LEGAL DEFENSE : When sued, how should the church behave?
How can the Catholic Church justify defending itself against lawsuits brought by those who claim to be the victims of sexual abuse by priests? Should not the church, in all honesty and humility, and in the spirit of penitence, work things out quietly with the plaintiffs’ lawyers, and pay out the cash damages they demand? Isn’t legal resistance–and sometimes vigorous resistance–simply a perpetuation of the pattern of cover-ups that helped create the problem? Has not the church, by choosing to litigate many of the claims against it, reduced itself to the level of those corporate malefactors who use their deep pockets to finance relentless legal defenses against the victims of their environmental crimes, defective products, or financial fraud?
Many critics think that the answers to those questions are obvious. A forceful legal defense by dioceses, archdioceses, and the Holy See itself against claims of legal responsibility, it is argued, is flatly inconsistent with the church’s claims of moral authority. The church is condemned as hypocritical and irresponsible for relying on “technicalities” such as statutes of limitations–which bar claims brought too long after the offending act–to cause claims to be dismissed. A defense lawyer’s attempt to undermine the credibility of the plaintiff is likely to be described as a “scorched earth” tactic or, even worse, blaming the victim. Even the mere attempt to negotiate the amount of a cash settlement to a level lower than that demanded by the plaintiff may be thought of as a nasty, lawyerly trick reflecting the church’s basic unwillingness to accept its responsibilities. The church’s insistence on its day in court is yet another proof of how the church just doesn’t get it.
To hint, furthermore, that the church’s defensive legal strategies might be appropriate will lead to the charge of complicity in the hierarchy’s denial of the seriousness of the problem, its unwillingness to take decisive action against priestly offenders, and its inability to act aggressively to prevent future problems. Even worse, making such a suggestion lays one open to the charge of insensitivity to the pain of victims.
Nevertheless, the conclusion that the church should not defend itself at law is wrong, or at least dangerously simplistic. The question of the church’s legal responsibility, and how it should participate in the process of determining the nature and extent of its liability, is not an easy one. First of all, legal responsibility must be disentangled from moral responsibility. Although obviously related, they are not co-extensive. The church’s institutional moral responsibility for the creation and perpetuation of this scandal is obvious. The perpetrators, facilitators, and bystanders stand condemned in the eyes not just of the rest of the world, but of the faithful themselves. The integrity of the church, and particularly of the hierarchy, will be measured by its willingness to respond to this profound moral crisis. That response, which must be comprehensive and multileveled, will have to include payment of substantial cash damages, both to compensate the victims for their suffering, and as a tangible act of expiation. Those payments, in a small way, will help restore the moral order of a fractured spiritual world. Acceptance of that moral responsibility, however, does not mean that every church institution must always accept the level of legal responsibility as defined by every plaintiff’s lawyer.
It is important to understand what this means. Each complaint filed by a plaintiff’s lawyer sets out a narrative identifying who was abused, who committed the abuse, when and how the abuse happened, how serious it was, and how a church institution or individuals within the institution were actively or passively complicit in the abuse or negligent because they failed to deal with it. The plaintiff’s lawyer will also put forward a legal theory of why the church institution and its leaders or administrators, and not just the priest who committed the abuse, should be legally liable to the alleged victim, and why the particular level of compensatory or punitive damages sought is justified. In other words, the lawyer representing the victim of sexual abuse will present, as forcefully and persuasively as possible, a definition of the nature and extent of legal responsibility for that abuse.
That definition, however, should not be confused with truth. This is not to suggest that the claims as presented by all plaintiffs’ lawyers are necessarily mendacious. It is to recognize that the factual narrative and legal theories presented by a plaintiff’s lawyer are highly instrumental expressions of advocacy. They are designed to produce a result: the establishment of liability for the defendants and the maximum possible damage awards. They tend to be black and white, unnuanced and overinclusive. They are, almost by definition, biased. Of course, there is nothing inherently wrong with that. In our adversarial legal system, we expect our lawyers to be zealous advocates. In fact, they have an ethical obligation to act that way. But their narratives and theories, as expressions of advocacy, must be evaluated critically by the defendants and, ultimately, resisted when the defendants determine in good faith that the claims are insupportable factually or legally. Even a church has no moral obligation to assume that every legal claim against it constitutes objective truth. Indeed, to the extent that our legal system can produce anything even remotely approaching objective truth, it will come through working out the conflicting views of the facts and the law. That’s what the adversarial process is all about.