Bare-Knuckle Litigation or the Back of the Hand?

By Steve Duin
Oregonian [Portland Oregon]
April 4, 1995

By 1992, when Jason Berry published "Lead Us Not Into Temptation" his study of Catholic priests and pedophilia -- 400 priests had been officially accused of sexually molesting children.

The financial toll on the Catholic Church -- in legal bills and medical treatment -- approached $400 million. The losses in trust and credibility? God only knows.

The church was painfully slow to react to the scandal, the first blister of which burst in 1983 in Lafayette, La., just up the road from Berry's home in New Orleans.

Priests known for their "misguided affection" for children were quietly moved to another parish. "How should we account," Berry asks, "for bishops who proclaim the sanctity of life in the womb and recycle priests who molest children?" More recently, Catholic bishops have made a public showing of adjusting their priorities. Four months ago, a committee of bishops studying sexual abuse reached a belated and unremarkable conclusion.

"Victims first," said Bishop John Finney of Bismarck, N.D., the committee chairman. "That's what we believe the diocesan policy ought to say loudly and clearly."

A case slowly weaving its way through Multnomah County Circuit Court, however, suggests that the bishops and their lawyers may be serving different masters.

Steven Fearing of Tigard is suing Melvin Bucher, a former youth pastor and Franciscan priest at St. Anthony's Parish, for alleged sexual assault on at least 20 occasions in the early 1970s.

Fearing -- who claims he didn't understand the physical and emotional injuries he suffered as a minor until after Bucher tried to resume sexual contact several years later -- also is suing St. Anthony's, the Franciscan Friars and the Archdiocese of Portland.

Fearing's attorney, Kelly Clark, argues in court papers that Bucher used his position at the parish to gain Fearing's trust, and that his employers were negligent in failing to screen priests and to educate staff "to recognize and report suspected pedophilia."

Bud Bunce, the director of communications for the archdiocese, said the church is not contesting that the sexual assaults took place. He argues, however, that the Catholic Church should not be held responsible because Bucher was on leave when the assaults reportedly occurred.

Bunce said Bucher requested a leave of absence, which lasted 18 months, "from the whole religious life. If he was on a leave of absence from both the priesthood and the religious life, he wasn't working for anyone. The archdiocese is saying there is no way it could have any control over his actions."

But the lawyers are mounting a different defense in motions before the court.

Tom Dulcich, the attorney for the archdiocese, reminds the court that priests take vows of poverty, chastity and obedience.

Sex simply isn't part of the program. Thus, Dulcich reasons, the church can't be held responsible when sex somehow slips into the garden: "As a matter of law a Catholic priest cannot be within the course and scope of his employment while committing a sexual assault and battery."

You might wonder why the church didn't come up with this defense 400 priests ago.

The lawyer for the Franciscan Friars, Janet Schroer, is arguing something quite different. She claims the Oregon law which extended the statute of limitations for victims of child abuse is unconsitutional.

That law, passed by the 1989 Legislature and amended by the 1991 body, is retroactive. Claims are allowed not only against the abusers but anyone who knowingly allowed, permitted or encouraged the abuse.

Schroer tosses out a handful of reasons why this law violates the Oregon Constitution. It is unfair to expect the Franciscans to "defend their case and their honor against such a stale claim."

The Legislature has exceeded its power.

And get this: By "creating a special law" for abused children, the Legislature violates the consitutional provision prohibiting "special treatment to favored individuals or classes of citizens."

Although these children certainly got the treatment years ago, I doubt they feel all that special.

"These are both surprising arguments to me," said Clark, Bucher's lawyer. "Over and over again, you have the church stepping up and accepting the fact of liability, then maybe arguing about damages."

Fearing is seeking $7 million in damages, $5 million of which are punitive. If the Catholic Church still believes in what the bishops called "victims first," that financial hit may have altered its view as to who the real victims are.


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