The Abuse and Cover-up Scandal
The Church Should Not Oppose Extending Statutes of LimitationThe Society of Catholic Social Scientists, Annual Meeting, Panel 32 St. John’s University, Jamaica, NY October 27, 2007
The mission of the Catholic Church is evangelization - the bringing of the Good News to mankind, the bringing of mankind to Christ. The word “evangelization” has been reclaimed from the television evangelicals but we might say, to put it in the vernacular, that it is about public relations, about putting out a message. The Church has had a continuing evangelization disaster, a public relations disaster, on its hands since 2002 with respect to its internal abuse-and-cover-up scandal -- partly as a result of an inversion of episcopal priorities: placing concern for property and the institutional Church ahead of concern for souls. The present public opposition, by most dioceses, to extending statutes of limitation continues the same mindset and exposes the institutional Church to the charge of hypocrisy. It should end.
Statutes of Limitations
“Equity Aids the Vigilant”
A statute of limitation is a legislative act which limits the time within which an action must be brought. Statutes of limitation are, in short, pragmatic and practical devices to preclude stale claims. In a sense, the idea of statutes of limitation embodies the maxim (and maxims are often merely slogans, not necessarily embodying legal principles, much less natural law): Vigilantibus et non dormientibus aequitas subvenit, that is, the law aids those who are vigilant, not those who sleep on their rights.
Statutes of limitation are legislated and vary from state to state, representing a sort of pragmatic judgment call by a particular legislature, perhaps influenced by lobbyists for the insurance industry, perhaps influenced by the plaintiffs’ trial bar. The usual rationale is that old claims are hard to defend against because of the passage of time, the fading of memories, the disappearance of witnesses, and the loss of records. This argument ignores the reality that the burden of proof is on the plaintiff in any event and that, in trial combat, as in military combat, it is usually easier to defend than to attack. An even less appealing rationale is that statutes of limitation are calendar-clearing devices, a way to reduce overcrowded court dockets - the courts already being burdened by a surfeit of lawsuits for various reasons. There is a Latin maxim for that as well: Interest reipublicae ut sit finis litium. It is in the interest of the state that there should be an end to litigation. Latin, as we know, is back in fashion.
Exceptions - There is obviously a certain degree of common sense about the principle – potential plaintiffs with good claims do not tend to merely sit on them but demand redress -- but there are recognized exceptions. The running of the fixed time in which to bring a lawsuit for an injury can be suspended, or tolled, or extended. These exceptions to statutes of limitation vary from state to state but fall generally into two categories concerned with either discovery of an injury, sometimes referred to as the DELAYED DISCOVERY, or notice exception, or the IMPAIRMENT of the potential plaintiff for such cause as his minority, or mental incompetence. The usual simple example of the notice situation would be the belated discovery, long after a hospital stay, of the proverbial sponge-left-in-the-stomach; time runs from the discovery, not from the date of the negligently performed operation. The idea of tolling during minority, until a plaintiff reaches the age of majority, is to protect the legal rights of those unable to assert their own rights and to mitigate the difficulty of preparing a suit while a party is under a disability; the same rationale applies to a mental incompetent.
“Repressed memory” of sexual abuse and “Post-traumatic stress disorder.” The relatively new development, of which we have heard so much in the years since the abuse-and-coverup scandal erupted in 2002, is, of course, what has been termed “Post traumatic stress disorder” (“PTSD”); it is related to the concept of “repressed memory.” PTSD has been defined as “an anxiety disorder that can occur following the experience or witnessing of a traumatic event. A traumatic event is a life-threatening event such as military combat, natural disasters, terrorist incidents, serious accidents, or physical or sexual assault in adult or childhood.” This may be somewhat new psychiatry (commencing in the aftermath of the Vietnam war) but the concept has been advanced as a just extension of the impairment exception or of the discovery exception, or an amalgam of the recognized exceptions. Is it bona fide?
Some of the early cases were mixed in result and went against the plaintiffs. We might refer to a few but the focus of this discussion will be on the efforts of the institutional Church to block extending the statutes of limitation with respect to any arguable causes of action.
In a New York case involving Covenant House (Bruce Ritter), it was held on a motion to dismiss that the delayed discovery rule did not apply to extend the limitations period in an action brought by a victim who contended that he delayed for seventeen years because “psychological coping mechanisms” made him unable to perceive the existence or nature of his psychological and emotional injuries. In an Ohio case, it was argued unsuccessfully that childhood sexual abuse led to a victim becoming “of unsound mind” and in a Pennsylvania case, where a priest allegedly abused a teenaged male preparing for the priesthood, it was held that the victim was not relieved of his duty to bring suit timely.
Initially, many loyal Catholics were appropriately skeptical in reaction to what seemed yet more psychobabble. But there were too many verified cases which have emerged and we are painfully aware of the two billion dollars now paid out in settlements, most notably recently in Los Angeles after years of legal dodgeball by Cardinal Mahony. In the fullness of time, some academic (perhaps a member of this Society or a graduate of John Jay College of Criminal Justice) will do a comprehensive study as to all the cases. This is ongoing, of course, but statistics will emerge as to how many cases were genuine and how many were fraudulent; at the moment it appears that the fraudulent cases have been relatively few. Those statistics will be shaky, certainly, in view of settlements made, out of court, and the proverbial explanation offered: “The case had no merit but we settled to avoid the litigation expenses.” To be anecdotal, the CNN story earlier this year, of previously unrevealed clerical abuse by a trusted friend of news anchor Thomas Roberts in Maryland, was touching and credible. Because of his media career, Roberts, now a practicing homosexual, only came forward when another victim of the same predatory priest did so. Presumably many others have not come forward.
The Church: What is Her Proper Role in this Discussion??
The Church as Mystery
To touch on ecclesiology, and I am no ecclesiologist, what should be the attitude of the Church at this sorry juncture? The Church is characterized in the Catechism as the People of God, united in the Body of Christ, and as the temple of the Holy Spirit.  A mystery, visible and invisible, the essential mission of the Church is to evangelize all men. Vatican II made changes in ecclesiology, not in dogma but certainly in emphasis. Some writers (rather like Kremlinologists noting placement at public events during the Cold War) seek significance in the placement order of key ideas in Lumen Gentium, The Dogmatic Constitution on the Church, a critical document of the Council. For example, while the main image of the Church is that of the Body of Christ, it has been noted that Chapter 2 of Lumen Gentium, considering the People of God, precedes Chapter 3, which considers the hierarchy . The British historian Paul Johnson has remarked that in mediaeval times, “ [t]here was a tendency to equate the clergy with ‘the Church’” a concept which now, a few hundred years after the Council of Trent and four decades after Vatican II, has perhaps been adjusted by a newer emphasis on the “People of God” as a dominant vision.
In considering the proper role of the Church in the statute of limitations extension argument, we can turn usefully and briefly to what Cardinal Avery Dulles terms visions or “models” of the Church. He considers five models: the Church as institution, as mystical communion, as sacrament, as herald, and as servant, with particular reference to the institutional Church and what he terms the deformation of institutionalism. And at the outset, he warns that, in discussion, the Church should not be lowered to the same plane as other human communities.
The Institutional Church is Secondary
Cardinal Dulles refers to an institutional vision of the Church, a view that defines the Church primarily in terms of its visible structures. As to institutionalism, he means “a system in which the institutional element is treated as primary. From the point of view of [Dulles], institutionalism is a deformation of the true nature of the Church—a deformation that has unfortunately affected the Church at certain periods of its history, and one that remains in every age a real danger to the institutional Church.”
As Dulles expresses it, “[t]he institutional structures of the Church are secondary in the sense that they are intended to preserve and promote communion.”
We might thus say that the institutional structure constitutes a sort of useful infrastructure. In other words, the Church is not primarily the hierarchical power structure, the clergy, and the buildings, Rather, it is, in the words of John Paul II, “a communion in many different ways. Its character as communion renders the Church similar to the communion of the Divine Trinity…Thanks to this communion, the Church is the instrument of man’s salvation. It both contains and continually draws upon the mystery of Christ’s redemptive sacrifice.”
If the mission of the Church is to lead men to Christ, to save people through the Church but by the grace of Christ, what then should be the proper attitude of the Church toward victims of its errant churchmen? As secondary - lower in importance than, and supportive of, the communio -- the institutional Church should be more than merely apologetic. Put another way, as Gaudium et Spes of the Vatican II documents expresses it, “The order of THINGS must be subordinate to the order of PERSONS and not the other way around, as the Lord suggested when He said that the Sabbath was made for man and not man for the Sabbath.”
The question is whether the entire discussion on the litigation situation flowing from the sexual abuse and coverup scandal has been dominated by an obsessive concern for the physical institution, that is, institutionalism. Let us consider the ecclesial posturing, and arguments posited, in response to the claims and litigation directed against the institutional Church.
Institutional Church Response to Proposals to Extend Statutes of Limitation
Lawyers and spokesmen for different dioceses have assumed a variety of legal and/or public relations defenses in their opposition to legislative efforts to extend statutes of limitation with respect to sexual abuse by clergy and enabling bishops. We can list and consider some of the arguments against extending statutes of limitation which have appeared in various dioceses and court actions, and mention one or two which are particularly shameful or legally ludicrous:
The unpleasant and disappointing reality is that it has only been because of the secular justice system that the institutional Church has been forced to move toward saying that it is making changes in its priorities. But it is apparent that “clericalism” and accompanying secrecy continue in the institutional Church.
When we say, at Mass, “Credo…in unam Ecclesiam,” we express our belief in, and loyalty to the Church. We are a community of faith and prayer, People of God, enhanced by the sacraments instituted by Christ Himself, not a club or fraternity or corporation concerned primarily with asset preservation. Loyalty does not mean blind loyalty to, or tolerance of, thieving priests and luxuriating bishops. The MAGISTERIAL Church merits our total loyalty and acquiescence. No “cafeteria Catholics.”. The INSTITUTIONAL Church merits a sort of discrete loyalty. A judge in the Roman Rota explains the difference: “Although we have a guarantee that Christ’s truth is behind the solemn exercise of the Church’s teaching office, it would be a mistake to look for the same guarantee in relation to the ruling office…” In the first instance we support with assent and assets the teaching and activity of the bishops appointed by Peter. But, the entire meaning of “the Church” and its basic mission must be perceived. Hiding the fiscal and physical assets of the institutional Church from justice, via outmoded and arbitrary statutes of limitation, is not a consideration when it clashes with the mission of the Church - the bringing of men to Christ, by word and example. The institutional Church should not dodge moral responsibility by invoking pragmatic rules as to the timing of lawsuits or by stalling with secrecy the production of record evidence.
In sum, the institutional Church, its credibility already damaged by careerist, cowardly and criminal bishops, should not now, via its chanceries and lobbyists, attempt to block justice, to block legislative efforts to update outmoded and pragmatic statutes of limitation with respect to the commencement of lawsuits.
American Jurisprudence, v. 51, Limitation of Actions, sec. 181, Posttraumatic stress syndrome
Baum, Gregory, Dr., The Credibility of the Church Today: A Reply to Charles Davis (1968)
Belford, J.G., Chancellor, Archdiocese of Washington, Testimony before DC City Council Committee on Legislation,6/01/07
Bennett, Robert S., et al., A Report on the Crisis in the Catholic Church in the United States Prepared by the National Review Board for the Protection of Children and Young People, 2004
Boston Globe, Betrayal: The Crisis in the Catholic Church, 2002
Boston Herald, “Hush, Hush, Church lawyers urged silence on priest conduct” (8/20 /01).
Burke, Cormac, Msgr., Church, Nature, Origin, and Structure of (in Encyclopedia of Catholic Doctrine, Our Sunday Visitor, Russell Shaw ed., 1997), pp. 105-108.
Campion, D., S.J., Introduction to Gaudium et Spes (Documents of Vatican II (Abbott, S.J. ed., 1966)), p. 183
Casey, Bill & David O’Brien, Shared Burden, Commonweal (10/12/07)
Catechism of the Catholic Church
Code of Canon Law
Corpus Juris Secundum, Limitations of Actions
Dallas Morning News, 6/12/02.
Dulles, S.J., Avery Cardinal, Models of the Church, 2002
Dulles, S.J., Avery Cardinal, The Ecclesiology of John Paul II (in The Gift of the Church, Phan ed., p. 97)
Doyle, O.P., Thomas, Testimony before DC City Council Committee on Legislation, 6/01/07.
Hamilton, M., God vs. The Gavel: Religion and the Rule of Law, 2005
Hamilton, M., What the Clergy Abuse Crisis Has Taught Us, v. 195 America No. 8 (9/25/06)
John Jay College of Criminal Justice, Report
Pope John Paul II, Crossing the Threshold of Hope, 1994.
Lawler, P., Faithful Departed: The Collapse of Boston’s Catholic Culture, 2008
Lawler, P., We Have Been Enlightened, Catholic World Report, June 2007, p. 36.
McDermott, J., S.J., Lumen Gentium: The Once and Future Constitution (in After Forty Years: Vatican Council II’s Diverse Legacy, Proceedings from the 28th Annual Convention of the Fellowship of Catholic Scholars, 2005 (Whitehead ed.)
Molineaux, Charles, Clericalism, v. 1 Encyclopedia of Catholic Social Thought, Social Science, and Social Policy (2007).
Plante, Dr. Thomas, Perspective on Clergy Sexual Abuse (2002)
Reilly, T.F., Attorney General, Commonwealth of Massachusetts, The Sexual Abuse of Children in the Roman Catholic Archdiocese of Boston, 2003
Stimson, E., Worst of Sex-abuse Litigation is Over, Our Sunday Visitor, 8/3/07
Vatican Council II, Documents: Lumen Gentium Gaudium et Spes
Charles Molineaux, Esq., is an attorney, a graduate of St. John’s University School of Law. Born in New York, he was educated in public, Catholic, and Jesuit schools in Massachusetts, New York and Washington, D.C. and currently resides in northern Virginia where he serves as an international commercial arbitrator and sometime free-lance writer. His articles and poetry have appeared in The Wall Street Journal, The Georgetown Academy, The Catholic Lawyer and New Oxford Review. He is a member, inter alia, of the Fellowship of Catholic Scholars and of the Knights of Malta. The opinions expressed here are those of the author alone and do not necessarily represent those of any organizations of which he is a member.
51 AmJur, Limitations of Actions, sec. 181, Posttraumatic stress syndrome, p. 568
 National Center for PTSD, US Department of Veterans Affairs; Mental Health America.
 Bassile v. Covenant House, 152 Misc. 2d 88 (1991), aff’d on appeal.
 Livingston v. Diocese of Cleveland, 126 Ohio App. 3d 299 (1998).
 E.J.M. et al. v. Archdiocese of Philadelphia, 622 Atl.2d 1388 (1993).
 “Anderson Cooper 360,” 2/12/07.
 Sequence as appearing in the Catechism at Nos. 781-797.
 McDermott, John, S.J., Lumen Gentium The Once and Future Constitution (in After Forty Years: Vatican Council II’s Diverse Legacy, Proceedings from the 28th Annual Convention of the Fellowship of Catholic Scholars, 2005, Whitehead ed.) pp. 142-143.
 Johnson, P., A History of Christianity, p. 215.
 Dulles, Avery Cardinal, Models of the Church, esp., chapter II.
 Ibid.. p. 9.
 Ibid., p. 27.
 Dulles, Avery Cardinal, The Ecclesiology of John Paul II (in The Gift of the Church, Phan, ed.), p. 97.
 Pope John Paul II, Crossing the Threshold of Hope (1994), pp. 138-139.
 Pastoral Constitution on the Church in the Modern World, 26 (1965).
 NYTimes, 8/8/01, Catholic Church Backs Bill on Child Molesting
 West v. Silva, Cal. 2003
 Boston Pilot, 2001
 An Arnold Lunn euphemism.
 As described by Rev. Donald Campion, SJ, in his introduction to Gaudium et Spes (Documents of Vatican II, Abbott ed., p. 184).
 Pastoral Constitution on the Church in the Modern World, Gaudium et Spes #32 (Abbott ed.)(1965)
 Boston Herald, “Hush, hush: Church lawyers urged silence on priest conduct,” 8/20/01
 Belford testimony before DC City Council Committee on Legislation, 6/1/07, p. 4
 Bara, D.A., Rev. testimony before DC City Council, etc., 6/1/07
 Erlandson, Our Sunday Visitor, 2/25/07
 Such as champerty, promoting litigation, the efficacy of the contingent fee arrangement (tolerated here but banned in England where our legal system originated) and whether we just have too many lawyers.
 Catholic Standard, 3/15/07, p. 6.
 Belford testimony, DC City Council Committee on Public Safety and the Judiciary, 6/1/07.
 Belford, testimony before the Maryland Senate Judicial Proceedings Committee, 3/1/07.
 Ibid., p. 6
 Catholic Charities USA.
 Dallas Morning News, 6/12/02
 A point made by the estimable Archbishop Charles Chaput, inter alia.
 Argument by outside counsel for the Archdiocese of Washington, 6/1/07
 Dallas Morning News, 6/12 /02
 Cf. Lawler, Philip, Catholic World Report, June 2007, “We Have Been Enlightened,” for an analysis, from the traditional wing of the Church as to whether the US bishops have succeeded in their pledge at Dallas to end the abuse and coverup scandal. Lawler, editor emeritus of Catholic World Report, is skeptical.
 Cf. Casey, Bill and David O’Brien, Commonweal, October 12, 2007, “Shared Burden: A Manifesto for the Laity,” for an analysis, from the liberal wing of the Church as to whether the US bishops have succeeded in their Dallas pledge. Casey and O’Brien, members of the Board of Trustees of Voice of the Faithful, are skeptical.
 Code of Canon Law, Canon 383.
 A Boston victim was reportedly warned by the archbishop not to discuss his abuse as a matter of confessional secrecy, (Betrayal: The Crisis in the Catholic Church, p. 96
 Lambert v. Loverde, Circuit Court for Arlington County, Law No. 02-423 (2002)
 Arlington Catholic Herald, 12/3/02; Transcript on motion to dismiss, p, 78; see also letter from plaintiff’s counsel to Bp Loverde, 1/3/03
 Incomplete confession being urged by Adamson (Cf. BishopAccountability.org).
 Bp Carlson to Abp Roach, 8/9/84.
 Maritain, The Peasant of the Garonne: An Old Layman Questions Himself about the Present Time (1965) p, 68.
 Ibid., pp. 144, et seq.
 Henry IV
 Report by the Attorney General, The Sexual Abuse of Children in the Roman Catholic Archdiocese of Boston, 2003,
 See Casey and Lawler articles, supra n. 36, n. 37.
 Catholic World News, 22 October 2007.
 Baum, Dr. Gregory, The Credibility of the Church Today: A Reply to Charles Davis, pp. 78, 81 (1968)
 Burke,Msgr. Cormac, Church, Nature, Origin, and Structure of, in OSV Encyclopedia of Catholic Doctrine (Shaw ed.) 1997