Mark Sargent April 16, 2007 - 1:23pm
In November of last year, the Diocese of Wilmington, Delaware, released the names of twenty former priests about whom the diocese found “credible or substantial complaints of sexual abuse of minors.” Most of the twenty are dead. Edward M. Dudzinski, however, was still living-although he had not served as a priest since the 1980s-and resided in Herndon, Virginia.
When local members of the Survivors Network of Those Abused by Priests (SNAP) discovered Dudzinski’s location, they went door-to-door in his neighborhood distributing a file of documents with the title “Community Notification: Protect your children from a credibly accused serial sex offender,” which they believed established Dudzinski’s identity as a sex offender. Dudzinski, however, has never been convicted of, or even charged with, a sexual-abuse crime.
SNAP has made similar preemptive strikes elsewhere. In January 2007, Rev. Darrell Mitchell left his pastoral duties after SNAP protested his assignment to two parishes in the Archdiocese of St. Louis. While previously serving in Yakima, Washington, Mitchell had been accused of having pictures of nude boys on his computer. No charges, however, were ever filed against him, even after investigations by the FBI, other law enforcement agencies, and the Diocese of Yakima. According to a diocesan spokesman, Mitchell relocated to Missouri because he had been “hounded so much” despite the thoroughness of the investigations and the decision by the FBI and local agencies not to take legal action against him. Unimpressed with that decision by the legal authorities, David Clohessy, SNAP’s national director, said that “Archbishop [Raymond] Burke should have removed [Mitchell], never allowed him here, and still owes Catholics an explanation for his secrecy and recklessness.” Pressure from SNAP was intense enough to induce Fr. Mitchell not only to resign his pastoral duties, but to leave Missouri.
In Pennsylvania, relatively stringent criminal and civil statutes of limitations had frustrated both criminal prosecution of the Archdiocese of Philadelphia and the type of civil claims that have bankrupted Spokane and other dioceses. Angered by their failure to obtain a grand jury indictment, two lead prosecutors later publicly attacked the archdiocese for its alleged efforts to forestall legislative enactment of a California-style suspension of the statute of limitations to resuscitate time-barred suits, as well as other changes in the state’s child-abuse laws. The prosecutors made these public claims without producing any evidence that the archdiocese had engaged in such lobbying efforts, and without conceding that there might be reasonable arguments to be made against some aspects of the legislative package.
What’s going on here? SNAP might claim that its campaigns in Herndon and St. Louis were simply pragmatic measures needed to bring justice to those deprived of it, and to protect potential victims from the ongoing threat of clergy abuse. Presumably, they would argue that the church and its priests are finally getting what they deserve after decades of indifference, deception, and obduracy. Their actions, however, suggest that more is going on. SNAP’s public campaign to expose priests who have merely been accused-or sometimes cleared-of abuse has a vigilante air about it. In their eagerness to effect justice as they know it, SNAP may in fact be disrupting the rule of law. Likewise, the Philadelphia prosecutors’ diatribe against the archdiocese (and the front-page coverage in the Philadelphia Inquirer) served as a kind of public theater in which the prosecutors cathartically worked out their rage at not being able to indict the archdiocese and Cardinal Anthony Bevilacqua. The public, emotional, and absolutist character of all these actions expresses not only great anger and frustration, but also the desire to abase and punish. It’s vengeance time.
To be sure, the bishops have brought these theatrics of vengeance on themselves. For an institution famous for its rituals and emphasis on repentance, the church has offered precious few rituals of penitence as a way of acknowledging its fault, recognizing the harm it has done, and seeking forgiveness both from God and those it has wronged. Victims have often said (probably to their lawyers’ alarm) that they would have been content with an opportunity to tell their stories, an acknowledgement of responsibility, exposure of the malefactors, and a genuine apology. The Cultrera brothers’ remarkable documentary Hand of God, recently broadcast on PBS, dramatically shows how a victim first sought only some recognition of the injuries he suffered at the hands of one of the Boston Archdiocese’s worst offenders. He sued for monetary damages only after Bishop John McCormack, one of the guiltiest diocesan officials, flat out lied to him and treated him with peremptory condescension.
No wonder the extraordinary proposed settlement of the Diocese of Spokane bankruptcy requires Bishop William Skylstad not only to publish the names of all credibly accused priests (which has already been done elsewhere), but also to appear at the pulpit in every parish where an abusive priest served, and provide every victim an opportunity to speak out publicly in the parish where he was abused. What’s more, Skylstad must publicly call for eliminating statutes of limitations on sex crimes against children. In the absence of voluntary gestures of penitence, victims and their advocates are extracting public humiliation.
It is not enough to say, however, that bishops, priests, and the church are finally getting what they deserve. The vengeance game is a dangerous one. When the original offense is terrible, we feel empowered to do terrible things in response. Blinded by our righteous rage and convinced of our moral superiority, we may do things we later regret.
The consequences of the terrible assault of 9/11 on the innocent serve as an example. The moral horror of 9/11 provided, for a while, the sense that we were entitled to transgress our own moral boundaries. Torture seemed reasonable. Equally important, it made the rule of law seem a trivial charade. Why bother with the constitutional rights of Guantánamo prisoners? Why not enact legislation invading the privacy rights of millions of Americans, if that would make it easier to punish our enemies and protect ourselves from harm? In the “war on terror,” it seems that anything goes. In the purity of our victimhood, we can do no wrong-or so we think until wrong has been done.
Our self-righteousness makes us impatient with the law. The law’s careful balancing of rights and interests, its goal of evenhandedness, and its insistence on due process seem to be pettifoggery, mere “technicalities,” and an obstacle to achieving the justice we know in our hearts. This impatience with the law, however, can lead to injustice. The nauseating image of rich white jocks at Duke drugging and raping a black woman at a party led a prosecutor to abuse his prosecutorial discretion, violating the most basic rules for deciding whether to prosecute. The terrible nature of what could have happened made the prosecutor and many members of the Duke and Durham communities indifferent to the legal obligation to prove what actually happened. Who needs the rules of evidence when we somehow know that something awful took place?
When the victims are children, we are even more willing to suspend our commitment to bothersome principles such as “innocent until proven guilty,” “proof beyond a reasonable doubt,” and the need for credible evidence. Take, for example, the McMartin daycare case in California in the 1980s, in which the accusations of one child’s mother-who was later diagnosed with schizophrenia-led to a ballooning, seven-year investigation of the owners and staff of the daycare center, which produced no convictions and cost millions. The alleged abuses were so vile that well-intentioned prosecutors, social workers, and psychologists apparently lost their critical faculties in trumping up charges based on highly manipulative psychological examinations of the children and dubious theories of repressed memory.
To be sure, the clergy sexual-abuse cases differ from the Duke and McMartin cases in that something actually did happen, and the experiences and their consequences were in fact truly horrendous. The similarity, however, is that in both sets of cases the terrible nature of the alleged or real offenses led to impatience with, or even disregard of, the rule of law. As with the response to 9/11, we are seeing how victims, perhaps understandably, try to avoid or ignore entanglement with the legal system and take the law into their own hands.
It is very hard to criticize the survivors of clergy abuse and their advocates. The survivors were indeed victims, not just of the molesters, but of the bishops and officials who ignored and deceived them, who covered up the problem and enabled further abuse. They have had to struggle bitterly to get any recognition or compensation. But their innocence cannot justify everything that survivors and advocates choose to do.
In particular, it cannot justify some of the settlements that are emerging. The recently proposed settlement of the Diocese of Spokane bankruptcy is an example. The Spokane plaintiffs had the legal leverage provided by a generous statute of limitations that allowed cases to go forward that would have been time-barred elsewhere. They benefited from a highly questionable judicial decision that the diocese “owned” the parishes’ assets, meaning that these could be used to satisfy the diocese’s creditors, including the abuse plaintiffs. The law thus gave the diocese little bargaining power. The diocese also had limited ability to fund a defense. When it declared bankruptcy in 2004, the Diocese of Spokane listed only $11 million in assets against $75 million in liabilities, mostly abuse claims.
It is therefore no wonder that the diocese ended up with a proposed settlement that would provide one of the highest per capita payments of any in the country. But that is not the only disturbing aspect of the proposed arrangement. It presumes payment of $20 million by the diocese’s insurers, who may not actually pay the full amount. In a novel provision, the parishes, or more precisely the parishioners, are expected to raise $10 million, presumably through fundraising and sales of assets. The diocese itself must contribute $18 million, to be raised in part by selling the chancery and the bishop’s residence. In addition, the assets of four Spokane parishes and a retreat center are being used as collateral for $6 million in notes from the diocese. This means that the parishes’ assets are subject to being sold if the diocese defaults on its obligation. Where the balance of the $18 million will come from is not clear. The diocese has only until October 1, 2007, to pay 80 percent of the $45.7 million, with the balance due on October 1, 2010. This is expected from a diocese that is by no means rich. The $11 million in assets it claimed in 2004 has dwindled to just over $8 million because of bankruptcy costs. Even worse, the settlement covers only seventy-five claimants, any of whom could opt out of the settlement and join at least fifteen other potential plaintiffs in separate suits.
The bitterest irony of this punishing settlement, however, is that the victims are likely to receive only about half the total recovery to divide among themselves. Some will cover litigation costs. The rest will go to their lawyers.
While unusually heavy, the potential impact of the settlement on the Spokane Diocese is, of course, not unique. In mid-2006 the total cost of all known settlements was about $1.5 billion. That figure included settlements of $127 million and $100 million from the Boston and Orange County dioceses, but it did not include Spokane’s proposed settlement and the recent settlements in the dioceses of Covington, Kentucky ($85 million), Portland, Oregon ($75 million), Los Angeles ($60 million), Milwaukee ($16.5 million), and Charleston, South Carolina ($12 million). What’s more, such settlements do not necessarily cap the dioceses’ potential liability. The Los Angeles settlement does not include potential settlements arising from the five hundred other suits that were not included in the $60-million settlement. Those suits extend back to the 1940s as a result of the California legislature’s suspension of the statute of limitations, which revived hundreds of time-barred suits. The number of potential suits in other jurisdictions with long or open-ended limitations periods is very hard to predict, and the potential damages cannot be calculated.
Survivors and their advocates are not likely to shed any tears over these huge settlements. For them, the church is just getting what it deserves, and even these amounts are insufficient to compensate the victims fully for their pain and suffering. The plaintiffs’ lawyers have also taken the position in negotiations and in the press that the dioceses have plenty of insurance and under- or unused real estate that can be sold without impeding their religious and charitable missions, and that the bishops are crying crocodile tears about how badly the church and its faithful are being hurt.
This last argument is self-serving cant from heavily biased plaintiffs’ lawyers. To be sure, some of the larger, older urban parishes have abandoned or underused facilities that can be sold. Some can unload a few grand buildings such as the cardinal’s residence in Boston. Most dioceses do have some insurance available to help meet the settlements. But to assume that all dioceses will just be carving off fat, and not slicing into bone and muscle, violates common sense. In some cases insurance carriers will resist paying the full value of the policy, particularly when the dioceses are agreeing to compensate claimants whose suits are actually time-barred by the statute of limitations, minimally supported by admissible evidence, or based on questionable legal theories of supervisory failure, conspiracy, or vicarious liability. The reduced availability of insurable coverage will throw a greater weight on the diocese.
Who, then, will pay? Not the molesters, not the long-dead or retired bishops and chancery officials who enabled them, and not even the superiors who are still in office. The bill will be paid by closing and selling off older, marginal parishes that can barely support themselves in the inner cities and poor rural areas. It will be paid by closing Catholic schools already stressed by the increasing cost of providing private education, particularly to the poor. As usual, the poor will pay, but they won’t be the only ones.
The church in America is a bit like a rust-belt manufacturing company with responsibility for the pensions and health care of tens of thousands of retirees who far outnumber current employees. The church has a significant number of aging priests, women religious, and lay employees with pensions it has to support. In the same way that mass tort liabilities can threaten pension systems in manufacturing companies, these settlements risk the church’s capacity to meet its pension obligations. The scale of this threat is not yet certain, because little is publicly known about church pension programs, but the threat cannot be dismissed.
The indifference of at least some victims and advocates to these problems, their assumption that the bishops are cynically crying poverty, and their tendency to treat every diocese as if it were as bad as the worst ones, suggest that they want not only to be compensated, but to burn down the house. They know that the enormous public sympathy for their plight and the extreme hostility to the church that their activism has created will give them great leverage with juries and leave most dioceses in a virtually indefensible position. Every attempt by the church to use perfectly appropriate legal devices such as pleading the statute of limitations, declaring bankruptcy, or trying to distinguish legitimate claims from fraudulent ones is met with outrage, and some advocates take the law into their own hands, as in Herndon and St. Louis.
What this has meant for the church has become obvious as the settlements have rolled out. What it means for the victims should be just as clear. They are risking the moral capital created by their victimhood and the public sympathy generated by their pain. Their demands will be seen as disproportionate to the church’s (and Catholics’) ability to pay. Most important, the possibility of reconciliation will wither away. But will they even care?