Mahony's Long-Shot

By Eric Berkowitz
Los Angeles Times
February 3, 2006,0,4236136.story?coll=la-headlines-pe-california

ERIC BERKOWITZ is a freelance journalist and lawyer living in Los Angeles.

THURSDAY, THE Archdiocese of Los Angeles asked the U.S. Supreme Court to overrule a series of lower court decisions and allow it to keep secret 14 documents from the confidential files of two former priests accused of child molestation.

The church doesn't have a particularly good chance of winning. It has been fighting to keep the documents out of the hands of a grand jury for three years, and there is little reason to believe the Supreme Court will back what a Times editorial has called Cardinal Roger M. Mahony's "unseemly struggle" to conceal the truth about the priests' transgressions.

The church's argument that the 1st Amendment's freedom-of-religion clauses and various state privileges entitle it to withhold the documents from the grand jury has drawn near-universal derision. Most everyone seems to believe that Mahony's real aim is to reduce the archdiocese's potential liability in the scandal and to hide the church's complicity in keeping dangerous priests on the job.

Perhaps so. But when the grand jury finally gets the documents (assuming the court orders that), justice will be taking a step backward.

In the short term, turning over the documents may make it more likely that the former priests will serve time (one of them, Michael Stephen Baker, is the subject of about 20 molestation complaints and was arrested last week). But in prying open the church's files, the courts also will be trampling on some of society's most important constitutional and civil rights — including the Catholic Church's 1st Amendment right to freely exercise its religion and an individual's right to discuss sins in private with clergy.

And ironically, the courts might even be making it harder for religious organizations to prevent abuse by priests.

It's true that Mahony has been unsuccessful in the past at stopping some priests from harming children, but that doesn't mean we should hinder his successors from trying to do a better job. Yet that is exactly what the courts will do if they force these documents into the light.

During the last few years, the battle over the documents has turned into an intervention in the way the archdiocese counsels priests. The church argues that bedrock Catholic doctrine requires Mahony to care for his priests' overall emotional and spiritual well-being, including issues regarding sex and chastity. "It's part of the structure of the church for the bishop to operate as the person the priest turns to in times of need," said the church's lawyer, J. Michael Hennigan.

Priests are encouraged to selfreport their troubles, after which the bishop can order counseling, reassignment and, if necessary, relief of duty. Given that the archdiocese has about 1,000 priests, Mahony has deputized a vicar for clergy to act as his surrogate in some instances in performing some of these functions.

Clearly, this system has not worked well, but the church reasonably argues that forcing open the files will make it impossible for it to succeed in the future. Hennigan said the dispute over the documents — and the idea that what priests say to their counselors in private may become public or be used in court against them — is already resulting in silence. But if priests don't talk about their urges and problems to their counselors beforehand, the only mechanism for dealing with potentially abusive priests will be criminal prosecution after the damage is done.

In a related issue, the courts also have applied too narrowly the privilege under which communications between members of the clergy and those who speak to them in private cannot be used in a court of law. The statutory privilege encompasses all confidential communications between individuals and their clergy.

As with the attorney-client and psychotherapist-patient privileges, the protection of clergy-penitent communications expresses society's collective decision that it is more important to guard a confidential relationship than it is to expose what happened in a particular case. For many, the ability to communicate freely with their clergy serves the same function as psychotherapy. We may not see much value in providing this service to accused child molesters, but when the privilege is weakened for some people, it is weakened for all of us. Such communications are generally inviolate, even if they include admissions of criminal wrongdoing.

Upholding the privilege here would keep many of the documents from the grand jury. To avoid this politically unpalatable result, the courts found a loophole, holding that the inclusion of the vicar for clergy in counseling work that was supposed to be done by Mahony erased the essential element of confidentiality. Once a third party became privy to the information, it was no longer secret, the courts said.

This is bad reasoning. In an organization as vast as the archdiocese, it is unrealistic not to allow Mahony to be assisted by the vicar. It would not have been a stretch to include the vicar in the cardinal's zone of confidentiality.

The desire to get bad guys makes us sometimes devalue our own rights. Unlike accused criminals, most of us aren't ever in the position of challenging unlawful searches, high-pressure interrogations or forced confessions. Here, the rights to free exercise of religion and the protection of confidential communications are being asserted by a shamed organization that many feel has already been indifferent to the sufferings of children. But that doesn't make the rights any less valuable.

Hennigan conceded that the Supreme Court petition is a "shot in the dark." The documents will most likely be produced. As we take the next step in prosecuting bad priests, we should at least consider what we're losing.


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