Exclusive: Sex Suit against Diocese Heats up
Church: Documents Requested by Victim's Lawyers Protected by the First Amendment.

By Mark Guydish
Times Leader
January 18, 2006

SCRANTON In an increasingly heated civil lawsuit, the Diocese of Scranton contends its interpretation of the First Amendment justifies its refusal to hand over internal documents regarding sex abuse allegations.

Lawyers for the victim, identified only as John Doe, countered that the First Amendment is irrelevant to their request for the documents.

The First Amendment states in part that Congress shall make no law respecting an establishment of religion or prohibiting the exercise thereof, the diocese has interpreted the clause as a separation of church and state.

The argument is unfolding in the U.S. District Court Middle District as part of a suit Doe brought against the diocese, the Rev. Albert Liberatore, former Bishop James Timlin and others. The civil suit was filed after Liberatore admitted to criminal charges that he had given Doe, then a minor, alcohol and molested him during overnight stays at the Sacred Heart of Jesus Church rectory in Duryea from 1999 to 2004.

In the civil suit, lawyers for Doe want the diocese to turn over numerous documents, including:

Minutes of meetings held by the Diocesan Review Board that looks into such cases,

Complaints of child sexual abuse since 1985,

Documents related to a private investigation of Liberatore,

Information on communications between the diocese and a psychologist who treated Liberatore.

The diocese argued that the documents were confidential, but in December Judge Richard Caputo ordered that they be turned over to him for review. Earlier this month, the diocese filed more objections contending the documents should not be given to Doe's lawyers because that "would violate the Establishment Clause of the First Amendment of the United States Constitution."

Specifically, turning over the documents to Doe's lawyers "would constitute an impermissible invasion into the internal affairs of a religious organization because it would inhibit the Bishop's ability to perform what is, inherently, an ecclesiastical function, i.e. the evaluation of members of the priesthood to determine their continued suitability to serve in that capacity."

To back up its claim of Constitutional "privilege," the diocese cites previous court cases, its own policies for a review board, and the "Charter for the Protection of Children and Young People" adopted by the United States Conference of Catholic Bishops in response to the abuse scandals. That charter calls for the formation of local review boards to function "as a confidential consultative body to the bishop."

But in a response filed Monday, Donna Walsh, an attorney for Doe, made an aggressive rebuttal. Claiming the diocese is asking the judge to "read into the First Amendment a new privilege," she said the request "is remarkable in that the diocese invokes its own internal policy as a shield. No court has recognized a privilege in similar circumstances, nor should this court."

Citing a flurry of court cases and contending the diocese is selectively interpreting the policy set out by the Conference of Catholic Bishops Walsh insists the First Amendment "is not implicated in this purely secular dispute. Importantly, the court is not called upon to resolve any matters of theological or religious doctrine."

Referring to requests for information and minutes from the Diocesan Review Board, Walsh wrote that the board "is not rooted in any religious value and its examination of sexual misconduct allegations does not implicate any religious beliefs."

Even if the First Amendment was applied, Walsh contends, this case does not meet criteria set up by previous court rulings.

Lastly, Walsh argues, the court can order that documents be turned over to Doe's attorneys and still address "legitimate privacy concerns" by restricting public release of such information.

Read court documents regarding the First Amendment dispute filed by both sides at

Mark Guydish, a Times Leader staff writer, can be reached at 829-7161.


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