Should Church Keep Tabs on Priest's Sex Life?

By Scott Russell
Capital Times (Madison, WI.)
March 5, 1997

Assume the Catholic church has reason to believe one of its priests has broken his vow of celibacy.

Is that serious enough that the priest's superiors should be expected to investigate whether he is fit to offer spiritual guidance to women?

That is one of the issues the Wisconsin Supreme Court will have to wrestle with in deciding a case in which Laura Nyberg is suing the Madison Catholic Diocese for negligent supervision of one of its priests, Rev. J. Gibbs Clauder.

The Supreme Court heard arguments Tuesday and is expected to issue a ruling by early summer.

The diocese is asking the court to dismiss the case. Nyberg's attorney, David McFarlane, is seeking court approval to go ahead with a trial on the negligence claim.

McFarlane claims that a relationship Clauder had with another woman should have alerted the diocese to a problem.

Nyberg sought out Clauder for counseling in 1988 when she was recovering at Meriter Hospital from her second miscarriage. Clauder was a hospital chaplain.

The relationship continued after she left the hospital and the two eventually had a sexual relationship, which Nyberg now says was inappropriate.

In court documents, Clauder said the relationship consisted of a mutual friendship. Nyberg said she feared that without the sexual relationship, the counseling and emotional support would have ceased.

In part, the court will have to make a decision in the case about where to draw the line on the separation of church and state.

Can the court rule on the appropriate supervision of priests without violating the church's First Amendment protection? The trial court initially threw out the negligence claim, stating that the decision would violate the Constitution. It also said the relationship between Clauder and Nyberg went beyond the scope of his employment and the diocese could not be held liable.

The Court of Appeals disagreed. The First Amendment did not bar the suit, it said, upholding other portions of the lower court's decision.

The Supreme Court justices grilled attorneys on both sides.

They tried to pin down how the diocese could have reasonably been expected to know a problem existed. They also pressed the church's attorney, Donald Heaney, to define those situations in which a church is liable for the actions of its priests.

Chief Justice Shirley Abrahamson asked McFarlane if he believed the courts should stay out of religious matters.

McFarlane listed a number of states where the courts had intervened in suchn cases. Abrahamson responded, "They can all be wrong."

McFarlane told the court the Catholic hierarchy should have seen problems coming with Clauder. He had a longstanding relationship with a woman, and one incident in particular should have triggered an inquiry, the attorney said.

Clauder was in his room at St. Bernard's rectory with his woman friend, known to the court only by the initials TE. Clauder called out for help. (The time of the incident is in dispute.)

Pastor John Hebl responded to Clauder's cry, finding him on top of the woman, holding her down, McFarlane said in an interview. Clauder had been bitten in the wrist and was bleeding. The woman was escorted from the rectory.

At that point, some reasonable inquiry should have been made, McFarlane told the court. Hebl never reported the incident, though he was concerned a possible sexual relationship existed.

Justice Donald Steinmetz said it was a great step to say that the entire diocese was liable because Hebl never made a report.

"How does it transfer to the diocese?" he asked on the issue of responsibility.

McFarlane said to deny any responsibility would only encourage church leaders to close their eyes, ears and mouths to any problem.

"Silence would provide complete protection," he said.

Earlier in the proceeding, Justice Janine Geske questioned whether the relationship between Clauder and TE was the kind of red flag that should have gotten attention from Catholic higher-ups. Their relationship was not that of a priest and patient, she said.

One of the charges brought against Clauder is that he violated Wisconsin Statute 895.70, which prohibits sexual abuse by a therapist.

Heaney argued at length that Clauder was a hospital chaplain and not a therapist. There is a clear distinction in training and practice, he said.

Abrahamson asked Heaney if a diocese could ever be liable for the actions of a priest. She asked him to give a hypothetical situation where liability would apply.

"I don't know that I can answer that," Heaney replied. He said the court had not been able to draw that line, but had been very careful not to intrude into the governance of the church.

Justice Ann Bradley asked, hypothetically: If a Satanic church was involved in the abuse of children, would it be liable, or would it be protected under the First Amendment?

"Where is the line?" she asked.

Certain facts are clear, Heaney said. "I can't go around sacrificing babies."


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