[ALBSA-Info] NYTimes.com Article: A Case That Grew in Shadows

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A Case That Grew in Shadows

March 24, 2002 

By ADAM LIPTAK


 


THIS year alone, Jeffrey A. Newman, a Massachusetts lawyer,
has filed lawsuits on behalf of 38 people who say they were
the victims of sexual abuse at the hands of a dozen priests
in the Archdiocese of Boston. He will soon be filing 29
more. He is, he says, "in the clergy suit business
wholesale." 

He has learned some hard lessons building that business. In
three earlier lawsuits against priests, including two
involving John J. Geoghan, his clients agreed to keep quiet
about their charges in exchange for settlement money. 

"It was a terrible mistake," Mr. Newman said, "and I think
people were harmed by it." Mr. Geoghan, a former priest
recently convicted of sexually molesting a child, has been
accused of abusing more than 130 other people. The secrecy
masked the magnitude of the problem, allowed sexual
predators to repeat their offenses and frustrated criminal
prosecutions of individual priests. 

"I feel strongly," Mr. Newman continues, "that I was
complicit in not recognizing the significance and extent of
the problem. I, among other lawyers, was part of the
problem. It was probably one of the poorest decisions I
made in my career." 

Even now, though, as the wall of secrecy erected by the
Roman Catholic Church is beginning to crumble and
prosecutions of individual priests like Mr. Geoghan have
become more common, the criminal justice system has been
wary of taking on the church as an institution. 

While the entire accounting firm of Arthur Andersen has
been indicted for what must by comparison be considered
minor and isolated wrongdoing, the prospect of a broad
criminal attack on the institutional church appears remote.
There can be little question, though, that if the
widespread and widely tolerated sexual abuse coming to
light had occurred in a day care center, a school or a
scout troop, indictments against institutions would be
flying. 

Part of the reluctance is grounded in the church's history,
mystery and power, and part of it is grounded in the
clauses of the First Amendment protecting religious
freedom. Even in civil cases, quite a few courts have held
the church immune from suit for the negligent hiring and
supervision of priests who engage in sexual abuse. 

The Wisconsin Supreme Court, for instance, rejected a claim
that the church negligently supervised a hospital chaplain
who was accused of sexually assaulting a woman. The court
said that it could not decide the case without interpreting
ecclesiastical law and in particular the vow of celibacy.
That would, it held, "excessively entangle the court in
religious affairs, contrary to the First Amendment." 

The majority of courts, though, have taken the opposite
view. On March 14, the Florida Supreme Court held that "the
First Amendment does not provide a shield behind which a
church" may hide when allegations of sexual abuse are made.
The very fact, though, that there is vigorous debate over
whether the church is simply immune from lawsuits
underscores the societal reluctance to employ its criminal
laws against the church. 

That leaves civil suits by individuals, and they give rise
to the secret agreements that often resolve such suits.
Criminal proceedings, including trials and plea bargains,
are almost always public. In contrast, confidentiality
provisions are common in civil settlements and were
apparently standard in scores if not hundreds of
settlements of abuse claims against priests around the
country. 

But though the secrecy agreements kept children at risk and
prevented the prosecution of ghastly crimes even as
statutes of limitations expired, they are almost certainly
lawful. The legal system encourages settlements, largely
because it lacks the resources to adjudicate every dispute.
And settlements are often thought to require secrecy. 

The party paying the money fears that news of a large
settlement will be blood in the water for more litigation,
and, though a settlement is not an admission of liability,
secrecy serves to protect the reputation of the accused. In
cases involving sexual abuse, the party getting the money
may well want secrecy, too. 

SOME legal experts say that the usual rationales and
incentives cited in support of secret settlements do not
fit priest abuse cases well. The victims were generally
children, who ought to receive special protection; the
abusers were often repeat offenders, who should have been
stopped; and criminal prosecution of the priests was made
all but impossible given the central importance of the
victim's testimony in rape and other sexual abuse cases. 

Prof. Stephen Gillers, who teaches legal ethics at New York
University Law School, says that the arguments made against
secret settlements in cases involving widespread harm,
called mass torts by lawyers, apply with equal strength in
this new setting. "Certain kinds of harm are so serious,"
he says, "whether it's criminal conduct by priests or
exploding kitchen appliances, that we should not let
plaintiffs agree to confidentiality." 

The courts have not embraced these arguments; they almost
always enforce confidentiality provisions in settlement
agreements. They are warier still of the argument that
secret settlements in some situations can themselves amount
to a crime. 

They have rejected claims that seeking silence for money
amounts to witness tampering, bribery or obstruction of
justice, even where money was explicitly paid in exchange
for a promise by the victim not to pursue criminal charges.


PAYING for false testimony is a crime, of course, and so is
paying a witness not to appear. But paying for silence is
generally perfectly legal. 

The law is built on fine distinctions, and this is one of
them. "No agreement can bind the victim to refuse to
cooperate with the authorities," Professor Gillers said.
"The victim can only promise not to report the crime." 

But while it is true that prosecutors can compel even
victims who have signed secrecy agreements to speak,
typically by using subpoenas, they will not know to ask in
most sexual abuse cases. That means that a promise not to
report the crime is tantamount to a foolproof cover-up. 

Many questioned just what Michael Jackson was paying for in
1994 when he spent millions to settle a sexual battery
lawsuit brought by a young teenager. Though the terms of
the settlement were never made public, the youth's lawyer,
Lawrence Feldman, insisted at the time that "nobody has
bought anybody's silence." In the end, though, prosecutors
did not pursue the case when the teenager refused to
testify. 

William H. J. Hubbard, writing in the University of Chicago
Law Review, argues that some civil settlements of rape
charges are a form of witness tampering. "Because the rape
victim's testimony is central to the success of a rape
prosecution," he writes, "pretrial settlement in rape cases
can undermine the enforcement of rape law. A guilty
defendant can use pretrial settlement to influence the
complainant not to cooperate with the prosecution." 

William E. Hellerstein, a professor at Brooklyn Law School,
is sympathetic as a matter of public policy but doubts that
existing case law makes secrecy agreements in even child
sexual abuse cases criminal. "I don't think the obstruction
of justice statutes were drawn with them in sight," he
said. "You would have to stretch it." 

Martin F. Murphy, a former prosecutor in Cambridge, Mass.,
recalls considering about 800 reports of sexual abuse in a
typical year. Only about 50 of them, he said, were
"prosecutable," meaning that the presentation of the
available facts in court was likely to secure a conviction.
A case without a cooperative victim was almost never
prosecuted. 

Mr. Murphy advocates less reliance on victims, who often
feel shame or fear bruising trial tactics even when they
are not constrained by secrecy agreements. Many states
require medical professionals and schools to report all
evidence of abuse of children. Mr. Murphy would extend
those requirements to the church. 

Other reforms are also possible. The church could
voluntarily release the victims from their contractual
confidentiality obligations. Legislation to make secrecy
agreements in sexual abuse cases illegal could be
considered. And grand juries could be convened to look into
the church's role. 

Mr. Newman, for his part, has simply altered his approach
to settlement discussions. "I will not engage," he said,
"in even the loosest discussion of a confidentiality
agreement." 

http://www.nytimes.com/2002/03/24/weekinreview/24LIPT.html?ex=1018012220&ei=1&en=8be4f50c9a797755



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