Defamation Suit Dismissed On Ecclesiastical Abstention Doctrine

In Heras v. Diocese of Corpus Christie, (TX App, March 10, 2022), a Texas state appellate court affirmed the dismissal on ecclesiastical abstention grounds of defamation suits by two priests who were included on the diocese's list of clergy who have been credibly accused of sexually abusing a minor. The court said in part:

[W]e hold appellants’ defamation suits are barred by the ecclesiastical abstention doctrine because the substance and nature of the appellants’ claims against appellees are inextricably intertwined with appellees’ internal directive for openness and transparency.... More specifically, appellants’ claims are inextricably intertwined with appellees’ decision to release the list incompliance with an internal church directive....

Sexual Assault Victim Sues Tennessee Catholic Diocese

Suit was filed this week in a Tennessee state trial court against the Catholic Diocese of Knoxville and its bishop. A press release from plaintiff's attorneys summarizes the complaint (full text) in John Doe v. Catholic Diocese of Knoxville, (TN Cir. Ct., filed 2/22/2022):

A lawsuit filed in the Circuit Court for Knox County, Tennessee alleges that the Catholic Diocese of Knoxville and its bishop, Richard Stika, negligently failed to stop a diocesan seminarian from raping and sexual harassing a fellow employee in 2019, then spread false and defamatory rumors about the employee to protect itself and the seminarian, a friend of the bishop.

Diocesan Religious Education Director Sentenced To 20 Years For Sex Abuse of Minor Girl

The Tennessean reports that under a plea deal, the former director of religious education at a Murfreesboro (TN) Catholic parish was sentenced to twenty years in prison for sexual abuse of a girl, beginning when she was 13 years old.  Defendant, Michael D. Lewis, pleaded guilty to four counts of statutory rape for abuse that took place between 2014 and 2016.

Pastor's Suit Against Church For Mishandling Investigation Dismissed On Ecclesiastical Abstention Grounds

In Taylor v. Evangelical Covenant Church, (IL App., Jan. 12, 2022), an Illinois state appeals court dismissed on ecclesiastical abstention grounds a suit by a pastor against his former church for breach of contract and intentional interference with economic advantage. Plaintiff claimed that the church carelessly handled an investigation into malicious accusations against him of sexual assault supposedly occurring some forty years earlier, before plaintiff became a pastor. Plaintiff was suspended during the investigation, and after the suspension was lifted he was never returned to his former position. The court said in part:

Even viewed in the light most favorable to him, plaintiff’s claims arise from a wholly internal investigation and suspension conducted by his church. Plaintiff’s claims are inexorably intertwined with defendant’s investigation as to whether he was fit to serve as a pastor, given the accusation of sexual misconduct against him. That is, the substance of plaintiff’s complaint relates to internal matters of church governance and discipline. Ecclesiastical abstention is required because this case necessarily involves matters of internal discipline....  [N]o matter how egregiously defendant may have departed from proper investigatory procedures, the subject matter of the dispute makes abstention compulsory.

Report Criticizes Cardinal Who Later Became Pope For Not Acting On Sex Abuse Reports

A German law firm yesterday released a lengthy report (full text in German) on sexual abuse by clerics and employees in the Archdiocese of Munich and Freising from 1945 to 2019.  The report is of particular interest because then-Cardinal Joseph Ratzinger who later became Pope Benedict XVI headed the Archdiocese from 1977 to 1982. Vatican News Service summarizes the Report's findings:

At least 497 people were abused in the Archdiocese of Munich-Freising over a period of almost 74 years (from 1945 to 2019). Most of them were young; 247 are male victims and 182 are female. Sixty percent of the victims were between the ages of 8-14. The report identifies 235 perpetrators of abuse including 173 priests, nine deacons, five pastoral workers, 48 people from the school environment.

According to NPR:

The report ... contradicts Benedict's long-running denial that he covered up or ignored abuse.

Two of the cases involved two perpetrators who committed the abuse while Ratzinger was in office.... The two were kept in pastoral work after being punished by the judicial system. A third case involved a cleric who had been convicted by a court outside Germany and was put back into service in the Munich archdiocese despite evidence showing Ratzinger knew of the man's past....

The law firm's report also criticizes Cardinal Reinhard Marx, who is currently the archbishop of Munich and Freising, for his role in two cases in 2008.

Australian Court Holds Diocese Vicariously Liable For Abuse By Priest

In the Australian state of Victoria, a trial court has held a Catholic Diocese vicariously liable for sexual abuse of a five-year old in 1971 by Bryan Coffee, an assistant parish priest. In DP (a pseudonym) v. Bird, (Sup. Ct. Victoria, Dec. 22, 2021), the court, in a very lengthy opinion, said in part:

278 By reason of —(a) the close nature of the relationship between the Bishop, the Diocese and the Catholic community in Port Fairy; (b) the Diocese’s general control over Coffey’s role and duties within St Patrick’s parish; (c) Coffey’s pastoral role in the Port Fairy Catholic community; and (d) the relationship between DP, his family, Coffey and the Diocese, which was one of intimacy and imported trust in the authority of Christ’s representative, personified by Coffey — the Diocese is vicariously liable for his conduct....

280 I am also satisfied that Coffey’s role as a priest under the direction of the Diocese placed him in a position of power and intimacy vis-à-vis DP that enabled him to take advantage of DP when alone — just as he did with other boys. This position significantly increased the risk of harm to DP....

However the court refused to hold the Diocese liable on a direct negligence claim, concluding that Coffee's actions were not a foreseeable risk.  Law and Religion Australia and ABC Australia News reports at length on the decision, saying that this is the first time that an Australian court has found a diocese vicariously liable for actions of a priest.  [Thanks to Law & Religion UK for the lead.]

Abuse Victim's Claim Against The Vatican Dismissed Under FSIA

In Robles v. Holy See (State of Vatican City), (SD NY, Dec. 20, 2021), a New York federal district court dismissed a suit against the Vatican by plaintiff who was sexually abused by Catholic priest Barry Bossa from 1981 to 1986. Plaintiff claimed that the Vatican's policies contributed to the abuse, and asserted negligence and vicarious liability claims against the Vatican. The court held that under the Foreign Sovereign Immunities Act, it lacks jurisdiction over the Holy See on the claims as plead, saying in part:

At least at this stage ... the exception to the FSIA for tort liability based on the actions of an employee provides jurisdiction for claims of negligence, negligent training, supervision, and retention, and international law claims against the Holy See....

The Holy See’s alleged conduct, such as promulgating policies and supervising its employees and officials, occurred in large part at the Vatican.... As a result, the Holy See is immune from Plaintiff’s claims arising from the Holy See’s conduct that occurred outside the United States....

The Tortious Act Exception also excludes “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.” 28 U.S.C. § 1605(a)(5)(A). It is at this last step of the analysis that the last of Plaintiff’s remaining claims against the Holy See — negligence, negligent training, supervision, and retention, and violations of customary international law, all pursuant to respondeat superior based on the alleged actions of its putative employees— fail....

Case-law is clear that decisions related to employment and supervision are exactly the kind of policy judgments that the discretionary exclusion was designed to shield.....

Plaintiff’s broader negligence claim against the Holy See pursuant to respondeat superior, including his failure-to-warn and failure-to-report allegations ... is dismissed without prejudice, because, although perhaps a steep uphill climb, Plaintiff could conceivably allege facts in an amended complaint demonstrating lack of discretion as to these actions....

Defamation Suit Filed By Prominent Pastor Against Former Southern Baptist Ethics Commission Head

Suit was filed this week in a Tennessee federal district court by Michael Stone, a prominent Southern Baptist pastor of a congregation in Georgia, against Russell Moore, former head of the Ethics and Religious Liberty Commission (ERLC) of the Southern Baptist Convention. The complaint (full text) in Stone v. Moore, (MD TN, filed 10/18/2021), alleges that soon after Stone, as Chairman of the Executive Committee, began to serve on a task force created to assess whether the actions of ERLC and Moore were negatively affecting the Southern Baptist Convention's fiscal well-being, Moore defamed him in two letters leaked to the news media. According to the complaint:

The First Letter ... contained numerous false allegations against Plaintiff, who was then a prominent candidate for the presidency of the SBC.... [It] indirectly identifies Plaintiff by alleging that “the current chairman of the Executive Committee” and the “Executive Committee... ‘exonerated’ churches, in a spur-of-the-moment meeting, from serious charges of sexual abuse cover-up.”...

[A]dditional statements made by Defendant in the First Letter, including a statement declaring the existence of an SBC “culture where countless children have been torn to shreds, where women have been raped” are demonstrably false.

Stone seeks damages of $750,000 for libel, false light invasion of privacy and intentional infliction of emotional distress. Religion News Service has more background on the case.

European Court Upholds Vatican's Immunity From Suit In Member-State Courts

In J.C. and Others v. Belgium, (ECHR, Oct. 12, 2021) (full text in French) (press release in English) the European Court of Human Rights in a 6-1 Chamber judgment held that Belgian courts acted properly in recognizing immunity of the Holy See from jurisdiction of domestic courts. At issue was a suit by 24 Belgian, French and Dutch nationals who alleged that as children they were abused by priests. They filed a class action for damages contending that the Church dealt with its sexual abuse problem in a structurally deficient manner. After the dismissal by Belgian courts, 20 of the plaintiffs were able to obtain compensation through the Church's own arbitration center for sexual abuse claims.

French Commission Reports On History Of Sexual Abuse In Catholic Church

As reported by CNN, France's Independent Commission on Sexual Abuse in the Church (CIASE) yesterday filed its final report:

Members of the Catholic clergy in France sexually abused an estimated 216,000 minors over the past seven decades, according to a damning report published Tuesday that said the Church had prioritized the protection of the institution over victims who were urged to stay silent.

The number of abused minors rises to an estimated 330,000 when including victims of people who were not clergy but had other links to the Church, such as Catholic schools and youth programs. Between 2,900 and 3,200 abusers were estimated to have worked in the French Catholic Church between 1950 and 2020, out of a total of 115,000 priests and other clerics, the report found.

An English language 32-page summary (full text) of the Final Report is available online. It includes 45 recommendations to prevent future abuse, Links to the full text in French of the Final Report, Testimony and other documents are available here.

Suit Says Social Worker Sexually Assaulted Children At Jewish Social Service Agency

A suit was filed one day before the expiration of the two-year look-back period under New York's Child Victims Act by two anonymous plaintiffs against a clinical social worker and several Jewish organizations. (Full text of 75-page complaint in Doe v. Klar, (NY County Sup. Ct., filed 8/13/2021)).  The Forward describes the lawsuit:

A rabbi sexually assaulted children while he was supposed to be treating them for mental health issues, and the prominent Jewish institutions he worked for covered it up, claims a lawsuit filed in New York August 13.

Rabbi Yaakov David Klar allegedly carried out his abuse while he was a social worker at Chai Lifeline, a national Jewish social services provider, and as a teacher at the Pupa Cheder in Monsey, N.Y....

Klar allegedly began years of abuse of the plaintiff in 2002, when the lawsuit alleges the defendants already knew or should have known of the rabbi’s predatory history....

Only later did they enter a “secret arrangement” to allow Klar to leave quietly — and they never reported his suspected actions to the authorities, according to the lawsuit.

New York Child Victims Look-Back Period Ends

As reported by the New York City Patch, the two-year look-back period that allowed otherwise untimely suits to be filed under New York's Child Victims Act expired last Friday, Aug. 13. As of Aug. 9, some 9,241 cases had been filed during the look-back window. (Child USA Report).

Fraud Claim Against Catholic Diocese Dismissed Under Ecclesiastical Abstention Doctrine

In Doe v. Roman Catholic Diocese of Dallas, (TX App, Aug. 11, 2021), a Texas state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a suit alleging that a Catholic diocese committed fraud when it failed to follow its own internal policies for responding to clergy sex-abuse claims after plaintiff reported that he had been sexually abused by a Diocesan priest. The court said in part:

[A] court would have to evaluate whether ... the Dallas Diocese implemented its policy under the canonical meanings of "minor," "sexual abuse," and "vulnerable adult." This would necessitate a secular investigation into the Dallas Diocese's understanding of those terms.... Such an inquiry would cause a court to evaluate whether the Dallas Diocese properly applied canon law and "interlineate its own views" of canonical terms....

Furthermore, in the context of a religious organization's choices in investigating and regulating its formal leaders and people ordained for religious duties, "any investigation would necessarily put to question the internal decision making of a church judicatory body."...

Defrocked Cardinal McCarrick Charged Criminally In Massachusetts For Sex Abuse Committed Decades Ago

 CNN Reports that a criminal complaint in a Massachusetts state trial court charges now-defrocked Cardinal Theodore McCarrick with three counts of indecent assault and battery on a person over 14 years old.  The charges grow out of abuse of a boy beginning in 1974. McCarrick becomes the highest ranking Catholic clergy member to face criminal charges for sex abuse of a minor.

Clergy Sex Abuse Case Alleges Racial Discrimination As Well

A clergy sex-abuse case with a new twist was filed this week in a Wisconsin federal district court.  As described by a press release from Nate's Mission:

This morning attorneys filed a federal civil complaint ... against the Franciscans of the Blessed Virgin Mary, headquartered in Franklin, Wisconsin, and the Diocese of Jackson in the case of former Franciscan Brother Paul West, alleging discrimination and racial disparities in the treatment of Raphael Love, a Black clergy abuse victim. The lawsuit is believed to be the first of its kind in the clergy abuse crisis alleging a pattern of racial discrimination both in the placement of known offenders and treatment of survivors.

The complaint (full text) in  Love v. Catholic Diocese of Jackson, (ED WI, filed 7/27/2021), alleges in part:

Defendants conspired ... to deceive ... Plaintiff and other African American victims to accept a nominal and unconscionable settlement when the Defendants knew that the amount was far below even the cost of the future treatment the Plaintiff's injuries ... and was designed in bad faith to take advantage of the Plaintiff's underprivileged and impoverished condition.

Pennsylvania Supreme Court: Abuse Victim's Suit Against Diocese Barred By Limitations Statute

In Rice v. Diocese of Altoona-Johnstown, (PA Sup. Ct., July 21, 2021), the Pennsylvania Supreme Court in a 5-2 decision held that the statute of limitations bars a suit against the Diocese of Altoona-Johnstown and its bishops for their role in covering up and facilitating a series of sexual assaults by plaintiff's childhood priest. Suit was filed 35 years after the assaults. Plaintiff sued after a Pennsylvania grand jury report detailed clergy abuse. The court held that the discovery rule did not toll the statute:

Because her claims for damages against the Diocese are based on [her priest's] alleged conduct, she was on inquiry notice regarding other potentially liable actors, including the Diocese, as a matter of law.

The court also rejected a claim that fraudulent concealment tolled the statute:

Under our jurisprudence, before a plaintiff may invoke the principles of fraudulent concealment, the plaintiff must use reasonable diligence to investigate her claims.

Chief Justice Baer filed a concurring opinion. Justice Wecht, joined by Justice Todd, filed a dissenting opinion, saying in part:

The Majority’s conclusion that Rice failed to exercise reasonable diligence in investigating the Diocese’s role in her attack is based on nothing more than the fact that Rice knew that she was assaulted on church property by a priest employed by the Diocese.... This analysis dramatically oversimplifies the reasonable diligence inquiry.

AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

Ministerial Exception Leads To Dismissal Of Part of Nuns' Sexual Harassment Claims

In Brandenburg v. Greek Orthodox Archdiocese of North America, (SD NY, June 1, 2021), two nuns who formerly worked at a Greek Orthodox monastery sued the Archdiocese and several clergy members for sexual harassment by Father Makris at the monastery. One of the plaintiffs also sued over the conduct of Father Makris when he was Dean of Students at the religious college she attended in Massachusetts. When the student reported a sexual assault by a male student, Makris made her marry her attacker to cure the assault.

Invoking the ministerial exception doctrine, the court dismissed plaintiffs' sex discrimination claims and their retaliation claims to the extent they are based on tangible employment action (hiring, firing, job assignments, promotion, compensation).  However the court held that the claims for constructive discharge survive, as do the claims for retaliation to the extent they are based on harassment and not a tangible employment action. Some of plaintiffs' defamation claims also survived the motion to dismiss.

Pope Francis Promulgates Revised Canon Law Criminal Code

Pope Francis today announced the promulgation of a  revised version of Book 6 of the Code of Canon Law-- Penal Sanctions in the Church (full text in English). AP reports on significant changes brought about by the revised Code:

The most significant changes are contained in two articles, 1395 and 1398, which aim to address shortcomings in the church’s handling of sexual abuse. The law recognizes that adults, not only children, can be victimized by priests who abuse their authority. The revisions also say that laypeople holding church positions, such as school principals or parish economists, can be punished for abusing minors as well as adults.

The Vatican also criminalized priests “grooming” minors or vulnerable adults to compel them to engage in pornography. The update represents the first time church law has officially recognized as a criminal act the method used by sexual predators to build relationships with victims they have targeted for sexual exploitation.

The new law, which is set to take effect on Dec. 8, also removes much of the discretion that long allowed bishops and religious superiors to ignore or cover up abuse, making clear those in positions of authority will be held responsible if they fail to properly investigate or sanction predator priests.

A bishop can be removed from office for “culpable negligence” or if he does not report sex crimes to church authorities, although the canon law foresees no punishment for failing to to report suspected crimes to police.

The President and the Secretary of the Pontifical Council for Legislative Texts spoke at a news conference announcing the revisions. (full text of their remarks in Latin). [Thanks to Scott Mange for the lead.]

Suit On Misrepresentations In Settling Clergy Sex Abuse Claims Is Dismissed

 In Caldwell v. Archdiocese of New York, (SD NY, May 19, 2021), individuals who released their childhood sexual abuse claims as part of the Archdiocese's ’ Independent Reconciliation and Compensation Programs brought a class action claiming misrepresentations in procuring the releases. They claimed misrepresentations regarding the fairness of the settlements, the independence of the plan administrators, as well as failure to advise claimants of the prospects for enactment of the New York Child Victims Act.  The court dismissed the claims because plaintiffs failed to plead them with particularity as required by Federal Rules of Civil Procedure, Rule 9(b).  They also failed to show a special relationship that would give rise to a duty to disclose information about the Child Victims Act and failed to show that they were induced to refrain from carrying out their own investigation.

Missouri Supreme Court Upholds Some Claims of Failure To Supervise Abusive Clergy

In John Doe 122 v. Marianist Province of the United States, (MO Sup. Ct., April 6, 2021), the Missouri Supreme Court dismissed negligent supervision claims of plaintiff who was sexually abused by a Marianist brother in the early 1970's. In dismissing the claim, the court relied on its earlier precedent in Gibson v. Brewer, (1997). However the court reversed the trial court's dismissal of plaintiff's intentional failure to supervise claims, saying in part:

Using all of the evidence before them, including Father Doyle’s expert testimony, the jury may infer Chaminade knew the risk that Brother Woulfe would visit sexual abuse upon a student was certain or substantially certain and – if so – whether Chaminade disregarded that known risk. And they may not. The only issue before this Court, and the issue on which the circuit court erred, is whether Father Doyle’s testimony (taken together with all the other evidence) is sufficient for the jury to draw that inference reasonably if persuaded to do so. This Court concludes there is.... 

St. Louis Today reports on the decision.