The Catholic Church's Self-Audit on Its Clergy Child Sexual Abuse Procedures:
The Fox Continues to Guard the Henhouse

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Jan. 08, 2004

On January 6, the Catholic Church released a self-audit report. The report measures dioceses' compliance with the Church's own new rules regarding clergy sexual abuse of children.

As victims' groups rightly have asserted, this audit was designed by the Church, paid for by the Church, and based on precious little information -- all of which was controlled by the Church. For example, of the 4,600 members of the Survivors Network of those Abused by Priests, only 3 were interviewed. Thus, even if the report itself seemed impeccable, its conclusions would still be highly questionable.

And the report itself is far from impeccable. The Church, which persists in treating the criminal abuse of children as a public relations problem, has issued self-serving statements about "solid progress" and "we bishops keeping our word." But a review of the report, and the larger legal context within which it was written, counsels a far more cynical appraisal.

Evidence That Dioceses Still Fail to Address Abuse Properly

The Report is broken down by diocese. The Gavin Group, run and staffed by former FBI agents, spent approximately 5 days in each individual diocese. There, they read files they were permitted to read -- many were kept from them due to so-called "confidentiality" concerns -- and spoke to select individuals. The report, then, is incomplete, and likely also misleading, for some of that "confidential" material the Gavin Group was not allowed to see may well be the most troubling material that exists.

(In late February, John Jay College will release another report on the history of the scandal. But similarly, it will not be independent. The Church formulated the questions, and the Church controlled the materials provided.)

The report is also incomplete in another way. Not all dioceses participated in the report. Moreover, one-third of the nation's priests-- those in orders--are simply not covered by the Bishops' Charter, and thus are not covered by this self-audit.

For the dioceses that did participate, the report shows that there is, at best, uneven compliance in areas critical to child security. Therefore, there is a continuing potential threat to children.

One cannot fully understand how far the Church is from serving the larger public good and stamping out childhood sexual abuse by priests unless one wades through the various sections on the many dioceses. Every citizen should do so -- focusing especially on the section on the diocese near his or her home. Catholic parents, of course, need this crucial information to assess the safety of their children in many programs and schools. But every citizen, Catholic or not, should seek information about these attempted and inadequate reforms addressing outrageous criminal behavior across the country.

Three Sample Dioceses: Evidence of Continuing Failure to Protect Children

In this column, I will examine the report's sections on three dioceses, chosen at random, to give readers a sense of how the Bishops' policies are progressing.

First, consider the section on the Diocese of Trenton, New Jersey. The diocese has signed onto the New Jersey Catholic Conference's Statewide Policy on Criminal History Background Checks for Employees and Volunteers of Non-Profit Youth-Serving Organizations. However, "it had not yet determined whether state police or private firm resource would be relied on to conduct criminal records searches." And this caveat seems to make clear that even now, criminal background checks on church employees are still not being made.

This section also notes that there is a priest from within the diocese who is alleged to have abused a minor and has relocated out of the diocese. What happened to the priest? It is impossible to tell from the report, but no parents should feel their children are secure. He "had relocated for residency, and the appropriate information regarding his background has been confidentially provided to the bishop in that location." What that means, then, is that somewhere in the country, an accused pedophile is out there -- but only the bishop of his new diocese knows that.

There is no guarantee that the alleged abusing priest will not be in contact with children during the pendency of an investigation -- or even that any investigation will necessarily be made. That creates the horrifying risk that the priest, if guilty, may abuse again. It also reveals that the Church's primary modus operandi continues to be secrecy and contempt for the public good.

The desire for secrecy is also clear in the Trenton diocese. The Bishops' Charter directed dioceses to forego their long-time practice of obtaining confidentiality agreements as part of any settlement with a victim. The Trenton diocese apparently took that to mean the rule applied to everyone but them. The Report states that the diocese has "not entered into confidentiality agreements since June 2002 unless requested to do so by the victim/survivor." Clearly, there is a recent confidentiality agreement in Trenton and just as clearly the Church continues to see no necessity in disclosure to the public of the criminal behavior within its walls. Moreover, there is nothing in the report that indicates that the victim was not coerced into requesting the confidentiality agreement.

Consider a second example -- the Diocese of Phoenix, Arizona. In May 2003, the Church reached a settlement agreement with the Maricopa County civil authorities (a settlement I criticized in a prior column). But the report reveals that since then, the Phoenix diocese has not promulgated a policy of letting victims know of their right to report sexual abuse to the civil authorities. Nor has it informed priests removed from ministry that they are prohibited from saying mass, wearing clerical garb, or presenting themselves as priests. Nor has it instituted a system of background checks for diocese employees and volunteers. Neither settlement nor the Bishop's norms have been adequate there.

Finally, let us take a third example: the Diocese of Dallas, Texas. This diocesse actually received a "Commendation" from the Gavin Group. It was praised for creating a "model" safe environment program, which was introduced "years before the adoption of the [Bishop's] Charter."

The Report reads as though Dallas was simply ahead of its time. Not so: Though the report fails to mention it, the impetus for Dallas's model program was that it was the first diocese subject to a huge judgment in a clergy abuse case. The judgment forced the diocese to sell valuable properties -- and thus, to some extent at least, taught it a lesson. (The report concedes, however, that even the supposedly model Dallas program does not address "instances where clergy have relocated to another diocese.")

Looking at the measures taken by these sample dioceses suggests that the Bishop's Charter, and even court settlement agreements, may do little to generate true reform. A successful lawsuit against the diocese, however, can be very beneficial in creating a future safer for children. Again, Texas's groundbreaking program was the result of a groundbreaking win in a clergy abuse lawsuit.

In Court, The Church Continues to Argue for Secrecy and the Status Quo

Yet another reason to be skeptical of the Church's self-audit is that, in court, the Church continues to take positions that are antithetical to true reform. One can only conclude that the self-audit is merely a form of public relations, and the individual lawsuits brought by victims are the territory where the Church is showing its true colors. It is easy enough to issue statements and claim policies are in place; what is difficult is to admit past wrongdoing and allow the legal process to go forward to try to address it. (What appears positively impossible is for the Church to do what is right without the prod of litigation.)

Rather than allowing the legal process to go forward in the interest of its own victims, the Church insists on putting stones in its path. For example, in Mississippi, along with other jurisdictions, the Church continues to argue for a robust notion of "church autonomy." The theory, essentially, is that the Church is immune from judicial involvement in its clergy selection and placement decisions under the First Amendment, and therefore, clergy abuse lawsuits should be dismissed. As I have explained in another prior column, the theory is a mockery of the constitutional order in this country -- which guarantees ordered liberty, not immunity from the rule of law.

To take another example, in Missouri, an alleged priest perpetrator has asked for a "gag order" for the proceedings, and the Church has not opposed it. The long pedigree of open trials in this country appears to be of little concern to the Church. Once again, self-preservation appears far higher on the Church's list than the public good.

Meanwhile, in Illinois, the Church has publicly supported extensions of statute of limitations reform for victims -- a laudable stance. But in court, the Church is taking just the opposite position, arguing that because statute of limitations have technically expired, alleged priest perpetrators have a "vested right" to have the lawsuit against them dismissed. They are arguing, in effect, that pedophiles' rights to closure for their acts of heinous child abuse weigh more heavily in the balance than the plaintiffs' rights to justice and healing. It is an argument before this scandal became public that the average citizen would have assumed is beneath a church. In any event, the years of Church cover up provide a strong reason for courts to extend the statutes of limitations even without legislative action to that effect. The Church should publicly recognize that, rather than aiding in the evasion of justice.

Finally, in Massachusetts, a settlement agreement has been reached that utterly fails to serve the public interest. It permits the suppression of the documents produced by the Church in the process, and makes counseling available for victims without making it a mandatory requirement for the Church. Granted, the total damages garnered headlines, because the number of victims made them high. But on a per victim basis, the damage awards are unimpressive, considering the mind-numbing amount of child sexual abuse in the Boston archdiocese and its ability to wreak havoc throughout a victim's life.

All these examples show that the Church continues to play serious hardball both in court, and in the settlement process. Plainly, it is more concerned about its own fisc, than about the well-being of those who have been intentionally and grievously harmed by its own clergy. Here as elsewhere, actions speak louder than words.

Its hardball approach to litigation makes its softball self-audit all the more implausible.

The Bishops' Self-Audit Only Shows that Law Enforcement Is Needed

Doubtless, the Bishops hoped that the Church's self-audit would pre-empt further scrutiny. Instead, it should encourage it. Even the Church's own report -- based on limited access to documents, and ignoring the testimony of the overwhelming majority of victims -- shows that dioceses' policies and processes regarding clergy abuse fall far short of sufficient. There is no way to know, even two years after the scandal broke, whether any particular child is safe in the Catholic Church.

It's time for prosecutors and plaintiffs' attorneys to move forward with renewed vigor. Self-policing by the Church has not worked for centuries in the United States and others, like Ireland, and it's not working now, and that should come as no surprise. Entrenched institutions cling tenaciously to past practices. In the Church, the practice of ignoring abuse -- and even aiding and abetting it, by transferring priests or looking the other way -- is so longstanding it is an entrenched culture. In such a case, it will be virtually impossible for the institution to turn itself around.

The burden was on the Church to show that it could self-police. It has failed to carry that burden. Accordingly, it deserves not one whit more deference than Enron deserves. The law should be fully enforced against it. No country understands this better than we do: the Constitution is based on this cardinal principle of checks and balances.

What is desperately needed now is for the government to wield the rule of law against the Church's criminal acts through RICO prosecutions, as I discussed at length in an earlier column. In the Church, as elsewhere, the government's intervention is needed to keep criminal activity at bay. Those who think otherwise have not examined the facts.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues and the Catholic clergy abuse crisis itself appears on this website. Her email address is hamilton02@aol.com.

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