The Future of Sexual Abuse Litigation

Since early 2002, the legal world has become much more dangerous for the church than it was previously. The future looks bleak because of three major developments in the sexual abuse crisis. The first major development is that more sexual abuse cases will be filed against the churchthat is, the number of lawsuits will increase. This will happen for several reasons.

First, every person sexually abused by a Catholic priest has a choice. He or she can sue, or choose not to sue. What distinguishes those who choose to sue from those who choose not to sue is not the seriousness of their abuse or the extent of their injuries, nor is it greed or lack of greed. Rather, it is the extent to which they trust the church to do the right thingto take them seriously, to give them help finding emotional and spiritual healing, to deal effectively with the priests. The media storm of the past year has led many victims to believe that nothing has changed, that sexual abuse is still rampant and that bishops are still more interested in preventing bad publicity than doing justice. That will translate into more lawsuits.

Second, plaintiffs’ lawyers know that judges and jurors have been poisoned by the recent media coverage, so those lawyers are now willing to file lawsuits they would not have filed a year ago. These include lawsuits involving relatively minor misconduct, lawsuits that should be barred by the statute of limitations and lawsuits on behalf of victims who already settled once and are seeking a second bite of the apple. It used to be that these lawsuits had so little prospect of success that it was not worthwhile for plaintiffs’ lawyers to bring them. That has changed.

Third, victims’ groups and plaintiffs’ lawyers are working tirelessly to extend or abolish the statutes of limitations that have protected the church from lawsuits relating to very old abuse. The calculus here is simple: Because most dioceses got their acts together in the 1990’s, there aren’t a lot of new abuse cases. But because most dioceses did not get their acts together until the 1990’s, there are a lot of old abuse cases. Victims’ groups and plaintiffs’ lawyers are pulling out every stop in their efforts to get legislators to change the statutes of limitations so that those old cases can be brought against the church. They have already had considerable successin part because the church has been too cowed to fight back, and in part because, even when the church has fought back, it has not had the credibility to do so effectively.

More Dangerous Legal Arena

The second major development in the legal arena is that the cases that are brought will be more dangerous. This is true for several reasons.

First, it will be harder for the church to win. One reason is that judges and jurors poisoned by the recent media coverage will be more likely to find fault on the church’s part. Another reason is that older cases are difficult to defend. On one side, the plaintiff is in court, telling a very specific and very moving story about how he was abused. On the other side, the church has to prove that something did not occur 30 or 40 years ago. Often the priest and the bishop are long dead, leaving the church basically defenseless. Also, the reasonableness of what a bishop did 30 or 40 years ago is supposed to be judged in light of what was known about sexual abuse at that time. But it is almost impossible for either judges or jurors to avoid assessing the reasonableness of 30-year-old decisions in light of what is known today about sexual abuse.

A second reason that lawsuits brought against the church will be more dangerous is that the verdicts will be larger. In sexual abuse cases, money is awarded to victims for two reasonsto compensate them for their injuries and to punish the church for its misconduct.

The problem with compensatory damages is that in sexual abuse cases, they are primarily intended to compensate for emotional injuriesdepression, anxiety, shame and so on. It is very difficult to put a dollar amount on such injuries. What is shame worth? $1,000? $1 million? $10 million? Jurors are pretty much free to pick a number, and when jurors have been poisoned against the church, they are more likely to pick a big number.

The problem with punitive damagesthat is, damages that are intended to punish the church rather than compensate the victimis that they are assessed based upon the wealth of the defendant. A diocese that can barely pay its bills can look on paper as if it is worth hundreds of millions of dollars, because of all of the buildings and land it owns. Moreover, like compensatory damages, punitive damages are difficult to assess objectively. How much in punitive damages are necessary to teach a lesson to the Archdiocese of Boston? $1 million? $10 million? $100 million? Again, jurors are pretty much free to pick a number, and, again, when jurors have been poisoned toward the church, they are more likely to pick a big number.

A third reason that lawsuits brought against the church will be more dangerous is that, increasingly, insurance will not be available to pay for them. Punitive damages cannot be insured in most states. In theory, compensatory damages can be insured, but in more and more cases, there is no insurance available to help the church pay such damagesor even to pay the costs of defense. For old cases we often cannot even identify who insured a diocese in, say, 1965. Even where we can identify the insurer, we cannot locate a physical copy of the policywhich most insurers require before they will defend a lawsuit. For new cases, few insurers even offer coverage that explicitly covers sexual misconduct. The insurance that is offered is very expensive and usually is capped at a very low amounte.g., $300,000.

Expansion of Claims

The third major development that I expect in the legal arena is that we will see an expansion of the types of claims that courts permit to be brought against the churchand a concomitant weakening of the First Amendment protection against governmental interference in the internal affairs of religious organizations. Here are a couple of examples.

Usually, if a plaintiff is going to recover money from a diocese, he needs to prove that the diocese did something wrong. Typically, the plaintiff argues that the diocese did not exercise sufficient care in screening the priest or training the priest or supervising the priest. In the old days, these claims almost always failed if there was no evidence that, prior to the time the plaintiff was abused, the diocese knew of sexual misconduct by the priest. That is changing. Plaintiffs’ attorneys now argue that if the diocese knew the priest had a drinking problem, had struggled with depression, had problems with authority, or even was himself once physically or sexually abused, then the diocese should have known that the priest was vulnerable and more likely to relax boundaries. The diocese should have removed him from active ministry or at least supervised him closely. Of course, the most troubling thing about this theory is that most of those in ordained ministry have had a drinking problem, or struggled with depression, or had some other problem that, according to plaintiffs’ lawyers, renders someone unfit for ministry.

Another new type of claim is what I call a Tenantry claim, named after the first plaintiff who succeeded with such a claim. A Tenantry claim is made against thebishopfor the injuries that thebishopinflicted through his allegedly insensitive handling of thecomplaintof abuse. The plaintiff’s attorney argues that when the victim came forward to tell the bishop that he was abused by a priest, and the bishop began to help the victim, the bishop created a fiduciary relationship with the victim. And when the bishop did something that the victim did not likefor example, did not offer the victim money or enough money, or did not refer the victim to a counselor or to the right counselor, or told the victim to keep quiet or not to keep quiet about the abusethe bishop breached his fiduciary duty to the victim. Churches have been hit for hundreds of thousands of dollars in damages in this way, and I expect that the use of this theory will only increase. That will make it increasingly risky for bishops to deal pastorally with victims of sexual abuseand that, in turn, will mean more business for plaintiffs’ lawyers.

Recommendations

Obviously, things look pretty bleak for the church in the legal arena. What, then, can the church do?

By far the most important thing that the church must do is restore trust. Speaking as an average Joe in the pew, I must confess that the church will not restoremytrust until it holds negligent bishops accountable for the incalculable damage they have inflicted on the church.

Second, the church must dramatically improve the way it works with the media. Whether you like the media or not, they are here to stay, and they profoundly influence the thinking of Americansincluding judges and jurors.

Third, the church has to fight against those who are trying to persuade legislators to extend or abolish statutes of limitations. This is a life-or-death issue. At stake are hundreds of millions of dollarsdollars that could otherwise go to construct church buildings and educate students and feed the hungry. There is a powerful case to be made in defense of statutes of limitations. Not only should the church be making that case, but it should be teaming with other denominationsand with secular organizations like school districts and the Boy Scoutswho have as much at stake as we do. Even when it is clear that the church is going to lose on the statute of limitations, the church should try to get something in returnsuch as limits on punitive damages. Legislators love to give back something to a group that they are about to harm, but right now the church is not even at the tableaskingfor anything.

Fourth, the church needs to handle its litigation better. The church should develop a national database that includes such things as judicial decisions that would help lawyers defending the church and briefs filed by lawyers on behalf of the church. Church lawyers around the country are reinventing the wheel every day, which both costs the church a lot of money and results in wildly inconsistent representation. The church should develop a pool of expert witnesses who could help the churchby providing testimony at trials on such issues as the standard of care, by testifying before state legislators who are considering bills pushed by victims’ groups or plaintiffs’ attorneys and so on.

At bottom, I believe that the church needs a sexual abuse czarsomeone who has the knowledge, skill, authority, staff and resources to improve dramatically the church’s response to the sexual abuse crisis. The measures that the church has taken to datesuch as the Keating Committeeare going to do little to stem the bloodletting in the legal arena. Putting a few million dollars into prevention will save the church hundreds of millions of dollars in the long run. More importantly, of course, it will prevent the non-monetary devastation that sexual abuse causes.

Finally, the church needs to keep cases out of litigation as far as possible. Victims choose to sue the church not because they are angry at being abused, but because they are angry at the way theircomplaintof abuse was handled by the church. By taking victims seriously and treating them compassionately, by moving quickly to get dangerous priests out of ministry, by being open and truthful about all things, the church gives many victims all that they seek and leaves them no reason to hire an attorney.

In addition, the church should set up a national tribunala group of extremely well-respected people who are completely independent of the churchto arbitrate sexual abuse claims against the church. A diocese that wanted to opt in to the system would invite victims who appear to be telling the truth about being sexually abusedwhich is about 98 percent of themto use the tribunal. The diocese would essentially tell victims that, if they forego litigation and instead present their claims to the tribunal, the diocese will pay the victim whatever the tribunal decides is fair. Such a system would have major advantages for both victims and the church.

Victims would be certain of getting compensation. The diocese would agree not to raise the statute of limitations or any other defense. In other words, the question before the tribunal would not be whether but how much? Dioceses would recognize that regardless of what the law says, they have amoralobligation to compensate victims fairly. Moreover, victims would getquickcompensation. In the court system, cases often drag on four or five years. The church could guarantee that the tribunal will always issue a decision in, say, 30 or 60 days, and that the diocese will always issue a check to the victim within 10 days after getting the tribunal’s decision. Most important, victims would get to keepallthe money they are awarded, rather than turning over one-third to one-half the amount to pay an attorney and thousands of dollars more to pay the expenses of litigation.

The dioceses would also save millions of dollars that they now spend on attorneys. Right now, it is not at all uncommon for a diocese to spend, say, $250,000 to defend a case that eventually results in a verdict or settlement of $50,000. In such a case, $300,000 comes out of the diocese’s pocket to put about $25,000 in the victim’s pocket. Wouldn’t it make more sense to have $50,000 come out of the diocese’s pocket to put $50,000 in the victim’s pocket? In addition, because the tribunal would be made up of respected, experienced, reasonable people, dioceses would avoid the risk of having a runaway jury award a victim tens of millions of dollars. Finally, because the tribunal’s only job would be to compensate the victimthe victim would have to forego his right to seek punitive damagesthe diocese would also avoid the risk of a multimillion dollar punitive damage award.

If it implemented this system, the church could reap enormous public relations gainsboth with the general public and with Catholics. The position of the church would be, We will fairly compensate each and every person who has been injured by sexual abuse. All that a victim needs to do is present his claim to this tribunal. We will pay whatever the tribunal tells us to pay. Think of what that would do for the church in the eyes of the legislators and judges who will have the church’s fate in their hands over the next few years. It would put plaintiffs’ lawyers on the defensive, as they would have to explain why they are taking millions of dollars in fees to get for victims what victims could get for themselves from the tribunal.

The most important benefit of this system is that it would let the church and the victim work together in a common causeachieving a just and healing resultrather than pit them against each other through several years of litigation. Needless to say, there would be a lot of details to work out, but unless the church takes bold and creative steps such as these, it is in for a grim few years in the legal arena.