The National Catholic Review
Equitable Rights

Thanks for the informative, if sobering, article by Fred Naffziger on the bankruptcy situations in the Portland and Spokane dioceses (3/27).

I have never been able to understand why our Catholic dioceses do not simply implement the spirit and letter of Canon 1256 and set up each parish’s property in an express trust, with the bishop as the sole trustee. That way, instead of having to argue from canon law, apparently ineffectually thus far, that this property ought to be considered a constructive or resulting trust, despite the fact that the bishop holds legal title, American courts might then be forced to recognize the equitable rights of local parishioners and their successors in such property. This would at least offer protection to the majority of parishes that never had any instance of sexual abuse by the clergy.

Paul A. Becker, Esq.
Bluffton, S.C.

Serious Rethinking

The contrast between the Rev. Andrew Greeley’s seminal book review of Parish Priest, a biography of the Rev. Michael McGivney, founder of the Knights of Columbus, and the Janus-like New Standards for Pastoral Care, by the Rev. Michael N. Kane (4/10) is startling. The primary thrust of the latter is that parish priests, except when the seal of confession clearly applies, should morph into health care professionals to minimize potential legal liability for themselves and their dioceses.

The current climate of fear was caused in large part by too many bishops who betrayed their trust and pastoral responsibilities. A corrective is having better bishops, rather than beleaguering parish priests. They were not ordained to be health care professionals. Parish priests were ordained to draw souls to Christ through selfless service and the sacraments. Engaging in nondirective interview techniques will turn off most sensible persons.

As a lawyer with over 30 years’ experience counseling and defending physicians and human resources personnel (malpractice, sexual harassment, race, age, sex discrimination, wrongful discharge, etc.), let me offer a very basic counterpoint. In employment law litigation (and other noncommercial litigation) jurors penetrate the judge’s charge. They look to see if the employer’s conduct is fair and reasonable in the particular case. Personnel policy manuals, with or without disclaimers on the first page, control only when the defense has the smell of truth. Otherwise jurors overlook them. The same would be especially true with the new standards. If the bishops thought they had problems before, just wait until priest/penitent confidentiality (up to and including the seal of confession), protected by statute as well as the common law, is challenged by claims of waiver/estoppel based upon the new standards. The new standards will be a forgotten fad before long, unless episcopal authorities have the trust of their parish priests and practice what they preach. Some serious rethinking seems to be in order.

Father McGivney died young from overwork. Without the aid of the new standards, he is up for canonization. Sometimes good guys win.

John P. Crilly, Esq.
Whitehouse Station, N.J.

Far From Over

The Rev. Michael N. Kane (4/10) misunderstands the principle of vicarious liability as it pertains to the liability of a diocese for the actions of its priests. He suggests that (1) victims of clerical sexual abuse can sue the diocese in which the offense was committed just because the diocese has more assets than does the priest abuser, and (2) ultimate responsibility for the actions of a priest lies with his bishop. Neither of these suggestions is entirely true.

Every employer (including a diocese) is responsible for injuries caused by its employees in the course and scope of their employment. But criminal activity is never considered to be in the course and scope of employment. If a courier service driver, for example, hits a child in the street while making his deliveries, the employer would be responsible for the injuries caused. But if the driver robs a bank along the way and shoots a child in the process, the employer would not ordinarily be responsible for those injuries.

Similarly, a diocese would not ordinarily be responsible for the injuries caused by a priest child molester, because these are crimes not considered to be in the course and scope of employment. But if a bishop has reason to believe that a priest has abused a child or is a clear and present threat to do so yet takes no reasonable and prudent action to prevent the priest from committing the crime, the victim would be entitled to sue the diocese. This suit would not be based on the size of the diocese’s balance sheet compared to the priest’s or on making the diocese responsible for the actions of the priest (which, as a crime, would still be outside the course and scope of employment). Rather, the suit would be based on the negligence of the bishop himself (in not taking reasonable and prudent protective actions) as a direct cause of the injuries.

If a priest committed such a crime and the bishop (having no knowledge of earlier offenses or other warning signs) took reasonable and prudent steps to remove the priest from ministry or (at the very least) from circumstances that would in the course and scope of employment put other potential victims at risk, the diocese could not be held responsible for the injuries caused by the priest’s crime.

Father Kane explains that codes of conduct have been adopted for priests, but bishops are not bound by codes of pastoral conduct. The bishops seem to have paid a lot of attention to the sins of the abusers but precious little to putting their own houses in order. Given that it is the misconduct of the bishops that made diocesan assets vulnerable to claims of victims, it is small wonder that most lay people believe the scandal is far from over.

Steven J. Dzida, Esq.
Irvine, Calif.

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