Victim‐Oriented Tort Law in Action: An Empirical Examination of Catholic Church Sexual Abuse Cases

• Date: 01 March 2018
• Published date: 01 March 2018
• Author: Gijs van Dijck
• DOI: http://doi.org/10.1111/jels.12175

Victim-Oriented Tort Law in Action: An

Empirical Examination of Catholic Church

Sexual Abuse Cases

Gijs van Dijck*

Catholic Church sexual abuse cases have received worldwide attention, with lawsuits and

nationwide investigations reported in various countries. This study examines a procedure---a

hybrid between tort litigation and a victim compensation fund---that not only allowed sexual

abuse victims to seek monetary compensation on an individual basis, but also nonm onetary

relief, including an apology, recognition, and measures against those responsible for the abuse.

The publication of all decisions offers a unique opportunity to analyze what victims pursued by

filing a claim, whether what they were offered matched their objectives, and whatimpacted the

probability of victims obtaining certain types of nonmonetary relief. After analyzing 1,237

decisions, this study reveals a mismatch between what victims sought and what they were

offered. Surprisingly, the presence or absence of a few panelists (out of 27) turns out to be the

best predictor of whether adjudicators ordered nonmonetary relief. Consequently, whether

victims obtained nonmonetary relief did not only depend on a proper legal infrastructure, but

mostly on the mentality and attitudes of those participating in the system.

I. Introduction

Sexual abuse by the Catholic Church has received worldwide attention. Tens of

thousands of victims have come forward in the last decades, urging nations to

install investigation commissions in, for instance, Australia,

1

Belgium,

2

the

*Professor of Law, Faculty of Law, Maastricht University, PO Box 616, 6200 MD Maastricht, The Netherlands;

email: gijs.vandijck@maastrichtuniversity.nl.

The author thanks two anonymous reviewers, Mark Kawakami, and the participants at the 2016 Conference

on Empirical Legal Studies (Duke University) and the 2016 Conference on Empirical Legal Studies in Europe

(Amsterdam) for their valuable comments and suggestions. The author also thanks (in alphabetical order) Mar-

ieke van Bladel, Iris Bogaards, Steffie van den Bosch, Jessie Engelhart, Arnold Hupka, Yannick Govaert, Janneke

Janssen, Robin Kuijken, Nicky Lelieveldt, Laura Magielse, Pepijn Melse, Margot Nelis, Mandy Olieslagers, Maurice

Stroosnijder, Fleur Verhaegh, Vivian Vrolijk, and Andries Zwart for coding the decisions, and Sanne Boesten for

her research assistance. No conflict of interest was reported.

1

See http://royalcommission.com.au (last accessed Apr. 20, 2017). See also http://www.abc .net.au/news/2017-02-06/

royal-commission-into-child-sexual-abuse-begins-in-sydney/8242600 (claiming that “more than 20 per cent of the mem-

bers of some Catholic religious orders ... were allegedly involved in child sexual abuse”) (last accessed Apr. 20, 2017).

2

Commissie voor de behandeling van klachten wegens seksueel misbruik in een pastorale relatie, “Verslag Activi-

teiten Commissie Voor De Behandeling Van Klachten Wegens Seksueel Misbruik in Een Pastorale Relatie (Onaf-

gewerkt Wegens Inbeslagname Op 24 Juni 2010)” (2010).

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Journal of Empirical Legal Studies

Volume 15, Issue 1, 126–164, March 2018

Netherlands,

3

Northern Ireland,

4

and the United States.

5

The outbreak of abuse

cases has also led to various lawsuits

6

and criminal investigations

7

in a number of

countries. Even governments have been held accountable. In Ireland, for example,

a victim successfully claimed against the government for not providing an effective

remedy to the particular victim (ECHR Article 13).

8

In the Netherlands, an extralegal, victim-friendly procedure for victims of sexual

abuse by the Catholic Church was designed and enacted in 2011.

9

This procedure offers

a unique insight into whether and how nonmonetary needs can be addressed within the

context of tort law and compensation funds,

10

as the decisions include information on

why victims initiated the procedure and what types of relief (e.g., an apology, recogni-

tion of their suffering, an acknowledgment) they obtained. Because all cases are pub-

lished, it was possible to analyze the entire population of victims who initiated a

procedure.

This article is structured as follows. Section II discusses previous studies on the

impact of sexual abuse, the nonmonetary needs that tort victims have, the needs of

sexual abuse victims in particular, and how tort law commonly addresses these needs.

Additionally, the procedure that was designed for victims of sexual abuse by the Cath-

olic Church in the Netherlands is discussed. The article proceeds with the hypotheses

that are tested (Section III), followed by a discussion of the methods that were used

to gather and analyze the data (Section IV). Subsequently, the results are presented

(Section V) and discussed (Section VI). The conclusion (Section VII) summarizes the

main findings.

3

See http://www.onderzoekrk.nl/eerste-onderzoek/eindrapport.html (last accessed Apr. 20, 2017).

4

See http://www.hiainquiry.org (last accessed Apr. 20, 2017).

5

Anne Burke et al., A Report on the Crisis in the Catholic Church in the United States (National Review Board

for the Protection of Children and Young People 2004), reporting 10,667 allegations between 1950 and 2002

against 4,392 priests; Michael D. Schaffer, Sex-Abuse Crisis Is a Watershed in the Roman Catholic Church’s His-

tory in America,” Inquirer, June 25, 2015 (last accessed Apr. 20, 2017), reporting complaints of sexual abuse by

more than 6,000 priests between 1950 and 2011.

6

For example Michael D. Schaffer, Sex-Abuse Crisis Is a Watershed in the Roman Catholic Church’s History in

America, supra note 5, reporting over 3,000 lawsuits.

7

For example, the Belgian “Operatie Kelk.” See http://newsmonkey.be/article/47186 for an update (last

accessed Apr. 20, 2017).

8

O’Keeffe v. Ireland [GC], no. 35810/09, ECHR 2014.

9

See Section II.C.

10

For research on victim compensation funds, see Paul Heaton, Ivan Waggoner & Jamie Morikawa, Victim Com-

pensation Funds and Tort Litigation Following Incidents of Mass Violence, 63 Buffalo L. Rev. 1267--74 (2015)

(reviewing the literature on victim compensation funds); Francis E. McGovern, The What and Why of Claims Res-

olution Facilities, 57 Stanford L. Rev. (2005) (discussing claim resolution facilities in general).

127Victim-Oriented Tort Law in Action

II. Background

A. Research on Needs of Victims of Child Sexual Abuse

The impact of child sexual abuse on victims’ physical and emotional state is well-

documented and difficult to underestimate.

11

Victims of priest abuse have been found

to display symptoms of grief, anger, depression, sexual issues, sleep disorders, trauma,

rage, and distress.

12

Their needs in relation to the offender vary. Victims of sexual abuse

reportedly seek an apology from the offender, seek validation (i.e., that stepping for-

ward was the right thing to do), desire the offender to take responsibility, and look for

closure in order to move on.

13

They reportedly pursue benefits in kind such as direct

payments and counseling in a legal procedure in addition to nonmonetary relief.

14

Financial goals have been found to be secondary to therapeutic expectations for victims

of sexual abuse.

15

The process of providing relief to victims of child sexual abuse can be compli-

cated. A victim’s feeling of self-worth may be attached to the offender, and therapeutic

success of any relief provided by the offender is dependent on whether the thinking

errors of the offender are continuous.

16

For example, offenders who do not believe the

conduct was abusive are likely to make an offensive apology to the victim, as are those

who provide excuses or who legitimize their behavior to the extent that the only circum-

stance that prevents them from the abuse is the risk of getting caught.

17

Particularly in cases of sexual abuse by the Catholic Church, the victim-offender

relationship is often marked by the dependency of the victim on the offender, not only

in terms of school performance, but also on the victim’s psychological, emotional, and

developmental level. Additionally, offenders in the context of sexual abuse by the

11

Karen J. Terry & Jennifer Tallon, Child Sexual Abuse: A Review of the Literature (John Jay College, 2004) (pro-

viding an overview of the literature).

12

E.g., Michael J. Bland, The Psychological and Spiritual Effects of Child Sexual Abuse When the Perpetrato r Is a

Catholic Priest, 63(4-A) Dissertation Abstracts International (2002); Kerry Fater & Jo Ann Mullaney, The Lived

Experiences of Adult Male Survivors Who Allege Childhood Sexual Abuse by Clergy, 21(3) Issues in Mental

Health Nursing (2000). See also Terry & Tallon, Child Sexual Abuse: A Review of the Literature at 40 (prov iding

further references).

13

Hilary Eldridge & Jenny Still, Apology and Forgiveness in the Context of the Cycles of Adult Male Sex

Offenders Who Abuse Children, in Transforming Trauma: A Guide to Understanding and Treating Adult Survi-

vors 133--34, ed. Anna C. Salter (Thousand Oaks, CA: Sage Publications, 1995).

14

Bruce Feldthusen, Oleana A.R. Hankivsky and Lorraine Greaves, Therapeutic Consequences of Civil Actions for

Damages and Compensation Claims by Victims of Sexual Abuse, 12(1) Canadian J. of Women & the Law (2000).

15

Ibid.

16

Eldridge & Still, Apology and Forgiveness in the Context of the Cycles of Adult Male Sex Offenders Who Abuse

Children,” at 136.

17

Ibid. 137--41.

128 van Dijck