British Court Holds Jehovah's Witness Parent Body Vicariously Liable For Rape By Elder

 In Trustees of the Barry Congregation of Jehovah's Witnesses v. BXB,(EWCA, March 15, 22021), Britain's Court of Appeals upheld a trial court's conclusion that the Watch Tower Bible and Tract Society of Pennsylvania and the Trustees of the Barry Congregation of Jehovah's Witnesses were vicariously liable for the rape of a woman congregant by a church elder. Justice Davies said in part:

Elders were integral to the organisation, the nature of their role was directly controlled by it and by its structure. The judge was entitled to conclude that the relationship between elders and the Jehovah's Witnesses was one that could be capable of giving rise to vicarious liability....

UK Human Rights blog has a long analysis of the decision.

Minnesota Diocese Settles Clergy Sex-Abuse Claims In Bankruptcy Reorganization

According to WXOW News, the Catholic Diocese of Winona-Rochester, Minnesota which filed for bankruptcy reorganization in 2018 has agreed with its creditors' committee to settle clergy sex-abuse claims from 145 claimants for $21.5 million. The diocese also issued an apology to victims. The settlement must still be approved by the court in the final plan of reorganization.

New York AG Sues Buffalo Diocese and Former Bishops For Handling Of Sex Abuse Complaints

New York's Attorney General, in a 218-page complaint, yesterday filed suit against the Catholic Diocese of Buffalo, two of its former bishops and its Apostolic Administrator over the handling of complaints of sexual abuse of minors and vulnerable adults. The complaint (full text) in People of the State of New York v. Diocese of Buffalo, (NY County Sup. Ct., filed 11/23/2020), alleges in part:

The Attorney General brings this lawsuit to obtain remedial and injunctive relief for the persistent violation of New York nonprofit law by the Diocese of Buffalo .... For nearly two decades, the Diocesan Corporation ignored standards established by the U.S. Conference of Catholic Bishops ... to address and prevent the sexual abuse of minors by U.S. clergy. In direct defiance of the USCCB’s public commitment to reform, the Diocesan Corporation, through the conduct of its senior leadership, evaded key provisions of these standards, ignoring requirements for the investigation and review of alleged clergy sexual abuse....

[T]hrough their actions and inactions in response to the sexual abuse crisis, the Diocesan Corporation and its two most senior leaders ... violated multiple provisions of the Not-for-Profit Corporation Law ... and Estates, Powers and Trusts Law....

The Attorney General seeks injunctive relief to accomplish three objectives: provide mechanisms for independent review of the Diocesan Corporation’s response to alleged sexual abuse; require reporting to the Attorney General for a period of five years; and mandate external oversight of an appropriate remedial and compliance plan. This action also seeks to hold Bishop Malone and Auxiliary Bishop Grosz individually responsible for violating their secular duties as fiduciaries of the Diocesan Corporation by enjoining them from future service in a secular role as a director or officer of any charitable organization subject to New York law and by obtaining damages against and restitution from them for the waste of charitable assets caused by their misconduct.

The New York attorney general also issued a press release announcing the filing of the lawsuit. New York Times also reports on the lawsuit.

British Report Issued On Child Sex Abuse Response By Catholic Church

In Britain on Tuesday the government-authorized Independent Inquiry Into Child Sexual Abuse published its 154-page Investigation Report on the Roman Catholic Church (full text) (press release announcing the report). The Report says in part: 

As we have said previously, faith organisations are marked out from most other institutions by their explicit moral purpose. The Roman Catholic Church is no different. In the context of the sexual abuse of children, that moral purpose was betrayed over decades by those in the Church who perpetrated this abuse and those who turned a blind eye to it. The Church’s neglect of the physical, emotional and spiritual well-being of children and young people in favour of protecting its reputation was in conflict with its mission of love and care for the innocent and vulnerable.

The Bishops' Conference of England and Wales issued a statement welcoming the report. Law & Religion UK has more on the Report.

Pennsylvania Supreme Court Hears Arguments In Important Clergy Abuse Case

Pittsburgh Post-Gazette reports on oral arguments before the Pennsylvania Supreme Court yesterday in an important case on Catholic Church liability for priest sexual abuse occurring many years ago:

At issue is the claim by plaintiff Renee Rice of Altoona that the Diocese of Altoona-Johnstown conspired to cover up abuse by priests including that of her own alleged assailant — the Rev. Charles Bodziak — in the 1970s and 1980s. She sued the diocese for alleged fraud and concealment, saying that it was not until a 2016 statewide grand jury report that she learned of “a massive, systemic conspiracy of coverup to allow … children to be abused repeatedly,” attorney Alan Perer said.

But in repeated questioning, some of the justices echoed the argument of the diocese’s own attorney — that a plaintiff has an obligation within the statute of limitations to investigate the source of her injury and those who may have been responsible for it.

Plaintiff argues that it should be up to a jury to decide if she should have investigated sooner.

Abuse Victims Win First Round In Santa Fe Archdiocese Reorganization Proceedings

 In In re Roman Catholic Church of the Archdiocese of Santa Fe, (NM Bankr., Oct. 9, 2020), a New Mexico federal bankruptcy court granted an unsecured creditors committee-- apparently representing primarily clergy sex abuse victims-- derivative standing to pursue claims that some $150 million in assets actually belong to the Archdiocese, not to individual parishes. The Archdiocese serves as creditor in possession during its Chapter 11 reorganization, and it has refused to pursue the assets. Responding to the Archdiocese's First Amendment defenses, the court said in part:

The Bankruptcy Code’s fraudulent transfer sections are neutral and of general applicability, so it may be difficult to challenge them as violating the Free Exercise Clause of the First Amendment....

It rejected a RFRA defense, holding that RFRA applies only when the government is a party to the litigation. Rejecting a religious autonomy defense, the court said in part:

A claim to recover an alleged fraudulent transfer does not appear to be the kind of intrachurch dispute that the religious autonomy doctrine typically protects from court interference.

The court concluded its opinion with a plea for settlement negotiations:

If one or more of Debtor’s and/or the parishes defenses has merit, the UCC’s claims will fail. If none has merit, the UCC will recover many millions of dollars for the estate. Either way, the proposed litigation will be very expensive and time-consuming. Unless settled, the proceedings may have to be completed by successors to the party representatives, the judge, and counsel, after years of motion practice, discovery, discovery disputes, trials, appeals, remands, and retrials. Millions of dollars would have been spent on attorney fees and costs that could have paid valid abuse claims.

More clarity about the rights of the parties and what is estate property could help the ongoing efforts to reach a global settlement in this case. For that reason, some litigation of the UCC’s proposed claims may be needed. There will be a point, however, that the cost of continued litigation likely will outweigh the benefit. If the proceedings are not settled before then, Debtor, the parishes, and the abuse victims will be the poorer for it.

New York Child Victims Act Filing Window Is Extended

Yesterday New York Governor Andrew Cuomo signed into law S7082 (full text) which extends the window for Child Victims Act lawsuits until August 14, 2021. (Press release). Originally, the window was for a one-year period ending this month. CNA, reporting on the new legislation, says that the change in the law was motivated by concern that the Covid pandemic has deterred many victims from coming forward in time to meet the prior deadline.

11th Circuit: Shame To Muslim Family From Assault Allegations Allows Woman To Proceed As Jane Doe

In Doe v. Neversome, (11 Cir., July 30, 2020), the U.S. 11th Circuit Court of Appeals held that that a Florida federal district court abused its discretion when it refused to allow a plaintiff in a sexual assault and battery action against a musical celebrity. The court said in part:

Here Ms. Doe ... asserts that because she is from a “devout Muslim family,” the “very nature of her allegations would be sufficient to bring harm to [herself] and shame to her family under the cultural/religious traditions that her family practices.”... The district court erred by treating Ms. Doe’s motion as merely alleging personal embarrassment, without accounting for what she actually alleged or considering our social stigma cases.

We also note that, under our precedent, the district court may have too easily discounted evidence that Ms. Doe would be subject to threats and harassment if she were required to proceed under her real name.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Canadian Court Says Catholic Archdiocese Is Vicariously Liable For Sexual Abuse At Orphanage

In John Doe v. Roman Catholic Episcopal Corporation of St. John's, (Newfoundland & Labrador Ct. App., July 28, 2020), the Court of Appeal in the Canadian province of Newfoundland, in a 136-page opinion, held that the Catholic Archdiocese is vicariously liable for sexual abuse suffered by the four plaintiffs.  Five members of the Christian Brothers abused plaintiffs in the 1950's when they were living at the Mount Cashel Orphanage. The court said in part:

In our view, the total relationship between the Brothers at Mount Cashel and the Archdiocese shows that the Brothers were working on the account of the Archdiocese’s social and religious mandate. Their relationship was sufficiently close, and the connection between the Brothers’ assigned tasks and their wrongdoing was sufficiently close, to justify the imposition of vicarious liability on the Archdiocese. Doing so in the circumstances of this case upholds the policy objectives of the doctrine. 

The court held however that the Archdiocese is not liable for a chaplain's failure to act after he learned of the abuse, saying in part:

As Monsignor Ryan was not negligent and did not breach a fiduciary duty, there is no basis upon which the Archdiocese could be liable for his conduct.

Canadian Press reports on the decision.

New Suit Charges Former Cardinal McCarrick With Sexual Abuse and Dioceses With Negligence

Suit was filed in a New Jersey state court this week against two New Jersey Catholic Dioceses, other Catholic entities, and former Catholic Cardinal Theodore McCarrick .  The complaint (full text) in JA/GG Doe 14 v. Diocese of Metuchen, (NJ Super, filed 7/21/2020), charges McCarrick with sexual battery and the Dioceses and schools with negligent training, supervision and retention. A news conference by the lawyers who filed the lawsuit described the suit as:

... [A] new lawsuit filed under the New Jersey Child Sexual Abuse Act (part of the New Jersey Victims’ Rights Bill), by a survivor who was sexually abused by infamous serial sexual predator and former Cardinal Theodore E. McCarrick as part of McCarrick’s sordid beach house child sex ring;

... Plaintiff, then a teenager, was groomed, manipulated and coerced by McCarrick into participating in McCarrick’s sex ring along with other kids;

... McCarrick orchestrated and directed the sexual abuse of the Plaintiff by three other priests named in the complaint.

Washington Post reports on the lawsuit.

Vatican Issues New Guide To Clergy On Handling Sex Abuse Cases

The Vatican, through the Congregation for the Doctrine of the Faith, yesterday issued a detailed guide for clerics on handling clergy sex abuse cases.  Titled Vademcum: On Certain Points of Procedure In Treating Cases of Sexual Abuse of Minors Committed By Clerics (full text). The guide provides in part:

17. Even in cases where there is no explicit legal obligation to do so, the ecclesiastical authorities should make a report to the competent civil authorities if this is considered necessary to protect the person involved or other minors from the danger of further criminal acts.

The Vatican also issued a press release summarizing the Vademcum. The New York Times, reporting on these developments, said in part:

[T]he new instructions are not binding and were not enshrined in the church’s canon law, prompting criticism that the Vatican still gives bishops too much leeway in judging the conduct of their priests.

Court Allows Most of Abused Plaintiff's Claims Against Diocese To Proceed

In Doe v. Norwich Roman Catholic Diocesan Corp., 2020 Conn. Super. LEXIS 616 (CT Super. Ct., May 26, 2020), a Connecticut trial court refused to dismiss many of the allegations in a lawsuit alleging that a Catholic diocese acted negligently and recklessly in a manner leading to sexual abuse of the plaintiff by two Catholic priests between 1978 and 1988. According to the court:

The challenged allegations include the plaintiff's claims alleging the defendants' failure to immediately remove Charles Many or J. Lawrence Ouimet from their assigned roles, provide training and/or educational programs as it pertains to proper conduct toward parishioners, promulgate policies and rules proscribing priests from taking children into private rooms when the defendants knew or should have known that priests in the defendant Diocese had sexually assaulted children under such circumstances, develop and implement a program or policy with regard to the issue of improper sexual conduct, and police the activities of the priests, particularly Charles Many and J. Lawrence Ouimet, upon the premises that the defendants owned and controlled. 

... [T]the majority of the plaintiff's challenged allegations involve a factual inquiry and do not require an interpretation or weighing of a religious belief, doctrine or practice that is undertaken for religious reasons.... These allegations concern child sex abuse by a Catholic priest, and whether the Diocesan Corporation knew or should have known of the same, about which there would be no need for the court to evaluate the proprieties of scripture or religious teachings.

The court did dismiss a portion of the allegations which involve religious decisions or religion-based obligations.

Administrative Offices of New Orleans Archdiocese File For Bankruptcy

On Friday, the Catholic Archdiocese of New Orleans announced that the Administrative Offices of the Archdiocese have filed for Chapter 11 bankruptcy reorganization, saying in part:

The move was necessitated by the growing financial strain caused by litigation stemming from decades-old incidents of clergy abuse as well as ongoing budget challenges. The unforeseen circumstances surrounding COVID-19 have added more financial hardships to an already difficult situation.  

This filing only affects the Archdiocesan administrative offices.... The Archdiocese’s action will not affect individual church parishes, their schools, schools run by the various religious orders, or ministries of the church. These offices will continue daily ministry as usual....

The intention of the filing is to allow time to develop a reorganization plan detailing how available assets and insurance coverage will be used to settle outstanding claims and to negotiate reasonable settlements while enabling the administrative offices to continue and emerge better prepared for the future. This reorganization will also allow the Archdiocese to address remaining clergy abuse cases in a way that will allow funds to go directly to victims instead of funding prolonged, costly litigation.

Australia's Top Court Reverses Sex Abuse Convictions of Cardinal George Pell

In Pell v. The Queen, (High Ct. Australia, April 7, 2020), Australia's highest court reversed the sex abuse convictions of Cardinal George Pell, finding:

there is "a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof."

The court ordered that judgments of acquittal be entered for Pell. the Court issued a press release summarizing the opinion. Pell, who at the time of the alleged offenses served as Archbishop of Melbourne, later become Vatican's Prefect of the Secretariat of the Economy and is the highest-ranking Catholic official to be accused of sex abuse. CNN and New York Times report on the court's decision. Pell released this statement after the Court's decision was handed down. [Thanks to Tom Rutledge and Scott Mange for the lead.]

Parishioners Sue Claiming Wrongful Removal of Priest

An unusual lawsuit was recently filed against the Archdiocese of Detroit by 20 parishioners of a Detroit Roman Catholic parish. The suit filed in a Michigan state trial court claims plaintiffs suffered extreme emotional distress when their priest was falsely accused of sexually abusing a minor and was removed . The complaint (full text) in Dux v. Bugarin, (MI Cir. Ct., filed 1/31/2020), alleges that the Archdiocese, afraid of being attacked by the press for failure to respond to sex abuse charges, twisted allegations and engaged in improper investigatory interrogations to fabricate a rape charge against Fr. Eduard Perrone.  It further alleges that Michael Bugarin, the priest charged with conducting the investigation of Fr. Perrone, is a conservative who was opposed to reforms in the Church advocated by plaintiffs and by Fr. Perrone. The complaint also claims that defendants fraudulently failed to disclose that funds solicited in their annual Catholic Services Appeal would be used for the investigation of Fr. Perrone. Detroit Free Press reports on the lawsuit.

Pennsylvania Archdiocese Can Be Sued In New Jersey Courts For Priest's Abuse In New Jersey

Doe I v. Archdiocese of Philadelphia, (NJ Super. Ct., Jan. 8, 2020) is a case in which plaintiff sued the Archdiocese of Philadelphia (PA) in a New Jersey court alleging that in the 1970's he was sexually abused by a now-deceased priest who was assigned to a Pennsylvania parish.  The abuse, however, took place in New Jersey.  The suit claims that the Archdiocese was negligent in hiring, supervising and investigating complaints against the priest. Apparently the suit was brought in New Jersey because the state had extended its statute of limitations in child sex abuse cases, while Pennsylvania's statute of limitations would bar the lawsuit.  The New Jersey trial court rejected the Archdiocese's claim that the suit should be dismissed either for lack of jurisdiction or on forum non conveniens grounds. As to jurisdiction, the court said in part:

Here, the alleged conduct by the defendants’ agent ..., while in New Jersey ... caused serious injury – in the form of sexual abuse – to plaintiff. Once the abuse began, Brugger purposely transported plaintiff from Pennsylvania to New Jersey on two additional occasions to continue the abuse....

[P]laintiff is now, and was at all relevant times, a resident of Pennsylvania. Thus, plaintiff’s choice of forum in New Jersey is granted substantially less deference.... Additionally, the majority of potential witnesses are domiciled in Pennsylvania.... The Archdiocese’s principal office is located in ... Pennsylvania.... [However] the Archdiocese previously owned two properties in ... Atlantic County, New Jersey – the very county where the instant litigation pends....The New Jersey property ownership took place during the times relevant to this litigation, although no alleged abuse by Brugger occurred at either location....

Under this set of facts, it would not be a violation of defendants’ due process rights to subject them to the long-arm jurisdiction of the Courts of New Jersey, given their contacts with this State.....

Denying defendants' forum non conveniens defense, the court said in part:

the alternate forum, Pennsylvania, is inadequate as there remains no remedy there for the plaintiff due to its strict statute of limitations.

Wife of Sex Offender Sues Church For Reporting Confessed Abuse

The Salem (OR) Statesman Journal reports on a suit filed recently in an Oregon state trial court by the wife of convicted sex offender Timothy Johnson. She claims that leaders of the Turner, Oregon Latter Day Saints congregation breached their duty to her husband in reporting his confessed sex abuse to authorities. According to the report, Johnson followed church doctrine by confessing and repenting his sins in front of clergy and the church court:

The clergy portrayed that such a confession and repentance was dictated by church doctrine, and church doctrine required strict confidence of such confessions, according to the lawsuit.....

But what leaders failed to advise Johnson of is that if he confessed to the abuse, they would report his actions to local law enforcement, according to the lawsuit. 

The lawsuit filed in Oregon singled out a man who served as a counselor to Johnson's bishop, claiming the church failed to properly supervise him and train him of his obligations as a member of the clergy.

The suit seeks damages of $9.5 million on behalf of Johnson's wife and four children.

Jehovah's Witness Practices Are Within Confidentiality Exception To Mandatory Abuse Reporting

In Nunez v. Watchtower Bible and  Tract Society of New York, Inc., (MT Sup. Ct., Jan. 8, 2020), the Montana Supreme Court reversed a jury award of $35 million in compensatory and punitive damages against the Jehovah's Witnesses for violating Montana's statute mandating reporting of child abuse.  The court concluded that Jehovah's Witnesses came within an exception in the statute for communications required to be confidential under church law or established practice. The court said in part:

[W[e decline to conduct further inquiry into the validity of Jehovah’s Witnesses’ tenets and doctrines, including its canon and practice for adherence to a requirement of confidentiality in handling child abuse reports. Jehovah’s Witnesses representatives testified that its process for addressing these reports is strictly confidential, notwithstanding the involvement of numerous church clergy and congregants.... 

We hold accordingly that the undisputed material facts in the summary judgment record demonstrate as a matter of law that Jehovah’s Witnesses were not mandatory reporters under § 41-3-201, MCA, in this case because their church doctrine, canon, or practice required that clergy keep reports of child abuse confidential, thus entitling the Defendants to the exception of § 41-3-201(6)(c), MCA. The reporting statute as written accommodates Jehovah’s Witnesses’ definition and practice of confidentiality.

[Thanks to James Phillips for the lead.]

AP: Catholic Church's Release of Sex Offenders' Names Is Incomplete

In a long investigative report, AP yesterday said that Church reporting of alleged sex abusers is incomplete:

An AP analysis found more than 900 clergy members accused of child sexual abuse who were missing from lists released by the dioceses and religious orders where they served....

More than a hundred of the former clergy members not listed by dioceses or religious orders had been charged with sexual crimes, including rape, solicitation and receiving or viewing child pornography.

On top of that, the AP found another nearly 400 priests and clergy members who were accused of abuse while serving in dioceses that have not yet released any names....

Some dioceses have excluded entire classes of clergy members from their lists — priests in religious orders, deceased priests who had only one allegation against them, priests ordained in foreign countries and, sometimes, deacons or seminarians ousted before they were ordained....

Dioceses varied widely in what they considered a credible accusation.....

The largest exceptions were made for the nearly 400 priests in religious orders who, while they serve in diocesan schools and parishes, don't report to the bishops.

Sex Abuse Suit Transferred to State Supreme Court

In Doe v. Marianist Province of the United States, (MO App., Dec. 31, 2019), a Missouri state appellate court said it would affirm the dismissal of portions of a lawsuit brought against the Marianist Province and a Catholic preparatory high school by a former student. However, according to the court, "due to the general interest and importance of the issues on appeal, we transfer the case to the Supreme Court of Missouri."  In the suit, plaintiff alleged abuse by a Marianist Brother who served as a guidance counselor at the school.  Judge Hoff, writing for herself and Judge Sullivan, said in part:

[B]ecause Appellant’s negligent supervision and negligent failure to supervise children claims would require interpretation of religion doctrine, policy, and administration amounting to an excessive entanglement between church and state, the trial court did not err in granting summary judgment in favor of Respondents....

... [T]he record contains no competent evidence that Respondents had knowledge of Bro. Woulfe’s history of abuse in 1971 when Appellant suffered his abuse. As a result, Appellant failed to establish the existence of a genuine issue related to Respondents’ knowledge. The trial court did not err in granting summary judgment in favor of Respondents on Appellant’s claim of intentional failure to supervise clergy.

Judge Quigless dissenting in part said:

While I concur with the majority in affirming the grant of summary judgment in favor of the respondents regarding the appellant’s negligence claims, I believe the record is sufficient to defeat the respondents’ motion for summary judgment on the claim of intentional failure to supervise clergy because a genuine issue exists as to the material fact of the respondents’ knowledge.