Faulty media coverage about the Catholic scandal has created the misperception that a large number of Catholic priests are still sexually abusing minors. This misperception that there is a current problem in the church has caused a number of public officials to make decisions that informally alter the constitutional relationship between church and state.
When the Catholic bishops gathered in Dallas, some viewed the charter they approved as a preventive strategy seeking to rid the church of any future instance of sexual abuse of minors. Others saw it as a public relations strategy to stop what Peter Steinfels described as the "tsunami" of articles critical of Catholic priests and bishops. Whatever the bishops’ motivation, the charter required broad strategies to prevent church-related child abuse, including the mandate that no priest offender may continue in ministry - regardless how long ago the abuse occurred.
Due in part to the unavailability of internal church statistics, the press concluded before Dallas that the Catholic Church had a current problem that it had failed to address. Because they believed the problem was not addressed, they anticipated that after the Dallas endorsement of zero tolerance, the bishops would finally send packing waves of priest-offenders still in active ministry. On cue, The Denver Post ran a front-page, lead story with the banner headline: "PRIESTS FACE SUSPENSION: Two Retired Clerics in Wyo., Colo. May Be First Affected by New Sexual Abuse Policy." Faithful to the perception that the Catholic problem was great, current, not addressed, and covered-up, the Post writer led her story with "At least two Catholic priests . . . may be temporarily removed . . ." The "at least" formulation let the readers know that there were likely many more than two. It implied: "whatever the bishops admit, we know there will be more." The use of "temporarily" suggested that "once the furor subsided, the bishops would reassign the offenders."
In The Denver Post’s Colorado-Wyoming distribution area, the truth of the matter is that, after Dallas, there was not a single lawsuit or criminal prosecution of any bishop, priest, deacon, nun, lay employee, or lay volunteer of a Catholic diocese. A reporter looking for the lurid must have been disappointed. No priest attached to the Archdiocese of Denver or the Diocese of Colorado Springs was removed following Dallas. Directly contrary to the Post’s report, no priest attached to the Diocese of Cheyenne was removed either. The slender factual support of the Post’s article was this. After Dallas, the Diocese of Pueblo reconsidered the situation of an almost eighty-year old priest living in a nursing home in another state. Over a decade earlier, the diocese had removed the priest from active ministry for conduct which had occurred many years before that. After Dallas, the diocese told the priest that he could not even assist at Mass at the local parish even when another priest presided. This new limitation protected no child, and it certainly was not front-page news in a major regional paper.
The point of this reflection is not to single out The Denver Post, and it is not to defend the bad supervisory decisions made by some other church leaders. The point is to consider the effect of the mainstream press’ massive reporting that the Catholic Church problem is ongoing.
The Catholic Mutual Relief Society of America is the largest provider of liability coverage for Catholic Church sexual misconduct claims in the United States. It provides coverage for 107 of the 197 American dioceses—dioceses that minister to over twenty-five million Catholics. As such, it likely has the most comprehensive and accurate information available regarding whether the problem of Church-related sexual abuse of minors is continuing. Here’s the data: from January through September 1 of this year, when the press coverage of the Boston scandal exploded onto the national scene, Catholic Mutual has received four lawsuits alleging that a total of four priests sexually abused a minor during the last ten years. Ten years. Twenty-five million Catholics. Four alleged priest-perpetrators.
The truth of the matter is that the press reports of the Catholic scandal are an elaborate exercise in informing the public about abuse which occurred ten to fifty years ago as if it occurred yesterday. This misreporting serves all would-be reformers because if the church had effectively addressed the problem by 1993, then there would be far less need for reform in 2002. If reform is still needed—if the problem is still current—then the press, politicians, and even disgruntled Catholics are empowered to demand reform and propose the character of reform. Accordingly, the press calls for more openness in the Church—a value it has enshrined long before the recent scandals became known. The New York Times calls for the church to loosen up on its sexual ethics regarding abortion, marriage, celibacy, and contraception - positions long consistent with the Times’ worldview. Traditionalist Catholics urge the church to purge gay priests and to reverse the church’s drift to sexual permissiveness - views they also have long held. Each person or organization seems inevitably to conclude that the solution to the current problem is to remake the church in the image and likeness of that particular reformer’s pre-conceived notions.
As one who reveres the extraordinary American experiment in church-state relations effected by the passage of the First Amendment, legal actions this year have been particularly disheartening. Early during the "crisis," the Massachusetts Attorney General announced that he wanted the Cardinal Archbishop of Boston to consult with him in advance about priestly assignments in the Archdiocese of Boston. While he has backed down from this proposal, he is now lobbying the Archdiocese to publish for all to see a list of problem priests who have served the Archdiocese. The California legislature recently approved a one-year suspension of statute of limitation for civil claims arising from child abuse. Some grandstanding district attorneys have demanded that dioceses turn over their priest personnel files. Over ten have convened grand juries and subpoenaed such documents as if it were the government’s prerogative to eavesdrop on internal church conversations. Legislatures have rushed to require that pastors report every known or suspected instance of child abuse or neglect without regard to the difficulty of shepherding the vulnerable members of a flock while simultaneously serving as a government snitch. Rejecting over a dozen contrary precedents, the Florida Supreme Court has ruled that it can and will tell church leaders how to reasonably supervise their priests, pastors, and rabbis. Certain judicial districts are adopting rules that settlement agreements must always be public. These public officials, trying to fix what the press convinced them was a current problem, have too often given little or no reflection as to whether the Constitution permits government to screen pastoral assignments, to pass legislation intended to discriminate against the Catholic Church, to regulate pastoral communications, or to decide who will inculcate the faith in the next generation of believers. It is a great sadness to observe such wholesale disrespect for a constitutional order of church-state relations that has served so well, an order described by James Madison as the "lustre of our country." When this "crisis" subsides, I am confident that the Catholic Church will still be standing. I hope that the First Amendment will be as well.
L Martin Nussbaum is a partner at Rothgerber Johnson & Lyons where he co-chairs the firm's Reigious Institutions Practice Group. He represents religious organizations in all legal matters, including First Amendment rights and related litigation, risk management, ministerial misconduct, corporate, tax, property, tax-exempt financing, licensing, and employment. He advocates on behalf of religious organizations and state and federal trial and appellate courts in numerous states. He regularly represents clients in employment matters, sexual misconduct, harassment, embezzlement investigations, and litigation.
This article is a publication of Rothgerber Johnson & Lyons LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult an attorney concerning your own situation and any specific questions you may have.
©2001 Rothgerber Johnson & Lyons LLP
