Friday, April 23, 2010

Look, we sued the Pope !

Lawyers for the Vatican have called the lawsuit against Pope Benedict and the Holy See a "publicity stunt." I wouldn't go so far as to say that - it has a chance of surviving a motion to dismiss and there may be, embedded in its fifty four pages, a theory that might get to the jury. But there is a sense in which that a publicity stunt is precisely what it is and there may be some larger lessons here about the American liability system.

The lawsuit arises from the predations of a pedophile priest in Milwaukee named Father Murphy. It's a nasty case. Murphy abused numerous young boys at a school for the deaf, largely in the fifties and sixties, but perhaps extending to the early seventies when he was (quite improperly) quietly shuffled away to an early retirement. It is clear that the Milwaukee Archdiocese - in particular Archbishop Meier - failed to act in ways - during the 1960s - that would have halted the abuse. There is no evidence that the Vatican, much less the Pope, had any knowledge of or involvement with Father Murphy during this period. By the time the Vatican (and then Cardinal Ratzinger as head of the Office for the Propagation of the Faith) became aware of Murphy's offenses, it was the late 90s. The Milwaukee Archdiocese had brought a belated action to defrock him.

There is a controversy over how that proceeding was conducted and whether it ended prematurely. But it could not have prevented any further abuse and it is almost certain that, however it was handled, Father Murphy would have (as he did) die before it could be completed.

Here is where the publicity stunt begins. What makes this case newsworthy - what puts you in the New York Times and on the networks news - is the defendant in the Apostolic Palace.

There are multiple legal problems with bringing an action against the Pope and Holy See under the Foreign Sovereign Immunities Act. Two circuit courts of appeals have allowed part, but not all, of such cases to go forward. The outcomes are not consistent with each other and, in one, a cert petition is pending before the Supreme Court. Without getting into the details, the reasoning in these cases is far from unassailable.

But the theories that have been permitted - largely negligent supervision and a rather curious notion of respondeat superior - have either been rejected or are unlikely to be recognized by Wisconsin law. The Wisconsin Constitution has been interpreted to confer rather broad protection for church autonomy. Even if these problems are not fatal, the actions complained seem to be almost certainly barred by the statute of limitations.

And, as this is important, the wrongs alleged to have been committed by Pope Benedict himself could not have averted any of the very real harms suffered by the plaintiffs. Father Murphy's predations had ended long ago. They - and the feckless response of the Milwaukee Archdiocese - were well known within the deaf community. (It was pressure from that community that lead to the charges against Murphy.) The Milwaukee District Attorney had, rightly or wrongly, already declined to prosecute him. Unless one buys into the dubious notion that the failure to a religious institution to impose discipline long after the fact is a legally cognizable injury, the naming of Pope Benedict XVI is, notwithstanding the sympathetic nature of the plaintiff and the very real horror to which he was subjected - a publicity stunt.

There are a few larger implications. Litigation, in this instance, is being used as a front in a larger war to affect Vatican policy in the future. Although advocates say that something "must change," the fact is that almost everything about the Church's response to clergy abuse has changed. The gravamen of the complaint is to have outsiders manage that change. Once again, we see an attempt to take traditional common law notions of duty and liability and extend them to form the basis for prospective regulation - something which, I would argue, strains judicial competence and usurps prerogatives of civil society - particularly where the institution to be regulated is a religious institution.

Second, a theme in the complaint is that the Vatican should have acted in a way that would have publicized what it calls, at a least one point, "the practice" of child sex abuse. The harm in its failure to do so, it seems, was not limited to the predations committed by known abusers who were placed in a position to abuse again, but in the failure (or so it seems) to let people know that, in general, "priests abuse kids."

This reminds me of other cases in which the theory of liability has been that the defendant (I think of the lead paint and tobacco cases, although those were stronger examples of the approach than this is) should have fallen on its sword. There are numerous difficulties with this theory in this context, but, once again, it strikes me as a questionable spin on traditional notions of common law duty.

Finally, we have the problem of our repeated inability to discuss these matters rationally. When I wrote an op-ed in the Milwaukee Journal Sentinel a few weeks ago arguing that it might not be a good idea to completely abolish Wisconsin's generous statute of limitations for cases like this, I was accused of siding against "victims" and not appreciating the gravity of Father Murphy's offenses. Neither charge is fair.

Just as lawyers know that being "against crime" does not mean that we ought to do away with constitutional protections for criminal defendants, we also know that empathy for those to whom bad things have happened doesn't mean that all limitations on liability - even for those "deep pockets" whose relationship with the wrong is indirect - ought to be swept aside.


Cross posted at Point of Law

11 comments:

Dad29 said...

There's another question.

Exactly how does 'defrocking' prevent abuse?

Once a priest is 'defrocked,' his vow of obedience to his Bishop also goes away, meaning that (prospectively) the Church has NO control of the individual at all.

I grant that any priest can disobey the Bishop with relative ease. Murphy certainly did while in exile. But 'defrocking' is not "discipline." It's merely a change in status.

John Foust said...

Whew, for a second there, I thought Dad29 was going to suggest we shouldn't grant special exemptions to the Church.

Anonymous said...

Nurses and physicians lose their licenses for such behavior yet the church allows priests to remain as the slow wheels of canon law grinds as children continue to be victimized

AnotherTosaVoter said...

Just as lawyers know that being "against crime" does not mean that we ought to do away with constitutional protections for criminal defendants"

Unless they're Republicans running for office on a "tough on crime" platform.

Anonymous said...

Check out the Newsweek that arrived today. Great article on Rat-Zinger: "The Holy Father seems to have been lenient with criminals while reserving his severity for those who complained about them." That's the problem in a nutshell. Praise God for Martin Luther.

Anonymous said...

It is always terrible when authorities encourage, allow or participate in lawlessness of any kind.

This problem may shed some light on it but there are plenty more examples of it that people experience everyday.

For example, government authorities violating laws not to allow people in meetings as seen in Washington County. Without giving specific examples, I believe Lawyers advise clients to violate laws because it would be to expensive for opponents or victims to enforce.

Our society continues to slide away from law abiding to law breaking. It's not enough to say that its only against the law if I get caught or someone proves it.

The integrity of nearly all institutions is being diminished nearly everyday. Catholics do not approve of these things and do want there leaders to do something about it.

Anonymous said...

A 7:11, this is just another area where Catholics have "checked out" on the leadership of the Church.

How many Catholics practice the "rhythm method" vs. using contraception? 5-10% tops? That may overstate it.

When the word from the top makes no sense, the people ignore it. When the boys at the top cover up pedophilia and punish those who complain, the reaction may be more forceful.

Again, I get on my knees and thank the good Lord for Martin Luther every day.

Anonymous said...

A 7:11, this is just another area where Catholics have "checked out" on the leadership of the Church.

How many Catholics practice the "rhythm method" vs. using contraception? 5-10% tops? That may overstate it.

When the word from the top makes no sense, the people ignore it. When the boys at the top cover up pedophilia and punish those who complain, the reaction may be more forceful.

Again, I get on my knees and thank the good Lord for Martin Luther every day.

Dad29 said...

Nothing like carefully reasoned debate.

One more time: the primary responsibility for a bad priest rests in the hands of his BISHOP.

Meyer, Cousins, and Weakland--not some Vatican functionary--were supposed to be responsible for caging Murphy.

But it's more fun to swipe at Rome, I know. Dishonest and uninformed, but fun.

John Foust said...

You love cops, Dad29. Why doesn't the bish just hand 'em over to the cops when the suspect a crime?

Anonymous said...

Nothing like carefully reasoned hypocrisy, eh dad?

It's fun to take swipes at Washington, DC, for failures at the local level. Dishonest and uninformed, but fun.