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MEMORANDUM From: Thomas P. Doyle, 0.P., J.C.D. http://www.thelinkup.org/doyle.html [Note from BishopAccountability.org: This memo was obtained by BishopAccountability.org in HTML form from the Web site of The Linkup. We have silently corrected several section-numbering errors in the table of contents and the text and have made the heading style consistent. We've replaced the headers and footers, which didn't print well, with page numbers in square brackets. We have also eliminated stray spaces, periods, and apostrophes, and have supplied missing apostrophes. Otherwise, the text is reproduced exactly as it appeared on The Linkup's site. As in the Linkup version, the page numbers in the text do not agree with the page numbers in the table of contents.] CONTENTS II. THE
INTER-RELATIONSHIP OF CHURCH BODIES IN THIS CASE 3 III. CANON
LAW ISSUES 9 IV. RELIGIOUS
DURESS AND ROLE MODELS WITHIN THE CHURCH STRUCTURE 22 V. HOW THE CHURCH HANDLES COMPLAINTS OF SEXUAL ABUSE BY CLERICS 25 VI. THE
DIOCESE AND THE NATIONAL BISHOPS CONFERENCE (NCCB) 29 VII. THE NCCB AND THE PROBLEM OF SEXUAL ABUSE BY PRIESTS 35 VIII. RECURRING
ISSUES AND QUESTIONS 37 IX. SEXUAL ABUSE BY CLERICS: HISTORICAL AWARENESS OF THE PROBLEM 38 X. THE SUSCEPTIBILITY OF THE VICTIMS OF SEXUAL ABUSE BY PRIESTS 39 XI. FR. ROBERT RAY PEEBLES 41 XII. FR WILLIAM HUGHES 46 XIII. FR. RUDOLPH KOS 49 XIV. ACCRUAL OF A CAUSE OF ACTION 54
II. THE INTER-RELATIONSHIP
OF CHURCH BODIES IN THIS CASE This directive also includes Section D(1c)
which requires the sponsoring ecclesiastical agency to "provide ecclesiastical
validation, support, and supervision of its chaplains." [page
4 begins] The Second Vatican Council, which concluded
in 1966, resulted in major reforms in the Catholic Church throughout the
world and in the United States. One of these reforms was the establishment
of bishops' conferences such as the national Conference of Catholic Bishops,
in each country of the world. In the U.S. the National Conference of Catholic
Bishops and the United States Catholic Conference establish, coordinate
and execute the public policy of the Catholic bishops, and have assumed
the role of the public policy voice for the Catholic bishops through statements,
pastoral letters, and pastoral plans on a wide variety of subjects, including
the interests of children. Officers and representatives of the NCCB/USCC
have frequently represented themselves to be acting on behalf of the entire
community of the Catholic Church in the United States, including Catholic
children. The study of the life and ministry of Catholic
priests has continued through the formation of Ad Hoc committees to implement
these studies. It has also continued with the work of standing or established
committees on "Pastoral research and Practices," and "Priestly
Life and Ministry." The area of study concerning priests also impacts
on and is related to civil law issues. These include the various civil
law regulations and statutes which are connected to the sexual abuse of
minor children, a felony crime in each of the several States and the District
of Columbia. 1. Sexual Abuse By Priests The Code does not mention homosexuality or
homosexual acts specifically. However, it is clear that homosexual acts
whether with age-appropriate persons or underage persons, are forbidden
by the obligation of chastity. The 1917 Code stated that clerics who committed
any crime against the sixth [page 10 begins]
commandment, especially if they had care of souls, were to be punished
with severe penalties. For administrative purposes the AMS has a diocesan curia (Canon 469-494). The curia processes dispensations for sacramental purposes and provides other support activities for the chaplains. There is also a tribunal or court which deals exclusively with matrimonial matters (annulments). It also has an extensive sacramental records department which includes records of the reception of the sacraments of baptism, confirmation and first communion. 5. The Extent of a Priest's Obligations A priest is bound by his obligations of celibacy and overall good conduct not only during those times when he is fulfilling some official duties within his parish but at all times.... this includes when he is on vacation, days off etc. His primary ministry is to preach by good example. The bishop has authority over a priest at all times and in all places. The priest is obliged to observe the law of celibacy. He is also obliged to avoid any situations that would cause scandal, wonderment or possibly lead to inappropriate situations. A priest is a priest at all times... , 24 hours a day and 7 days a week, when on "duty", on days off and/or on vacation. He is a priest whether he is in his home diocese or whether he is somewhere else. 6. The Duty to Report Allegations of Sexual Misconduct Sexual misconduct by a priest with anyone but particularly with a child is an especially serious offense. Sexual misconduct with a child or minor is singled out by the Code of Canon Law (1917 and 1983) as a specific canonical crime. From this is can be deduced that it is particularly odious and particularly problematic for the church. It causes grave harm to the child, his parents and family and to the community in general (both Church community and secular community). Because of the extremely grave harm that an be caused a child, allegations of sexual abuse must not be dismissed without thorough investigation and must be reported by all who become aware of them. This obligation is especially onerous for other priests since they have a special obligation towards the laity and towards children. [page 17 begins] Pastors are responsible for the spiritual and moral welfare of all in their charge. If serious harm is coming to someone because of the actions of an assistant priest for instance, it is the pastor's duty to do all he can to correct this harm. The Code does not make specific mention of possible harm from sexual abuse however the obligation to act may be deduced from other canons of a more general nature which deal with the pastor's obligations regarding the spiritual and moral welfare of the people (canons 464, 470). Pastors are to see that nothing is done against faith or morals in their parish, especially in the schools (Canon 469). The 1917 Code was more specific than the 1983 Code about the pastor's supervisory role over his assistant pastors. Canon 476 states that the pastor is to "paternally instruct and direct them in the care of souls, watch over them and send each year a report to the bishop concerning their conduct." Is there a specifically mentioned duty to report a canonical crime? The 1917 Code had provisions for liability with regard to canonical crimes. Canon 2209 states quite clearly that a person who, because of his office ("office" here refers to any official Church position, including pastor or bishop but also vicar etc.) failed to prevent an offense, sheltered an offender etc. shared in the responsibility for the offense itself. This liability also includes carelessness in supervision by a superior over a subject. In sum: Pastors especially but other priests also have a canonical obligation to report allegations of sexual abuse of children by priests (or anyone for that matter) to Church officials. This is no different from the duty imposed by civil law to report suspected child abuse to the appropriate department of child protective services. This discussion again demonstrates that there is no material conflict between the obligations of secular and Canon law with regard to the duty to supervise, report, investigate, and thus protect children from sexual abuse. There is also no conflict between Canon and secular law on the issue of liability for negligence in this area 7. Canonically Mandated Action in reference to a Report of an Offence A Bishop has a grave moral and canonical obligation to safeguard the spiritual welfare of all those who are under his care. These include Catholics who have actual residence in a diocese as well as those who may be simply staying there temporarily. This obligation is mentioned in the Code (Canon 383) and in the many documents that deal with the office of Bishop. Much of the non-canonical information is contained in several important Vatican II decrees, the Dogmatic Constitution on the Church (Nov. 21, 1964), The Decree on the Pastoral Office of Bishops in the Church (Oct. 28, 1965) the Apostolic Letter implementing certain aspects of this decree, Ecclesiae Sanctae (Aug. 6, 1966) and the Directory on the Pastoral Office of Bishops (1974) [page 18 begins] a. The other factor in assessing the bishop's obligation to investigate and take appropriate action when an accusation is made against a cleric is the nature of the bishop's relationship to a cleric. Because this is such a close and all- pervasive relationship, the bishop can hardly absolve himself of responsibility for what a cleric under his authority does whether the action takes place while the priest is actually performing ministerial duties such as performing the liturgy, or not. This issue is treated in the canons of both the 1917 Code but more clearly in the 1983 Code: The diocesan bishop is to attend to the priests with special concern and listen to them as his assistants and advisers; he is to protect their rights and see to it that they correctly fulfill the obligations proper to their state and that means and institutions which they need are available to them to foster their spiritual and intellectual life... (Canon 384) b. Thus in evaluating the bishop's obligation
to personally investigate and take action when an accusation of child
molestation is made, we have three canonical imperatives at work: c. In the Code there is a section dealing with penal law. There is a specific crime mentioned which deals with offenses by priests against the law of celibacy. "Apart from the case mentioned in can. 1394 [attempted marriage], a cleric living in concubinage, and a cleric who continues in some other external sin against the sixth commandment of the Decalogue which causes scandal, is to be punished with suspension. To this end other penalties can progressively be added if after a warning he persists in the offense, until eventually he can be dismissed from the clerical state. 2. A cleric who has offended in other ways against the sixth commandment of the Decalogue, if the crime was committed by force, or by threats, or in public, or with a minor under the age of sixteen years, is to be punished with just penalties, not excluding dismissal from the clerical state if the case so warrants." (canons 1395) N.B. By the sixth commandment of the Decalogue is meant the traditional sixth commandment, "Thou shalt not commit adultery" which is used in the law to include any sexual activity outside of marriage. [page 19 begins] d. The Code, in the same section on penal law, contains canons which outline the manner with which an allegation is to be investigated. If there is reason to believe that a canonical crime was committed, there is also procedure to be followed for a judicial examination with the possible application of penalties. e. If such a matter is reported to a confessor or a spiritual director, a problem arises with the issue of confidential/privileged communications. Priests are neverallowed to divulge anything revealed to them in confession for any reason or under any circumstances (Canon 983). With a spiritual director/mentor, a person has a special and confidential relationship. Information revealed to such a person also falls under the umbrella of confidentiality and it would not be expected nor ethically proper to reveal such information to a third party. However, the appropriate action for the spiritual director would be to advise the person aggrieved to report such actions to the proper diocesan authorities. It would also be possible for the spiritual director to obtain the specific permission of the directee to disclose the information to third parties. f. Ordinarily in sexual misconduct cases involving priests, the preliminary investigation of the incident should take place very quickly after the report is received. In the canons concerning the preliminary investigation (canons 1939- 1946 of the 1917 Code and canons 1717-1728 of the 1983 Code), it says that if information about an offense comes forward from any source....report, rumor, complaint, public knowledge, an investigation is to take place. This investigation is initiated by the bishop and is to be documented.) After the proofs have been examined (reports, interviews etc.) the accused is then to be confronted. Once he is confronted the decision on subsequent action is made. The bishop has a choice of judicial or administrative action. g. Action on an offense can be either in the form of judicial action (a canonical trial) or administrative action. It can result in the imposition of a canonical penalty. The canons do not mention a specific penalty for the commission of the crime of sexual abuse of minors. The gravity of the penalty depends on the gravity of the offence and attending circumstances, such as force etc. Transfer of a priest from one parish to another is not a penalty nor is it an acceptable administrative action in the light of a confirmed commission of an ecclesiastical crime. The bishop is not obliged to impose a penalty but should do so only as a last resort after it is clear that the damage resulting from the crime has not been [page 20 begins] repaired, nor the offender reformed. In any event, the bishop is obliged to conduct an investigation according to the norms of the law and following the procedures outlined in the norms of the law, prior to making any decision. If there is a question of mixed jurisdiction i.e., when two or more ecclesiastical jurisdictions are involved, the obligation to investigate can fall on all three bishops since all three have some form of jurisdiction over the victim, perpetrator and territory. This is true in the Doe I case since the Dallas Diocese was the home diocese of the priest, the Military Vicariate had authority over him because he was an active duty military chaplain and the territorial diocese wherein Ft. Benning is located, since the victim spent time after the offense was reported, in the care of civilian diocesan priests of the local area. In sum: There is a process in Canon law for investigating complaints, including complaints of sex abuse, which is a canonical crime. 8. Standards Relative to A Priest's Personal and/or Inter-Personal Relationships The canons of the 1917 and 1983 Codes are clear on the basic standards of the deportment of priests concerning the obligation of chastity. There is no question that the priest is obliged to refrain from any kind of sexual activity with adults and children of either sex. The priest is also obliged to conduct himself in a mature, stable, responsible and Christian manner. In addition to the Code, there are other sources from Church documents which point out standards of priestly conduct. Priests are charged with representing Christ and the Church to the people whom they are called to serve. They are charged with treating all people with respect and kindness. It goes without saying that taking advantage of people is not part of the job description of a priest. They are called to be prudent in their dealings. a. The Vatican Council's decree on the Life and Ministry of Priests states that "..in building up the Church priests ought to treat everybody with the greatest kindness after the model of our Lord. They should act towards people not according to what would please men but according to the demands of Christian doctrine and life." (par. 6) b. The council recognized the special kind
of leadership role of the priest. Because of the spiritual power involved
it is easy to take advantage of this leadership role for personal gain.
To this end the same document says "Priests should therefore, occupy
their position of leadership as men who do not seek the things that are
their own but the things that are Jesus Christ's. [page
21 begins] d. Taking any kind of sexual advantage of a person is in no way consonant with the standards of conduct of a priest. 9. The Rights of the Laity The Church is hierarchical in its political and social structure. Power rests in persons not in representative bodies. There is little if any system of checks and balances, separation of powers or accountability of office holders to the laity. The Code of Canon Law is a legal system which grew out of monarchical governmental systems and reflects this bias quite clearly. Nevertheless with the Vatican Council came a demand that certain rights of the laity be recognized and included in the Church's legal structure. Although the mention of these rights has only been included in the 1983 Code, the fact of the rights is grounded in Vatican Council II and in other more fundamental theological issues. In assessing the responsibility of the Church governmental structure to respond to the victims of sexual abuse by the clergy it is helpful to consider the nature of the rights of the laity. At this point, it might be interesting to note that in the USA there are 59,000,000 Catholics. Of this number there are 50,000 priests, 11 Cardinals, 45 archbishops and 344 bishops (this number includes active and retired). Thus the governmental, leadership or clerical section of the Church amounts to about .008 % of the total. Vatican II teaches that the Church is the "People of God" and not simply the government, hierarchy or clergy. The Code of Canon Law of 1983 contains a significant section on the rights of the faithful, canons 208-223(both clerics and laity) and the rights of the laity, canons 224- 231. The theological foundation for these rights, especially those accorded to the laity, is revolutionary in the new Code, which was promulgated or published in 1984. These rights are grounded in the new understanding of the meaning of the "Church" which was set forth by Vatican Council II, especially in the constitution on The Church, commonly referred to by its Latin name Lumen Gentium. Basically, the Church is no longer identified with the institution as such, the structures or the hierarchy (which includes all clerics). With the new definition, the Church is more accurately understood to be "The People of God," meaning that the Church is all of the people who profess belief. This has impact on cases such as this because it ties in with the justification [page 22 begins] often heard from Church officials for either denying wrong-doing by the clergy or attempting to minimize it. People who believe themselves aggrieved are often asked not to take civil action or otherwise make an issue in order to avoid scandal "for the good of the Church." In such instances the concept of the "Church" is erroneous since the "good" referred to is the "good of the power structure" or institution. Thus, the true good of the Church is best served by calling to accountability clerics and office holders who abuse the laity in any way. a. Basically, all of the faithful have the right to make their needs known to Church officials. The Canon (Canon 212, par 2) refers to making needs known to the "pastors" of the Church. "Pastors" refers to the bishops. Thus a person abused has the right to make the need for redress known to the bishop. b. Another Canon (Canon 220) states that "No one is permitted to damage unlawfully the good reputation which another person enjoys nor to violate the right of another person to protect his or her own privacy." c. Finally, Canon 221 states that all of the faithful have the right to vindicate their rights before a competent ecclesiastical court according to the norms of law. Basically this is the right to due process. This would be the Canon to which one would appeal in arguing that a person alleging sexual abuse by a cleric has a right to some form of process. In sum: the laity have certain rights to just treatment at the hands of Church leadership. The section on their rights is important as a foundation for assessing the way that lay persons have been treated when they have approached the Church leadership about sex abuse by priests. In short, they have a right to justice. IV. RELIGIOUS DURESS AND ROLE MODELS WITHIN THE CHURCH STRUCTURE 1. By tradition, Catholics have been taught to hold the priesthood and the bishopric, and priests and bishops themselves, in the highest esteem. This attitude of respect has been fostered by official Church teaching on the meaning of the sacrament of Holy Orders (the priesthood, bishopric and diaconate). This teaching is contained both in theological documents and in Canon law. It is important to understand or grasp this attitude in order to put into proper perspective the way that reports of sexual abuse by clerics have historically been handled by Church officials as well as the reluctance on the part of catholics to believe that such sexual abuse occurs. This attitude also [page 23 begins] helps to explain why victims themselves often were reluctant to step forward and report an incident. 2. The Catechism of the Council of Trent contains statements that basically summarize the Church's understanding of the priesthood as it was taught up to the era of Vatican Council II. The present official understanding is much akin to that found in this document although couched in terms that are less triumphalistic. In the first place, then, the faithful should be shown how great is the dignity and excellence of this sacrament considered in its highest degree, the priesthood. Bishops and priests being, as they are, God's interpreters and ambassadors, empowered in his name to teach mankind the divine law and the rules of conduct and holding, as they do, His place on earth, it is evident that no nobler function than theirs can be imagined. Justly therefore are they called not only Angles, but even gods, because of the fact that they exercise in our midst the power and prerogatives of the immortal God. In all ages priests have been held in the highest honor; yet the priests of the New testament far exceed all others. For the power of consecrating and offering the body and blood of our Lord and of forgiving sins, which has been conferred on them, not only has nothing equal or like it on earth, but even surpasses human reason and understanding. (The Catechism of the Council of Trent, translated by McHugh and Callan, 1923) 3. The Code of Canon Law of 1917 put into legislation the practical application of traditional teaching on the priesthood. In the first place, only clerics could hold the power of jurisdiction or actual power, in the Church. Only clerics could hold ecclesiastical offices. In general this is repeated in the revised Code. In addition, several other canons or sections of canons point to this exalted position. a. "All the faithful owe reverence to clerics according to their various grades and offices; and they commit a sacrilege if they do real injury to a cleric, (Canon 119) b. Clerics could not be summoned before civil courts unless special permission was obtained to do so. (Canon 120) [page 24 begins] c. Certain occupations, activities and entertainments were considered unbecoming for clerics because of their state. (i.e., hunting to hounds, unbecoming shows, practicing a trade or doing business. d. Persons who laid violent hands on a cleric (from the Pope on down to simple priests) were punished by excommunication. 4. The Vatican II Era. The mood of the Church Vatican Council II was such that the exalted phrases of the pre-Vatican era were not included in Vatican II documents nor in the revised Code of Canon Law. However the attitude or conviction of the superiority of the priests and bishops is still evident. a. "The Christian faithful, conscious of their own responsibilities, are bound by Christian obedience to follow what the sacred pastors, as representatives of Christ, declare as teachers of the faith or determine as leaders of the Church." (Canon 212, 1, revised Code) b. "Through the Holy Spirit who has been given to them, bishops are the successors of the apostles by divine institution; they are constituted pastors in the Church so that they are the teachers of doctrine, priests of sacred worship and ministers of governance." (Canon 375 of the revised Code) c. "One who uses physical force against a cleric or religious out of contempt for the faith, or for the Church, or ecclesiastical power, or ministry, is to be punished with a just penalty." (Canon 1369 of the revised Code) 5. Deacons, priests and bishops are not lay people but belong to a separate state in life called the clerical state. The Church has consistently taught that the clerical state is of divine institution, i.e., instituted by God. "Among the Christian faithful by divine institution there exist in the Church sacred ministers, who are called clerics by law, and other Christian faithful, who are called laity." (Canon 207,1 of the revised Code) a. Only members of the clerical state may exercise holy orders or the powers of the diaconate, priesthood and bishopric. A man becomes a cleric automatically when he is ordained a deacon. If he is removed from the clerical state, he is forbidden to exercise the powers of the holy order he holds. b. Only clerics can hold most of the key offices in the Church. [page 25 begins] c. There has arisen and exists an attitude commonly known as "clericalism" which is marked by a presumption that clerics are above the laity and entitled to special privileges and respect. Some of the effects of this attitude have been manifest in the laity in the past and continue to be manifest. These would include an enduring attitude that it is sinful or wrong to make any kind of accusation against a priest or a bishop. There also continues to exist a belief among some that priests and bishops cannot and would not do anything considered to be evil or wrong. d. In the past Catholics were consistently taught to have the highest respect for a priest and even higher respect for a bishop. In the broader spectrum of civil society, it is not uncommon to find the conviction among civic leaders that to bring charges against a priest or bishop is especially odious and is tantamount to an attack against the Church itself. In sum: it is therefore clear that there is a relationship of the highest degree of trust and confidence between the lay Catholic population and church leaders. This is analogous to what is known as a "fiduciary relationship" in civil law. With regard to the Bishop of Dallas, the Bishops of the Military Vicariate, the NCCB/USCC, and the priests involved, this means that the lay Catholic community looked to and expected these entities and individuals to conduct themselves with the highest degree of trust and confidence, in particular with regard to the protection of children. V. HOW THE CHURCH HANDLES COMPLAINTS OF SEXUAL ABUSE BY CLERICS 1. The sexual abuse of adults, adolescents and children by the Catholic clergy is not an issue that only began to happen in 1984. It has always been a serious problem for the Church. This is evidenced by the fact that there is on record Church legislation going back to the fourth century concerning priests who sexually abuse people but especially children. This legislation was first codified in 1917 and revised in 1983. The difference between the period after 1984 and the period before that date is twofold: a. the way that Church officials responded to allegations of sex abuse by priests and other clerics and, b. the extent of public knowledge of sexual abuse by priests and the acceptance of such abuse as fact by the Catholic laity and general public. [page 26 begins] 2. Traditionally reports of the sexual abuse of children by priests were handled in a secretive, private way. The Church officials have always realized that public knowledge of such abuse would severely harm the Church's credibility, the image of the priesthood and in general result in serious scandal. 3. It is also important to note that traditional Church teaching had always held that a priest enjoyed an exalted position. (See above section) To speak ill of a priest or to accuse him of something as heinous as sexual abuse was and still is considered by many to be sinful. Catholics were brought up with the notion that a priest represented Christ. Among devout Catholics it was simply unbelievable that a priest would sexually abuse a child. This attitude and the respect and fear engendered among the devout laity was used by Church officials in its attempts to dissuade people from pressing complaints against offending priests. It is well documented that many adults, once abused as children, hesitated to report the sexual abuse because they feared they would never be believed or worse, would receive punishment at the hands of their parents. 4. It is ironic that Church officials had and have the belief that child abuse by clerics is so offensive that it should be kept secret at all costs and at the same time have claimed that they never realized how destructive a problem it is, hence excusing the lack of adequate action in the face of allegations. Sexual abuse of children is a felony that is abhorred by society. It is understandable that no organization would want to let it be known that its own officials are guilty of such abuse, yet the harm done by the abuse far outweighs the bad image of the institution. 5. In the past priests confronted with accusations of sexual abuse were admonished by their superiors. Often the shame of the event would prompt promises that it would never happen again. In short, the Church often appealed to a kind of "spiritual" approach to remedy the problem. Priests were reminded of their vows, of the potential for scandal and harm to the Church etc. It has been thought by some that sexual abuse is primarily a moral problem which some form of spiritual conversion could take care of. Confession has been mentioned in some documents as the way the problem was handled. Confession may absolve the moral guilt but it does not cure the sexual disorder. In some instances, priests were sent for some form of psychiatric or other medical treatment after they had acted out more than once. 6. The Church has traditionally held a certain degree of mistrust for the psychiatric profession. The belief that all sexual problems were a matter of the will was prominent for decades and is still present in some circles. The assistance of the medical profession in dealing with sexual abuse problems has often been [page 27 begins] reluctant and a last resort after it had become apparent that other methods of control, i.e., appeals to obedience, obligations etc. had failed. 7. Often they were quietly transferred from one parish to another in an effort to give the accused a new start and avoid the possibility of added problems and exposure in the parish wherein the abuse had taken place. In my experience over the past ten years I have seen documented evidence that in numerous dioceses in this country, priests reported for sexual misconduct with children were transferred not only once but often several times. In some cases bishops sent priests away to study, sent them on retreats, sent them to psychiatrists or sent them to special rehabilitation centers. In other documented instances priests would be deemed by the bishops as unsuitable for ministry in the home diocese yet recommended for ministry in another diocese. In short, there is sufficient evidence of rampant recidivism to presume that Church leaders knew or should have known that transfers do not solve the problem. 8. In numerous dioceses across the United States from the 1970s through the early '90s abundant evidence demonstrates that complaints of child abuse were handled in such a unified fashion as to indicate a meeting of the minds as to how best to prevent public knowledge of the abuse, avoid criminal prosecution and to suppress potential claims. There is evidence that the bishops cooperated between themselves regarding placement of problem priests when incidents of sexual abuse erupted within their dioceses. There is also evidence of a common plan in which the families of victims were mislead as to the facts in order to suppress potential claims. Cases across the United States, regardless of the dioceses involveded, were handled in this common fashion which provides strong evidence of concerted action among the bishops of the United States to prevent public exposure of this problem and victim claims. This concerted action continued even after medical evidence made clear the extensive harm to victims, their families and to society resulting from child sexual abuse. In the cases involved in this report, there is evidence that the Diocese of Dallas acted in accordance with this common plan and scheme with regard to Fr. Kos, Fr. Peebles, and Fr. Hughes. There is also evidence that the Military Vicariate participated in this common plan and scheme through a pattern and practice of endorsing problem priests to the Department of Defense as military chaplains. How was such a commonly practiced plan of action arrived at? The bishops activities in and through the NCCB/USCC would provide an informal forum for this common plan. 9. Evidence from cases across the country indicates there has been a conscious and organized cover-up of this problem. There seems to be little doubt that on a diocese by diocese basis, uniform strategies were utilized to make sure that sexual abuse cases never became public. Transfer of priests with little or no public explanation, reassignment of priests with sexual problems with no advance warning to parishes, assertions that internal investigation had found [page 28 begins] no evidence of wrong-doing and public denials of problems are all factors that have been part of the problem over the past several years. There is little evidence that I know of that Church officials followed State reporting statutes and reported incidents of child abuse to civil authorities. 10. With the media exposure of the Gilbert Gauthe case (Lafayette LA) in 1984-1985 all of this changed. What changed was not the bishops knowledge of the problem of sexual abuse but the widespread public awareness of this problem as well as the widespread acceptance of the problem to be true and not simply secular press "Catholic bashing." I believe this change occurred because, for the first time, credible evidence emerged in the Gauthe case that the Bishop of the Diocese of Lafayette had known of Fr. Gauthe's activities for years and had done nothing to protect children. Information concerning other priest perpetrators, whose activities were known, also emerged. This distinguished the Gauthe case from prior cases. Child victims were believed where before they were not. Many adults came forward alleging that they had been abused in their youth by priests and religious brothers. Cases of sexual abuse popped up all over the United States which provided further evidence of prior knowledge by bishops in dioceses across the United States. The media exposure and the threat of lawsuits forced Church officials to publicly address this issue. 11. Whether or not there has been a conscious and organized cover-up of this problem is a question worthy of discussion and further research. -There seems to be little doubt that on a diocese by diocese basis, regular strategies were utilized to make sure that sexual abuse cases never became public. 12. One aspect concerning Church documentation is worthy of mention here. That is the language found in documents. Language referring to sexual problems of priests is generally guarded to be almost Code-like. Sexual problems may be cryptically referred to as "moral problems" or simply as "problems." Pedophilia has been commonly referred to by some as "homosexuality." Two Latin phrases that often crop up are offenses or problems "de sexto" meaning problems with the Sixth commandment ("Thou shall not commit adultery", a catch-all phrase for any kind of sexual problem or crime) and actions "in re turpi". The latter refers to particularly offensive, including unnatural, acts. 13. The pattern described above holds true in dioceses led by past and present elected officials of the NCCB. For example, there is evidence that Cardinal Bernardin, when he was archbishop of Cincinnati, failed to act on reports in 1977 regarding George Cooley and that Archbishop Roach in St. Paul failed to act on reports involving Fr. Adamson, to cite only a few examples. 14. Regarding the Dallas diocese in particular, and the method with which it has handled accusations of clergy sexual abuse, it is known from the [page 29 begins] documentation that at least by September, 1966, the diocese had knowledge of the suspected abuse of a student from St. Pius X church by Fr. "E". Furthermore, recent news reports refer to alleged abuse by another area priest, Fr. Hoover, dating back to 1957. Documents submitted in-camera may further substantiate abuse known to the Diocese in the 70s and 80s involving a total of eight or nine priests, including the three priests involved in these cases. The Diocese's response to this notice was in accordance with the pattern and practice in dioceses across the United States. 15. Many of the recent civil litigations concerning clerical sexual abuse have shown that the bishops in numerous dioceses throughout the country were put on notice as far back as the early sixties and in some cases before that, about sexual abuse of young people by priests. The Paraclete Fathers have indicated that by 1976 they had begun to treat a large number of priests for sexual problems, the first institution, religiously affiliated or secular, to do so in an organized fashion. All of this amounts to sufficient information and notice for the body of bishops to have begun to take decisive steps to deal with this problem. It also discounts any claims that there was no corporate awareness of the existence of a problem prior to the mid eighties VI. THE DIOCESE AND THE NATIONAL BISHOPS CONFERENCE (NCCB) The National Conference of Catholic Bishops (NCCB) is an organization made up of all of the bishops in the United States. Similar bishops conferences exist in all countries of the world. 1. The American episcopal conference has its remote beginnings in 1919 when the American bishops first met in Washington to create an organization with the goal of achieving an effective Catholic voice in national affairs. The National Catholic Welfare Council, as it was to become known, existed until the formation of the National Conference of Catholic Bishops in 1966. It was a non-legislative organ that was primarily concerned with relationships between the Catholic Church and the civil society as well as certain challenges to Catholic teaching such as birth control, racism etc. The NCWC issued statements and pastoral letters but did not enact any legislation. At the time of its existence until Vatican II, the NCWC was part of a highly centralized universal Church. Decisions and legislation came from Rome with only some consultation made on the part of national hierarchies. 2. The idea of a national conference of bishops was first mentioned in the Vatican II decree on the liturgy in 1965 which called for the establishment of various kinds of territorial bodies of bishops. When it was established as an official conference of bishops, the NCCB differed from the NCWC and other prior group in that it was officially recognized in Canon Law and given certain [page 30 begins] legislative powers. When the new Code was promulgated in 1983, there was a section contained therein containing the fundamental canons or laws governing national/territorial episcopal conferences. 3. The Purpose of the NCCB/USCC a. The Code of Canon Law gives the general purpose of an episcopal conference. It further states that each conference is to draw up its own statutes which are to be reviewed by the Holy See. The Holy See itself officially erects or creates the entity known as the episcopal conference and gives it official, canonical identity (Canon 449). Once erected, an episcopal conference enjoys a juridic personality. Why do conferences exist: The conference of bishops, a permanent institution, is a grouping of bishops... whereby, according to the norm of law, they jointly exercise certain pastoral functions on behalf of the Christian faithful of their territory in view of promoting that greater good which the Church offers mankind, especially through forms and programs of the apostolate which are fittingly adapted to the circumstances of the time and place. (c. 447) b. In order to accomplish this goal, conferences are to hold plenary meetings and may issue statements, letters, provide information to individual bishops. Episcopal conferences also have legislative authority. Canon 455 states that a conference has the power to issue general decrees (laws) in two cases: 1. when the general law (The Code), prescribes
it or when the Holy See allows all conferences or particular conferences
to issue decrees General decrees must be passed by a 2/3 majority in a plenary session. The cases prescribed by the general law consist of certain canons of the Code which state that the application of the law is left to the episcopal conference. Properly speaking these are called "executory decrees" which means that they are precise determinations on how to observe laws. c. The Code of Canon Law of 1983 contained at least 29 cases in which the episcopal conference was authorized to issue executorial decrees on the specific application of a law. In addition to these 29, there were 53 [page 31 begins] other instances in which the conference was given power to issue decrees which further specified certain laws. Some of these related to liturgical issues, preaching, Church property, reception of the sacraments and procedural laws. Some examples are as follows: 1. setting up a program of priestly formation
with the approval of the Holy See (Canon 242) d. The episcopal conference can also enact decrees or laws for its own territory in addition to the executorial decrees allowed by the Code. To do so they must first receive a mandate or the permission from the Holy See. It is also feasible and possible for the Holy See to instruct the conference to enact legislation for a specific need. When the conference seeks permission to enact a decree, the process usually begins with a proposal for a bishop or group of bishops. The proposal is then studied by various committees and finally placed before the body of bishops in plenary session. If they vote favorably the issue is sent to the Holy See for its approval or disapproval. If it approves, the conference then moves to enact the decree which requires a 2/3 majority vote at a plenary session. The method of promulgating and applying the decree is left to the conference. The NCCB/USCC has its own mission statement which is part of its handbook. This statement was adopted at the 1981 general meeting: The National Conference of Catholic Bishops and the United States Catholic Conference are a permanent institute composed of the Catholic bishops of the United States of America in and through which the bishops exercise in a communal or collegial manner the pastoral mission entrusted to them by the Lord Jesus of sanctification, teaching and leadership, especially by devising forms and methods of apostolate suitably adapted to the circumstances and the times. Such exercise is intended to offer appropriate assistance to each bishop in fulfilling his particular ministry in the local Church, to effect a commonality of ministry addressed to the people of the United States of America and foster and express communion with the Church in other nations within the Church universal, under the leadership of its chief pastor, the Pope. The National Conference of Catholic bishops deals principally with matters connected with the internal life of the Church. The United States Catholic Conference deals principally with affairs involving the genera/public, including social concerns, education and communications, on the national level and in support of efforts at the regional and [page 32 begins] diocesan levels. (National Conference of Catholic Bishops/United States Catholic Conference Handbook, February 1989, p.1) 4. What the NCCB/USCC Is Not Although the NCCB/USCC is not the executive headquarters for the Catholic Church in the United States, its history since the Vatican Council indicates that in many ways it does exercise authority, direction and influence. The conference can accomplish legislatively what the individual bishop cannot accomplish, e.g., enacting legislation that will bind the entire country with the approval of the Holy See. 5. The Activities of the NCCB/USCC a. The NCCB has its offices in Washington DC. The principal officers are all diocesan bishops and do not have offices there. In practice, the day to day affairs of the conference are directed by the general secretariat. This department oversees the plans for the general meetings and supervises the activities of the various committees and offices of the NCCB/USCC. The general secretary is an elected official with a full-time position. The other resident department is the office of the general counsel. b. The work of the conference is carried on by 44 committees, all of which are made up of bishops. Some of these are standing committees and some are ad hoc committees. These committees meet periodically to discuss business, prepare reports and statements etc. Most of the committees have a staff 'officer who holds a full time position at the national headquarters and has a staff under him. c. The standing committees of the NCCB deal primarily with internal Church matters. The names of some of the committees indicate this: budget and finance, personnel, Catholic missions, Black Catholics, Boundaries of dioceses, canonical affairs, Church in Latin America, Doctrine, Hispanic affairs, laity, liturgy, pastoral research and practices, priestly formation, priestly life and ministry, selection of bishops. d. The ad hoc committees are established to meet temporary needs and problems but are not permanent committees. The conference, through the USCC, conducts lobbying activities with the U.S. government. In such activities as well as in other pronouncements the NCCB/USCC frequently states that it speaks on behalf of the lay Catholics of the United States, including the children. [page 33 begins] 6. Pronouncements of the NCCB/USCC a. The USCC has its own publications office which publishes various documents of the conference and related documents. It also has its own period publication, Origins which contains various statements of bishops, conference committees etc. b. The NCCB regularly issues statements and pastoral letters on a variety of topics. These statements and letters are proposed by a bishop, researched and prepared in committees and voted on by the general membership. The statements are non-legislative and non-judicial in nature. They are not binding on the bishops, however as the handbook states: "Decisions of the conference are normally devoid of juridical binding force. Nonetheless, when passed by a majority of the members who have deliberative vote in the conference, they should, as a rule, be observed by all members as an expression of collegial responsibility and in a spirit of unity and charity with their brother bishops." (Statutes, art. XII) c. Since its existence in 1966, the conference has issued over 100 major statements on a variety of issues, some of which have been purely ecclesiastical in nature, others relating to moral matters and others political in nature. In addition to its public statements, which are made in the name of the bishops of the United States; the conference, usually through its president, regularly issues statements or sends letters which are made public and which indicate something of the conference views on this or that matter. Of special significance are the national Pastoral Plans issued by the NCCBIUSCC which contain instructions for activities in the various dioceses throughout the United States. This includes the Respect Life Program established in 1 972, the Plan of Pastoral Action for Family Ministry established in 1978, the National Pastoral Plan for Hispanic Ministry established in 1987, and the National Black Catholic Pastoral Plan established in 1978. These Pastoral Plans contain outlines of specific actions on the national, diocese, and parish levels. These Plans appear to be an effective way of directing Church activities in the subject areas of the Pastoral Plans. d. The conference, primarily through its staff offices and various committees, also can and does issue various materials as aids or clarifications for bishops and dioceses throughout the country. This material does not have the force of law or doctrine but exists as opinion or information. [page 34 begins] 7. Funding a. The NCCBIUSCC is funded by the American bishops. It does not receive funds from the Holy See. Article XIV of the bylaws of the USCC refers to financial matters: "In the determination of diocesan quotas or of special assessments in individual dioceses, or special collections not prescribed by the Holy See, all diocesan bishops and equivalent to them in law and only they shall have a deliberative vote." b. The conference in general is funded by monies collected from the various U.S. dioceses. Each diocese is assessed a kind of tax, based on the number of Catholics in the diocese and other factors. Staff offices and the general offices are funded through the conference. c. The NCCB/USCC also takes up special collections throughout the dioceses. These are collections taken up in each parish on certain Sundays of the year. The proceeds are sent to the conference. Some of these include the annual collection for communications, the Campaign for Human development 8. Relations with Individual Dioceses and Bishops a. The NCCB/USCC remains a powerful organization with the resources and the moral authority to have a profound impact on the activities of each bishop and on matters in each individual diocese. b. In practice the conference leadership has become involved in various controversies which have occurred in the American Church. This involvement might not have engendered an official statement, but nevertheless there was some involvement, at least on an ad hoc basis. Some examples of such issues have been the controversy surrounding the New York Times advertisement in 1984 favoring the right to choice in abortion and signed by over 100 Catholic priests and religious. The Holy See moved in immediately and the matter was mediated in a sense by conference leadership. The conference leadership also became involved with the Apostolic visitation of the Archbishop of Seattle in the 1980's, with the controversy surrounding former Sister Agnes Mansour (Michigan). c. The officers of the conference (president, vice-president, general secretary, secretary, treasurer) have consultative input into the candidates for bishop which are proposed by the Papal Pro-nuncio for various dioceses. When a list of candidates is prepared by the Pro-nuncio to be submitted to Rome for appointment by the Holy See, it is sent to these officers for their individual opinions. [page 35 begins] d. The NCCB-USCC and its officers do not constitute the body to whom an individual bishop owes accountability in the sense that the bishop can be removed or transferred only by the Holy See. Nevertheless the conference can exercise considerable influence over an individual bishop and over the Holy See as well if an individual bishop's actions are called into question. On the other hand, the NCCB-USCC is accountable to the Holy See for its very existence and to the American bishops for its support and on-going credibility. Given its mission statement and the purpose of its existence, certain things are expected of it by individual bishops, including various kinds of assistance and advice in matters of importance. The conference in fact has assumed a moral leadership role in various issues relating to the Catholic Church in the U.S. The many statements related to secular political activities points to this as well as the statements concerning certain internal controversies. In short, the NCCB exercises a strong moral or persuasive authority and has the capability of accumulating and disseminating vast amounts of information to bishops as well as the ability of providing various kinds of assistance to bishops. 9. Relations with the Lay Catholic Community Since its inception in 1968, the NCCB/USCC have communicated with the lay Catholic community throughout the United States. Through its Publications and Media Relations Office, the NCCB/USCC has consistently provided what could be called warnings and instructions to the lay Catholic community on a variety of issues. Through its coordination and communication of the public policy of the Catholic bishops in the United States, the NCCB/USCC also has undeniable access to non-Catholic visual and written media. VII. THE NCCB AND THE PROBLEM OF SEXUAL ABUSE BY PRIESTS 1. The problem of sexual abuse of minors by priests received widespread publicity in 1984 and thereafter, due to the case of a priest in Lafayette LA. The NCCB/USCC claims that it had no knowledge of the problem of such sexual molestation by priests prior to 1982. 2. In 1985 the NCCB was urged to initiate some form of action in the form of research into all aspects of the sexual abuse problem as well as the creation of a crisis intervention team. A document privately prepared by myself, F. Ray Mouton and Fr. Michael Peterson was offered to the NCCB in May, 1985. Several bishops who were attending the June 1985 meeting were given copies in hopes that the document would prompt some form of organized action on the part of the NCCB. Nothing happened. [page 36 begins] 3. Since 1985 the issue has been discussed in executive sessions and administrative board meetings of the NCCB several times. The conference has issued private memos to bishops and their legal counsels and in 1993 established an ad hoc committee to study the problem. This committee has produced a handbook of topics related top the issue of sexual abuse by the clergy. The handbook contains much of what was in the above-mentioned 1985 report. 4. This returns us to the competence of the NCCB in matters of interest to the individual dioceses. There are two distinct action levels, both of which have already been alluded to or mentioned in this report: a. the legislative level: the NCCB can enact legislation for the dioceses as provided for in the Code and if not so provided, by a majority (2/3) vote of the members and the approval of the Holy See. b. the consultative or advisory level: the NCCB can enact advisory guidelines and policy directives which, though not canonically binding, can be utilized or implemented by the dioceses. It has done this in numerous areas of concern to the American church and to the dioceses. There is nothing that would have prevented the NCCB from taking such action, mandating research, strongly suggesting policy and programs etc. concerning the sexual abuse of minors by clerics long before the first reported directive went out from the General Counsel's office in 1988. (Note: On February 28, 1992 a memorandum went out to all bishops from the USCC Office of Media Relations describing a "national policy" established by the bishops in 1988 and 1989.) 5. There was sufficient information available to the NCCB by the 1970s to have justified the issuance of warnings and instructions to the lay Catholic community concerning the risk to children of sexual abuse by Roman Catholic clerics. This included undeniable medical documentation of the long-term harm to victims from such abuse. There is no evidence that the NCCB/USCC issued any such warnings and instructions to the lay Catholic community. No such warnings and instructions have ever been issued. 6. There was sufficient information available to the NCCB by the 1970s to have justified modifications to the Program for Priestly Formation to assist in screening candidates for the priesthood in order to identify those prone to sexually act out with children. While bishops are arguably free to ordain any candidate for the priesthood they choose (provided those candidates meet the standards set forth by Canon law) the duty exists under civil law to protect children from known danger. This was not done. [page 37 begins] VIII. RECURRING ISSUES AND QUESTIONS In dioceses throughout the country, when cases of sexual abuse by priests have surfaced, recurring problems have occurred: 1. lnadequate investigation. In virtually all cases, rumors and/or complaints and other forms of notice of misconduct were received by Church officials but no investigation was conducted. This is clear from the records involving Fr. Peebles and Fr. Kos in this case. Regarding Fr. Hughes, there were numerous red flags involving his close relationship with Jane Doe, a young girl who was 12 and 13 years old at the time, that if properly investigated could have prevented the abuse. This is part of a common pattern of not investigating allegations or red flags indicating potential abuse. 2. lnadequate supervision. Priests accused of sexual molestation are often found to have had suspicions raised against them early in their careers and, in some cases, prior to entering the seminary, or even in the seminary. After receiving reports of sexually acting out, or rumors of such, in many cases there have been no investigation or supervision and priests have simply been transferred from one parish to another. In other cases, red flags indicating a potential for misconduct were ignored. There is evidence of inadequate supervision with regard to Fr. Robert Peebles, Fr. Rudy Kos, and Fr. William Hughes. 3. Reporting to civil authorities. It is rare that allegations of sexual abuse of minors are reported to civil authorities. There is evidence of failure to report in the cases involving Peebles, Kos, and Hughes. 4. lnadequate treatment of victims. Often, victims complaints have not been properly investigated, victims have been coerced into not making complaints, have been given false or misleading information, or have been urged to remain silent. In many instances, known victims received no pastoral attention from the Church, nor did Church officials take care to make sure victims received proper counseling. These actions continued even after medical evidence conclusively established the harm to victims of child sexual abuse. There is evidence of inadequate treatment of victims in the cases of Peebles, Kos, and Hughes. In addition, funds for counseling were not provided until the fall of 1995 (with the exception of payment for a few sessions for Jane Doe in 1991). [page 38 begins] IX. SEXUAL ABUSE BY CLERICS: HISTORICAL AWARENESS OF THE PROBLEM 1. Catholic church authorities have frequently alleged that the problem of sexual abuse of young boys and girls by the clergy is a new problem, so new that they (the authorities) are only now beginning to realize how serious it is and only now beginning to figure out how to deal with it. 2. Sexual abuse of minors and other sexual misconduct by Catholic clerics is not a new problem. Evidence for this is found in historical sources. The church has not published historical studies on the problem of sexual abuse of minors by the clergy for obvious reasons. It is a crime that has been considered extremely odious by societies throughout the ages. Because of its odious nature and the negative impact that admission of its existence would have on the church's reputation, instances of sexual abuse of minors by the clergy are generally hidden. Nevertheless, the historical sources reveal a constant concern throughout the ages of Christian history. 4. The Christian Penitential Books of the 6th to 11th centuries contain occasional mention of punishments inflicted on clerics for homosexual crimes. The gravity of the punishments, which escalated with the rank of the cleric (less for minor clerics, more for priests and bishops) indicate that the crime itself was deemed particularly hideous by the church at the time. 5. Gratian the monk composed the most important single historical source for western Canon law, the Decretum, published in 1140. It is a systematic compilation of Canon law sources including the writings of the early church fathers, scripture, regulations, norms, canons from previous church councils, synods and popes. It also contains numerous references to the civil legislation of the Christian Roman emperors. In one section Gratian tends to side with the Roman law which inflicted the punishment of death on men who had sex with boys. In another he advocates the imposition of excommunication upon clerics who so sinned. Gratian referred to the evil of stuprum pueri or the impurities with boys, in several canons, including several which reference clerics. 6. One of the most important single works is the Book of Gomorrah of St. Peter Damien. Written in the mid 9th century (possibly in 1048), this book is a carefully planned discussion of the problem of homosexuality among the clergy. The story of Peter Damien's exposition, the limp response of the pope at the time and the subsequent attempts at minimalizing Damien's writings is a stark reminder that history repeats itself. 7. Sexual abuse of a minor is a specific crime mentioned in the 1917 Code of Canon Lawand again in the revised Code of Canon Law of 1983. It has been mentioned over the centuries in the law of the church for a reason: it exists, is [page 39 begins] a serious problem and has been acknowledged by church to be such. It is not something new that only cropped up with the initial publicity of the 1984-85 situation in Lafayette LA, and the national publicity which followed the Porter case in 1992. Because of the nature of sexual abuse of minors, the institutional church has attempted to keep the matter under wraps. It has consistently failed to provide adequate pastoral care and concern for the victims of such abuse and it has consistently failed to take responsible steps in dealing with individual priest-abusers. 8. The history of this problem would strongly suggest that the primary value for the institutional church has been its public image, its public security and the avoidance of any public knowledge of the extent of the problem X. THE SUSCEPTIBILITY OF THE VICTIMS OF SEXUAL ABUSE BY PRIESTS 1. A recurring question: how could the victims and their families have allowed such abuse to both begin and continue? This question is asked with regard to the plaintiffs in these cases and in nearly all cases. The answer lies in the concept of "religious duress." In the cases at hand, the victims all came from devout Catholic families .. . families who were close to the church in that they were practicing Catholics and involved in the day to day life of their church through involvement in their parishes. These families believed that the priest held an exalted position in their lives. They had been taught that the priest occupied a position between them and salvation, between them and the spiritual security offered by the church to those who remain loyal and obedient to its way of life. Such people are taught not to question the wisdom and decisions of a priest, not to question his lifestyle and to presume only the purest motives of his actions. In many cases, such Catholics also believed it a serious sin to question the authority of a priest or to speak ill or gossip about a priest. 2. It was a common hope of devout and dedicated Catholics families that one or more of their children enter religious life and/or the priesthood. For this reason the attentions of a priest toward a child were often believed to be honest and pure and that such attentions might lead to the great honor for the child himself or herself choosing to follow a religious vocation. For this reason, among others, parents often allowed their children to be alone with priests, to accompany them on trips, to stay with them in their quarters. The bottom line is that parents had been taught to place unquestioning trust in their priests. The idea of a priest sexually abusing or otherwise harming a child would have been, and in the cases of these families herein concerned, was, totally alien. 3. The victims themselves (these cases included) were bound by the power of the priest. It was beyond the imagination of a young boy or girl that a priest, who [page 40 begins] was a friend, confidant, mentor and spiritual father, would do or attempt something evil or wrong. On the one hand the church taught the virtues of purity and surrounded expressions of sexuality with sin. Young boys and girls at the beginnings of puberty received these messages from their church through the priests and often reacted to their awakening sexuality with fear, shame, wonder and often guilt. To many, when a priest made advances, these were often totally disbelieved by the victim. Once the situation developed, many priest perpetrators continued to use their power by gradually inducing into the victims the belief that no one would believe them if they disclosed what was happening. In fact, prior to the widespread media attention to such abuse in the eighties, rarely would parents, church authorities or others believe a young person who mentioned the fact that a priest was doing strange things to them. The victims, in a very real sense, were caught between a "rock and a hard place." 4. The result of sexual abuse by members of the clergy has had a variety of effects on the victims. The psychological and emotional impact is the subject for medical experts. There is also however, a severe spiritual impact. The event or events of abuse have caused numerous victims to not only abandon the institutional church but to look upon it with disdain, fear and even hatred. Many are or were unable to make an emotional and intellectual distinction between the priest, the institutional authorities, and the church itself. The persons of the priests, bishops etc. were the church. The church was the source of spiritual security. Faith in God was intimately bound up with faith in and loyalty to the church. It was the church, through the priests, who forgave sins. Now it was the forgiver who was causing the sins. Many victims felt and feel that they have been robbed of their faith and of their spiritual security. They cannot go to the church for relief because the focal point of their trust, the priest, has betrayed them. He has led them into what was and often is still perceived to be the worst kind of sins, sins of the flesh. 5. The spiritual impact of sexual abuse is profound. In all possibility this impact is related to the psychological and emotional impact and to the patterns of self destructive behavior often found in many victims of clergy sexual abuse. 6. The concept of religious duress is also directly related to the manipulation of the victims and their families. This manipulation occurs at the hands of church officials whose ultimate aim is to convince them not to press charges, not to go public etc., in order to avoid causing scandal or harm to the church. The same dynamic which was active in the seduction is also active in trying to downplay the events. This manipulation almost always includes the victims and their families but can and does extend to law enforcement officials and others whose intervention could either cause problems for the institution or not. Such manipulation was especially evident in the case of the victims of Robert Peebles, William Hughes and Rudy Kos. [page 41 begins] 7. The relationship between lay Catholics and Catholic children and the priest, bishop and institutional church is one of great depth and totality. This relationship is taught and nurtured by the official church through its teaching and preaching. It is best expressed in civil law categories by the legal doctrine of "fiduciary relationship." This means that given the nature of the relationship between the priest, bishop and the lay Catholic child (or adult), a high degree of trust and confidence is reposed in the individual priest or bishop. Thus religious duress (or, in less dramatic terms, "religious formation") is expressed in the neutral civil law concept of a special or fiduciary relationship. This concept, the duties entailed therein and the expectation of it would extend to all persons and entities representing the Catholic Church to the victims: the NCCB/USCC, the Dallas Diocese, the Military Vicariate/AMS and the various priests involved in these cases. 1. Fr. Peebles was ordained for the Diocese of Dallas on April 30, 1977. Prior to ordination he had received two evaluations from pastors of parishes wherein he had served as a temporary deacon. Both of these evaluations contained significant negative material, though none of this material was sexual in nature. One of them expressed concern for Peebles drinking. There appears to have been no significant follow-up with Peebles regarding this material and he was ordained to the priesthood. 2. Peebles history of sexual molestations while a priest began within two years of ordination. In 1979 he molested two boys from Ennis on an out-of-state camping trip. Some time from 1978 to 1980, a Fr. Scott relayed a report to the Vicar General, Msgr. Rehkemper, from a parent involving concerns about Fr. Peebles activities on a camp out on the family property in Ennis. It is unclear whether Fr. Scott's report came before or after the abuse incident in 1979. It is known that the individual making the report was the father of John Doe Ill in the Peebles case. There was no investigation of the reports nor confrontation with Peebles. Nevertheless the fact of the reports/rumors were known to diocesan officials. Although these reports came by way of rumor, the diocese, through the bishop, had a obligation in Canon Law to investigate the rumors. No such investigation took place. 3. There is a note in the CID (The Army's special investigations unit) report that Fr. Peebles was caught abusing a boy in 1981. This event coincides with Fr. Peebles entering counseling with Dr. McCandlish. This counseling was arranged by the Vicar General, Msgr. Rehkemper. The records of the Rosenberg Clinic, Dr. Emory, indicate that Peebles told Dr. McCandlish about the inclination rather than the behavior. This coincides with reports in Bishop Tschoepe's 3/16/94 deposition of a dinner conversation with Dr. McCandlish [page 42 begins] in this same time frame where they discussed whether a sexual molester would repeat the offense. 4. In spite of there having been at least rumors of inappropriate sexual actions with boys, the Bishop appointed Peebles the Diocesan Director of Boy Scouts on June 29, 1981. During this same year, Peebles commenced sexual relations with another minor, John Doe IV. 5. Peebles was permitted by his bishop and endorsed by the Military Vicariate for the inactive reserves in January, 1981 and subsequent to this he began to see a counselor, Dr. McCandlish. In February, 1982 he was endorsed by the Military Vicariate for active duty. Had the diocese disclosed the fact of his counseling and the suspicion of sexual abuse to the Military Vicariate, or had the Military Vicariate conducted a more detailed investigation into Peebles suitability (given the Vicariate's awareness at the time of such problems with other chaplains), the endorsement would not have been granted. 6. In January of 1982, Peebles admits to advising Retreat Director Fr. Val LaFrance that he was sexually abusing boys and was out of control. As indicated in previous sections of this report, such reports to retreat directors were customarily held in confidence. It is worthy of note, however, that within a few weeks of this date, Peebles was given permission by Bishop Tschoepe to enter the army as an active duty officer, effective July 1, 1982. The ecclesiastical endorsement from the Military Vicariate is dated 2/16/82. It is without question that Peebles was unqualified on that date to represent the Catholic denomination in the United States Military because he was both an alcoholic and an active child abuser. There is no evidence that any investigation of Peebles background was conducted by the Dallas Diocese or the Military Vicariate prior to this ecclesiastical endorsement. 7. Peebles attended a retreat sponsored by the Military Vicariate at the Galilee Retreat House in Spring Lake, New Jersey in May of 1982. I have reviewed pictures of a minor boy (John Doe IV) with Peebles at this retreat house, during the orientation course sponsored by the Military Vicariate for incoming chaplains. It is reported that the boy, John Doe IV, stayed in Peebles room at the Galilee Retreat House. It is also reported that bishops from the Military Vicariate were present at the Galilee Retreat House during this orientation session. How Peebles got away with having the boy with him during the retreat is not known. The very act of Peebles having brought a boy with him to the Galilee Retreat House should have been thoroughly investigated. The very fact that this boy was present should have caused those in charge of the retreat to ask some very serious and pointed questions about Peebles. Apparently none were asked and, if they did, nothing was done and John Doe IV alleges he was sexually assaulted by Peebles while Peebles was on retreat with other incoming chaplains under the direction of priests and bishops of the Military Vicariate. [page 43 begins] 8. On March 18, 1984 Peebles was apprehended at Fr. Benning, Georgia for sexually abusing John Doe I. Peebles confessed to this incident. Although a Catholic Chaplain, Fr. Michael Ortiz, was given responsibility for contacting John Doe l's parents and arranging his return to Dallas, John Doe I remained for a day and a half at a Catholic Rectory in Georgia without his parents knowledge or consent. The psychological effect of this event is beyond my expertise; however, it appears to have played a major role in the later events in this case. Significantly, the Dallas Diocese was made aware of the abuse on March 19, 1984 when Peebles called Msgr. Rafael Kamel (Chancellor of the Dallas Diocese) to report the incident. Records indicate that Peebles complied his request to resign from the Military in lieu of prosecution before John Doe I returned to Dallas and his parents were made aware of this incident. These events played a significant role in the events that led to Peebles not being prosecuted for this crime and the victim not receiving adequate treatment. 9. The Judicial vicar, Fr. David Fellhauer, and Msgr. Rafael Kamel, pastor of All Saints Church and Chancellor, placed pressure on the family of John Doe I not to prosecute Peebles. Contemporaneous records summarize the representations made to John Doe l's family by the representatives of the Dallas Diocese. These representations conceal Peebles prior history and fail to disclose the ongoing problem of priest sex abuse within the Catholic clergy and the Dallas Diocese. The family's decision not to prosecute Peebles was also impacted by the actions of a psychologist, Dr. Ray K. McNamara. Dr. McNamara's actions will be discussed by other medical experts; however, it is clear that Dr. McNamara failed to disclose his previous relationship with Fr. Fellhauer and the Dallas Diocese. The fact that Dr. McNamara subsequently treated Peebles while continuing to treat the family of John Doe I without disclosing this fact also calls his actions into question. Dr. McNamara also destroyed critical treatment records involving contested events after learning that Doe I was investigating this entire episode in August of 1S993, also calling his actions into question. 10. Two months after the Ft. Benning incident Peebles was made an assistant pastor and one year later a pastor at a Dallas Diocesan parish. One year after being appointed pastor he was identified as having sexually abused several minor boys. He resigned from the pastorate on Aug. 27, 1986 and was sent to St. Luke Institute for evaluation. The bishop subsequently decided that Peebles would not attend St. Luke's for therapy. 11. On Nov. 21, 1986 Peebles was suspended and on Nov. 26, 1986 he initially petitioned the Pope to be laicized. The decree of laicization was finally granted on Dec. 6, 1989. [page 44 begins] 12. Subsequent to his suspension and de facto departure from the priesthood, the diocese loaned him $11,000.00 per year for law school tuition and continued his monthly stipend of $800.00 per month for living expenses. 13. Subsequent to the Ft. Benning assault on Doe I, which was without doubt a true sexual assault, Peebles was assigned to another pastoral post. No warning was given to the pastor or to the people. Canon Law stipulates that an associate pastor or pastor not be assigned unless it is proven that he is morally and spiritually fit. The bishop had a duty to the people of the parish and to the diocese in this regard. Nevertheless, acting not on certainty of Peebles capacity to properly function, they assigned him. He was in therapy and had admitted the abuse prior to his appointment. The assignment involved a true risk to Peebles and to the parishioners. 14. In sum, the rumors about Peebles should have been properly investigated in 1979 but they were not. The military and military vicariate should have been advised that these rumors existed and had not been investigated. No such information was given and no questions were asked by the Vicariate about prior drinking or sexual problems. After the Ft. Benning incident the diocese concentrated its efforts on keeping this incident a secret by allegedly conveying incorrect and incomplete information to the parents concerning Peebles history and by convincing the parents that prosecution would be harmful to the victim, promising that Peebles would lose his status as a priest, and that the Diocese would make efforts to insure against the occurrence of another incident of child abuse. Instead, the Diocese appointed Peebles to another pastoral position and placed him in therapy with the same counselor who had advised the family against prosecution. This action on the part of the Dallas Diocese, Dr. McNamara, and perhaps others, had the effect of concealing important information from the parents of John Doe I and delaying the discovery of the true facts concerning Peebles history and the Diocese's actions until shortly before the filing of this case. All of this is directly contrary to the standard of care to which the Diocese is called with regard to its obligations to lay Catholics and with regard to the appointment and supervision of priests to pastoral (or any) positions. 15. The concept of religious duress, i.e. the degree of trust and confidence reposed in church leaders, is applicable to the case of Peebles. Church officials quickly intervened with the family, giving incomplete or incorrect information and promising that Peebles would receive help, would no longer serve as a priest, had suffered much because of the events, and should not be subjected to court martial. Military officials, all the way up to the Secretary of the Army, were convinced by church officials of the Dallas Diocese (and perhaps others) that a court martial would cause more harm than good. [page 45 begins] 16. The evidence of pressure placed on the victim's family points to the fact that the church officials repeatedly stressed that pursuing a court martial would be harmful to the victim in that he would have to testify. This pressure was insistent and included the psychologist involved, Dr. Ray McNamara, who also had a dual relationship with the diocese, the judicial vicar, the priest and possibly others. Letters were sent to military officials involved from diocesan officials. These letters stressed their concern for the victim and promised that Peebles would receive treatment and be supervised. Without going over each and every document regarding the process whereby the family itself asked the Army to allow Peebles to resign, it can be said that all of it points to the conclusion and presumption that the diocese was primarily concerned about its image, possible negative backlash from a prosecution and not necessarily the impact on the victim nor on the future activities of Peebles. This fits the national pattern I have observed. 17. Ironically, after being accused of and confessing to what amounts to a felony crime and facing the possibility of a lengthy term in prison, Peebles was reassigned as an assistant pastor at St. Augustine's parish in the Dallas diocese on May 21, 1984, not two months after the events of March 18. This assignment was made not only with the knowledge of what had happened to the victim at Ft. Benning but also with the knowledge that Peebles had been tentatively identified as a child abuser as early as 1979 or 1980 and this was known to diocesan officials. Even more ironically, Peebles was appointed pastor of the same parish on June 3, 1985. Prior to the-assignment as assistant the pastor and people of the parish were never informed of Peebles background. Finally, by August, 1986 it became known that Peebles had acted out again with teenage boys. 18. Although the events surrounding the alleged molestation at Ft. Benning appear to dominate the Peebles case, it is more important to focus on the circumstances that preceded this event. These circumstances lead to the conclusion that the Diocese had sufficient information about Peebles as early as 1979 to have taken adequate steps to see that further child abuse did not occur. Moreover, the identity of John Does II and Ill could have been determined by the Diocese pursuant to investigation and the abuse of these victims could either have been prevented or they could have been assisted, depending upon the date and the results of the investigation of Fr. Scott's report. 19. I have been shown documentation which demonstrates that Peebles was not the first Catholic priest with a documented history of sexually abusing minors who was endorsed as suitable to serve as a military chaplain by the Military Vicariate. This is concrete evidence that the Military Vicariate cooperated with other Catholic bishops in a pattern of assignment designed to conceal the [page 46 begins] sexual abuse of children by Catholic priests. This apparently included endorsing Peebles as suitable for reserve duty in 1981 and active duty in 1982. 20. It is totally reprehensible that in virtually every case of sexual abuse, these young boys were given excessive amounts of alcohol by Peebles, so much so that all report having become physically ill and vomiting. a. There were two negative reports about his deportment and attitudes as a deacon intern prior to ordination to the priesthood b. There was notice of a possible drinking problem prior to ordination to the priesthood. c. Fr. Scott had communicated to Msgr. Rehkemper rumors about sexual abuse as early as 1979 or 1980. d. Peebles was confronted by the parents of a boy while at St. Mark's in early 1981 e. Peebles was referred to Dr. McCandlish for counseling in Feb. 1981 without however informing the doctor of the rumors about sexual abuse. Peebles told Dr. McCandlish about an inclination to inappropriate sexual activity. f. Peebles advised the retreat director in January, 1982 about his sexual abuse of children. A few weeks later the Dallas Diocese, in a reversal of its previous posture, grants Peebles permission to enter the active army. Peebles takes Doe IV with him to the Galilee Retreat House at a retreat sponsored by the Military Vicariate in 1982. No investigation by Military Vicariate results from this incident. h. Peebles assaults John Doe I in March of 1984. In spite of confessing to the incident, Peebles is immediately given another parish assignment, is made pastor, and abuses at least three more boys in 1986. 1. William Hughes was ordained as a priest for the Dallas Diocese on April 29, 1982. Some "incident" occurred in the seminary which is not adequately explained or documented. It does not, however, involve sexual abuse. Very shortly thereafter he was assigned as an assistant pastor in a Dallas parish. It [page 47 begins] was in his capacity as assistant pastor that he first met, became friends with and eventually sexually abused the plaintiff, Jane Doe. 2. The documentation clearly shows that Jane Doe and her family were devout Roman Catholics. They held the priest in the highest esteem. Although the defendant became a fixture in their home and spent inordinate amounts of time with the plaintiff the parents could not bring themselves to believe that a priest would be romantically interested in their daughter. The parents had seen the two together more than once in situations that would cause alarm in most parents, yet they shrugged it off based on their conviction that a priest would not do those kinds of things. It was not until a number of love letters were found by the girl's mother in July, 1984, that they began to believe that something was indeed wrong. 3. The documentation shows that the defendant Hughes would never have been able to establish the relationship with Jane Doe had he not been a priest and totally trusted by the family and by Jane Doe herself. The unfolding of events indicate a pattern of seduction aimed at taking advantage of the, plaintiff. Hughes was a priest moving in on a devout Catholic family. No one would believe that he had designs on the minor plaintiff and nobody did until it was too late. 4. A review of the depositions in this case demonstrates that this priest spent an inordinate amount of time with this one little girl. 'There"were 'apparently numerous calls to the rectory by Jane Doe, and Fr. Hughes missed a number of early morning masses. In addition, Fr. Hughes frequently escorted this 12 and 13 year old girl to the movies, the mall, picked her up from school, and other activities. Jane Doe reports that this seduction process went on for some time before any sexual contact occurred. There is no indication that any of these activities were deemed questionable by Church authorities. 5. By the late 1970s the problem of sexual abuse of minors by Catholic clerics was well known in Dioceses throughout the United States. A warning to Catholic parents would have prevented the sexual abuse at issue here. Within the Dallas Diocese, there had been notice of the abuse of children by other clerics prior to 1979. There is no evidence that the Dallas Diocese, or the NCCB/USCC, took any action to warn parents. 6. The diocese, through its officials, made a major mistake when the mother of the plaintiff disclosed the love letters to Fr. Cloherty (vocations director) in July, 1984. The parents testified that Fr. Cloherty reacted with alarm but suggested that the letters be destroyed. It is alleged that this abuse was ultimately known by Fr. Cloherty, Msgr. Rehkemper, and the Bishop. Since the Plaintiff was 13 at the time, the disclosure by the mother and the father constituted a valid report of a possible Canonical crime (sex with a minor, Canon 1395, 2). This should have triggered the investigation mandated by Canon 1719 but it did not. There is no evidence to indicate that the meeting between Hughes, Fr. Cloherty and the Doe family, which occurred around this time, was part of the investigation nor is there any reason to believe that Msgr. Rehkemper had mandated this meeting. Although the mother later met with Msgr. Rehkemper and the Bishop, there is no evidence that an investigation resulted. No one reported the incident to the proper authorities. 7. Furthermore, Hughes was assigned to All Saints parish at which parish Rudy Kos and Robert Peebles had also been assigned. By the time Hughes had been reported to diocesan officials as an alleged abuser in July, 1984, the diocese had also been put on notice about alleged sexual abuse of at least four other clerics: Peebles, Kos, Father "B", Father "E and permanent deacon Narciso Custodio who was arrested in June, 1984. In spite of this awareness of the problem of sexual abuse of young people by clerics, and the very pointed reports about Hughes, he went on to be reassigned, placed on the personnel board and even made a parish director of youth groups. Allied with this apparent neglect by diocesan officials, there is also the question as to why no one at the parish asked any questions about the constant presence of the victim with Fr. Hughes during the time period prior to the report of the abuse. 8. In August, 1984 Fr. Hughes was reassigned to another parish and made the youth group director. The bishop and vicar general were allegedly aware of the allegations and their seriousness yet this reassignment took place anyway. In light of the allegations, it is inexcusable that this happened. The duty of the diocesan officials to protect the welfare, spiritual and moral, of all of the faithful combined with the duty of assigning to pastoral positions only properly qualified priests, was clearly breached with this reassignment. 9. In September, 1984, Jane Doe's mother testified that she met with the Bishop and Msgr. Rehkemper. This was a meeting she sought out and not one that was initiated by the highest diocesan officials. From the description of this meeting by the girl's mother, it appears that it was to little avail. The bishop and his vicar general appeared to have not believed the story nor did they appear to have instituted any kind of follow-up either with the plaintiff's family, the plaintiff or with Fr. Hughes. 10. In May, 1988, Hughes was reassigned to another parish and made a resident so that he could attend school. In Feb. 1989 he was appointed as a member to the Priest personnel Board of the Diocese. Both actions indicate that there had been no credence given to the Doe family concerns or if there was credence given, that the actions of the diocese in so assigning Hughes were irresponsible. [page 49 begins] 11. Finally, in July, 1990, the family met with the new bishop and told him the story. It is not known what action the bishop took at the time but it is known that Hughes petitioned for and was granted a leave of absence on July 17, 1990. 12. There seems to be little doubt that the diocese failed to act when the initial report of the abuse was made in 1984. The defendant Hughes was still a risk to young people and to the plaintiff but no report was made to authorities and he was simply reassigned. Also, there is little if any evidence that any adequate pastoral care was extended to the plaintiff or her family. Granted, the diocese paid for some counseling session for the plaintiff with the defendant Dr. McNamara in 1991, but the documentation indicates that when the subject of providing counseling was first brought up with Msgr. Rehkemper he suggested that the Doe family insurance pay for it. 13. The documentation indicates that Jane Doe was referred to Dr. McNamara by Fr. Cloherty. Dr. McNamara commenced his treatment without disclosing his previous relationship with the Dallas Diocese, and his treatment of other priest perpetrators. There is also evidence that Dr. McNamara continued to receive referrals from the Dallas Diocese and consulted in cases involving other allegations of abuse. For example, Dr. McNamara apparently evaluated and issued a report concerning Fr. "C" to Bishop Charles Herzig in May of 1987. He issued a Report of the Psychological Expert in support of Peebles laicization in 1988, and he was deposed in a lawsuit involving Fr. "D" sometime in 1989 or 1990. Since 1986, Dr. McNamara has had the title of Psychological Consultant to the Dallas Diocese. His relationship with the Dallas Diocese should have been disclosed to Jane Doe and her parents or he should have refused to take the case. 1. Special Canon Law Concerns a. In the case of Rudy Kos there are some Canon law concerns which are unique to his case. These concerns pertain to the fact that he may well have been ordained "illicitly that is, illegally in that certain canons were not observed. His ordination however, is to be presumed to have been valid. b. Canon law contain numerous provisions aimed at protecting the common good, that is, the good of the faithful. Among these provisions are those related to the ordination of men to the priesthood. The provisions refer to certain circumstances or barriers to ordination. These are [page 50 begins] circumstances in the candidates life which could prevent him from properly performing the duties of a priest. c. The 1917 Code was in force at the time of Kos ordination, therefore all references are to that code. Canon 973 states that the bishop must have positive proof of the candidates suitability which means, according to the commentators, that he not just possess an absence of negative factors but positive proof of capability, moral and spiritual suitability etc. The bishop alone is the judge of a candidate's suitability for orders. Usually the bishop relies heavily upon the recommendations of the seminary and of other advisors, but he alone is responsible. d. Among the prerequisites are a good moral character (Canon 974). Also, a married man cannot be ordained but this was presumably taken care of by the annulment granted in 1976. At this juncture it might be pointed out that the validity of the annulment could also be called into question if it was in fact based on false evidence or if the rights of the respondent were not adequately protected. e. There is evidence in this case that the rights of the respondent were not adequately protected by the Defender of the Bond, the Bishop of Dallas, and the NCCB. The wife testified that she told Fr. Duesman, the Defender of the Bond, that Kos was a homosexual with a sexual attraction to minor boys. She further advised Fr. Duesman that this problem had become evident while he was in the military and that the military chaplain was aware of the problem. She further indicated her willingness to complete written questionnaires concerning her marriage. Written questionnaires were never sent to her and, instead, a statement from Kos brother was obtained. f. In spite of these facts, the Bishop of Dallas relieved the Defender of the Bond of the obligation to protect the rights of the Respondent and appeal the judgment of annulment and approved the annulment. Thomas Kelly, Assistant General Secretary of the NCCB, also approved of the waiver of the Defender of the Bond from appeal, thus allowing the annulment to become final. The wife has testified in deposition that the marriage was never sexually consummated, that Kos had a problem with boys to whom he was sexually attracted, that this problem had become evident while he was in the military and that her willingness to complete written questionnaires concerning her marriage was never taken up by the tribunal. It is clear that the truth was never established in this proceeding. g. Canon 984 refers to irregularities for ordination. These are circumstances in the candidates life that constitute an impediment. [page 51 begins] There are two mentioned in the Canon which apply to this case: the irregularity of insanity and the irregularity of infamy of law. h. The use of the word "insanity in the code is a technical or legal use. It is a broad term that refers to a mental illness with which the candidate is afflicted. Labeling of the various types of mental illnesses changes and is the subject of medical science and not the law. If an illness is such that it would prevent a candidate from properly exercising his orders than it constitutes an irregularity. The compulsion to have sex with minors is and has been generally considered a form of emotional or mental illness and would fall under the umbrella of this Canon. Consequently it appears that the diocese had some reason to believe that Kos suitability should have been studied. I. The other irregularity, infamy of law, is a unique canonical term. In short, it is a penalty which is automatically incurred at the time a person commits one of the crimes specifically set forth in the Code. One of these is the crime of impurity with minors (Canon 2359). The ultimate conclusion: The Diocese of Dallas had notice of Kos activities with children prior to his admission to the seminary. Had the interest of the Respondent been adequately protected, the annulment would not have been issued and Kos would not have been eligible to be ordained as a Catholic priest. Had Kos not been ordained as a Catholic priest, the abuse complained of in this case could have been prevented. 2. Rudy Kos was married in the Catholic Church in 1966 and received a civil divorce in 1971. In 1975 he expressed an interest in becoming a priest of the Dallas Diocese but his initial application for admission to the seminary was denied. On February 17, 1976 he received a Church annulment from the Dallas Tribunal for his marriage. This annulment was necessary for Kos ever to be ordained as a Catholic priest. As part of the annulment process the diocese was obliged to contact Kos former wife which they did by phone on Dec. 19, 1975. Although the diocesan representative, Fr. Duesman, was asked to send questionnaires to the ex-wife so that she could respond in writing, no questionnaires were ever sent. The documentation contains references to the ex- wife, Kathy s, deposition in which she states that she advised the priest that Kos should not become a priest because he had a problem with sexual attraction to boys. 3. The documentation contains a note from Fr. Duesman to the effect that he had called Kathy, that she had implied that the petitioner had problems and that the service (military) chaplain knew about the problem (in reference to the alleged abuse by Kos of a military officer's son and report of an FBI investigation). Duesman ended by writing "something is fishy. Perhaps should get petitioner to level with me." There is no further indication in the documentation that the [page 52 begins] diocesan officials ever contacted Kathy about her allegations concerning Kos nor were her statements to Fr. Duesman ever taken into consideration in the process leading up to Kos admission to the seminary, and ordination. 4. There is evidence in the medical records obtained from the Servants of the Paraclete that Rudy Kos sexually abused one of his brothers and this was known within the family. In addition, when Kos was age 17, a neighbor saw him sexually abusing another boy in the neighborhood. He spent time in a juvenile facility following this report. Kos sexual activities with minor boys were also known to his wife. There is evidence that an investigation by officials of the Dallas Diocese prior to Kos admission to Holy Trinity Seminary would have revealed that he was unsuited for a ministry involving access to children. 5. There are also significant warning signs present prior to Kos ordination to indicate that he never should have been ordained. These lead one to the conclusion that the diocese violated its obligations in Canon and civil law to the community by failing to properly screen Kos. Perhaps the two most egregious errors were the failure to take into consideration the information provided by Kos former wife and, the failure to give proper attention to the disclosure of improper sexual advances on Kos part to by a seminarian to Msgr. Rehkemper in March or April of 1981. Although it could be argued that the Bishop of Dallas had the right to ordain anyone it chose as a priest, there is no question from the record that Kos was totally unsuited for a parish assignment involving access to minor boys. 6. The documentation contains reference to almost constant sexual abuse or attempts at sexual abuse by Kos from prior to his ordination, through the time when he was an assistant pastor, then a pastor, up to an including the time when he was in supposed therapy with the Paraclete Fathers. The documentation also includes evidence of numerous red flags from the first parish assignment at All Saints which included efforts to entice children to Kos personal quarters, evidence of overnight stay overs by boys in the rectory, evidence of gifts to boys, and evidence of financial problems (resulting from spending habits involving boys) which continued from 1981 through October of 1992. At no time does it appear that the Dallas Diocese conducted any investigation or attempted to determine the nature of the ongoing activities with children on the part of Kos despite numerous notices, red flags, and complaints. 7. John Does V, VII, and XL have alleged they were sexually abused by Kos during and/or as a result of counseling sessions to assist them with psychological problems. It has been recently alleged that abuse during counseling began in the fall of 1982 with John Doe XL. It is clear that Kos was totally unsuited to act as a psychological counselor to a minor boy. Had the Diocese of Dallas and [page 53 begins] the NCCB investigated the report received by the Dallas Tribunal from Kos exwife and conducted an appropriate investigation prior to admitting Kos to the seminary, there would have been no question that Kos should not counsel minor boys. There is no evidence that Does V, VII, and XI were aware of these problems until the ex-wife of Kos was deposed in May of 1994. 8. While Kos was an assistant pastor at St. Luke's in Irving in 1985, his inappropriate activities were observed by the pastor (Fr. Clayton) and these were reported to Msgr. Rehkemper. The documentation indicates that Rehkemper spoke with Kos in January, 1986 about having boys stay overnight in the rectory. Kos was apparently told not to do this yet in June, 1986 Fr. Clayton again spoke with Rehkemper about Kos having boys overnight in the rectory. The Priest Personnel Committee notes indicate that in 1986 Kos was warned, on penalty of suspension, to cease overnight visits by minor boys. Significantly, this is the same meeting where Peebles resignation was accepted for having abused three additional boys as pastor of St. Augustine parish. 9. In spite of what a reasonable person would consider to be dangerous signals going back many years including his initial parish assignment, Kos was appointed pastor at St. John's in Ennis, Texas on May 22, 1988. The wife had advised the Dallas Tribunal of Kos predilections with boys in 1976. Seminarians had complained of his sexual activities to the Vicar General in 1981, red flags were evident concerning his activities with boys from 1981 through 1986, the pastor at St. Luke's in Irving had put the Diocese on written notice, yet there is no evidence that an adequate investigation ever took place. It appears that Msgr. Rehkemper simply talked to Kos and believed his version of the story and the abuse went on and on: Knowing these things, Kos was still assigned by the bishop as a pastor with no supervision. 10. While at Ennis, there were more reports to the Bishop and Msgr. Rehkemper, including reports by Fr. Williams, Sr. Caroleen Hensgen, the Superintendent of Schools, and her replacement, Shawn Underhill. In December, 1991, Kos was referred by Msgr. Rehkemper to a psychiatrist, Dr. Jaeckle. Dr. Jaeckle was not provided with any background material by the Diocese and relied only upon Kos statement and input. Involved in Kos activities at this point is Fr. Williams who lived with Kos at the Ennis parish. Fr. Williams had documented Kos activities and had reported the same to Msgr. Rehkemper. Fr. Williams persisted in his pressure on Msgr. Rehkemper to take some definitive action. 11. In April, 1 992 Fr. Williams and Msgr. Rehkemper met with Brenda Keller, an expert on pedophilia. Brenda Keller's recommendation was that Kos be immediately removed from contact with boys. Brenda Keller also stated that once Kos is removed, the Diocese should expect claims. Kos was not removed as pastor of the parish. Shortly thereafter Kos went to St. Luke Institute for an evaluation. The evaluation reflects the recommendation by St. Luke that [page 54 begins] addition testing take place but there is no indication that this was ever accomplished. Kos returned to Texas and went back to his parish. It was not until October, 1992 that Kos was sent to the Paraclete facility for care, and then only after he confessed to improper sexual activities with John Doe tin the Kos case. 12. One thing that is remarkable in this case is the absence of any evidence that the diocesan officials sought out any of the victims of Kos to determine from them what had happened even though the names of many of these boys were known. 13. In sum, it can safely be said that the officials of the Dallas Diocese consistently failed with regard to Rudy Kos. They failed to investigate reports that he was unsuited for a ministry involving children prior to his admission to the seminary. They failed to properly investigate reports that he had a problem prior to his ordination. After he was ordained, the Chancellor of the Diocese failed to investigate the ongoing presence of boys overnight in his quarters in the rectory. The Diocese failed to investigate detailed reports given by at least two priests who observed the activities of Fr. Kos. They failed to provide Dr. Jaeckle, and perhaps St. Luke, with adequate information upon which to evaluate Kos, and they failed to take action when Brenda Keller advised them that Kos should not have any contact with boys. 14. There appears to be no rational excuse for this succession of negligent acts by the diocese. The diocese had already been dealing-with the problem of Fr. Peebles and several other priests so it cannot-claim ignorance of the problem of sex abuse of children by priests on that score alone. The diocese had more than sufficient notice about Kos from the time before his ordination to the effect that he was a potential problem. 15. The NCCB also became involved in the Kos matter when Thomas Kelly, Assistant Secretary of the NCCB, approved the waiver of the Defender of the Bond protecting the rights of the respondent, the wife of Fr. Kos, who specifically complained to the Dallas Diocese of Fr. Kos activities with minor boys. XIV. ACCRUAL OF A CAUSE OF ACTION 1. I am aware that under the law of most states, an individual has a certain amount of time within which to bring a claim for damages. I have been advised that the Diocese of Dallas, the Military Vicariate, Dr. McNamara, the NCCB/USCC and the three priests have claimed that the Does in these cases have waited too long to bring their lawsuit. I have been asked to assume that under Texas law, the issue is when the cause of action accrued in these cases. [page 55 begins] If the cause of action accrued within two years of the date the lawsuits were filed, then the cases were filed on time. 2. I have been asked to assume that accrual of a cause of action in Texas is deferred in two types of cases. The first type involves allegations of fraud or fraudulent concealment. I have been asked to assume that in such cases accrual is deferred because a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run. The other type of cases involve the discovery rule where the cause of action does not accrue until the Plaintiff knew or in the exercise of reasonable diligence should have known of the breach of duty. I have been asked to apply these principles to the facts of this case in order to see whether there is any basis against any of the Defendants for deferring the accrual of these claims based upon fraud, fraudulent concealment, or under the Discovery Rule. 3. It is my opinion that accrual of these claims should be deferred because evidence exists that could factually support the following: a. The priests and Bishop of the Dallas Diocese, the NCCB/USCC, and the Military Vicariate/Archdiocese for Military Services were in a position of trust and confidence with regard to the lay Catholic community, including the claimants in these cases. b. The Dallas Diocese, the NCCB/USCC, and the Military Vicariate were aware of the sexual abuse of children by Roman Catholic priests prior to all of the sexual abuse alleged in this case. c. The pattern in Dioceses across the United States concerning the handling of these cases contain common elements that could not exist in the absence of a common plan and scheme for the handling of these cases. The bishops through the NCCB/USCC are the only means to achieve such a common plan and scheme. d. The Dallas Diocese (and the Military Vicariate in the Peebles case) had pre- existing evidence of the sexual abuse of children by Kos and Peebles which was concealed and not properly investigated. e. Information concerning the prior sex abuse of children by Peebles was concealed from the Parents of John Doe I by representatives of the Dallas Diocese and the Dallas Diocese benefited from this concealment through the passage of time regarding all the Doe claimants, not only in the Peebles case, but in the Kos case and case involving Hughes. f. There is evidence of active concealment of material facts which would have alerted the Doe claimants in all of these cases as to potential claims [page 56 begins] against the Dallas Diocese and the NCCB/USCC in the Kos case, the Dallas Diocese, the Military Vicariate and the NCCB/USCC in the Peebles case, and the Dallas Diocese and the NCCB/USCC in the Hughes case. This concealment includes concealing evidence of the sexual abuse of children by Roman Catholic priests, concealing evidence of the previous abuse of children by Peebles and Kos, and allegations of the destruction of material evidence in the Hughes and Peebles cases. g. There is evidence that all Defendants in each of these cases were deceitful in concealing wrongdoing until limitations had run. There is also evidence that these Defendants cooperated with one another towards the common goal of concealing the sexual abuse of children by Catholic priests, concealing the previous sexual abuse of children by Kos and Peebles, and concealing negligence with regard to the supervision and assignment of Hughes. There is also evidence that Dr. McNamara's actions furthered this deception by preventing the prosecution of Peebles and the exposure of other priests who were abusing children at the very same time. The fact that Dr. McNamara did not make reports to the proper civil authorities in the Peebles and Hughes cases is further evidence of the active concealment of these crimes. h. All of the Defendants cooperated with each other to one degree or another to achieve the common goal of preventing public exposure of the sexual abuse of children by Catholic priests and the bringing of claims for damages. Fact issues are thus presented as to deceit in concealing wrongdoing until limitations had run, therefore denying the Does an opportunity to discovery their claims against the Diocese of Dallas and the NCCB/USCC in all cases, the Military Vicariate in the Peebles cases, and Dr. McNamara in the Peebles and Hughes cases. it is my belief that the Does did not and could not have discovered that the representations of the various defendants were false and that material information was withheld despite the exercise of due diligence. II. There is evidence that Dr. Ray K. McNamara concealed his dual relationship from the family of Doe I in the Peebles case and the family of Jane Doe I in the Hughes case. The facts exposing this dual relationship did not come to light until after August of 1993. j. I have been asked to assume that in claims involving concert of action involving criminal behavior that limitations are tolled so long as acts are committed in furtherance of the conspiracy. Certainly Dr. McNamara['s] act in destroying treatment records in August of 1993 was an act in furtherance of this conspiracy. There are other affirmative acts as well, including the representations of the Judicial Vicar in June of 1993 to a victim of Fr. "B". As in other cases in other Dioceses, once the [page 57 begins] concealment is exposed in one case, it inevitably leads other claimants to realize that they were deceived as well. This leads to the bringing of numerous claims by victims who recently discovered the breach of the duty to exercise due care. k. With regard to the claims in the Kos matter concerning sexual abuse during counseling sessions, it appears that these claims did not accrue until after Does learned that Kos' wife had advised the Diocese in 1976 that Kos was sexually attracted to children. This was the first opportunity that the Kos claimants had to discover the concealment of Kos' history as a sex abuser establishing the fact that he was a danger to minor boys and totally unsuited to counsel a minor boy. This information was concealed until the Tribunal file was produced and the wife's deposition was taken in May, 1994. l. As to the claims involving Kos, Peebles, and Hughes, it is my opinion that substantial evidence exists that these claims were timely filed. As this litigation progressed, Does learned of the concealment of material information by the various Defendants in these cases. |
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