CHILD ABUSE AS MASS TORT?:
How The Catholic Church's Scandal May Play Out In Court

The recent revelations concerning acts of abuse, alleged and proven, within the Catholic Church have prompted an extraordinary amount of soul-searching within the church and its wider community. Many questions are being raised about how church leaders responded to earlier allegations and earlier lawsuits. And there is every reason to believe that new lawsuits will be filed by the victims of abuse.

While the legal technicalities of such suits will be important, the pressing question now is a more general one: How should the tort system respond if it turns out that there are so many abuse suits that the "abuse scandal" becomes a mass tort - and the lawsuits begin to parallel the asbestos or cigarette lawsuits? This is the question I will consider in this and the next column.

The Specific Claims and Theories Plaintiffs Will Likely Use Against the Church

The media has not focused directly on the content of the lawsuits that have been brought by those victims of abuse who have been brave enough to step forward. However, the rough outlines of what such suits allege are easy to imagine.

Sexual contact with a minor is against the law in all states, and sexual contact which is achieved through the abuse of a position of trust or power is often easily shown to be a form of battery (defined legally as a tort consisting of an unconsented touching that causes damage). In addition, the victim of sexual abuse may have suffered severe emotional distress - which could give rise to negligent or intentional infliction of emotional distress claims.

Finally, churches will usually be held liable for the acts of their priests through the doctrine of respondeat superior. If the churches are able to defend on the grounds that the priests were not "employees" or were acting ultra vires, then the churches might still be held liable for having negligently permitted "problem" priests to in positions where they might harm minors.

Punitive Damages Are Likely If Child Abuse Cases Do Not Settle

As with any other tort, the costs of compensation for a tort based on child abuse can be very high once judges and juries are allowed to hear the case. Most factfinders will probably be ready and willing to award punitive damages to child abuse victims. And they will be all the more willing to do so when - as is alleged to have been case in some of the Church instances of abuse - the Church knew about the abuse and did nothing, or worse, transferred an abusing priest who then abused again.

The prospect of huge punitive damages - and even huge compensatory damages that take into account psychological harm - is the reason why so many cases of alleged abuse have been quietly settled by various dioceses, with confidentiality agreements. However, this settlement strategy can only work when there are a handful of cases, spread apart in time and jurisdiction. What happens once the problem hits a critical mass, and there are thousands of lawsuits?

The Canadian Comparison: Widespread Child Sexual Abuse By Clergy

In 1883, the Canadian Government began an initiative to educate children of native Canadians. Rather than allow the tribes to educate their own children, or build secular schools, the Canadian government relied on the organized leadership of the country's four major churches: the Catholic, Methodist, Anglican, and Presbyterian.

Government money was sent to each church to reimburse it for operating boarding school for the native Canadian children. Every autumn, the children were forced by law to leave their families to live at these schools - where each child was educated by members of whichever church happened have been given jurisdiction over that child's tribe. At the schools, the children were punished if they spoke their own native language.

The Canadian experience with boarding schools for native children came to an end in the mid-1980's, and is now recognized as a political and cultural tragedy. The consequences of the program for Canadian society are only now being fully understood.

In the 1970's and '80's, the main focus of the social critique of the boarding schools related to the cultural and political damage they inflicted on the communities of native peoples. Yet throughout the history of the schools, reports had also circulated about widespread sexual abuse of the children at the hands of priests and lay employees. And beginning in the late 1990's, graduates of the boarding schools began to sue individually for the sexual abuse they suffered.

Thousands of Canadian Abuse Cases Have Triggered Huge Potential Liability

In FSM v. Clarke, 11 W.W.R. 301 (B.S.S.C. 1999), a plaintiff who had been a pupil at a residential school between 1969 and 1976 alleged that a dormitory supervisor sexually assaulted him and other pupils. He sued the Anglican Church and the Government of Canada. The court found the Anglican Church 60% responsible, and the Canadian government 40% responsible.

Other cases soon followed, in which men and women alleged sexual abuse in their schools from up to 50 years earlier. Interestingly, the claims began to expand in their scope, and they began to take up additional harms that, to some, were as much a matter of politics as tort law.

In M.M. v. Roman Catholic Church of Canada, 180 D.L.R. (4^th) 737 (Man. Q.B. 1999), for example, a 70 year woman who had attended a school between 1930 and 1942 alleged not only sexual abuse, but also that the Church "strove to deprive the plaintiff of her culture and way of life." While not all claims of "cultural genocide" have been allowed by the Canadian courts, many have been allowed, so that now many of the tort claims against the Canadian Government and the churches are for wrongful confinement and "educational malpractice."

There are about 9000 outstanding residential school lawsuits. The Anglican Church estimates that the combined liability for the government and the churches might reach $1 billion (Canadian).

Individual suits have already taken their toll. The Anglican diocese of Cariboo in British Columbia has been bankrupted by liability costs, and the Qu'Appelle diocese in Winnipeg may soon have to cease operations under the weight of 450 lawsuits.

Fearing Bankruptcy, Canadian Churches Have Sought Liability Protection

As a result, the churches have been lobbying the Canadian government for protection from liability, but so far the state has been unwilling to protect the churches. Instead, the Canadian government has been naming the churches as third-party defendants in any residential school case in which they have not already been named by the plaintiff. (A "third-party defendant" is sued by the defendant in an attempt to shift onto a third party some or all of the liability imposed on the defendant. The government, thus, is naming the churches to ensure that they share the financial burden even if the plaintiff has chosen not to target them.) Meanwhile, talks between the government and the churches have broken down.

The financial risks posed by the lawsuits cannot be overstated. The Canadian government has instituted an Alternative Dispute Resolution (ADR) program in the hope that it can reduce the number of suits down to a manageable level, through negotiated settlements, and create a compensation reserve. But the problem for the churches is that they cannot even afford to settle the cases the government wants to settle.

The courts have placed the churches' portion of responsibility at between 50-40%. Thus, the Canadian government's offer to settle the cases with the churches contributing no more than 30% of the settlement is a generous one. Yet the churches have rejected even this generous offer from the government - on the grounds that if every outstanding claim based on allegations of residential school abuse were settled on that basis, they would be bankrupted.

The lesson from the Canadian experience is not hopeful, at least from the perspective of the Catholic Church in the United States. One might object to the comparison by pointing out that the Canadian abuse cases arose out of the special circumstances of the churches' ill-starred involvement with a racist anti-native government policy, and noting that the Canadian churches are being made to pay not only for sexual abuse, but for the political sins of white Canada. But I think this misses the point.

The point is that no institution, whether it be Big Tobacco or a church, can escape from the crushing grips of liability if the public-and the juries drawn from that public-turn against them. Mass tort suits will inevitably threaten huge judgments, and even bankruptcy, for any institution, when the torts are bad enough and the institution's role in their commission sufficiently great. In my next column I will explore the legal minefield that the Catholic Church now faces as both the number of abuse lawsuits and the public's anger grow.