Lawyers for Boston Archdiocese Question Therapists Who Worked with Alleged Victims
By Denise Lavoie
Associated Press, carried in Boston Globe [Boston AP]
January 17, 2003
BOSTON (AP) A few months after the Archdiocese of Boston offered to pay for counseling for people abused by clergy, church lawyers began subpoenaing the therapists who treated them.
The subpoenas, issued this week, require the therapists to answer questions under oath about the counseling sessions.
The move has outraged alleged victims and their lawyers.
Attorney Roderick MacLeish Jr., who represents more than 200 alleged victims, called the questioning legal but immoral.
''As a moral institution, the church has touted how much it wants to take care of the victims,'' he said. ''Well, don't be touting your pastoral mission of how you're helping victims and they destroy the key element of treatment, which is confidentiality.''
Donna Morrissey, a spokeswoman for the archdiocese, did not immediately return a phone call seeking comment Friday.
She told The Boston Globe that she did not know whether Bishop Richard G. Lennon, who took over after Cardinal Bernard Law resigned last month, knew about the subpoenas.
One subpoena went to Jeannine Breton, a therapist who has treated Anthony Driscoll, a man who claims he was sexually abused by the Rev. Paul Shanley.
MacLeish, who represents Driscoll in a civil suit against the archdiocese, said church lawyers had previously agreed not to subpoena therapists who were treating victims.
But Timothy P. O'Neill, an attorney for Brooklyn, N.Y., Bishop Thomas Daily, a former aide to Cardinal Bernard Law, said he was never told of any such agreement. O'Neill questioned Breton on Tuesday.
Communications between therapists and their clients are confidential, but that privilege is sometimes waived in cases where psychological harm is alleged, said Wendy Murphy, an attorney who represents victims of sexual violence.
''If you can show that the psychological state of being for either the plaintiff or the defendant is a fair issue in the case, than the records are fair game, to some extent,'' Murphy said.
MacLeish said church lawyers have indicated that they will subpoena other therapists.
The archdiocese publicly extended the offer for therapy in October.
Lennon has called on MacLeish and other victims' attorneys to suspend action on their lawsuits so both sides can work toward negotiated settlements in the more than 400 civil lawsuits pending against the archdiocese. While the plaintiffs' attorneys have refused to stall their lawsuits, they have agreed to participate in settlement talks.
On Friday, an attorney for the Boston Archdiocese argued that the lawsuits filed against the church for clergy sexual abuse should be dismissed because the separation of church and state bars civil courts from getting involved in how church officials supervise priests.
''The government here cannot get into the business of defining what a reasonably prudent bishop would do,'' said L. Martin Nussbaum, a First Amendment specialist from Colorado brought in by the archdiocese, told the court.
Suffolk Superior Court Judge Constance Sweeney, who is presiding over all of the lawsuits, repeatedly asked Nussbaum if he was arguing that the church has complete immunity in a case that raises an issue of how a bishop supervises his priests.
''Do any remedies exist in secular court?'' Sweeney asked.
''The courts consistently say that we cannot adjudicate clergy malpractice cases,'' Nussbaum said.
The archdiocese has said the legal challenge was required to satisfy its insurance carriers, in hopes that at least a portion of any settlement costs, estimated at millions of dollars, will be covered.
Attorney Jeffrey Newman, whose firm represents more than 200 alleged victims, told the judge church lawyers were attempting to hide behind canon law to avoid being held responsible in civil courts.
''This Catholic Church does not want us to use our law to decide these cases. It wants to use its own internal law,'' he said.
Newman said the separations of church and state, as outlined in the First Amendment, are narrowly defined and do not protect the conduct of church supervisors or priests.
''We are saying that allowing these priests to prey on children ... despite specific knowledge, is a violation of common law,'' he said.
Editor's Note: Denise Lavoie is a Boston-based reporter covering the courts and legal issues.
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