U.S. Court [6th Circuit] Allows Abuse Case vs. Vatican

[jfhh]

online.wsj.com/article/SB122756420187954231.html

This was decided just one level below the Supreme Court. Even if the Vatican decides to appeal to the Supreme Court, it is not guaranteed that the Supreme Court would elect to hear the case. I wonder if the Supreme Court does hear an appeal of this ruling or any other future legal issue arising from the now green-lighted lawsuit whether any or all of the 5 Catholic Justices would recuse themselves. As a legal junkie this is all fascinating to me. I wonder also how a judgment would be enforced, if it would be enforced against diocescan corporations and religious order corporations in the U.S. or only against the Holy See, Vatican City State, and their financial instruments. Undoubtedly, canon lawyers will be called to testify under oath. This precedent binding within the circuit and authentic (i.e. given weight but not binding) outside of it may have implications for other cases including some not related to sex abuse. It may also have implications for cases outside of the U.S., especially in jurisdictions more open to citing foreign law and precedent.

A federal appeals court has permitted a lawsuit over alleged sexual abuse to proceed against the Vatican, creating potential liability for the seat of the Roman Catholic faith for the activities of Catholic clergy in the U.S.

Monday’s ruling, issued by the U.S. Circuit Court of Appeals in Cincinnati, marks the first time a court at so high a level has recognized that the Vatican could be liable for the negligence in sexual-abuse cases brought in the U.S.

The ruling is seen as a breakthrough by those allegedly abused by priests. Investigators and grand juries have found several instances where the church failed to report alleged abusers and covered up alleged misdeeds to protect them.

(captioned text)
Pope Benedict XVI, Sunday, at his studio at the Vatican, which could be liable for negligence after a U.S. appeals court let a sexual-abuse suit proceed.(end captioned text)

Jeffrey S. Lena, the attorney for the Holy See, said he was not “presently inclined” to ask the U.S. Supreme Court to review the decision.

It remains to be seen whether the Vatican, which is a sovereign state recognized by the U.S. government, will make further arguments that it is immune from U.S. civil proceeding.

Catholic dioceses in the U.S. have paid out at least $1.5 billion to alleged abuse victims, most of this since the scandal broke open nationwide in 2002.

The appeals court found that the church government may be held liable for actions taken in the U.S. based on the Vatican’s policies or directives.

“What the court has allowed us to do is proceed against the Vatican for the conduct of the U.S. bishops because of the bishops’ failure to … report child abuse,” said William F. McMurry, the attorney for three men who claim they were abused as children by priests in the Louisville, Ky., archdiocese. He is seeking class-action status in the district-court case.

The ruling marks the first time that a federal appeals court recognized that the Vatican could be liable under the Foreign Sovereign Immunities Act, a 1976 law that governs when a foreign nation or its agents can be sued, said Marci Hamilton, a constitutional-law scholar who is part of the legal team in the Louisville case.

"If someone can crack that barrier of immunity, it opens the door to other claims against the Catholic church," says Jonathan Levy, a Washington, D.C., attorney who represents concentration-camp survivors in a suit against numerous parties including the Vatican bank. The Vatican, in that case, prevailed in its claim of sovereign immunity.

Mr. Lena, the lawyer for the Holy See in the Louisville case, said Monday’s ruling is a small step and one that is far from establishing whether Vatican policy contributed to thousands of incidents of abuse that have been alleged over several decades. “We’re miles away from liability,” he said. The ruling is “very incremental.”

One of the central pieces of evidence in the case is a 1962 memo, issued by the Vatican and disclosed by reporters in 2003, which directs Catholic bishops to keep silent about claims of sex abuse. The document was approved by Pope John the 23rd.

Monday’s ruling will allow the plaintiffs’ case to proceed in U.S. District Court in Louisville. Among the legal questions yet to be decided in the case is whether U.S. bishops are employees of the Vatican, and whether they acted on the Holy See’s orders.

If some of these other legal questions (whether U.S. bishops are employees of the Vatican for example) go south for the Vatican, then some of the judgment enforcement issues I raised would have great relevance, were a judgment to be made against the Holy See.

I don’t see how a Catholic judge or justice could serve in any legal proceeding involving the Holy See as a party since under Catholic dogma no man can judge the Pope, which would include the Holy See in this context. Besides the secular issues, theologically I don’t see how that would work. For some background on some of the evidence that the federal appeals court apparently relied upon see

en.wikipedia.org/wiki/Crimen_sollicitationis

and

en.wikipedia.org/wiki/Pontifical_secret

I do not vouch for the accuracy of wikipedia though. It would take someone with a JCD to help write those articles and I would hope only those with JCDs did so.

 

[jfhh]

So that was the news article from the Journal. Here’s now some legal analysis and more legal details.

blogs.wsj.com/law/2008/11/25/sixth-circuit-vatican-can-be-sued-for-sexual-abuse/

Sixth Circuit: Vatican Can Be Sued for Sexual Abuse
by Nathan Koppel

**The sexual-abuse litigation that has raged for years against the Catholic church just got a lot more interesting.

In a landmark ruling yesterday, the Sixth Circuit concluded that the Vatican could be held liable for negligence in sexual-abuse cases filed in the U.S. It is the first time a circuit court reached that conclusion, and the opinion is considered a breakthrough by those allegedly abused by priests.** Here’s the WSJ story.

Catholic dioceses in the U.S. have paid out more than $3 billion to alleged abuse victims, most of that coming since the scandal broke open nationwide in 2002. Click here to view the 1962 document that discusses Vatican policy on secrecy in dealing with complaints of a sexual nature against clergy.

The Sixth Circuit ruling came in a Kentucky case filed by three men who claim they were abused as children by priests. The Vatican claimed the suit was barred under the Foreign Sovereign Immunities Act.

The circuit court concluded that the Vatican was a foreign state, eligible for immunity. But, the court held, the plaintiffs could still sue the Vatican under an exception to the Sovereign Immunities Act, which allows suits that assert damages caused by the “tortious act” of a foreign state or any of its officials or employees.

The ruling “opens the door to other clams against the Catholic church,” says Jonathan Levy, a Washington, D.C., attorney who represents concentration-camp survivors in a suit against numerous parties including the Vatican bank. The Vatican, in that case, prevailed on sovereign-immunity grounds.

In the Kentucky case, the U.S. District Court in Louisville still must decide whether U.S. bishops are employees of the Vatican, and whether they acted on the Holy See’s orders.

Here are some of the links contained in the above text

(the ruling of the federal appeals court)
ca6.uscourts.gov/opinions.pdf/08a0417p-06.pdf

(the 1962 Vatican document subject to Pontifical Secrecy)
online.wsj.com/public/resources/documents/holysee.pdf

The other link is just the news story I already posted in the OP.

 

[jfhh]

I’ve looked over the 6th Circuit opinion and having acquainted myself with the matter more, I think that at some point this is bound to be appealed to SCOTUS and would probably be at some point be heard by SCOTUS.

Here’s an excerpt from the opinion that gives its “general conclusions”

These portions of plaintiffs’ claims meet the four requirements for application of the tortious act exception. First and contrary to the Holy See’s protestations, plaintiffs have pled both that the relevant archbishops, bishops and other Holy See personnel had knowledge of the alleged sexual abuse of priests and that they failed to act on that knowledge. In doing so, it would seem that the complaint also pleads that conduct of the archbishops, bishops and other Holy See personnel were a substantial factor in causing plaintiffs’ damages, satisfying Kentucky’s causation requirements. In addition, and as already noted, tortious acts committed by bishops, archbishops and other Holy See personnel while engaged in the supervision of allegedly abusive priests satisfy the requirements of the FSIA’s tortious act exception that the tortious act occur in the United States and within the scope of employment. Also, for the conduct of bishops and archbishops and other Holy See personnel to serve as a basis for jurisdiction under the tortious act exception, these bishops, archbishops and Holy See personnel must have been employees of the Holy See. As noted above, under Kentucky law, this inquiry focuses on the degree of control exercised by the employer over the individual or individuals in question. In their complaint, plaintiffs allege facts that demonstrate that the Holy See exercised a significant degree of control over the bishops and archbishops accused of having committed the tortious acts in question. Taking these allegations as true, plaintiffs have sufficiently pled the employee element of the tortious activity exception. Thus, the portions of plaintiffs’ claims that are based upon the conduct of bishops, archbishops and Holy See personnel while supervising allegedly abusive clergy satisfy all four requirements of the tortious act exception: this conduct served as a substantial cause of the alleged abuse; the conduct occurred in the United States; the conduct was within the scope of employment; and these individuals were, according to the pleadings, Holy See employees.

However, although the four requirements are met for these claims, we must still consider whether either of the two exceptions to the tortious act exception applies and prevents its application: the discretionary-function exception and the arising-out-of-misrepresentation-or-deceit exception. According to the allegations in plaintiffs’ complaint, theories of liability premised upon the supervision of the allegedly abusive clergy do not implicate the discretionary function exception to the tortious act exception because the terms of the supervision were not discretionary. According to the complaint, the 1962 Policy “impose[d] the highest level of secrecy on the handling of clergy sexual abuse matters.” Plaintiffs contend that this required secrecy prohibited Holy See personnel from, among other things, reporting childhood sexual abuse to government authorities. Id. Thus, following the 1962 Policy cannot, on the pleadings in plaintiffs’ complaint, be deemed discretionary.

Footnotes are ommitted. They are in the pdf above.

 

[jfhh]

Now here is an excerpt of the bottom line (as far as I can tell) more specific rulings made from those general conclusions. My comments in brackets.

We now apply these general conclusions to each of the plaintiffs’ remaining claims.

1. Violation of Customary International Law of Human Rights (Class I Claim II, Class II Claim I): Plaintiffs plead this claim against the Holy See itself, stating that [t]he instructions, mandates and dictates of the Defendant, Holy See in the United States prohibiting the disclosure of the identity and existence of pedophiles and sexual predators under its control, thereby placing children in a position of peril, is a gross violation of well-established, universally recognized norms of international law of human rights. This claim does not survive against the Holy See as it pertains to the actual promulgation of the 1962 Policy because the promulgation itself occurred abroad. However, this claim does survive against the Holy See as it pertains to the conduct of its employees who, pursuant to the 1962 Policy, violated the terms of the relevant international laws through their tortious supervisory conduct over the allegedly abusive clergy.
2. Negligence (Class I Claim III, Class II Claim II): Plaintiffs present three grounds for negligence in their complaint: failure to provide “safe care”; failure to “warn”; and failure to report. The failure to warn and failure to report prongs of the negligence claim survive because they are premised on the conduct of Holy See employees who were allegedly negligent in their supervision of abusive clergy. However, the claims of negligence against the Holy See for its own conduct cannot survive because such negligence would not have occurred in the United States. Furthermore, the claim of failure to provide safe care does not survive. As the district court noted, the failure to provide safe care amounts to a claim for negligent hiring. O’Bryan II, 471 F. Supp 2d at 793. And, as outlined above, claims of negligent hiring fall within the discretionary function exception. Indeed, the 1962 Policy, even according to plaintiffs’ allegations, only required Holy See employees not to disclose information regarding sexual misconduct, not to actually hire individuals who had engaged in prior sexual misconduct.
3. Breach of Fiduciary Duty (Class I Claim IV, Class II Claim III): Plaintiffs plead this claim against the Holy See itself, stating that “a special legal relationship existed between the Plaintiffs and the Defendant Holy See, in the nature of a fiduciary relationship, which was carried out by and through priests, clerics, and administrators under the absolute control of the Defendant . . . .” In turn, plaintiffs contend that the “Defendant breached fiduciary duties owed to the Plaintiffs,” premised upon the “duty to warn parents” and the “duty to report known or suspected perpetrators. This claim survives against the Holy See for the actions of its supervising employees occurring in the United States. As has already been emphasized, the claim cannot survive against the Holy See itself for its own failures to warn or report because such tortious conduct would have occurred abroad.
4. Tort of Outrage/Infliction of Emotional Distress (Class I Claim V, Class II Claim IV): Plaintiffs plead this claim against the Holy See itself, stating: The acts and omissions of the Defendant, Holy See alleged herein, including the concealment of its policy of harboring and protecting its abusive priests, agents and employees from public disclosure and prosecution and directives prohibiting the reporting of child sexual abuse to authorities . . . is conduct which is so outrageous and extreme in degree, as to go beyond all possible bounds of decency, so as to be regarded as utterly atrocious in a civilized society. This claim cannot survive against the Holy See as it pertains to the actual promulgation of the 1962 Policy because the promulgation itself occurred abroad. In addition, it cannot survive against the Holy See for the conduct of its allegedly abusive priests because the acts of alleged abuse did not occur within the scope of employment. In contrast, this claim does survive against the Holy See as it pertains to the conduct of its employees who, pursuant to the 1962 Policy, violated the terms of the relevant international laws through their tortious supervisory conduct over the allegedly abusive clergy.

If anyone is a lawyer and has a chance to read the whole opinion I would love clarification on whether Vatican ambassadors acting inside the U.S. but within Vatican embassy grounds would have their actions there be subject to suit or if if the territorial issue (within the U.S. versus abroad that the court emphasizes many times in their opinion) does not discriminate on that point (though I think it may be moot since any action here would probably have been extended outside those grounds, unless all the relevant actions or contact took place within those grounds)

 

[KathleenElsie]

IMHO this is just another attack on the Catholic Church and the and goal is to keep this issue “front and center” so as to marginalize any good that the Church can do and has ever done. The fact is that this is a horrible thing to have happened, but, the abuse was not confined to the Catholic Church or churches in general.

Society and its secular morals, that many worship, has been and still remains the main issue in this situation.

 

[estesbob]

IMHO this is just another attack on the Catholic Church and the and goal is to keep this issue “front and center” so as to marginalize any good that the Church can do and has ever done. The fact is that this is a horrible thing to have happened, but, the abuse was not confined to the Catholic Church or churches in general.

Society and its secular morals, that many worship, has been and still remains the main issue in this situation.

If they got a judgement how would they enforce it? Go to war with the Vatican?

 

[Pius_IX]

If they got a judgement how would they enforce it? Go to war with the Vatican?

My guess is they would threaten to strip the Catholic Church of its tax exempt status unless it paid up. It has probably come time for the Church to start fighting some of these claims, especially the more questionable claims of abuse. Instead of seeking punishment for the alleged abusers, alot of the claimants just want a nice, large cash payment. This abuse-lawsuit madness has to stop. The Catholic Church does not have bottomless pockets, and if this keeps up, it will start to hurt the Church’s charitable services.

 

[irishpatrick]

My guess is they would threaten to strip the Catholic Church of its tax exempt status unless it paid up. It has probably come time for the Church to start fighting some of these claims, especially the more questionable claims of abuse. Instead of seeking punishment for the alleged abusers, alot of the claimants just want a nice, large cash payment. This abuse-lawsuit madness has to stop. The Catholic Church does not have bottomless pockets, and if this keeps up, it will start to hurt the Church’s charitable services.

IMO, the very best thing that could happen to the Church is if this caused it to lose its tax exempt status. People who are anti-Catholic would see that as a just punishment, yet it would allow the Church to speak out against injustices without fear of losing its tax exempt status.

 

[Pius_IX]

IMO, the very best thing that could happen to the Church is if this caused it to lose its tax exempt status. People who are anti-Catholic would see that as a just punishment, yet it would allow the Church to speak out against injustices without fear of losing its tax exempt status.

No, I disagree. With all the different property taxes, with some outrageous ones in places like New York, it would probably bankrupt the Church. The Church would have to start to sell things for profit like a business to survive.

 

[irishpatrick]

No, I disagree. With all the different property taxes, with some outrageous ones in places like New York, it would probably bankrupt the Church. The Church would have to start to sell things for profit like a business to survive.

Fine. Afterwards the Church would have far more freedom to speak about and spread the Gospel. Give to Ceaser what belongs to Ceasar…

The Church is too tied to the world…imo.

 

[puppypatrol]

Just once I would like to see one of the accused stand up and look the accuser in the eye and say “prove it”. The Bishops did the best they could with the information they had at the time, in the 50s, 60s, and 70s. That information was from psychologists and psychiatrists who declared those few who actually committed this act “cured” BEFORE they were sent to another parish. Is anyone suing these professionals? It was approx 1990 before they discovered pedophilia was not curable. I am also a firm believer in “false memories” and know the trouble they are causing. I also think a lot of these instances are being taken out of context. In an FBI report from 2005, 3 tenth of a percent of reported cases were committed by a combination of persons known to the victim which includes pastors/priests, doctors, some teachers, etc… while 56 percent were perpertrated by close family members, fathers, mothers, grandparents, uncles, siblings, etc… What is wrong with this picture? This is just making me crazy!!! I’m not saying that most of these victims weren’t abused but there may be a mistake in just WHO did the abusing. I also know of several instances of people lying about who abused them, one of these people I know personally and her story keeps changing depending on who she is talking to. :banghead:

 

[jfhh]

I think the issue is (if the wikipedia article is correct) that the 1962 document required bishops and anyone else learning anything about the abuse in the course of the secret ecclesiastical trial to keep all that information secret, including from civil authorities, to the extent that the information is learned in connection with the secret ecclesiastical trial. Apparently that fact is undisputed. I think that fact alone may end up being a problem for the Holy See in any settlement negotiation or trial or class action certification proceeding.

Some facts which are at least somewhat disputed from what I remember is whether those who may learn of the alleged abuse apart from the secret ecclesiastical trial but who are still party to the secret ecclesiastical trial were required to keep the matter secret. As far as I can tell as a layman, the document is just silent on this specific issue. This silence could in context be understood to imply something that would be a problem for the Holy See. But even if it were interpreted in the most positive way as just being silence on that issue, apparently the plaintiffs are arguing that the Holy See had a positive fidiciary duty to not be silent there and to pro-actively tell bishops to share information not obtained solely from the secret church trials.

Note that regardless of how the issue in the second paragraph pans out, the apparently undisputed issue in the first paragraph would be problematic. I don’t think a secular court is going to place these secret ecclesiastical trials under some sort of priest-penitent confessional privilege. So even if it was just limited secrecy, secrecy only as it pertained to information learned through the secret ecclesiastical trial, that policy of secrecy according to the 6th Circuit would be subject to suit insofar as it was carried out on U.S. soil.

The decision was not directly pertaining to the merits of any trial court case that may ensue.

For us Catholics this case does raise troubling issues with respect to freedom of religion. Neither the priest-penitent privilege nor a non-existent privilege in secret ecclesiastical trials is constitutional in nature; the former is just statutory.

IMO a federal constitutional amendment strengthening freedom of speech (not religion per se, but just speech) to include a right to privacy inclusive of a right to keep secrets (sounds silly but it’s important and would be practical to this kind of problematic case) is advisable. The right to professional secrecy is recognized somewhat in some other countries. And the right to privacy is of course since Griswald recognized here as well as elsewhere. What we need is to supercharge the First Amendment so that reporters whether bloggers doing it for free, reporters working pro bono, or those for whom it is their livelihood are never forced to divulge a secret and that bishops can keep priestly secrets and so forth. This is the way to do it to garner broad support and not make it into a religious issue.

I doubt my idea would gain traction. The ACLU may already support this kind of thing, but I’m just one man in an infinite world.