4:00 AM Wednesday May 19, 2010
By Nicole Winfield
The Pope appoints bishops, issues rules bishops are supposed to follow and accepts their resignations.
Bishops take a vow of obedience to the pontiff and can’t switch jobs without his approval.
But is the Pope their boss? Are bishops Vatican employees or officials?
Those questions are very much at the heart of lawsuits in the United States seeking to hold the Holy See liable for the failure of bishops to stop priests from raping and molesting children.
The Vatican is to file a motion to dismiss one such suit in Kentucky, arguing in part that bishops aren’t Vatican employees and that Rome therefore can’t be held liable for their actions.
The case is significant because it represents the farthest any case has got in a United States court trying to place blame for the clerical abuse scandal on Rome, not just the priests who abused children and the bishops who failed to turn them into police.
The lawyer for the victims in Kentucky, William McMurry, says he doesn’t have to prove bishops are employees of the Vatican to hold them liable but merely demonstrate they are Vatican “officials”.
“Anybody walking around knows that a bishop is an official of the Holy See,” McMurry said.
McMurry filed the lawsuit in Louisville, Kentucky, in 2004 on behalf of three men who said they were abused by priests as children.
They allege the Vatican orchestrated a decades-long cover-up of priests sexually abusing children throughout the US.
McMurry is seeking class-action status, saying there are thousands of victims nationally.
The lawyer, who represented 243 sex abuse victims who settled with the Archdiocese of Louisville in 2003 for US$25.3 million ($36.2 million) is seeking unspecified damages from the Vatican.
Usually foreign countries are immune from civil actions in US courts, but there are exceptions to the Foreign Sovereign Immunity Act which courts have said were applicable in this case.
The statute says plaintiffs can establish subject matter jurisdiction over a foreign sovereign if a crime was committed in the US by any official or employee of the foreign state and that the crimes were committed within the scope of employment.
Nicholas Cafardi, a canon lawyer who consulted with the Vatican on the case, said bishops were neither employees nor officials of the Holy See.
Being an official, he said, means you act on behalf of an organisation.
“American bishops do not act on behalf of the Holy See. Sure the Holy See appoints them, but what does that mean? That means they function within the jurisdiction of the Holy See. That’s not the same thing as being an official of the Holy See.”
He said bishops were even less employees of the Pope, since employment requires some level of day-to-day control that doesn’t exist in the bishop’s relations with Rome.
But Marci Hamilton, a law professor who is co-counsel for the plaintiffs in two other sex abuse cases that have targeted the Holy See, said the Vatican very much exercised the day-to-day control necessary to prove bishops were Vatican employees when it came to clerical sex abuse.
Rome directed how bishops were to handle such cases and bishops couldn’t take action to laicise an abuser without Rome’s consent, she said. Nowhere did the Vatican tell bishops to report abuse to police or provide for protection for children.
“He’s an employee for the purposes of child sex abuse because he’s under day-to-day control, which is the benchmark on this issue, and is never allowed to act independently on that issue.”
Three men have filed a claim in a Kentucky court seeking damages from the Vatican for alleged sexual abuse, arguing the Holy See is liable because its American bishops failed to stop priests abusing children.
Rome argues the claim should be thrown out, partly because bishops are not employees of the Vatican.
United States. Vatican distances itself from abuse lawsuits
18 May 2010
Canwest News Service
The Vatican has insisted it is not responsible for sex abuse cases in the U.S. because bishops are not technically employees. The claim was made in response to court cases relating to incidents in which Catholic bishops knew about pedophile priests but failed to inform the authorities. Plaintiffs who filed lawsuits in Louisville, Kentucky, said the church should be held to account. But Vatican lawyers have said they will argue that bishops are not paid by Rome and therefore not technically its responsibility. Jeffrey Lena, the Vatican’s U.S. lawyer, says that the relationship between bishops and the Vatican is “religious” rather than “civil” so they were not liable under normal employment laws.
Vatican asks U.S. court to dismiss suit
Tuesday, May 17, 2010
The Vatican asked a U.S. District Court on Monday to dismiss a lawsuit against the Holy See filed by three Kentucky abuse victims, saying that bishops are not church employees and that a 1962 church directive did not mandate their silence on priestly sex abuse.
The motion, according to multiple church and secular news sources, is in response to a 2004 lawsuit, filed by Louisville lawyer William McMurry, that implicates the Catholic Church with allowing clergy sex abuse to go unchecked for decades.
The plaintiffs are Michael Turner of Louisville and two California men who grew up in Louisville, all of whom said they were sexually abused by Louisville priests during a 50-year time frame from 1928 into the 1970s.
In a plea to the U.S. District Court for Western Kentucky filed Monday evening by Berkeley, Calif., attorney Jeffrey Lena on behalf of the Vatican, the Holy See said it was not responsible for decisions by individual bishops because they are not paid by Rome nor are their day-to-day actions controlled by the pope. The Vatican had faced a midnight Monday deadline to respond to the suit.
The Vatican is a sovereign state and therefore immune to U.S. lawsuits unless U.S. bishops must be proven to be “employees” of the Vatican operating on American soil and required by their “employer” to hide evidence of sexual abuse.
The lawsuit says that the bishops are employees and directly responsible to the pontiff. It seeks to depose Pope Benedict XVI; a possibility legal experts say is minuscule as heads of state cannot be sued by a private party in U.S. courts, according to the Foreign Sovereign Immunities Act.
Mr. Lena argued the relationship between the pope and bishops is far more complex than an employee/employer bond and that a secular court has no business using it as a basis for a civil suit.
But the Rev. Tom Doyle, a canon lawyer serving as expert witness for Mr. McMurry, said it is “absolute lunacy” to say bishops are not responsible to the pope.
“He does not pay their checks, but they are totally controlled by the Vatican,” Father Doyle said. “He alone can create them as bishops, he appoints them, assigns them to a diocese, fires them, accepts their resignation or transfers them.
“The employee-employer analogy is incomplete when it comes to the pope and his bishops; control by the pope is much more complete. A bishop can’t take a sabbatical to go study science for three months without the pope’s permission.”
The lawsuit also says a 1962 Vatican document “Crimen Sollicitationis” forbade bishops to report sex abuse to police. Mr. Lena replied that although the document did cover clerical misconduct, it never forbade church official recourse to civil authorities. Moreover, he said, the document was not well known at the time and there’s no evidence that any bishops in Louisville would have known about it, much less applied it toward sexual predators.
Mr. McMurry did not return a phone call asking for comment.
“I’m surprised it’s gotten as far as it’s gotten,” said the Rev. Michael Orsi, a research fellow in religion and law at Ave Maria University in Naples, Fla., about the lawsuit. “It’s a temper of the times considering all the focus on the sex-abuse scandal, but I think they are overreaching. The pope is a foreign head of state. You can’t depose him.
“In peoples’ minds, they imagine the pope is the general manager of every bishop in the world. The bishop is the head of a diocese; he is its chief priest and administrator. Theologically, each diocese is the local church and he’s its head. The pope appoints bishops but after that, there’s minimal contact.”
Barbara Dorris of the Survivors Network of those Abused by Priests called “disingenuous” the Vatican’s assertion that the pope does not supervise his bishops.
“The church isn’t some loosely knit hippie commune with diffuse authority,” she said in a statement. “It’s an ancient, rigid, crystal-clear hierarchy in which bishops ordain, transfer and supervise priests and in which the pope selects, transfers and supervises bishops.”
Vatican to claim bishops are not ’employees’
17 May 2010
Pope Benedict XVI waves to the crowd gathered below in Saint Peter’s square during his weekly Angelus blessing at the Vatican
The Vatican will today make its most detailed defence yet against claims that it is liable for US bishops who allowed priests to molest children, saying bishops are not its employees and that a document from 1962 did not require them to keep quiet.
The Vatican will make the arguments in a motion to dismiss a federal lawsuit on jurisdictional grounds filed in Louisville, Kentucky, but it could affect other efforts to sue the Holy See.
Jeffrey Lena, the Vatican’s lawyer in the US, said the Vatican would assert that bishops are not its employees because they are not paid by Rome, don’t act on Rome’s behalf and are not controlled day-to-day by the pope — factors courts use to determine whether employers are liable for the actions of their employees.
Mr Lena said he would suggest to the court that it should avoid using the religious nature of the relationship between bishops and the pope as a basis for civil liability because it entangles the court in an analysis of religious doctrine that dates back to the apostles.
“Courts tend to avoid constructing civil relationships out of religious materials,” he said.
The lawyer behind the Kentucky case, William McMurry has alleged that the Vatican had clear and direct control over bishops, mandated a policy of secrecy, and is therefore liable for the bishops’ failure to report abuse. He is seeking unspecified damages.
The Vatican defence will also include a response to claims that the 1962 document ‘Crimen Sollicitationis’ (‘Crimes of solicitation’) barred bishops from reporting abuse to police, said Mr Lena..
There is no evidence the document was even known to the archdiocese in question and it did not mandate that bishops not report abusive priests, said Mr Lena.
The confidentiality imposed by Crimen did not trump civil law and was applied only in formal canonical processes, which bishops had the discretion to suspend if there was a conflict with reporting laws, he said..
“It is important that people — particularly people who have suffered abuse — know that, contrary to what some plaintiffs’ lawyers have consistently told the media, the canon law did not bar reporting of these crimes to the civil authorities,” Mr Lena told the Associated Press.
The document describes how church authorities should deal procedurally with cases of abuse of children by priests, cases where sex is solicited in the confessional — a particularly heinous crime under canon law — and cases of homosexuality and bestiality.
Mr McMurry recently described the document as as “a smoking gun.”
“It’s evidence of a ‘written’ policy that demands no mention be made by a bishop of priest sex abuse,” he said. “Since our case, and no other, is about holding the Vatican accountable for the bishops’ failure to report to civil authorities, any policy that gags the bishop is relevant and material.”
The Holy See is trying to fend off the first US case to reach the stage of determining whether victims actually have a claim against the Vatican itself for negligence for the failure of bishops to alert police or the public about Roman Catholic priests who molested children.
The case was filed in 2004 by three men who claim they were abused by priests decades ago and claim negligence by the Vatican. Mr McMurry is seeking class-action status for the case, saying there are thousands of victims across the country. Mr McMurry also represented 243 sex abuse victims who settled with the Archdiocese of Louisville in 2003 for $25.3 million.
The Vatican is seeking to dismiss the suit before the Pope can be questioned or documents subpoenaed.
Its motion is being closely watched as the clerical abuse scandal swirls around the Holy See, since the court’s eventual decision could have implications for a lawsuit naming top Vatican officials that was recently filed in Wisconsin and another one in Oregon is pending before the Supreme Court.
Mr McMurry has alleged that the Vatican had clear and direct control over bishops, mandated a policy of secrecy, and is therefore liable for the bishops’ failure to report abuse. He is seeking unspecified damages.
McMurry has said that based on district and appellate court rulings, he does not need to prove bishops were employees of the Vatican but merely ‘officials.’ He pointed out that they take an oath of office. The pope appoints, disciplines and removes bishops.
If a bishop wants to spend more than $5 million he must ask permission from Rome, and if he wants to take a three-month sabbatical, he needs the Holy See’s OK, said Mr McMurry’s main expert witness, the Reverend Thomas Doyle, a canon lawyer who worked at the Vatican’s US nunciature.