THIS YEAR MARKS the fifthanniversary of The Boston Globe's Pulitzer Prize-winning coverage ofclergy sexual abuse. The Pulitzer citation praised the Globe for its"courageous, comprehensive coverage of sexual abuse by priests, aneffort that pierced secrecy, stirred local, national, and internationalreaction and produced changes in the Roman Catholic Church." Yet whilethe news media have received well-deserved recognition for their partin exposing the abuse and focusing attention on the need forinstitutional reform, little attention has been paid to the underlyingrole played by lawsuits. There's an unsung hero in this story: theplaintiff's lawyer.
Althoughthe tort system is more often maligned than celebrated, it was the workof plaintiffs' lawyers that brought the scandal to light in the firstplace. Pleadings, discovery documents, and depositions in hundreds ofcases during the course of more than two decades have provided most ofthe information underlying media coverage of the scandal. Lawsuits havefed journalists a steady supply of compelling stories of both personalsuffering and official wrongdoing, and they have provided a defenseagainst potential libel claims and political cover to criticizepowerful church officials.
It was lawsuits that first publiclypointed a finger at church officials and focused attention on the needfor institutional reform. Unlike criminal law, with its narrow focus onindividual wrongdoing, tort law -- which allows individuals to sue forharm done to them by others -- often looks beyond the immediate causeof an injury to uncover the role of institutional leaders, such ascorporate executives, or in this case, bishops, who failed to do whatthey should have to prevent harm. This is in part because institutionaldefendants have deeper pockets and are therefore capable of payingdamages if they lose. But thanks to tort claims, we now understand thatclergy sexual abuse is not only a problem of individual priests whomolest children but also of church officials who failed to report abuseand, in some instances, even facilitated it.
The remarkablesuccess of clergy sexual abuse litigation stands out among the manyrecent attempts to use civil lawsuits to address social problems, mostprominently against tobacco companies (aimed at reducing smoking) andagainst gun-makers (designed to produce stricter gun control). Tobaccoand gun litigation have played significant but relatively small rolesin larger antismoking and gun-control movements that predated them bydecades. And while lawsuits have focused attention on the role of thetobacco and gun industries in contributing to smoking addiction and gunviolence, the results in terms of industry reform and governmentregulation have been modest.
By contrast, clergy sexual abuselitigation has had an especially powerful impact on policy making,drawing attention to the role of church officials and placing the issueon the agendas of church and government policy makers. Tort reformadvocates -- pointing to what they call unjustified costs to businessand society -- argue that tort litigation is an ineffective andillegitimate way to influence policy making. The story of how lawyersbrought clergy sexual abuse to light and prompted the Catholic Churchto change its ways suggests otherwise.Continued...
Prior to the filing of a 1984 lawsuit against FatherGilbert Gauthe and the Diocese of Lafayette, La., for Gauthe'smolestation of dozens of boys over many years, local media reporting ofclergy sexual abuse was scant and infrequent and there was no nationalmedia coverage of the issue. Prosecutions were rare, public discussionand policy debate nonexistent. In Lafayette, the ongoing litigationdrama -- pleadings that named high church officials as defendants,shocking revelations during the discovery process, and tearful trialtestimony by an 11-year-old sexual abuse victim -- generated sustainedlocal coverage and attracted regional and national media attention.
Otherhigh profile cases filed across the country over the next two decadesinvolved such notorious pedophiles as James Porter in Fall River,Mass.; Rudolph Kos in Dallas; Oliver O'Grady in Orange County, Calif.;and, of course, John Geoghan in Boston. These cases all led to keypolicy reforms within the church. Following the Gauthe case in 1984,the National Conference of Catholic Bishops held intensive discussionson the issue in Collegeville, Minn. After the Porter case in 1992, thebishops adopted a nonbinding policy consisting of five principles foraddressing allegations. And in the wake of the Geoghan case in 2002,the bishops promulgated a new mandatory national policy -- the Charterfor the Protection of Children and Young People -- subsequentlyapproved by the Vatican.
The policy results have been dramatic --compensation and treatment for victims, removal of proven perpetratorsfrom ministry, training for church personnel in detecting andinvestigating abuse allegations, and public disclosure of churchofficials' role in facilitating decades of child sexual abuse. Whilevictim advocates debate the effectiveness of these policies, there canbe no doubt that they represent a significant change in the way thechurch deals with the problem.
Government policy-makers have alsobeen spurred into action. Twenty years of civil litigation and thepublic outrage it has generated have made it politically safe for localprosecutors and state attorneys general to launch extensiveinvestigations, publish detailed reports on abuse within theirjurisdictions and, in some cases, to prosecute perpetrators. In thewake of civil litigation and at the urging of abuse victims and theirattorneys, state legislatures have passed laws mandating that clergymembers report abuse, imposing new criminal penalties for childendangerment, removing civil damage caps, and extending statutes oflimitation for child sexual abuse.
But these lawsuits have donemore than merely reform the church. They have also heightenedsensitivity to the sexual abuse of children in other contexts. Considerthe recent congressional page scandal.
Last September, TheNew York Timesran a front-page story about Florida Congressman Mark Foley'sresignation headlined "Lawmaker Quits Over E-Mail Sent to TeenagePages." That story ran below the fold. Four days later, another storyon the scandal made it to the top of the front page -- only now it wasabout the failure of House Speaker Dennis Hastert to take actionagainst Foley earlier. That same day, the Times Op-Ed page ran an essayby a former page, now a law professor, outlining institutional reformsfor the oversight of the page program. For those who missed theinfluence of the clergy sexual abuse scandal on the framing of thecongressional page scandal, the Sunday Week in Review section printed acartoon depicting Hastert dressed as a bishop whispering to an aidewearing a Roman collar "We should've just moved Foley to anotherparish."
The focus on the institutional failures thatfacilitate child sexual abuse is one of the most important legacies ofclergy sexual abuse litigation. As a lawyer for the Los AngelesArchdiocese put it, "now, of course, it's widely understood thatorganizations do bear responsibility for the criminal misbehavior ofmembers to the extent that it is foreseeable. That's probably apositive thing that came out of all this: That the law, in its wisdomand experience, examined this phenomenon and decided that we needdeeper levels of accountability."
If these lawsuits against theCatholic Church have been a resounding success, why have lawsuitsagainst the tobacco and gun industries not fared nearly as well? Onereason is simply that allegations of widespread child sexualmolestation by compulsive pedophile priests covered up at the highestlevels of the church made for an especially scandalous narrative, andone that fueled an unusual level of moral outrage. This is not tobelittle the horrific nature of lung cancer and gun violence but onlyto point out that nothing stokes public indignation quite like a sexscandal -- especially involving minors.
And whereas tobacco andgun litigation have been criticized as attempts to circumvent thelegislative process and regulation by government agencies, clergysexual abuse litigation has helped other regulatory institutions -- theUS bishops, law enforcement officials, state legislators -- do theirjobs better. Clergy sexual abuse litigation is, in short, a posterchild for the policy-making benefits of tort litigation.
The useof civil lawsuits to pursue regulatory policy is of course highlycontroversial. Tort reform advocates argue that tort litigation islargely frivolous and wasteful and that it produces perverse regulatoryoutcomes. They allege that rampant litigation and inflated jury awardsconstitute a major drain on society's resources and that widespreadfear of liability leads to the withdrawal of essential products andservices and stifles safety innovation. For example, the website ofCommon Good, a leading tort reform organization, is replete withstories linking increases in childhood obesity to the shortening ofrecess hours and bans on playing tag by school officials who fearpotential liability from playground accidents.
Of course,assessing the regulatory benefits of tort litigation in other contextsrequires case-by-case analysis. At the very least, however, the exampleof clergy sexual abuse litigation -- by prompting reluctant church andgovernment officials to adopt sensible policies to address a widespreadsocial problem -- offers a compelling counterexample to the sweepingclaims of tort reform advocates. That's one legacy of the CatholicChurch scandal that few might have anticipated.
Timothy D.Lytton is professor of law at Albany Law School and author of theforthcoming "Holding Bishops Accountable: How Lawsuits Helped theCatholic Church Confront Clergy Sexual Abuse" (Harvard UniversityPress).
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