Bishop Seeks Limits for Sex Abuse Payments

By Manya A. Brachear
Chicago Tribune
November 9, 2007

http://www.chicagotribune.com/news/local/chi-bishopnov10-web,1,4668152.story?ctrack=2&cset=true

[Note from BishopAccountability.org: See also the full text of Paprocki's Red Mass homily.]

A prominent Chicago bishop is suggesting legal changes that would shield Roman Catholic institutions from paying excessive damages in sex abuse lawsuits, which he says jeopardize the mission of the church.

Auxiliary Bishop Thomas Paprocki, a civil and canon lawyer and one of Cardinal Francis George's six active deputies, recently suggested in a homily to Catholic lawyers and judges that decisions to award large sums to victims of clergy abuse place an excessive burden on the free exercise of religion for American Catholics.

"This burden needs to be lifted," Paprocki said during a special mass for judges and attorneys in Grand Rapids, Mich., last month.

"The settlement or award of civil damages is punishing the wrong people, namely the average parishioner or donor whose financial contributions support the church but who have no role in the supervision of clergy," he said.

To remedy that, Paprocki has suggested reviving some of the safeguards of charitable immunity, a judicial doctrine that fell out of favor in the middle of the 20th Century because it shielded non-profits from suits for negligence and abuse.

Paprocki plans to address the topic at the University of Notre Dame this month. If received well, he hopes Catholic lawyers, legislators and judges can help shape reforms that will be fair for both the church and survivors of abuse.

But victims of clergy sex abuse and their advocates say it's way too soon to discuss the church's losses when so many abuse victims have yet to come forward about their own.

"Many of the bishops basically abandoned their responsibilities to their flock, and why should we now have confidence in them that they will not do so in the future?" said Robert Bennett, a Washington lawyer and former head of the bishops' National Review Board. "Enough time has not gone by yet. And I believe that being exposed to legal remedies will keep them honest in the future."

Though most states repealed charitably immunity in the middle of the 20th Century (Illinois ended the principle in 1965), a handful held on to the judicial doctrine to protect non-profit organizations from suits alleging negligence. But after revelations of widespread sexual abuse by Roman Catholic clergy surfaced in 2001 and 2002, New Jersey legislators repealed the protection in 2005. Massachusetts did the same in 2006. Alabama and Tennessee are the only two states that remain.

Paprocki says the proposition may not survive the political sphere. But he said the argument merits discussion in scholarly circles.

Ordained in 1978, Paprocki went to law school to help the poor and occasionally represented clients at the same time he served as a parish priest on Chicago's South Side. Appointed chancellor of the Chicago Archdiocese by Cardinal Joseph Bernardin, he served on the archdiocese's review board, meeting with victims and removing priests accused of abuse.

Paprocki describes the evolution of the church's sex abuse crisis in three phases. Before 1960, the church treated the sexual abuse of minors as a moral failure for which penance and absolution were adequate solutions, he said. From 1960 to 1990, the approach was therapeutic, and since 1990, the approach has been primarily litigious. Like the previous chapters, the most recent has had dire consequences.

Paprocki cites the decision this year to close the foster care program run by Catholic Charities after a $12 million lawsuit payout prompted the agency's insurer to drop its coverage. He also points to five Catholic dioceses--Tucson, Ariz.; Portland, Ore.; Spokane, Wash.; Davenport, Iowa; and San Diego--that filed for bankruptcy protection. Canon law states that parish property and assets do not belong to the bishop, but civil law does not necessarily draw that distinction, causing parishioners to worry whether their donations will pay lawyers or fund church ministries.

But he also points out that there was a time when public policy leaned toward protecting charitable institutions.

"I'm saying the pendulum has gone from one extreme of complete charitable immunity to complete charitable exposure," he said. "Can there be a happy medium somewhere without denying a possibility of recovery for a person who has been injured ... without necessarily destroying the charitable activities?"

Rick Garrett, a law professor at Notre Dame, said Paprocki makes a valid legal argument rooted in Catholic social teaching. It reflects a resurgence of interest among contemporary legal scholars in Catholic legal theory, an attempt to approach questions of legal theory through the lens of Catholic social teaching such as the common good comes first.

Garrett said Paprocki's argument about the threat to religious freedom is worth considering.

"In order for religious freedom to be healthy in any society, you have to have institutions that are independent from government and that are themselves healthy," he said. "If one effect of these huge awards is that institutions are being damaged even if these institutions might not have been responsible, that's how religious freedom suffers."

Garrett and Paprocki understand why victims might be insulted by the proposal. But a discussion of a legal principle is nothing but an abstract discussion as part of the search for a solution. Paprocki says he has yet to meet a victim who doesn't seek a similar solution.

"If you have faith and trust and that trust is violated, it's very upsetting," Paprocki said. "But I hear them saying 'I want the church to clean things up.' I don't hear them saying 'I want to put the church out of business.'."

The escalating costs--which bishops have estimated to be more than $1.5 billion--threaten to do just that. He does not blame the plaintiffs.

"This attack is particularly directed against bishops and priests, since the most effective way to scatter the flock is to attack the shepherd," he told worshipers in Grand Rapids. "We must also use our religious discernment to recognize that the principal force behind these attacks is none other than the devil."

"I'm not saying the plaintiffs in that case or the lawyer were acting demonically," he explained later. "I'm saying it is in a sense a diabolical consequence when you can no longer provide a charitable service."

But David Clohessy, executive director of the Survivors Network of those Abused by Priests, said the bishop's suggestion fails to recognize the culpability of the bishops.

"Victims feel compelled or morally obligated to take civil legal action since criminal legal action isn't happening because of archaic laws and timid prosecutors," he said. He doesn't believe the church is as broke as it claims to be. "These are men who lied about child sex crimes. If they lie about child sex crimes, they'll lie about money."

Contact: mbrachear@tribune.com