Pope-bishop relationship key in sex abuse defense

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Associated Press
17 May 2010

By NICOLE WINFIELD (AP)  

VATICAN CITY — 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 was to file a motion late Monday 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 gotten in a U.S. 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 U.S. district court 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 U.S.

 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 $25.3 million, is seeking unspecified damages from the Vatican.

Usually foreign countries are immune from civil actions in U.S. courts, but there are exceptions to the Foreign Sovereign Immunity Act which courts have said were applicable in this case.

The statute says that plaintiffs can establish subject matter jurisdiction over a foreign sovereign if a crime was committed in the United States 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 and former dean at the Duquesne University School of Law who consulted with the Vatican the upcoming filing, said bishops were neither employees nor officials of the Holy See.

Being an official, he said, means you act on behalf of an organization. “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.

“That’s a complete rewriting of Catholic theology,” he said. “Under Catholic theology a bishop is just as much a member of the college of bishops, is just as much a successor of the apostles as is the Bishop of Rome” — the pope.

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 laicize 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, she said.

“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,” she said.

She cited recently revealed documentation in the case of a Milwaukee priest, the Rev. Lawrence Murphy, who allegedly abused up to 200 deaf boys from 1950-1974. The files are the basis for the latest lawsuit targeting the Holy See.

Correspondence between the diocese and Rome shows how the bishop tried to bring a canonical trial against Murphy, wrote letters to then-Cardinal Joseph Ratzinger, now the pope, seeking guidance on how to proceed but was eventually told to stop the trial by Ratzinger’s deputy after Murphy said he was old and ill and just wanted to die a priest.

The bishop, she said, “was literally an agent or an employee of their (Rome’s) decision making.”

Jeffrey Lena, the Vatican’s attorney, said he would argue in the motion to dismiss in Kentucky that bishops in no way satisfied the employment test which courts use to determine whether employers are liable for the actions of their employees.

In addition, he told The Associated Press in a preview of the motion, he 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 U.S. courts generally avoid.

The Rev. Davide Cito, a canon lawyer at Rome’s Sacred Heart university, said the relationship between bishops and the pope is fundamentally a religious one, in that a bishop is a representative of Christ in his diocese, not the pope.

“In the image of the apostles — Peter and the other 11 — the pope and the bishops constitute a college, a group of people who received from Jesus Christ the mission to announce the Gospel and administer sacraments,” he said.

McMurry, the plaintiffs defendant, stressed in his lawsuit the actual actions the Holy See takes on the ground: The Vatican creates, divides and realigns archdiocese; creates, appoints and assigns bishops; and promulgates laws and regulations for bishops to follow.

McMurry repeated those criteria in a 2008 petition to the 6th Circuit Court of Appeals, urging it to modify its decision to say bishops were Holy See “officials” as well as “employees” as the district court had held. In parts of the decision, the appeals court refers only to “employees.”

“They take an oath of office,” McMurry told he AP. “It’s an absolute certainty that they’re foreign officials.”

The court denied his petition. But McMurry claims the issue before the district court remains whether bishops are officials. Lena is not expected to address the matter at length in his filing, although he noted that under the Holy See’s own law a diocesan bishop is not an “official” and that the issue in U.S. courts is governed by the law of the sovereign.

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