Constitution, crime, clergy: First Amendment implications of sexual abuse claims: church law and discipline, constitutional limitations, damage caps and statutes of limitations raise perplexing issues in these cases.

• Author: Aylward, Michael F.

ALLEGATIONS of sexual abuse by priests have spread from a few isolated incidents in Boston to an international controversy that has shaken the Roman Catholic Church to its foundations. The molestation claims present a complex mix of legal, psychological and philosophical problems. In evaluating and defending these cases, counsel must bear in mind certain fundamental factors that distinguish them from similar types of claims presented in the context of mass tort litigation, employment discrimination, or the day care center cases that received notoriety during the 1980s.

In particular, the lawsuits now pending against various dioceses and archdioceses for failing to prevent sexual abuse by priests differ from other similar claims against employers and corporations in four key respects:

* The discipline and lines of authority within the Catholic Church are different from those that are conventional inside American corporations.

* The church is immune from liability for certain practices that are protected under the freedom of religion clauses of the First Amendment to the U.S. Constitution.

* The liability of the church is subject to statutory monetary caps in many states.

* The nature of the underlying alleged injuries presents perplexing statute of limitations issues not present in conventional cases.

A SHORT HISTORY

Sexual molestation suits against the clergy, particularly Catholic priests, first surfaced in the mid-1980s. The first to gain national attention involved a Louisiana priest, Gilbert Gauthe, who was arrested in 1983 and admitted to molesting dozens of victims in the confessional and elsewhere since the 1960s. After serving 10 years of a 20-year term, he moved to Texas, where he was soon arrested for fondling a three-year-old boy.

In Dallas, 11 former altar boys sued the Diocese of Dallas, claiming that they had been sexually abused by a former priest, Rudolph "Rudy" Kos. The victims alleged that several diocese officials, including two bishops, knew of the events but did not take appropriate action. During an 11-week trial, witnesses testified that the sexual abuse occurred at three Dallas area churches between 1981 and 1992. Kos was ultimately sent to prison for life.

In 1997, a jury awarded $120 million in damages against the Diocese of Dallas, including $18 million in punitive damages. In a 33-item questionnaire, the jury answered that the diocese had been negligent in its handling of Kos, had lied about him, had inflicted emotional distress on the plaintiffs, and had committed fraud. The jury of 10 women and two men also wrote a separate statement directed to the diocese, which the judge read from the bench, asking church officials to change the way that they investigated allegations of child abuse by priests. The claims were eventually settled for $23.4 million.

In Stockton, California, two brothers who were molested for more than a decade by a priest, Oliver Francis O'Grady, won $30 million in damages from the diocese in 1998. Four bishops were among the clergy accused of failing to disclose evidence of abuse. The claims ultimately were settled for $7.65 million.

Many of these claims have involved allegations that, rather than turning criminal priests over to law enforcement authorities, local dioceses dealt with complaints by either moving the priests to new parishes or sending them to church-operated treatment facilities, such as the Servants of the Paraclete in New Mexico; the St. Luke Institute near Washington, D.C.; the Institute of Living in Hartford, Connecticut; and the Southdown Institute in Canada.

The Servants of the Paraclete was formed in 1947 to provide care and treatment for priests with substance abuse problems. Its mission was expanded in the 1960s to include pedophilic and ephebophilic disorders. The center claims to have provided effective treatment. An internal study undertaken by the Servants of the Paraclete concluded that of the 2,000 priests who were treated at Jemez Springs from 1947 to 1968, only 10 committed criminal acts after leaving. Several of these were found later to be serial molesters, however, including David Holley, Rudy Kos and James Porter. In 1993, this facility was forced to enter into a settlement with 17 plaintiffs who were allegedly molested by Holley. An attorney for the plaintiffs described the center at the time as a "dumping ground for ecclesiastical waste," and the center was closed in 1994.

Notwithstanding the large verdicts and settlements resulting from the litigation involving Servants of the Paraclete and the trials in California and Texas, claims against Catholic clergy were for the most part viewed as isolated, aberrant problems. That perception did not begin to change until a series of articles began to appear in the Boston Globe in late 2001. They detailed the means by which the Archdiocese of Boston had received early complaints concerning Geoghan, Porter and other pedophilic priests but, far from taking steps to prevent these priests from having further contact with children, had "dealt" with the problem by reassigning them to new, unsuspecting parishes.

The Globe articles gained further currency in January 2002, when the archdiocese was obliged by court order to turn over thousands of pages of church records that confirmed and documented this practice. Around the same time, settlements of earlier claims that had been resolved pursuant to confidential agreements became unsealed, with further attendant publicity. By late 2002, Catholic dioceses around the United States found themselves under investigation by local law enforcement authorities and being sized up by the plaintiffs' bar as the next possible target for mass tort treatment.

CONSTITUTIONAL LIMITATIONS

1. First Amendment

   The First Amendment to the U.S. Constitution, applicable to the states through the 14th Amendment, provides that "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." Both the establishment and free exercise clauses have been raised by churches as a defense to the claims.

   The First Amendment "permits hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters." (1) The assessment of an individual's fitness to serve as a priest is a particular ecclesiastical matter entitled to this constitutional protection. (2) Once a court is called on to probe into a religious organization's discipline of its clergy, the First Amendment is implicated. (3)

   The First Amendment is no defense to child abuse or overt criminal acts. On the other hand, it "clearly bars government from involving itself in purely ecclesiastic matters, including, but not limited to church doctrine, hiring, firing and retention of church employees and or ministers." (4) Accordingly, it may operate as a defense to the claims now being asserted against bishops and diocesan authorities for failing to dismiss clergy or for reassigning them without proper supervision or discipline. (5)

   The free exercise clause forbids government from "encroaching on the ability of a church to manage its internal affairs." (6) It provides an absolute right to an individual's beliefs and a largely unfettered right to act. Any governmental intrusion into acts or the practice of religion must be based on neutral principles.

2. Entanglement Doctrine

   Likewise, the establishment clause prohibits states from promoting religion or becoming too "entangled" in religious affairs. (7) As the U.S. Supreme Court stated in Lemon v. Kurtzman, (8) in order to avoid violating the establishment clause, a governmental action must (1) have a secular purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) not foster "excessive government entanglement" with religion.

   Most of the early entanglement doctrine cases dealt with church membership or property disputes. In these cases, the U.S. Supreme Court concluded that for purely religious questions, hierarchical religious organizations are afforded the "power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." (9) In Serbian Eastern Orthodox Diocese v. Milivojevich, (10) the Court reviewed a ruling by a state supreme court that held the church's proceedings were "procedurally and substantively defective under the internal regulations of the Mother Church and were therefore arbitrary and invalid." Reversing, it held that the First and 14th amendments "mandate...