" Papers Please" : the Legal Battle over Church Sex-Abuse Files

By Omar Shamout
Religion Dispatches
February 7, 2013

http://www.religiondispatches.org/archive/atheologies/6817/_papers_please__the_legal_battle_over_church_sex_abuse_files_/

Waiting to see the light of day?

Institutional transparency is tough to enforce in any situation, let alone when it comes to allegations of sexual abuse. 

Los Angeles is only the most recent backdrop for a battle that’s been fought in courtrooms nationwide to get secret Church paperwork released. But unlike here, not all judges have ruled in the victims’ favor. 

The Archdiocese of Los Angeles finally released the 12,000 documents it agreed to make public as part of a 2007 sex-abuse settlement in which the archdiocese and its insurers paid a total of $660 million to over 500 victims.

Ray Boucher was the lead plaintiff’s attorney in the civil suit against the L.A. Archdiocese. He says the nearly six-year battle to make the files public was difficult for the victims due to the numerous appeals made by lawyers for the archdiocese and priests.

“It’s been an incredibly frustrating experience,” Boucher said.

He’s not alone.

John Nockleby, director of the Civil Justice Program at Loyola Law School Los Angeles, said this is a common process.

“Catholic dioceses across the country,” Nockleby said, “have resisted efforts by victims’ groups to obtain access to files documenting complaints of sexual misconduct by priests and other Church employees.”

Many other lawyers and victims have climbed the same legal mountain as Boucher.

Kelly Clark, a trial attorney in Portland, Oregon, has litigated over 100 individual sex-abuse claims against the Catholic Church. He represented 55 victims in a lawsuit against the Archdiocese of Portland after it filed for bankruptcy in 2004. The settlement, which covered 146 total claimants, was finally reached in 2007 and valued at $75 million.

Clark and several other attorneys negotiated for similar confidential documents to be released as part of their agreement.

Easier said than done.

“It took probably another two years after that,” Clark said, “but… I would say we got 80-90 percent of what we thought was relevant into the public domain.”

Clark said attorneys for both sides were able to agree on slightly over half the files, but a mediator had to decide on the rest, as in Los Angeles.

Nockleby explained that the appeals of Church lawyers “boil down to claims that the complaints are not necessarily true; that some of the charges were made long ago at a time when officials did not understand the seriousness of the allegations; and that nothing is to be gained by revealing allegations against priests now deceased.”

These types of dossiers are not unique to the Catholic Church. Other religious and nonprofit institutions keep personnel files too. How many there are and whether the public gets to see them depends on how the institution’s leadership is organized.

Clark and his firm have settled multiple abuse cases against the Church of Jesus Christ of Latter-day Saints. They also won an $18.5 civil suit verdict against the Boy Scouts of America in 2010. He said both organizations maintain records as fastidiously as the Catholic Church, but are even more hierarchical since each Catholic diocese operates independently.

“There’s no central repository, even in the Vatican… where you can go and find a list of all the Catholic Church abuse files from around the world,” Clark said. “With the Mormon Church, everything that happens goes to Salt Lake.”

The problem is those documents aren’t discoverable in court.

The LDS Church maintains it does not keep records of child abuse. Plaintiff attorneys have been unable to convince courts that the Church’s disciplinary documents fall outside of clergy-penitent privilege.

In 2004, two Washington sisters sued the Mormon Church for negligence after being molested by their stepfather, who had confessed his actions to a Church disciplinary council. A state appeals court later ruled that members of the council were in fact ordained clergy, so its records could be treated as confessional and did not have to be produced.

“The various Church structures and doctrines really matter,” Clark said. “It affects whether or not you can actually get your hands on these records.”

Similarly, the so-called “perversion files” pertaining to sex-abuse in the Boy Scouts were archived at the group’s Dallas headquarters. But unlike the LDS documents, lawyers were successful in getting those files released last year. Clark said that was mainly due to judicial precedent in rulings against the Catholic Church. A database of the Boy Scout files can be found on Clark’s website.

While he and Boucher have been involved in cases against a wide variety of religious and nonprofit organizations, Clark said only the Catholic Church and the Boy Scouts “have in any way had their documents systematically exposed to the public.”

The more centralized an institution is, the greater amount of liability its top leaders face when a documented coverup surfaces. Boucher said that often means officials are likely to settle a case quickly to avoid negative publicity.

That ties in to their ultimate goal, as Boucher sees it.

“It’s also to protect the image of the Church.”