Legal Spotlight on Priests Who Are Pedophiles
By Rorie Sherman
National Law Journal
April 4, 1988
DEEP IN Louisiana, in a predominantly Roman Catholic area known as Acadiana, not far from the Gulf of Mexico, there was a priest named Gilbert Gauthe whom parents and children all seemed to revere -- until news of lawsuits claiming he had molested altar boys exploded in the local media.
Shock and disbelief greeted the allegations. Then the popular priest's confessions that he raped or sodomized at least 37 children proved the accusations were not children's tales. Later discoveries in civil suits also showed that the priest's superiors, Bishop Gerard Frey and Monsignor H. A. Larroque, had known since 1974 about the reverend's sexual attraction to boys but continued to allow him to come in contact with children.
Complaints stemming from Father Gauthe's actions and those of at least two other priests in the area continue to be lodged. But even when all such injustices in Louisiana are finally recorded, the story of pedophiliac priests will be far from told.
Since the sorrow of Acadiana was first aired about five years ago, lawsuits have surfaced in communities across the country, revealing that other minors have been abused by men the church taught them to call " Father. " In a number of these cases, bishops had ignored parental warnings, failed to notify secular authorities, and permitted known sex offenders to move into other parishes -- where the tragedy of child abuse was re-enacted with a new cast of victims.
"There is a whole string of little sexual Watergates laced out across the map of America," says Jason Berry, a free-lance journalist based in New Orleans who has been investigating these cases since the Acadiana story first broke.
These scandals and the number of lawsuits have focused a spotlight on the Roman Catholic Church -- which lost its insurance coverage for child sex-abuse cases and had to create more limited self-insurance plans.
The press has reported about 140 cases of priests accused of molesting children in 18 states -- from California and Idaho to Ohio, Rhode Island, New Jersey, Mississippi and more. A 1985 report to U.S. Catholic bishops estimated that diocesan payments to victims could reach $1 billion in the next decade.
But the problem may be much worse. No one knows how many claims have been made altogether or how much has been paid to victims. Journalists are stumped by gag orders and silence stipulations in settlement agreements, which often are associated with these cases. And the Catholic Church has no obligatory, central reporting system, according to Mark E. Chopko, general counsel to the Washington, D.C.-based U.S. Catholic Conference (USCC), who declined to estimate the number of cases on which he's been consulted.
Nevertheless, litigation against dioceses for the emotional havoc pedophiliac priests wreak has been prevalent enough to allow some personal injury lawyers to develop a subspecialty. And some attorneys say many more cases will come to light.
"The people that have come forward are the tip of the iceberg . . . and I think the iceberg is big," says one such lawyer, Anthony J. Fontana Jr. of Abbeville, La.'s Theall & Fontana, who has handled at least 20 of the Acadiana cases.
Recently, Mr. Chopko issued a statement on behalf of the USCC that for the first time formally acknowledged a pedophilia problem in the priesthood. The statement, released Feb. 9, lamented the damage done to innocents, promised the conference would do everything in its power to heal the afflicted, and pointed to efforts made thus far.
Some were reassured by the statement. "This means that there will be a fair amount of pressure brought to bear if a bishop even has thoughts about not handling a problem in the right way," says the Rev. Thomas P. Doyle, one of the authors of a comprehensive 1985 report to the bishops on pedophilia and the priesthood.
But many of those instrumental in bringing the problem into the public forum -- personal injury attorneys and investigative journalists -- fault the USCC statement for implying that pedophila affects only a few fallen priests.
The incidence of pedophilia is no greater in the priesthood than in other organizations involved with the care and education of children, according to Mr. Chopko. Pedophiles do seem attracted to such organizations. Given this propensity, says Mr. Chopko, the Catholic clergy is no different than, for example, Boy Scout leaders.
However, many argue that because of the celibacy requirements of the priesthood, its population of pedophiles is unique -- and it is larger than the church has acknowledged.
According to Mr. Berry, who was awarded the 1986 Catholic Press Association award for his in-depth reporting on this subject, the Catholic Church is accepting and retaining unfit priests because of the dwindling number of men willing to take the vow of celibacy required to join the priesthood.
"A generation ago, if this plague had been visited upon the priests, they would have kicked [the pedophiles] out," says Mr. Berry. But now the bishops are "trying to recycle these guys and keep them in."
No one knows exactly how many pedophiles are in the general population or among any specific group, according to Dr. Fred S. Berlin, director of the Sexual Disorders Clinic at Baltimore's Johns Hopkins Hospital. Nor are there any definitive studies on the number of victims, he says.
But A. W. Richard Sipe, a Baltimore psychotherapist on the board of directors of the Suitland, Md.-based St. Luke Institute, says his work suggests that 2 percent of all priests have experienced sexual excitement by fantasizing about or actually having contact with minors.
A study at Duke University found, notes Mr. Sipe, that the average pedophile had 265 actual sexual contacts in his or her lifetime. But there is a different kind of restraint, at times, among the clergy, according to Mr. Sipe. "You wouldn't want to imply that these people fit into the Duke study," he says.
"Not everybody has the full-blown form of pedophilia," which is a very compulsive disorder.
Studies of the general population indicate that pedophiles are twice as likely to be heterosexual as to be homosexual. Yet the now deceased Rev. Michael R. Peterson, former president of the St. Luke Institute, said in the 1985 report to the bishops that his experience in treating pedophiliac priests showed most were attracted to male children. Homosexual pedophiles tend not to marry, while heterosexual pedophiles usually have been or are married, he added.
But not all the cases against dioceses for priests' sexual transgressions involve pedophilia, which the revised third edition of the Diagnostic and Statistical Manual of Mental Disorders -- the bible of mental health professionals -- describes as the "act or fantasy of engaging in sexual activity with prepubertal children as a repeatedly preferred or exclusive method of achieving sexual excitement." Priests also have been accused of seducing sexually mature male and female teen-agers under statutory age, which, although a crime, does not place them in the same category of sexual deviance.
Attorneys and journalists who have handled the issue say they believe the number of victims is far greater than acknowledged. Publicity surrounding such cases and the appearance of articles on the subject elicit numerous telephone calls from victims who are often unable to make their pain more public. Karen Henderson, a veteran staff reporter for the (Cleveland) Plain Dealer, says she's been getting calls from victims all over the country since July, when her articles first began exposing cases involving at least six priests in the Cleveland area.
When victims do decide to come forward, they frequently turn to personal injury attorneys. Although there were isolated cases before 1982 -- when the first lawsuit involving Father Gauthe came to New Orleans' Becknell, Dwyer, Bencomo & McDaniel -- the Acadiana suits represented the "dawn of civil liability in sexual abuse cases," says partner Raul R. Bencomo.
"It's pioneering litigation of a sort," agrees Jeffrey R. Anderson of St. Paul, Minn.'s Reinhardt & Anderson, who has pending 25 child sex-abuse cases, of which eight are against dioceses. "People haven't been suing over sex-abuse until recently," he notes, adding that the public is "increasingly realizing that these wrongs are actionable -- it sort of catches on like wildfire."
As cases have proliferated, an informal network has developed among some of the plaintiffs' lawyers handling them. A few are even talking about creating a formal group within The Association of Trial Lawyers of America to exchange information on their common experiences.
Such a group would be particularly useful because there is little or no written legal guidance for lawyers involved in civil litigation over child sex abuse, notes Mr. Bencomo.
Counsel for the Roman Catholic Church also have a network. Although each diocese employs its own attorney, Mr. Chopko of the USCC is available to diocesan personnel for consultation on child sexabuse claims.
And Robert W. McMenamin of Portland, Ore.'s McMenamin & Associates, who has handled a number of cases on behalf of religious organizations, publishes a monthly newsletter for church personnel. Clergy Malpractice Alert chronicles current problems and changes in the law, including those involving sexual-abuse cases.
As Abbeville, La.'s Mr. Fontana says, "It's becoming a particular type of tort claim that has peculiar problems just like any other type, just like your airplane crashes."
From the plaintiffs' lawyers' perspective, many cases involving Catholic clergy have followed a distinct fact pattern.
According to Mr. Anderson: "The priest is put in a position of power and authority. If he is a pedophile, he will abuse compulsively until, ultimately, that abuse is discovered because his victims are many in number."
Mr. Anderson says the church's "institutional" response has been to "appease families, keep it from the police, and transfer the priest to another parish where the abuse begins again."
"Instead of removing the priest, " he adds, "they think of themselves [and the] priest -- and not the parishioners."
A three-month examination of court records by Carl M. Cannon, staff reporter for the San Jose Mercury News, showed this pattern held true in about 25 dioceses throughout the country, including California, Florida and Idaho.
In Minnesota, Mr. Anderson claims that the Rev. Thomas Adamson similarly was transferred from one pastoral assignment to another every three years despite church officials' awareness of his deviant sexual behavior. The church removed the priest from a position that allowed him access to children within the Archdiocese of St. Paul only after a victim's family made a case against him, according to Mr. Anderson. Riedele v. Archdiocese of St. Paul, 482126 (Dist. Ct., Ramsey Cty.).
The archdiocese has not admitted liability for Father Adamson's actions.
Other common aspects to many of these cases, according to reporters and attorneys, include the use of seal orders and settlement stipulations to protect dioceses' reputations as well as the identities of child victims.
Plaintiffs' lawyers charge that some bishops wish to hush news of scandals and hope to prevent more victims from coming forward. And when churches stipulate the plaintiffs must stay silent before a civil suit is filed, criminal cases may be thwarted, says free-lance investigative reporter Mr. Berry.
According to Ms. Henderson of the Plain Dealer, an agreement between the Diocese of Cleveland and a former altar boy stipulated that compensation payments of $60,000 would halt if he or his family broke a pledge of silence.
The Cleveland diocese has denied it paid "hush money" to the boy and his family.
The legal tactics used to defend dioceses have been the same everywhere, according to Mr. Fontana. "The church is still a medieval institution," he says. "It tries to pull up the drawbridge, close the windows, survive the siege; they do not cooperate, do not provide any information."
Along with delays and refusals to disclose information -- typical of any liability litigation -- plaintiffs' counsel say defendants frequently try to shield themselves using statutes of limitations and the argument that dioceses are not responsible for priests' activities outside the scope of their employment.
Both defenses defeated a case handled by Gloria R. Allred of Los Angeles' Allred, Maroko, Goldberg & Ribakoff that claimed a young woman was seduced by a priest when she was 16 years old, coerced into sexual relations with a total of seven priests, and made pregnant at 18.
The California Supreme Court let stand a lower court ruling that the archdiocese was not responsible for the priests' alleged activities. The lower court said sexual activity was "not incidental to priestly duties or reasonably foreseen as an outgrowth of these duties."
The lower court also had found that the plaintiff had filed her suit too long after the sexual abuse and the birth of her child to be within the statute of limitations. Milla v. Tamayo, 187 Cal. App. 3d 143 (1986).
But a recent federal court decision may help crumble the "scope of employment" defense. The 8th U.S. Circuit Court of Appeals found the city of Pagedale, Mo., liable for a sexual assault committed by one of its police officers. The court agreed with a victim's assertion that the municipality had a "custom of failing to receive, investigate, and act on citizen complaints by
City police officers." Harris v. City of Pagedale, 821 F.2d 499, petition for reh'g en banc denied, petition for reh'g by panel denied (1987).
"If one of my employees as a lawyer does something negligent, as a superior I am responsible," says Mr. Bencomo of New Orleans. "A priest is an employee 24 hours a day," he argues, and "the church has to be responsible for them 24 hours a day."
And plaintiffs' attorneys also see, in a recently decided case against Father Gauthe, a potential breakthrough in the statute of limitations problem.
In Louisiana, the statute of limitations is one year after the date of an incident. But according to Mr. Fontana, the lawyer who handled the case, "We used a theory of law that the clock starts ticking only once you're aware of the harm." The plaintiff was awarded $1.55 million and his parents $250,000 against the Diocese of Lafayette. Mire v. Gauthe, 86-52437 (Dist. Ct., Vermilion Parish 1987).
Mr. Fontana now is pursuing cases against the Rev. John A. Engbers, one of the three priests of Acadiana, involving incidents that occurred in the 1950s. Five sisters claim the priest molested them for years. One of the women says he also assaulted her daughter. Bonin v. Engbers, 85-7412-G (Dist. Ct., Lafayette Parish).
"The issue is not how long did you wait but rather how long were you incapacitated," says Mr. Bencomo.
Ample medical evidence shows there often is a long lag between the time a child is sexually abused and when the victim becomes able to speak of the experiences.
"The message of a short statute of limitations is: 'Come to Minnesota to abuse and then make sure you screw your victims up real bad'" so they never testify against you, Mr. Anderson says. "That is not an intentional message, but that is the effect. The statute of limitations now rewards intimidation of the victim by the victimizer."
Limitations Period Extended
As a result of victims' frequent inability to come forward quickly, the Minnesota Legislature in 1984 extended the three-year criminal statute of limitations for child sex-abuse cases to seven years after the criminal conduct occurs.
Mr. Anderson says he intends to go to his state's lawmakers next year to ask them to change the statute of limitations for a civil claim of child sex abuse from two years after the incident or the victim's 18th birthday to seven years from the time of discovery of the harm. At the extreme, then, a 40-year-old who, with the aid of therapy, destroys an emotional block to remembrances of childhood abuse would have seven years to come forward and file suit.
As similar as so many of these claims are, the case against the St. Paul Archdiocese does involve one unusual twist that may have broader implications for church-state law.
Mr. Anderson, as allowed under Minnesota law, is pursuing punitive damages against the archdiocese for willful indifference to the rights and safety of others. Punitive damages claims allow him to "do discovery of the defendant's ability to pay and, at trial, introduce that evidence so that it can be considered in deciding what sum of money the wrongdoer would pay," he says. If successful in achieving such discovery, the case would run counter to precedent, which often prevents outsiders from demanding internal church documents because of the separation between church and state.
Public Relations Fallout
Meanwhile, the U.S. Catholic Church is struggling -- externally with the terrible public relations fallout from these cases and internally with the proper response to the problem. Potentially, the church also could be faced with a class action against a diocese where many children have been abused and with the indictment of a bishop who failed to report a crime.
Since the Acadiana cases first became public in 1984, the U.S. Catholic Conference has been criticized repeatedly for failing to publicly address the pedophilia problem.
"The U.S. Catholic bishops are presiding over a scandal," said a recent editorial in the Kansas City, Mo.-based National Catholic Reporter, an independent newspaper devoted to Catholic interests.
Lawsuits also have tried to hold the USCC, even the Vatican, accountable for incidents of abuse. One case in a Mississippi federal court and three in a state court there claim bishops have an obligation to screen candidates for the priesthood. Spann v. Thorne, J87-0114 [B][S], (S.D. Miss.); Kency v. Thorne, 35019, (Cir. Ct., Hinds Cty.); Applewhite v. Thorne, 35010 (Cir. Ct., Hinds Cty.); Spann v. Thorne, 34499 (Cir. Ct., Hinds Cty.).
But Mr. Chopko says, "The USCC is not a national governing board for the church in the United States." Only the pope can dictate policy to dioceses on how to handle any issue. The bishops association also is not involved in the selection of seminary candidates or with the supervision of priests, he adds.
Of course, the USCC can make recommendations. And in the past few years it has been criticized for failing to exercise that power. Even some members of the church hierarchy have been disappointed that the organization did not endorse Father Doyle's 1985 report, which gave unsolicited advice to the bishops on how to handle accusations and which outlined the implications of the problem under both secular and canon law.
The book-length report, however, seems to have generated as much anger as support for its proposals. Its co-authors -- Father Doyle, Father Peterson, and Lafayette, La., sole practitioner F. Ray Mouton -- were accused of trying to further their own careers because the report recommended the creation of a child-abuse task force to help dioceses deal with the problem. Such a team should, said the report, include professionals with the the co-authors' credentials -- an expertise in canon law ( Father Doyle), secular law (Mr. Mouton) and psychiatry ( Father Peterson).
The anger only increased when Father Doyle and Mr. Mouton began publicly to voice their concerns about pedophiliac priests.
The four-page statement on the problem of pedophilia that the USCC finally did issue this year already has been faulted as inadequate.
"It doesn't say anything," says Mr. Bencomo. "It's a carefully drafted document to attempt to show concern."
Anything more complete, of course, runs the risk of turning into a tool for plaintiffs' attorneys, who could use in court any discrepancies between the USCC's recommendations and a particular diocese's actions. Some personal injury attorneys are planning to incorporate the 1985 report into their cases.
Nevertheless, some dioceses have issued guidelines for responding to allegations of pedophilia. The New Jersey Catholic Conference, the association for the state's six dioceses, issued a manual in April 1985 that calls attention to local requirements for notifying secular authorities, according to William F. Bolan Jr., executive director of the organization.
After suffering through lawsuits, dioceses in Jackson, Miss., and Orlando, Fla., adopted strict written procedures to ensure that molestation complaints receive adequate attention.
And, in the process of forming a company called The Ordinary Mutual for self-insurance, 12 dioceses in the West -- 10 in California, one in Tucson, Ariz., and one in Reno, Nev. -- have developed a working set of recommendations.
According to Brother Haig M. Charshaf, business manager of the Oakland Diocese and board member of The Ordinary Mutual, one of the principles is: "You don't cover up; you don't simply transfer a person to another location." That, he says, "is absolutely wrong."
Despite the efforts undertaken by individual dioceses and by the USCC to deal with the problem and prevent future lawsuits, the Catholic Church's legal nightmare may have just begun.
"I think we're going to see a bishop [who fails to report a priest's crime] in jail," says Mr. Fontana. "When we finally get a prosecutor with the guts, you're going to see shock waves going through the country."
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