A professor offers a critique of legal responses to
reported cases of sexual abuse by the clergy.
hen
it comes to sexual abuse by the clergy, "I have as much experience with
this issue as just about anyone," Patrick J. Schiltz said.
Mr. Schiltz is associate dean of the University of St. Thomas School of Law in
Minneapolis. From 1987 to 1995, when he left private practice to become a law
professor, he represented not only Roman Catholic dioceses, but almost every
major Christian denomination in cases of sexual misconduct by the clergy —
more than 500 of them, throughout the United States and in several foreign
countries.
He has spent hundreds of hours listening to victims of such abuse describe their
pain. Just listening can be unbearable, he said, adding, "How much worse it
must be to experience that pain." Mr. Schiltz said he had also spent
hundreds of hours "being frustrated by the decisions of some of the bishops
I have advised."
That is not, however, the part of Mr. Schiltz's outlook that is likely to meet
with resistance these days.
In several recent talks, an article in the current issue of America, the weekly
Catholic magazine published by Jesuits, and a forthcoming article for the Boston
College Law Review, Mr. Schiltz makes some other points that challenge
conventional sentiments.
His first argument is that current litigation over sexual abuse by the clergy,
besides posing economic peril for religious institutions, is rife with
implications for religious freedom. He worries that emerging legal theories in
sexual abuse cases, which are not limited to cases involving minors, could
greatly expand the notion of what constitutes "reasonable" supervisory
duties of religious leaders.
These theories, he argues, may cripple those leaders' ability to extend pastoral
care to victims of abuse because doing so would create new fiduciary obligations
and consequent legal risks for those church leaders.
Mr. Schiltz also says the theories growing out of litigation could chill the
willingness of religious groups to engage in public controversies or take
chances on flawed leaders with any sexual misbehavior in their histories. (By
today's standards, even St. Augustine would not be considered a safe bet for
clerical ranks, he notes.) And these theories may justify unprecedented
government intrusion in internal church matters.
Is Mr. Schiltz exaggerating these dangers? Possibly. Still, it seems that those
who normally exercise great vigilance about any risks to First Amendment
liberties should pay attention to these concerns.
Mr. Schiltz has also said that, over the past year or so, the news media, in
covering reports of sexual abuse by the clergy, "have grossly distorted the
problem and thereby left the public terribly misinformed."
"Despite devoting thousands of articles to clergy sexual misconduct, 99.9
percent of reporters missed the most important story," he told a Rotary
group in Minneapolis on May 9.
That story, he said, began with the fact that "in the late 1980's and early
1990's, churches got sued a lot." They responded with a host of changes and
by investing hundreds of millions of dollars and hours of work in combating
sexual misconduct.
"And churches had remarkable success," he said.
As an example, Mr. Schiltz cited a report done last fall by The Courier-Journal
in Louisville, Ky., analyzing 185 sexual assault lawsuits filed against the
Archdiocese of Louisville, which he said was "perhaps the worst of all the
Catholic dioceses in terms of the number of abuse cases per Catholic."
"Do you know how many of those lawsuits involved abuse that had occurred
since 1990?" Mr. Schiltz asked. "One. One of 185."
What about the claim of plaintiffs' lawyers and victims' advocates that this
statistic merely reflects the time it takes before victims are willing to report
abuse and that, a few years from now, it will become clear that nothing really
changed in the 1990's?
"This is hogwash," Mr. Schiltz said. Some victims do wait for years to
report their abuse, but others do not, he said, adding, "I worked on
hundreds of cases in which the abuse had been reported promptly."
Today, moreover, victims of sexual abuse are much more likely to be believed and
given support than in the past. Where many people, even parents of victims, once
discounted evidence of abuse out of the conviction that a clergyman could not do
such a terrible thing, "no one is laboring under that illusion today,"
Mr. Schiltz said. All of that means that more victims, not fewer, should be
reporting abuse if it has continued at the old levels, he said.
In Mr. Schiltz's eyes, the fact that abuse might be on the decline does not
diminish the anguish and harm done to those who were abused, at whatever date.
Nor does it remove churches' moral obligation to help victims or excuse the
crimes of abusers or the negligence of church leaders who ignored credible
accusations.
Rather, he said it puts the problem of abuse, especially in the Roman Catholic
Church, in sharper focus. As he wrote in America magazine: "Because most
dioceses got their act together in the 1990's, there aren't a lot of new abuse
cases. But because most dioceses did not get their acts together until the
1990's, there are a lot of old abuse cases."
Mr. Schiltz has a positive proposal for addressing clergy abuse. "The
church should set up a national tribunal, a group of extremely well-respected
people who are completely independent of the church, to arbitrate sexual abuse
claims," he wrote.
In his plan, dioceses would pay whatever the tribunal determined was fair
compensation to any victims who appeared to be telling the truth (and Mr.
Schiltz thinks that is about 98 percent of them) and who agreed to forgo
litigation.
Cases could be resolved quickly, he said. Dioceses would save millions of
dollars in legal costs, he pointed out, and victims would keep all their
compensation, "rather than turning over one-third to one-half the amount to
pay an attorney and thousands of dollars more to pay the expenses of
litigation."
One great challenge, of course, would be to ensure that the tribunal was truly
independent. In a phone conversation, Mr. Schiltz suggested that including a
representative of one of the victims' advocacy groups "would give it
instant credibility."
Even when Mr. Schiltz's arguments are read in full, they clearly remain
debatable.
But at a time when former Gov. Frank Keating of Oklahoma can command headlines
with his departure from the Catholic bishops' national review board and when
Bishop Sean P. O'Malley can grab attention with his arrival in Boston, the
hard-to-categorize views of this experienced litigator and legal scholar deserve
a wider and fuller hearing.