From Crux:
After the allegations of criminal sexual abuse and serial sexual misconduct against then-Cardinal Theodore McCarrick became public this summer, one prominent Catholic lawyer in Houston was perplexed why the Church did not utilize compliance methods that even small to mid-size U.S. corporations routinely follow.
Ed Sullivan, a Houston-based labor and employment trial lawyer who routinely makes the elite Super Lawyer rankings, decided to write an open letter (available here) to his archbishop: Cardinal Daniel DiNardo, who currently serves as the president of the United States Conference of Catholic Bishops (USCCB).
“I am an experienced trial lawyer in Houston who specializes in employment law, so I am familiar with litigating cases in which even the largest and most capable corporations sometimes struggle in people management. I see the mistakes some of those organizations make and frequently speak to their representatives about implementing best practices to minimize liability. The Church in the United States makes many preventable errors with regard to abuse cases - the most common of which is the repetitive violation of the so-called ‘rule of holes,’ meaning, if you are in a hole, stop digging. Each time these scandals happen we hear the same words and call to prayer. The same tropes used by our leaders will not work anymore with the laity. In other words, they do not get the Church ‘out of the hole,’” the letter reads.
...
In his letter, he made three suggestions for the USCCB, based on the maxim “sunlight is the best disinfectant”: 1) The USCCB must no longer allow dioceses to confidentially settle cases of clergy abuse; 2) the USCCB should no longer permit its dioceses to assert the affirmative defense of the statute of limitations in these cases; and 3) the USCCB must create a mechanism by which victims, including seminarians over the age of 18 as well as priests, can freely report the abuse and harassment of other priests and bishops without fear of retaliation.
I'm not an expert on the role of national conferences in canon law, so I wonder whether the USCCB actually has the authority to mandate such changes. But let's set that issue aside.
Sullivan is clearly correct that compliance programs were either non-existent or failed during the period in which the worst abuse was taking place. One trouble with assessing where we are now, however, is the scandal is a classic example of a long tail liability. The recent McCarrick revelations and the appalling Pennsylvania grand jury report mostly involved misconduct that took place years ago. It is possible that the 2002 Dallas Charter has made a real difference in the protection of youth from predatory priests.
Having said that, however, the Dallas Charter is not mandatory because canon law did not allow the conference to impose a diocesan compliance requirement. In addition, although participating dioceses are audited on a rotating three year cycle, the "audit does not include verification of the bishops' corresponding Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons."
StoneBridge [the current outside auditor] also reported "continued hesitation and/or reluctance" by dioceses to participate in parish audits, which are optional. Less than half of all dioceses and eparchies, 85, indicated to auditors they performed regular parish audits, with 22 indicating they do so on an "as needed" basis. Twenty-three dioceses participated in StoneBridge's parish audits as part of the 2016 audit.
So let's assume further compliance is desirable. Are Sullivan's proposals wise?
The easiest for me to buy is the proposal for enhanced whistleblower protections. We know from the corporate context that numerous whistleblowers face retaliation from their employer (one in five by some estimates). Protecting whistleblowers from retaliation is therefore essential for enforcement and compliance schemes to be effective:
The [Supreme] Court also agreed with the plaintiff's contention that whistleblower protection is essential to enforcement of antidiscrimination laws. “Reporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished,” [Justice] O'Connor wrote. “Indeed, if retaliation were not prohibited, Title IX's enforcement scheme would unravel.”
Sara Hoffman Jurand, High Court Makes Call in Favor of Whistleblower Coach, 41 Tr. 16, 68 (June 2005). This principle is so important that the whistleblower protections in Sarbanes-Oxley are one of only two sets of provisions SOX applies to non-profits.
So, if the Church does not voluntarily create effective protections for whistleblowers--including punishment for those who retaliate against whistleblowers--maybe the law should do so.
Turning to the issue of confidential settlements, I agree that the Church should not insist on nondisclosure agreements.
At least two courts have begun to question the propriety of enforcing confidential settlements involving sexual abuse by priests. In a recent unpublished opinion, Connecticut Superior Court Judge Robert F. McWeeny accused the Connecticut judiciary of complicity in the Diocese of Bridgeport's efforts to cover up the extent of clergy sexual abuse.Judge McWeeny, who ordered that seven boxes of documents containing information regarding confidential settlement of sexual abuse cases be unsealed, criticized what he called “a judicial model of cooperation with the Diocese in endlessly delaying litigation, sealing files and coercing victims into non-disclosure settlements.”
Ryan M. Philp, Silence at Our Expense: Balancing Safety and Secrecy in Non-Disclosure Agreements, 33 Seton Hall L. Rev. 845, 847 (2003).
Because of these NDAs many abusers were allowed to remain in ministry. See Walter W. Heiser, Public Access to Confidential Discovery: The California Perspective, 35 W. St. U.L. Rev. 55, 57 (2007) ("The defendant priests were sometimes transferred to another parish without informing parishioners, law enforcement authorities, or the communities in which they reside.").
Commendably, "a number of Catholic dioceses have announced that they won't enforce confidentiality agreements in settlements of prior sex abuse cases against priests." Confidential Settlements Scrutinized, 88 ABA J. 20, 22 (JULY 2002). Here what was done voluntarily should be made mandatory in light of the misuse to which the Church has too often put NDAs.
On the other hand, if a victim of abuse wishes to have his/her anonymity respected, the Church should be able to agree to an NDA proposed by the victim.
if we are serious about sunlight being the best disinfectant, however, it is past time to strictly enforce the obligation for dioceses to inform the local prosecutor of abuse allegations. The sanctity of the confessional should be respected, but because the Bishops have lost credibility with the laity on this issue they need to bring in a more credible outside enforcer when there is information available outside the confessional. Hence, in 2010, Pope Benedict ordered dioceses to suspect priest to the police." This requirement needs to have real teeth.
On the statute of limitations issue, I'm not persuaded. I opposed efforts to extend California's statute of limitations on abuse cases. Those arguments still strike me as valid.
I thank Sullivan for opening a very interesting area of inquiry. It certainly will reward further study beyond these preliminary thoughts.
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