William W. Bassett
Recent court rulings undermine the churchs promise of confidentiality.
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Catholics should recognize that a sea change is taking place in jurisprudence in the United States concerning the rights of religious institutions. The issue is confidentiality, the promise of privacy that lies at the core of the right to free exercise of religion protected by the First Amendment. Caught in storms of conflict over the crisis caused by sexual abuse of minors by members of the Catholic clergy, bishops and religious superiors can no longer assure the faithful, including priests and religious, of the confidentiality of sensitive personal communications outside the narrow strictures of the priest-penitent privilege in the sacrament of reconciliation.

A settlement reached in July 2007 by the Archdiocese of Los Angeles of more than 500 cases of sexual abuse illustrates the danger. The total of $660 million, or about $1.3 million per plaintiff, is the largest compensation paid to victims of sexual abuse by clergy of the Catholic Church in the United States to date. Earlier in the year the archdiocese, its insurers and various religious orders had paid $114 million to settle the claims of 86 victims alleging abusive incidents that dated back to 1930, recorded in 75 years of files.

In September a settlement announced by plaintiffs and the dioceses of San Diego and San Bernardino, after defendants withdrew from their earlier bankruptcy filing, provided $198.1 million to 144 plaintiffs, or about $1.4 million apiece, to be apportioned by the court. This proposal, still pending, was executed by the dioceses to avoid 42 scheduled jury trials. It doubled their initial offer in settlement negotiations, covering allegations of sexual abuse by priests between 1938 and 1993, with most in the 1960s and 70s.

These settlements, like earlier agreements, called for release to the public of confidential chancery files. These were essential, plaintiffs urged, because they could reveal what leaders of the archdiocese knew about the cases, when they knew it, and whether they had been, in effect, involved in a course of deception and secrecy concerning the sexual abuse of minors by their institutional employees. Many of the priests involved in these cases had been moved from parish to parish when accusations arose or returned to parish service after therapy. Money alone, the argument went, could not assuage the victims lifelong trauma from childhood sexual abuse; transparency, not only apology, was needed for future assurances once trust had been betrayed.

Patterns of Settlements

The California settlements follow a pattern: staggering sums of money for compensatory and sometimes punitive damages, plus fees and costs of litigation (nearly 40 percent of the total, or $264 million, went to lawyers and forensic accountants). And the settlements were accompanied by court orders for disclosure of confidential personnel files to assure the complete vindication of the victims. Examples of other diocesan settlements include Boston (2003), $85 million for 552 claims; Louisville (2003), $25.7 million for 243 claims; Orange (2004), $100 million for 90 claims; Oakland (2005), $56 million for 56 claims; and Covington (2006), $84 million for 350 claims. All required disclosure of files containing credible or substantial complaints of sexual abuse of children.

Where dioceses have declared bankruptcy, a similar settlement pattern includes: Tucson (2005), $22 million for 50 claims; Portland (2007), $75 million for 175 claims, with $20 million set aside; Spokane (2007), $48 million for 150 plaintiffs. Portland was ordered to file 50,000 pages in bankruptcy proceedings, which are now available to researchers. Davenport, Iowa, is pending. There are no secrets in bankruptcy. Not even previously executed confidential settlements are immune from bankruptcy statutes voiding preferences and fraudulent debtor payouts.

This is unprecedented in American legal history. In addition to the loss of resources, the cost to the church has been compounded by the lowering of the First Amendment shield protecting the confidentiality of religious records. A firestorm of opprobrium has turned against church leaders, who are presumed to have been able to prevent such horrendous crimes.

The faithful are paying an enormous price. The crime of sexual abuse of children is so abhorrent, and so outrageous when perpetrated by members of the clergy or other trusted adults, that only political naïveté could suggest a relaxation of the laws of evidence. The rush to transparency, however, may be counterproductive.

Types of Chancery Records

Religious organizations keep financial and administrative records according to legal requirements. No one disputes the right of the public to this information or the authority of the courts to demand discovery of these files when appropriate. Here there is a welcome, growing transparency in church management standards.

Churches also keep records of spiritual communications between pastors and faithful, counselors and clients, concerning matters of conscience. The special archives of chanceries and religious orders store such records under an assurance in canon law that they will not be divulged to the public without consent. Cases heard in marriage tribunals, documents recording the administration of sacraments, personal seminary and novitiate reports, ordinations and missionings, dispensations and admonitions, disciplinary matters affecting status and good standing in the churchthese are all matters of religious faith.

No civil judge is empowered, in our system of government, to interpret the properly spiritual records of a church, let alone equate them with employment contracts or financial transactions for purposes of discovery. No state, however, provides an evidentiary shield by statute for such institutional records, even though they are by nature highly personal and confidential. Federal rules mirror those of the states of trial.

Accusation of sexual impropriety strips the accused of privacy; it casts a pall of suspicion upon colleagues. An accused priest must be suspended until the cloud is dispersed. That is a public act that mandates notification of Roman authorities, according to the Charter for the Protection of Children and Young People (2002) and the Essential Norms for Diocesan/Eparchial Policies Dealing With Allegations of Sexual Abuse of Minors by Priests or Deacons, construing Canons 1720 and 1721, even as amended in 2006 to include a presumption of innocence. The accuser must also come forward. At present the church cannot prevent this kind of personal notoriety from discovery orders of civil courts. Releasing confidential church records to the media further destroys any pretense to confidentiality.

Losing Religious Confidentiality

Unlimited civil discovery, in effect, undermines the protections for victims and accused as provided by the charter and review boards, because such discovery threatens the assurance of privacy that is often necessary to discover the truth. Who will be completely candid with religious counselors once they realize the danger of personal and family exposure in the press?

On matters of confidentiality, canon law is clear-cut and extremely strict; in some cases violating confidentiality is a formal crime against church law. Yet church leaders should no longer be under the delusion that the civil courts will respect canon law as a matter of free exercise. The role of government under the Constitution is secular, not subsidiary to religion. It must make decisions based on secular criteria that do not favor religious institutions or appeal to religious faith. Demands of victims for compensation and punishment that, in effect, deprive church personnel files of any claim to privacy will continue in both criminal and tort litigation for years to come.

In the past decade more than a dozen state courts reported litigation challenging limitations upon discovery of church personnel files, whether for the use of grand juries, prosecutors, civil plaintiffs or the press. Similar litigation involved testimonial privileges, such as those protecting priest and penitent, attorney and client, and psychotherapist and patient. Several well-known canon lawyers have appeared as expert witnesses on both sides of the issues, and new studies have been produced. All of this appeared against a din of negative publicity and op-ed pieces accusing religious leaders of stonewalling, conspiracy and cover-up, running up punitive judgments, not just against perpetrators, as should be the case, but against the dioceses.

Perhaps the nadir was reached in 2002 when Superior Court Judge Constance Sweeney ordered the Archdiocese of Boston not only to turn over to plaintiffs but to release to the public 11,000 documents and files (nearly 40,000 pages). Shortly thereafter the Diocese of Manchester was ordered to produce 9,000 pages under similar conditions.

More recently, Judge Peter Lichtman of the Los Angeles Superior Court ordered the Archdiocese of Milwaukee to make public 3,000 pages of insurance records and hundreds of pages from the files of a pedophile clergyman transferred to California in 1981. Last year the Archdiocese of Milwaukee agreed to pay eight California victims of this one predatory priest $13.3 million, in addition to nearly $15 million the victims had received in 2004 from the Diocese of Orange. Under the earlier settlement, the priests personnel files from California were made public. The perpetrator died in 2003 after leaping from a hotel balcony in Mexico.

Smaller-scale examples are cases in Altoona-Johnstown, Bridgeport, Chicago, Cincinnati, Louisville, Los Angeles and Phoenix. Elsewhere, the records appear by reference in public reports of trials and appeals, settlements and bankruptcies. Very few reported cases restrict scrutiny of church files to in-camera review by plaintiffs attorneys.

The Most Recent Discovery Litigation

Consider the most recent discovery litigation. On notice of an accusation of clerical sexual misconduct, the initial procedural step to be taken by a bishop under the Essential Norms is an immediate investigation. In the words of the vicar for the clergy of Los Angeles, Msgr. Craig Cox, The involved priest is encouraged to discuss whatever problems he is experiencing regarding chastity...encouraged to communicate his deepest psychological and sexual issues, to undergo psychiatric evaluation and treatment, and to share the results of this therapy with the bishop or his vicar. These records are to be kept separate from the priests normal personnel file and protected under the most stringent canonical obligation of confidentiality.

In July 2002, the Los Angeles grand jury issued subpoenas duces tecum (a summons to appear bringing tangible evidence for use at a hearing or trial) with regard to 285 documents in the possession of the archbishop. The custodian of the chancery archives produced these in sealed cartons to be safeguarded by the district attorney, pending appeal. Among the documents were transcripts and reports of accused priests induced to seek assistance by the promise of confidentiality.

The church and two of the accused priests petitioned for a writ of mandate, seeking to prevent disclosure of the documents. They urged constitutional protection under the First Amendment, the state constitution and evidentiary privileges. A court-appointed referee cherry-picked the documents and discarded 53, but substantially rejected motions to quash the rest. Presiding Judge Joan Klein of the Court of Appeal wrote to affirm the states right of discovery of all but one, and that on relevancy bases. There was no dissent. Rehearing was denied by the state supreme court and the U.S. Supreme Court refused to hear the case.

On April 17, 2006, the cartons were unsealed, retained counsel informed of the availability of the files, law clerks called in to dissect the evidence of culpability, and Los Angeles Times reporters alerted to give it publicity. Lawyers representing alleged victims suing the archdiocese later filed successful motions for further discovery to litigate the claims and certify additional plaintiffs.

Supported by the Supreme Court

Guiding the state courts interpretation of the religion clauses of the Constitution was the Supreme Courts rule, crafted by Justice Antonin Scalia in the Native American peyote case of 1990 (the full title is Employment Division, Dept. of Human Resources of Oregon v. Smith): The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes). The Supreme Court added in 1993 that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. State laws of evidence, the appellate court found, are neutral and of general applicability. They target neither a church nor religion in general; thus their burdening effect is incidental, not direct.

In the Los Angeles case, Judge Klein wrote, The Archdiocese simultaneously had been engaged in the kind of routine investigation any employer would undertake upon learning a trusted employee had been accused of child molestation. She held, in effect, that the church was no different than a business and that a bishops relationships with his clergy is legally the same as a corporations employment policies. The states interest in compelling production of all material evidence trumped that of the church in protecting its confidential religious records. Discovery orders were weighed by formalities of good cause, relevancy, execution and breadthnothing more. The state had a rational basis for forcing production of evidence, the court ruled.

No Legislative Protection

Only the state legislature could relieve the target of subpoena of the civic duty to disclose. This it had not done. Citing parallel cases in Illinois, Pennsylvania and Massachusetts, the court held that the churchs practice of maintaining a secret archive for files relating to internal church discipline (Canon 489) was no deterrent to the states compelling interest in discovery.

There is no constitutional limit on the information the state may require of a religious organization under sanction of contempt. Except as otherwise provided by statuteno person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing (Cal. Evid. Code §911). The sweeping authority of government in other jurisdictions is the same.

In personal injury cases plaintiffs seek proof of causation from the prospective source of substantial compensationthat is, the deep pocket. Discovery orders, therefore, are both specific in respect to the perpetrator of the injury and general in respect to the responsibility of the church itself to protect the victim. Personal injury litigation concerning religious organizations may involve much more extensive, even blanket, discovery of relevant documentation over a period of time to ascertain patterns of negligence, such as knowingly reassigning abusive clergy to parishes or positions where it may be foreseen they may strike at victims again. Blanket production of this extensive documentation involves information about dozens and dozens of people, lay and clergy, produced at great expense.

As a result the church cannot avoid the discovery of relevant information in court by putting it in a place designated by canon law as a secret archive. The legal norm is relevancy. The exception is privilege. That is a matter of legislation.

A New Pastoral Protocol

I am not advancing an argument for church immunity, a new exemption from the rules of evidence or for extending the priest/penitent privilege. Instead, I suggest that we need a new protocol for dealing with the possibility of public disclosure of the churchs most confidential records. We must discard the illusion that the church can command some special favor of the courts not available to other social institutions.

Outside the narrow confines of the priest-penitent, attorney-client and physician-patient privileges, no agency of the church can assure any person of complete confidentiality. Confidentiality may be promised of communications within the church, but it cannot be guaranteed against outside claims upon evidence. All persons should know that their letters, testimony, depositions and communications with church authorities may be subject to public disclosure in future litigation. No one can be guaranteed protection of their innermost secrets except in the context of sacramental confession.

Archival materials of all kinds must be professionally managed. Employees of religious organizations should have access to their personnel files, so that they may rebut false accusations. Periodic review of files should clean out rumors, hearsay, anonymous notes and unsubstantiated claims that can be misinterpreted in civil litigation. This is good stewardship of records, not the destruction of evidence.

Finally, when serious allegations of crime are leveled by authorities against anyone (priest, religious or lay employee), that person is entitled to representation by a civil lawyer and, ideally, a canon lawyer to meet his or her need of professional, unbiased counsel and advice. Canonical processes of sanction, such as suspension or dismissal from office, without providing the accused the right to adequate counsel, are void from their inception.

William W. Bassett is a member of the Faculty of Law of the University of San Francisco and author of the two-volume treatise Religious Organizations and the Law (Thomson/West). For the past few years, he served on the Committee for Religiou

Comments

ROBERT MCNULTY | 10/19/2007 - 7:46pm
Methinks Professor Basset doth protest too much. The documents being subpoened are evidence in criminal cases and were most often witheheld in attempt to cover up a crime or responsibility. The ministry of the Church in annulments,administration of sacraments and celebrating the Eucharist is in no way affected by these subpoenas and will not be.
dan ogro | 11/17/2013 - 10:46pm

I agree with you Robert. If church leaders would have reached out with loving concern to victims who were damaged in very horrid ways. If church leaders would have protected the innocent children instead of protecting their personal image, the image of the church and in many cases protected the abusers. The very act of protecting image over innocence made the image not worthy of protection. As a victim of repeated rape at the hands of a priest in a Milwaukee parish I have been treated in ways that are in direct conflict with the love and care one would expect from an organization based on Jesus. The priest was a sick human, but the Archbishop who fought victims every step of the way, made a choice to protect image and assets over truth and justice. I am dying from the inside out every day. The unholy response to unholy acts. The response is why there is a sexual abuse scandal. We all deserve to see the communication behind the scenes as these crimes were being committed, not only to understand the past but to protect the next generations of little children.