Opening up the Church

Are courts growing skeptical of claims of secrecy by the Catholic church?

From the Fall 2003 issue of The News Media & The Law, page 12.

The American Roman Catholic church has always conducted its affairs, including litigation, in near-total secrecy. For decades, dioceses routinely sought to seal documents and close courtrooms in any case that raised the slightest prospect of embarrassment.

Timothy J. Condon, a Rhode Island attorney, recalls an instance in which the church was permitted to physically remove files of a closed case from the courthouse and store them at the residence of the local bishop. “The documents were literally kept in his closet,” Condon says.

That ultra-secretive approach may have run its course, however. In the wake of the national scandal over child sex abuse by Catholic priests, courts are becoming less deferential to one of America’s oldest and most powerful institutions.

“A decade ago, the church was such a revered institution that courts found it hard to believe the allegations [of sex abuse],” says Condon, who served as lead counsel for 37 victims of clergy abuse in Rhode Island. “Now, the church has sort of worn out its welcome in that regard.”

Attorney Jon Fleischaker, who represented the Louisville Courier-Journal in a successful bid to obtain clergy abuse records, agrees. “It’s much tougher to argue for secrecy today than it was two years ago because of all the publicity,” he says.

“Courts sense that there’s something to the allegations,” adds Fleischaker. “They realize it’s not just a private matter.”

In a case Fleischaker handled for the Courier-Journal, the Archdiocese of Louisville tried to seal files from dozens of past sex abuse lawsuits, citing a state law that requires the sealing of sexual abuse complaints that are more than five years old. Fleischaker argued that the law does not apply to lawsuits against a third party, such as the archdiocese. The court agreed, ordering the public release of the records in July 2002. A year later, the archdiocese paid $25.7 million to settle claims by 243 victims.

In Rhode Island, Condon won a similar battle to unseal records over the objections of the church. Judge Robert Krause rejected the church’s argument that the First Amendment prohibits judicial interference in its affairs, freeing it of an ordinary litigant’s obligation to turn over documents.

“By no elastic stretch of the most fertile imagination can one rationally conclude that such information or any such communication deserves or merits confidentiality as expressions of religious freedom,” Krause ruled last summer. The Archdiocese of Providence later settled all but one of the 37 cases, for a total of $13.5 million.

That outcome was echoed in Massachusetts, where Judge Constance Sweeney ordered the Archdiocese of Boston in January to turn over 11,000 pages of records on 65 accused priests. She also rejected the church’s request to dismiss nearly 500 lawsuits.

Condon credits the media’s spotlight as a key factor in promoting transparency and openness.

“Had it not been for the light of day that [The Boston] Globe and other media outlets shone on this, the tide may never have turned,” he says.

In a series of articles beginning in January 2002, the Globe broke the story of a widespread pattern of sexual abuse by priests, and a systematic cover-up by the Boston archdiocese. The scandal culminated in the resignation of Cardinal Bernard F. Law, the head of the Boston diocese, in December 2002. The Globe received a Pulitzer Prize for its coverage, which exposed a problem the church had kept hidden for decades.

In addition to the Massachusetts and Rhode Island cases, victims and media organizations have pressured the church to disclose files in Lexington, Ky., Covington, Ky., and Mobile, Ala., among other cities. On Oct. 8, a judge in Maine said at a hearing that he would “probably” rule in favor of disclosing personnel files containing sex abuse allegations against local priests, according to an Oct. 9 story in the Portland Press Herald, which requested access to the documents.

However, some believe the overall picture is still mixed.

“The good news is that a lot more reporters and victims are seeking disclosure of [church] documents,” says Paul Baier, president of Survivors First, a national advocacy group for victims of sexual abuse by priests. “The bad news is that the church has gotten a lot smarter at keeping these cases out of court in the first place.”

Baier says church officials often try to dispose of cases in secret, before document requests even arise. “The implicit ‘wink-wink’ agreement is that if you’re a plaintiff’s lawyer, come see us first [before you file a suit].”

Even when lawsuits are filed, courts have not been uniformly receptive to efforts to publicize documents. In June, a Connecticut appeals court reversed trial Judge Robert McWeeny’s order releasing thousands of documents from 23 priest abuse lawsuits — even after McWeeny said keeping the documents secret would be “indefensible, morally as well as legally.”

The church has also managed to keep documents under seal — at least so far — in potentially explosive criminal investigations in Cleveland and Los Angeles.

“There is still a code of silence,” says Luise Dittrich, a spokesperson for Voice of the Faithful, a national victims’ support organization. “When the church has been forthcoming, it’s usually because the press or the law has pulled it out of them.”