statute to be quite broad."

He compared pastoral privilege to "a physician talking to other physicians or a lawyer talking to other lawyers" and said that clergy should be able to discuss sexual-abuse cases without fear that the confidentiality would be waived.

At least one legal expert disagreed. "I'm surprised, frankly, the state's attorney lost," said Northwestern University law professor Ron Allen.

Calling the state statute on pastoral privilege "badly drafted" and "sufficiently ambiguous" to be "opened to include a priest or pastor in all religious functions," he nonetheless rejected Fitzgerald's analogy to lawyers and physicians.

Attorney investigations are not privileged, and attorney-client privilege "does not cover information from other sources," Allen said.

In recent months as the clerical sex-abuse issue has grown in the archdiocese and across the country, the archdiocese and the state's attorney's office have seemed cooperative at times and combative at others in investigating charges against Chicago-area priests.

Bernardin has steadfastly insisted that while the archdiocese will report charges to authorities as required by law, it also will conduct internal investigations and will withhold certain information from authorities, invoking attorney-client, mental-health and pastoral privileges.

State's Atty. Jack O'Malley did not question the first two areas, but he challenged pastoral privilege, subpoenaing additional information in 20 cases of priests accused of sexual misconduct. O'Malley's office contended that a great deal of information had been withheld in those cases and that 14 of them were received only after they had been subpoenaed.

When Bernardin announced the archdiocese's new policy for dealing with allegations of child sexual abuse on Sept. 21, he said a fitness review administrator, who would head the investigations, would promptly report allegations to the Illinois Department of Children and Family Services.

O'Malley praised the policy's provision for mandated reporting but still questioned what would and would not be reported under the protection of pastoral privilege.

That led to Monday's hearing.

In his column last week in the archdiocesan newspaper, Bernardin anticipated the upcoming trials of two priests charged with sexual misconduct, Rev. Robert Mayer in Chicago and Rev. Norbert Maday in Oshkosh, Wis. The cardinal urged priests and parishioners to support each other as "a compassionate, caring community of faith, especially at this difficult moment."

Acknowledging that victims of clerical sexual abuse, other parishioners, and innocent priests are suffering, Bernardin said he had written to the archdiocese's clergy concerning the upcoming trials:

"I urged the priests to continue to serve the people entrusted to their care, not to retreat to a 'safe haven,' adopt a 'low profile' until the trials are over or pretend that these events are not having a serious impact on all of us."

Since the archdiocese moved to quash the state's attorney's subpoenas seeking more information in the cases, two new civil suits alleging clerical sexual misconduct have involved the archdiocese.

Both were filed this month, one in Circuit Court and the other in Hamilton County (Ohio) Common Pleas Court.

The Cook County suit names as defendants the archdiocese, the Columban Fathers and Rev. Eamon Byrne, a priest who formerly worked in the archdiocese. The plaintiff, a 27-year-old Chicago woman, alleges that Byrne fondled her during a church outing in 1974, that the abuse was reported to the priest's superiors, and that no action was taken. The suit seeks $240,000 in damages.

In the Ohio suit, six plaintiffs charge that Bernardin and Archbishop Daniel Pilarczyk, the former and current archbishops of Cincinnati, knew of sexual-misconduct allegations against Rev. George Cooley when they transferred him from one assignment to another. Cooley served a 90-day sentence after pleading guilty to sexual imposition, a misdemeanor.

A spokesperson for the archdiocese acknowledged Monday that its attorneys have received and are reviewing charges in both cases.

Tribune reporter Michael Kates contributed to this article.


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