Secrecy Over Abusive Priests Comes Back to Haunt Church

New York Times/March 12, 2002
By Daniel J. Wakin

In 1993, lawyers for Sharon See and Brian Freibott, then both 28, served papers on the Rev. Raymond Pcolka that accused him of abusing them as children in Stratford, Conn.

But before the lawsuit was even filed, Ms. See's lawyer said, a lawyer for the Diocese of Bridgeport called with this message: The priest was a good man. Don't sue. We'll handle it. It was a "bolt out of the blue," recalled Ms. See's lawyer, Cindy L. Robinson.

Ms. See and Mr. Freibott were not dissuaded from filing their suit, and over the next eight years the church tried to keep the case from public view. The diocese moved to keep the evidence secret and filed a barrage of legal motions: too much time had passed since the incidents; the church was shielded by the First Amendment protection of religious freedom; the diocese was not liable because a priest abusing a child was not working on behalf of the diocese.

Legal experts say the tough legal approach, with an emphasis on secrecy, has been adopted by other Roman Catholic dioceses. Over the last two decades, plaintiffs lawyers say, dioceses have reached more than 1,000 settlements in cases involving sexual abuse by priests, many of them sealed.

That approach, which is commonly used by many corporations and institutions in their legal battles, has now come back to haunt the church, as diocese after diocese has acknowledged the presence of priests accused of abuse within its ranks.

In recent months, dioceses from Boston to Philadelphia to Los Angeles have disclosed to the public and prosecutors names of priests accused of sexual abuse, many of whom were subjects of secret court settlements.

"In terms of avoiding the scandal, and eliminating the legal liability, this is exactly the wrong thing to have done," said Peter Schuck, a professor at Yale Law School and author of "Agent Orange on Trial" (Harvard University Press, 1986).

Mr. Schuck said the scope of the settlements and recently unsealed documents that show the church knew about longstanding accusations of abuse raised the question of whether the church could be held liable as an institution and be forced to pay punitive damages.

"It's not simply a case of an organization whose agents have erred," he said. "It's an organization that knew about the improprieties and actively concealed it."

Just last week, in an example of a secret settlement taking a toll years later, Bishop Anthony J. O'Connell of Palm Beach, Fla., resigned. Bishop O'Connell acknowledged that he had inappropriate contact with a teenager 27 years ago while rector at a seminary in Hannibal, Mo. The victim reached a secret settlement with the diocese of Jefferson City in 1996 for $125,000.

Church officials say it is quite possible that because of the secrecy, the Vatican did not know about the lawsuit or the settlement, either at the time or later, when the bishop received the Palm Beach appointment.

Bishop O'Connell said that he never mentioned it before taking on the Palm Beach diocese in 1999, succeeding a bishop who himself had resigned over allegations of sexual involvement with boys.

Lawyers for several dioceses defended the confidentiality of court papers and the settlements, saying it was often necessary to protect the privacy of the priests and the victims. Every move to seal documents, they said, is approved by a judge. And plaintiffs agreed to all of the secret settlements.

"The idea is to protect the confidentiality of information that is not really necessary for the plaintiffs and not really appropriate for public disclosure," said Michael Dolan, the Bridgeport diocese's general counsel.

Lawyers who specialize in civil litigation say the church has acted no differently than other large institutions or industries facing legal attack.

"Publicity would alert lots of other potential plaintiffs that they have a claim," said Robert Mnookin, a professor at Harvard University's law school and an expert on negotiations. "Another reason they want confidentiality is to the extent possible to protect their priests from embarrassment. Moreover, they want to protect the church from adverse publicity."

But another consequence of such secrecy was that when a pedophile priest was transferred from one parish to another, the new parish was unaware of the priest's history.

In Connecticut, the church was forced to make limited disclosures to settle the lawsuit begun by Ms. See and Mr. Freibott in 1993. The case concluded in March 2001 after settlements covering 26 plaintiffs and six priests, with both sides agreeing to keep silent on the terms. The diocese publicly acknowledged the abuse, condemned it, apologized and said the offending priests had been removed from their duties.

Still, personnel records and transcripts of what the diocesan officials said in their depositions remained under seal, making it impossible for the public to obtain a full picture of what the diocese or its bishop - Edward M. Egan, now the archbishop of New York - said about the cases.

Ms. Robinson said that several months after the lawyer for the diocese said it had no evidence of abuse by Father Pcolka, another plaintiff's lawyer, Henry Lyons, contacted her to say he had already been talking to the diocese about settling other sex- abuse complaints against the same priest. Mr. Dolan, the diocese's general counsel, said that he did not remember making a phone call saying Father Pcolka had an unsullied record, but that whether or not the suit had already been filed was irrelevant.

"You always say, in any case, is there something that we should be talking about, is there a way to resolve this before gearing up for a full-fledged trial," Mr. Dolan said. "There is no harm in sitting down to resolve differences."

As the case progressed, the diocese successfully argued that six plaintiffs had no right to sue because they were over 35 when they went to court. That is the cutoff age under Connecticut law for people to sue over claims that they had been sexually abused as children.

The Bridgeport cases presented another tactic that often pops up: tough, aggressive questioning of the plaintiffs in pretrial depositions.

"What grates is not so much hardball tactics, but the fact that the church is doing it," said Stephen Rubino, a lawyer in Margate City, N.J., who said he had handled more than 300 cases against the church.

The hundreds of lawsuits accusing priests of pedophilia in recent years vary widely, but interviews with plaintiffs lawyers show, broadly, other common strategies by the church: fight on the grounds of freedom of religion and statute of limitations.

While each diocese is independent, lawyers for the various dioceses have consulted and even collaborated with one another, the plaintiffs' lawyers say.

Lawyers for the church, however, do not always take a tough line with plaintiffs.

In a lawsuit over abuse by Rudolph Kos, a priest in Dallas at the center of a major scandal, Sylvia Demarest, the plaintiffs' lawyer, said the lawyers for the diocese treated her clients with particular decency. Wilson Rogers Jr., who represents the Boston archdiocese, has been described as compassionate in settlement talks. Many cases are handled sensitively by the church, with concern for the victims, their advocates say.

The United States Bishops Conference officially urges openness in addressing abuse cases and pastoral care for the victims. Most dioceses show "compassion and accountability" in handling them, according to a review by the conference placed last month on its Web site. But the conference also urged that "while maintaining a pastoral tone, the policy be clear that there are occasions when the church may in justice defend itself."

As early as 1985, canon and secular legal experts warned the bishops conference in an internal report that pedophilia involving priests was looming as a nationwide legal and public relations disaster for the church.

How much of the report's recommendations were adopted and how seriously it was taken is in dispute.

But one of its recommendations was that bishops should protect themselves in case of a legal challenge by temporarily suspending a priest against whom credible accusations had been made. It added, "Failure to report the child abuse suspicion by a cleric by the diocese is probably the most common error and greatest vulnerability in the long term with respect to civil suits."

The report suggested that the church establish "uniformity of case management" because the same issues will come up: the confidentiality of diocesan records, legal arguments against liability, legal arguments on behalf of defendants, the public relations problem.

The legal effort "should be coordinated so that a single, carefully choreographed theme is presented," the report said.

Nonetheless, the general counsel for the bishops conference, Mark Chopko, says there is no such coordinated effort.

"If you've seen one case, you've seen one case," Mr. Chopko said. "Each set of facts is different." State law is too varied to draw up general principles, he said.