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	Secrets of the Catholic Church By Ronald Goldfarb The National Law Journal April 9, 2010 http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202447820019&Secrets_of_the_Catholic_Church&hbxlogin=1 The plague of the predatory pedophile priests in the Roman Catholic Church worldwide has reached the Vatican. Litigation dealing with child molestation by priests already has bankrupted many American dioceses. The world press has recently reported scandals in Australia, Austria, France, Germany, Ireland, the Netherlands and Switzerland. Disclosure of more than 60 cases in Switzerland has prompted the Swiss Conference of Bishops to finally address the problem. In Germany, the pope's brother has been connected to choirboy abuses. The current pope himself has been charged with keeping abuses confidential and sheltering abusive priests when he was a cardinal, permitting a "wall of silence" to avoid prosecutions (the Vatican denies his role in any cover-up of the abuses). At a recent meeting at the Vatican of high church officials, the Vatican secretary of state, Cardinal Tarcisio Bertone, told the 24 Irish bishops that their country's pedophilia scandals were "abominable sins," as if they needed to be told that obvious conclusion. In November 2009, the Murphy report to Irish church officials concluded that obsessive concealment between 1975 and 2004 protected the Church but failed to safeguard its children. It was a "culture of cover-up." Victims groups pleaded with the pope to redress these flagrant abrogations of "Christ's teaching." The pope apologized and told the bishops to be "courageous", but he was not. The Catholic Church must deal with the recent, unfulfilled promise of Pope Benedict XVI that it will never again hide the sins of pastoral administrators. His admirable condemnation of past misconduct and his allusion to extending the statute of limitations for claims against offending priests are appropriate first steps. TWO NECESSARY CHANGES Without two changes in the Church's practices — its absolute rule about the pastoral privilege by which confidential confessions are invariably protected and its resort to confidentiality agreements in settling complaints of priests' misconduct — his admonitions will prove illusory. The Vatican's secrecy policies have impeded attempts to expose and punish wrongdoings by priests. Reportedly, the Church's failures have caused a financial crisis — as well as a moral one — in the Irish ministry, as it has in Australia and the United States, indeed around the world. In the United States alone, records proved that 13,000 youngsters were assaulted by predatory priests, 300 priests were convicted of these crimes and 1,000 were severed from ministry. Some dioceses were bankrupted — more than $2.6 billion has been paid in known damages — and no one knows how many more crimes are shrouded in secrecy. There are two secrecy problems that need to be addressed, and redressed. First, the confidentiality of the confessional, intrinsic to Church doctrine, while benign in most situations, also has led to terrible injustices. A recently exposed Wisconsin case disclosed a priest who began his misconduct with a 12-year-old parishioner who came to him for confession. That priest molested 200 young boys. Second, the confidentiality of settlement agreements is a questionable legal tactic misused by many litigants, and used by the Catholic Church in these settlements. Church money has been used to pay secret settlements that avoid bad publicity. Both practices led to hidden misconduct and bred repeated offenses. As far back as Pope Leo I in the fifth century, the Catholic Church decreed that confessions for penance were not to be revealed. By the 20th century, canon law decreed that "the sacramental seal is inviolable" and eternal damnation would be the price for its breach. Priests can be excommunicated for revealing confessions. The rationale for the rule of confidentiality is understandable — it allows tormented sinners to seek solace. The idea that penitents wouldn't confess if they feared exposure of their secrets makes sense, but not always. Some confess to be prevented from continuing misconduct, others to find peace and relief. Analysts have said, as Oscar Wilde remarked, "It is the confession, not the priest, which gives us absolution." AN ABSOLUTE PRIVILEGE Protection of the confessional is deemed by the Catholic Church as strictly an ecclesiastical matter. One high church officer remarked: "The good of religion prevails over the good of justice." See Anthony Cardinal Bevilacqua, "Confidentiality Obligation of Clergy from the perspective of Roman Catholic priests," 29 Loy. L.A. L. Rev. 1733 (1996). But ours is not a society operating under ecclesiastical law. While American common law and statutes originally denied the pastoral privilege, it is now generally recognized. The U.S. Supreme Court has said the privilege "recognized the human need to disclose to a spiritual counselor, in total and absolute confidence...and received consolation and guidance in return." But this privilege is not absolute, and all clergy are mandated by state laws to report serious criminal conduct, such as child abuse as was involved in the Church cases. Pastors, imams and rabbis follow the mandate; under traditional Church policy, Catholic priests do not. See, e.g., John C. Bush and William Harold Tiemann, The Right to Silence: Privileged Clergy Communication and the Law (1996). The absolute privilege in the Catholic Church has resulted in horrible crimes and injustices that might have been avoided. One painful example occurred a few years ago. A Bronx, N.Y., priest knew from his communications with a parishioner that two men on trial for murder were innocent. His confessor confessed to committing the crime. Yet the priest waited 12 years, allowed the two innocent men to be convicted and imprisoned, before coming forward after his confessor died. In the pope's native Germany, a priest knew of his confessor's ghastly murder, did nothing, and the murderer sexually tortured and murdered three 11-year-old boys before being caught four years later. These latter crimes could have and should have been avoided. Invariably there have been unheeded warnings in these situations. The Church's policy has been to allow priests to repent their sins, secretly, and remain repeat offenders rather than seeking to protect their members and punish offenders. Some offenses involved clergy using their confidential settings to procure and perform misconduct, a recent book reported. Leon J. Podles, Sexual Abuse in the Catholic Church (2007). One investigation revealed that a notorious brother had been guilty of "violation of the seal of the confession, the illegitimate use against the penitent of confidential information revealed during the confession, violation of the right of privacy." In this author's conclusion, the scandals were the result of "a clericalist mentality" that defended clergy rather than protecting the wards of the church. The Vatican argues that secrecy protects victims, but the victims disagree. Institutional self-protectiveness is permitted not only by rules of pastoral confidentiality in confessions (we cannot know how many priests confessed their misconduct and were protected by the sanctity of the confessional), but also in settlements of many of the recent scandals. When civil cases are settled, confidentiality agreements are commonly added to induce private resolutions. The practice has been criticized and modified in some courts to avoid repeated offenses of the same kind to innocent parties unaware of the dangers uncovered by the settled litigation. A South Carolina attorney who brought suits against the Church on behalf of multiple victims of sexual abuse by priests refused to shroud the settlement in secrecy because public enlightenment of church abuses was one of the reasons for bringing the case, and his injured clients needed closure for their healing process to work. Victims should not feel their silence was bought, he told me. Many of the scandals that besmirched and bankrupted the Church in many American cities and now have spread to Europe might have been avoided if these two rules of confidentiality were modified. In comparable confidentiality privileges involving lawyers, doctors, psychoanalysts and spouses, the rule prevails but is not absolute. And courts are beginning to refuse settlements of civil claims that contain confidentiality clauses, for cases in which similar crimes could be repeated. To avoid future scandals like those Pope Benedict has acknowledged, the Church's two rules about confidentiality must be modified. The settlement of all claims against the Church must be a matter of public record, to deter repeated offenses. And a balanced rule that protects the sanctity of most sacramental confessions but mandates exceptions when serious, repeated or church-related crimes are involved should be enforced by Church legislators. One Vatican official, Rev. Federico Lombardi, stated that reporting child abuse is not prohibited by the Code of Canon Law or Vatican norms. Laurie Goodstein, "Vatican Declined to Defrock U.S. Priest Who Abused Boys," N.Y. Times, March 24, 2010, at A1. If the Church won't cure the problem, the secular authorities may have to do so. No American court or legislature will wish to intrude on rules of the Catholic Church, and they shouldn't. But they may if the Church doesn't enforce balanced rules of confidentiality in the spirit of Pope Benedict's entreaties. All institutions protect the administrators of the institutions over their clientele — prisons, schools, police, professions and even government agencies. But that fatal flaw should be especially unacceptable when dealing with an agency of spirit and morality. Those institutions should not have to be instructed by the public or its courts or legislatures to do what it exists to do. Yet recent disclosures prove that the Church's highest priority was protecting the Church from scandal. The Miami Archdiocese, and the Vatican, knew of a Cuban priest's sexual abuse of children and permitted him to transfer to south Florida and continue his offenses. Church officials were told to "protect this priest with your accustomed paternal charity." A TIME FOR OPENNESS The Vatican has ignored the cardinal rule about coping with public scandals — get it all out in the open, deal with it and move on. Instead, it has acted as though it existed in an ecclesiastical world where it was sovereign, rather than in a secular, statist world that is hospitable to organized religion when it acts as a responsible part of the larger society, and critical when it does not. The result is a constant, continuing drip, drip, drip of scandal that concerns important moral matters that have no "other side." The Catholic League of Religious and Civil Rights ran an ad in The New York Times editorial page claiming that Times articles about the "pedophilia crisis" really concern "a homosexual crisis." Wrong! It is a Church crisis, one of taking responsibility for the crimes of its agents against children, while continuing to hide the facts and protect the wrongdoers. Doing that implicates the institution itself. On Good Friday, the pope's pastor at the Vatican compared world outrage over the Church's conduct of this issue with persecution of Jews! As if the Church is the victim because personal misconduct of its priests does not warrant collective responsibility of the institution that shields them. Demonstrating how bizarre Church defenders have become, the Holy See's chief exorcist has claimed that criticism of the church is "prompted by the devil," New York Times columnist Maureen Dowd has reported. It is past time the Vatican acted like the parental power it is for its members. Its worldwide wounds need openness and treatment, no more blame denial or responsibility shifting; and fundamentally no more secrecy.
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