The so-called “third wave” of revelations concerning sexual abuse and sexual misconduct by Roman Catholic clergy and religious has played out distinctively in the U.S. legal system. In both the civil and criminal contexts, Catholic teaching and practice have intersected, and continue to intersect, with secular legal doctrines in complex and surprising ways. But clergy abuse litigation, and scholarly commentary on it, has tended disproportionately to focus on dioceses and allegations of abuse by the ordained and lay ministers they employ, rather than on religious orders and allegations against their members.
In keeping with the overall objectives of the Taking Responsibility initiative, this project takes as a case study litigation against the Society of Jesus and its institutions under the Child Victims Act (CVA), a New York statute that created a “lookback” window for historic claims of sexual abuse. The original goal of the project was to examine records of sexual abuse litigation against members, provinces, and other corporate units of the Society of Jesus to ascertain, first, how proceedings concerning clergy sexual abuse are different when allegations concern religious orders rather than dioceses and, second, how liability associated with abuse should be apportioned between religious orders and the institutions they sponsor. Because during the project period the New York legislature extended the CVA lookback window from one to two years, a significant number of claims were not filed until July and August 2021. Further, many CVA claims are now only at the “motion to dismiss” stage, when a judge reviews a plaintiff’s complaint and decides whether it plausibly alleges a violation of the law. Losing parties, both plaintiffs and Jesuit entities, have appealed some of these early decisions. For these reasons, it will likely be several more years before these claims are adjudicated on their merits. Thus, these results should be regarded as preliminary.
- Legally and ethically, it remains an open question whether and when a religious entity’s litigation behavior should be attributed to itself, its lawyers, or both.
- When a lawyer’s religious commitments are tested by taking on the representation of an entity accused of sexual abuse, the literature on religious lawyering suggests that lawyers must be ready to stand up to spiritual leaders with regard to both religious and legal matters.
- The litigation behavior of defendant entities in New York CVA cases presents a number of dilemmas for lawyers who wish to advance key principles of Catholic social teaching, including whether to permit victim-survivors to sue pseudonymously, whether to draw upon religious ideas concerning the relationships of accused clergy and the institutions for which they work, and whether to engage in confidential settlement agreements.
It would be worthwhile for researchers to consider the merits and drawbacks of the various alternatives to litigation that have emerged in the wake of revelations concerning child sexual abuse, including restorative justice practices, truth and reconciliation commissions, and independently administered compensation funds. Analyzing these alternatives will help identify whether and when the civil legal system is positioned to produce the best outcomes for victim-survivors of clergy sexual abuse.
Further Reading and Watching
- “Courageous Conversation: Understanding the Wisconsin Attorney General Investigation,” Awake Milwaukee, May 2021
- “Respondeat Superior Vicarious Liability for Clergy Sexual Abuse: Four Approaches,” 68 Buffalo Law Review 975 (2020)