Should the Catholic Church Pay Reparations to Sex-abuse Victims?

By Sigal Samuel
The Atlantic
September 25, 2018

https://www.theatlantic.com/international/archive/2018/09/catholic-church-reparation-compensation-sex-abuse/570610/

The Catholic Church’s sex-abuse scandal has reached such a fever pitch that its top officials are now compelled to act. Last week, Pope Francis expelled a priest and accepted the resignation of two bishops, all of whom were accused of abuse in Chile. U.S. bishops promised to set up a hotline to field complaints about abusive religious leaders. In Pennsylvania, where a grand-jury report recently alleged 1,000 children were abused by clergy over a 70-year period, bishops announced they would support a fund to compensate victims.

This last move—variously referred to as reparation, compensation, or retribution—may seem like a refreshingly concrete bit of help for the victims. The Church is offering to pay people who can credibly say they were abused as youth but who can no longer file a lawsuit because the statute of limitations has passed. (The statute varies by state; in Pennsylvania, for example, a victim has until age 30 to file a civil suit pertaining to abuse he or she experienced as a minor.) The Pennsylvania bishops are offering to pay victims directly, through a simple arbitration process that they say will go more quickly than a court trial might. “We recognize our responsibility to provide an opportunity for sexual abuse survivors whose cases are time-barred from pursuing civil claims to share their experiences, identify their abusers, and receive compensation to assist their healing and recovery,” the bishops said in a statement.

For some aging victims of abuse, this may be a last chance to extract an apology and some financial support from the Church. As one man, who said he’d been abused on Long Island, told the press in New York last year, “It is a plan that for some people may be, no pun intended, a godsend. If someone is not disposed to go to court, if someone is in a situation where they don’t have the time for a law to be changed, this is definitely the way to go.”

But payout programs like these have been tried before, both in the U.S. and in other countries like Australia, and the experiences of those who participated in them suggest their drawbacks may outweigh their benefits. Several survivors, advocates, lawyers, and academics I spoke with said they believe the programs actually serve a dark purpose: to bring forward abuse victims who might later be able to sue the Church if the statute of limitations is amended, and to buy them off cheaply now, all while keeping damning records under wraps.

“The Catholic Church is trying to put a Band-Aid on a situation that requires major surgery,” said Mitchell Garabedian, a Boston attorney who has represented hundreds of clergy-abuse victims and who was depicted in the movie Spotlight. He told me that with more U.S. attorneys general opening state-wide investigations into abuse, more victim funds are “without a doubt” going to crop up, which increases the importance of understanding their drawbacks. “The Church is implementing the compensation programs so they can try to convince the legislatures that statute-of-limitations laws should not be amended, because the Church is already taking care of the problem. It’s a deceptive move.” The Pennsylvania Catholic Conference, which represents the state’s bishops, declined to comment.

U.S. Church-reparation schemes, such as those set up in New York in 2016 and 2017, typically involve a few drawbacks from the participant’s perspective, Garabedian explained. First, they stipulate that if survivors accept a payout now, they waive the right to sue the Church later. Second, the payout they receive is often far smaller than what they might get if they sued in court. Third, the Church doesn’t have to reveal its records to the survivors or to the public. Fourth, it’s the diocese or archdiocese that selects and pays the administrators of the program.

Kevin Stocker, a churchgoing Catholic and an attorney who has represented six victims as they went through compensation programs in western New York, told me that he has personally observed all these drawbacks. He described writing a letter to a diocese that was offering such a program, in which he argued that the program was similar to an arbitration—a binding form of dispute resolution that takes place outside the courts—and that in an arbitration, documents can be subpoenaed. He said he should be able to subpoena any documents that could show the Church had prior knowledge that his client’s alleged abuser was prone to such misconduct. “When I asked for the documents, I was basically told, ‘You’re not getting anything,’” he said.

The sex-abuse scandal is growing faster than the Church can contain it.

Both Stocker and Garabedian said that in the cases they’ve handled, Church officials told them the dioceses had selected the arbitrators, who adjudicate the abuse claims and set compensation levels. “That raises the question of how independent the programs really are. Certainly any victim is going to be skeptical when the administrator is being paid by the very entity that allowed the abuse to occur,” said Garabedian. Or as Stocker put it: “When you get to handpick your executioner, your punishment is not going to be very severe.”

Despite their criticism of the reparations plans, both lawyers continue to guide clients through them, saying it’s important to let them make their own choices. Some advocates for victims echo that reasoning. “A lot of victims don’t want to go through a litigation process,” said Anne Barrett Doyle, the co-director of Bishop Accountability, an online research group that tracks clergy-abuse cases. “They need and deserve something, and why shouldn’t the Church give them some money? It’s the least the Church can do. But it’s the silence that accompanies it that makes this a sullied process. The enormous benefit of litigation is that, when a lawsuit gets aired in court, it results in disclosure of documents. The great loss of these [reparations] programs is that they’re keeping things sealed.”

David Clohessy, a survivor and former national director of the Survivors Network of those Abused by Priests (snap), said many victims opt for compensation programs out of “a combination of hopelessness around legal reform and desperate financial and emotional straits. People want to get counseling and antidepressants and long-term medical care, because many have serious health issues related to the trauma of abuse,” he said, including himself in that group. Nevertheless, he wouldn’t encourage victims to opt in to those programs.

“I would urge them to really push back hard against those restrictions and to think about this very carefully and consult with several civil lawyers,” Clohessy said. “If bishops genuinely wanted to help victims, they would not require secrecy or an I-won’t-sue-you-later clause.”

Parishioners attend mass at a Catholic church in Ireland. (Cathal McNaughton / Reuters)

Australia, which has been test-driving reparations programs since the 1990s, may offer the U.S. some valuable lessons. The leading program there, Towards Healing, was created and managed by the Church. Many abuse victims, advocates, and academics say it had serious flaws—such as forcing victims to retell their story several times, which compounded their trauma, and requiring them to maintain confidentiality after the program. Joan Isaacs, a survivor, told me by email that participating in Towards Healing was silencing and “far from a healing experience,” and that “the trauma of that experience still lives with me.”

In 2013, Australia launched a five-year Royal Commission to study the issue nationwide. Acting on some of the resulting recommendations—though, crucially, disregarding others—the Australian government this summer kicked off a new redress program. But even this government system, which operates independently of the Church, bears some of the disadvantages that plague Church-run programs. For instance, the amounts victims receive are a pittance compared to what they could win in court, and once they accept the government redress, they sign away their rights to all civil litigation in the future. Including that last clause helped the government convince religious institutions—which wanted assurances that survivors would not be able to claim compensation twice—to opt into the redress scheme.

The power play driving the latest Vatican crisis

Ireland also has a nationwide system for compensating victims of clergy abuse. It was hammered out in a 2002 deal between the state and the Church, and it has been criticized on similar grounds. To receive payment, claimants had to go before a panel of judges alone, retell their story in detail multiple times, and waive the right to sue. They also had to keep their abusers’ identities secret from the public. Critics say the Church took too long to disburse payments, and to this day the Church has not paid out all the money it had agreed to in 2002. Mark Vincent Healy, an Irish survivor, told me the system was so damaging to participants that some referred to the Redress Board as the “Re-abuse Board.” He said he hopes the U.S. will not emulate Ireland’s system.

“To submit American citizens to such a style of redress would be torturous as well as inhumane,” Healy said. “If the U.S. is going to learn any lesson, please learn that you should not eviscerate survivors by having them recount their horrendous experiences repeatedly.”

Many U.S. victims and advocates have long argued that states should eliminate the statute of limitations going forward and establish a window of time—say, two years—to allow victims to file suits over past abuse. Their push for legislative reform has repeatedly failed. The Church has fought against the idea of a retroactive window, arguing that it would be unconstitutional (law scholars are currently debating this question in Pennsylvania). That fight is ongoing, but in the meantime, the lawyers representing victims are finding other, more creative ways to sue the Church. One strategy is to mount a case on the basis of fraud—that is, to argue that the Church is guilty of fraudulent concealment. Another strategy is to press the Department of Justice—as snap did last month—to investigate the Church under the Racketeer Influenced and Corrupt Organizations Act, or rico, which was originally designed to crack down on organized-crime groups like the Mafia. Both are promising strategies, Stocker said.

As parts of the U.S. Church move to take responsibility for the suffering of abuse victims, Catholic churches overseas grappling with the same issues offer models to consider. What they all show is that there’s no true recompense for any victim, and that survivors trying to decide which course of action to pursue face a complicated calculus with no one-size-fits-all answer.

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