Changing the Rules: Selective Justice for Catholic Institutions

By L. Martin Nussbaum
The Tidings [United States]
July 7, 2006

Statutes of Limitation

It is important to recall why legislatures enact statutes of limitation. Prompt claim-making helps remove dangerous conditions and people so that others are not injured. In Colorado, for example, one cannot sue a government agency unless one serves notice within 180 days of the wrongful act. The legislature enacted this early notice requirement so that public entities can promptly remove threats.

How can an adjudication be accurate when the only other person present during the alleged wrongful conduct is dead? In most cases with dead alleged perpetrators, the seminary professors, pastors, vicars general and bishops under whom they served are also deceased.

Good legal systems seek accurate adjudications. Memories fade. Documents are not retained. SNAP's "window" legislation results in claims being made, in some cases, long after the alleged perpetrator is dead. The Archdiocese of Los Angeles is now defending cases involving allegations against 68 dead priests. Half the lawsuits against the Diocese of San Diego arose from conduct alleged against 24 dead priests.

How can an adjudication be accurate when the only other person present during the alleged wrongful conduct is dead? In most cases with dead alleged perpetrators, the seminary professors, pastors, vicars general and bishops under whom they served are also deceased.

Old Claims and Fraud

When the quality of proof declines, the amount of fraud increases. Attorneys defending Catholic institutions can provide many accounts of suspect claims made against deceased priests with unblemished records during their lifetimes. Daniel Lyons's article in Forbes (September 2003), "Clergy Sex Scammers," identified the "wicked twist in the Boston clergy sex-abuse scandal: Now that the [Archdiocese] has offered $85 million to settle 552 complaints, two leading plaintiff lawyers are suggesting some of the claims might be bogus."

This phenomenon was repeated in the Diocese of Tucson bankruptcy. Soon after the settlement pot was fixed, the tort claimants committee began identifying the questionable claims. A panel appointed by the bankruptcy judge eventually threw out 60 such claims, so that the remaining claimants were eligible for a larger share of the settlement fund.

Retroactive suspension of statutes of limitation almost guarantees that insurance coverage will be inadequate. Insurance purchased with a set of assumptions about risks and verdicts in 1940, 1960 or 1980 is seldom adequate today --- if the insured institution can locate its old policies.

Contemporaneous Standards

Reasonable statutes of limitation ensure that defendants are judged by contemporaneous standards of care. No one would hold a brain surgeon to today's standard of care for professional decisions he made in 1970. Yet the decisions made in 1970 by Catholic bishops, who routinely consulted with mental health professionals about sick priests, are being judged by today's standards. Today, the confidence of the mental health community about the likelihood of curing sexual disorders is far less than it was in 1970.

When legislatures extend statutes of limitation far enough, those statutes function like reparations --- making the current generation pay for an earlier generation's decisions. According to press reports, the reorganization plan proposed in the Diocese of Spokane will require parishioners to conduct fundraisers in order to keep their parish property. Those parishioners being forced to raise such sums could be considered a new class of victims.

Parishioners all over the country are also now being forced to pay for others' mistakes, as their parishes are hit with ever-inceasing insurance premiums because of the $1 billion paid out so far by Catholic dioceses and their insurers.

Repressed Memories or New Opportunities?

The primary justifications for extending statutes of limitation are that sexual abuse is so traumatic that victims repress memories and that it takes many years before childhood sexual abuse victims can martial the psychological and emotional strength to confront their abusers in civil litigation. Dr. Elizabeth Loftus and others consider the theory of repressed memories junk science. The almost universal human experience is that traumatic events are more memorable, not less.

In addition, statutes of limitation always accommodate child victims by "tolling" or delaying when a statute begins to run until the child reaches adulthood. Because of this "minority" provision, a child victimized at the age of 10 would have eight years before the statute of limitation even started. Such a victim would then have, at the least, the additional limitations period before his or her claim expired.

Since January 2002, there have been five major spikes in the number of claims filed by claimants in cases of childhood sexual abuse: the over 1,000 cases filed against Catholic institutions during the massive press coverage in 2002; the over 1,000 plaintiffs who came forward in California during 2003 after the statute of limitation was suspended; and the large numbers of new claims filed in the bankruptcies of the Dioceses of Tucson, Portland and Spokane just before imposition of the bar date.

Are we to suppose that these periods were collective moments of clarity, when memories became unrepressed and claimants --- all together --- gained the strength to confront their oppressors? Or was something else going on?

Neither delayed emotional strength nor repressed memories explains the massing of these claims. They are explained, instead, by a rule of economics: when the price paid for an activity increases, the amount of that activity increases. When the price of oil goes up, the amount of drilling increases. When the value of sexual abuse claims increases, the number of such claims also increases.

Fairness for All

No one denies that terrible offenses occurred, but this does not justify legislation targeting Catholic institutions, retroactively changing the rules, corrupting the rule of law or punishing the innocent for their forebears' mistakes. It also does not justify transferring hundreds of millions of dollars away from inner-city schools, from ministries to families and their children, from soup kitchens and immigration services and from ministries to the grieving --- all of which constitute the good work of a church humbled by its sins and resolved not to repeat them.

L. Martin Nussbaum is a religious institutions attorney in Colorado Springs, Colo., and the Web master for the RJ&L Religious Liberty Archive at Reprinted from America Magazine, May 15, 2006 with permission of America Press, Inc. (c) 2006. All rights reserved. For subscription information, call 1-800-627-9533 or visit


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