The following article was written by Joseph R. Maher and David A. Shaneyfeit. Mr. Maher is the Founder and President of Opus Bono Sacerdotii, an organization committed to helping priests with a variety of personal and legal problems. Mr. Shaneyfeit is a private California attorney. The article can be found here (the bold is mine):
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Over the last two decades, the Roman Catholic Church in the United States has reeled under claims of clerical sexual abuse. The claims resulted in extraordinary liability and wide-spread publicity. When bad things happen in any organization, the counter-policies imposed to fix those problems often overreach. This is precisely what is happening with the decision of some dioceses to publicize lists of names of former clerics who have had claims of sexual abuse made against them. The rationale is that publication of these names serves an interest in “accountability.” The motivation to publish the names is not based on any civil law, court order, or other legal mandate, but simply on internal diocesan policy.
While the motivation may be understandable, many bad policies are the fruit of very good intentions. In the wake of the sexual abuse scandal, bishops have faced intense scrutiny over their knowledge and responsibility for acts of abuse that occurred under their watch or under their predecessor’s watch. No bishop, anywhere, wishes to be perceived as having failed to address a known problem. Conversely, every bishop, everywhere, wishes to be perceived as having taken strong action to fix a problem previously unknown and to prevent it from happening again. Surely, as a general goal, every bishop should do so in response to the sexual abuse crisis. Who could object to transparency and accountability?
So, who can object to publishing the names of former clerics who have had “credible claims” of sexual abuse made against them? To date, some two dozen dioceses and archdioceses have decided to publish lists naming names of those accused of sexual abuse. Some, like the Diocese of Gallup, publish a list of clergy identified by the diocese “as having credible allegations of sexual misconduct made against them.” Others, like the Archdiocese of Baltimore, publish a list of clerics who have been “accused of child sexual abuse during their lifetimes,” and for individuals accused after 2002 “information from the public disclosures that were made.” Still others, like the Archdiocese of Philadelphia, publish such lists under a page for “Status of Clergy,” that includes those whose ministry has been restricted and faculties withdrawn due to credible allegations of child sexual abuse, along with lists of those laicized or deceased who have also had credible allegations made against them, too. Some offer a rationale for publishing the lists; some do not. The United States Conference of Catholic Bishops keeps statistics on those accused, but it does not publish any list identifying the individuals so accused.
Opus Bono Sacerdotii has assisted some 10,000 clerics over the past fifteen years who have been accused of misconduct. The organization has received the respect and accolades of many members of the hierarchy and at the highest levels of the Church, because of the organization’s dedication to offering unconditional love to those ordained in persona Christi, irrespective of the charges made against them. Some may have been credibly accused of misconduct; some not. All deserve to know the love of Christ. But we take special issue with those dioceses who think that publishing a list of names of clerics who have been “credibly” accused of sexual misconduct is warranted. We disagree for many reasons—canonical, theological, pastoral, and legal. It is this latter reason we wish to address here.
The Problem: Naming The Mere Accused
As a threshold matter, it is far from clear how a bishop’s publication of names serves an interest in “accountability.” If a diocese does not publish the names of those accused, does that indicate the diocese is hiding something? Is disclosure a kind of public confession, an acknowledgement that claims have been made against diocesan clerics and that the diocese is sorry such claims have been made? Will publication of names deter other clerics from engaging in misconduct? Will publication of names please all who made the claims? Why publish only names? Why not publish all details of the claims, too?
One sign that publication of names (or details of claims) does not serve any interest in accountability is that such a practice is entirely unheard of in the American employment experience. We are aware of no employer (large or small), no government entity (Federal, state, or local), that undertakes to publish as a matter of institutional policy the names of all individuals employed by that organization for whom “credible” accusations of misconduct have been made. That such a complete absence of practice exists is remarkable, as we live in an age in which employers of all kinds are subject to an extraordinary array of laws, the vast majority of which are designed to protect employees and to foster employer accountability in the workplace. Try to recall the last time General Motors published a list of all supervisors for whom credible claims of sexual harassment have been made over the last twenty years. It has not happened; it will not happen in the foreseeable future. And there are many reasons why it has not happened that have nothing to do with accountability.
One such reason begins with the class of individuals whose names are being published. The dioceses do not purport to publish the names of those individuals who have been criminally convicted of having sexually abused a minor. There is little to be achieved in publication of those names, as these identities have already been well-publicized through very public criminal proceedings. The same is true for civil court proceedings. Re-publication of their identities is both unnecessary and belated. Moreover, one should wonder why it would be appropriate to remind the public of those individuals whose names were in the public for having been charged with crimes, but who were ultimately acquitted of them or who successfully defended against any civil suit. Charges against those individuals may have been “credible,” but no interest is served if, after their day in court, they prevailed against those charges.
Rather, dioceses are proposing to publish the names of those who merely had “credible” charges against them. This is a very different class of individuals and may, or may not, include those who have been found guilty of criminal charges or who lost civil judgments against them. It could include a variety of other individuals, including those who settled cases out of court and who, like the vast majority of all civil defendants, agreed to settle on condition that they admit no wrongdoing. Some might object that settlement with no admission of liability undermines the truth of what happened, but that objection applies to every civil settlement everywhere and it is undeniable such a ubiquitous practice serves the interests of both the plaintiff and the defendant, which is exactly why settlements occur.
But there are plenty of other clerics against whom “credible” accusations have been made who, in fairness, deserve no publicity for those accusations. Clerics often cite a host of reasons why they will refuse to contest accusations made against them—they have reached a crisis of faith and decided that the accusations are a good excuse to leave the ministry; they do not believe they will be properly defended; they wish to acquiesce to the charges for the sake of spiritual goods; they have psychological or emotional problems unrelated to the claims made against them; they do not wish to contest the accuser for pastoral reasons; they fear they will lose their pension or health insurance; they fear the bishop to whom they have taken vows of obedience and have come to regard as the figure of God. Under all such scenarios, clerics deny the claims made, but decline to challenge them.
Then, again, there are scenarios where clerics will also refuse to challenge the claims made, not because they believe the claims are false, but because they only believe they are exaggerated. Lastly, there are those who simply admit guilt, because they did, in fact, engage in the complained about conduct. But in sum, the class of individuals against whom “credible” claims have been made includes individuals who both did. and did not, engage in the complained conduct.
Who Decides What?
And herein lies the problem, which explains why every other employer will refrain from publishing a list of names of employees it reasonably believes have engaged in misconduct: Who decides whether the claims of sexual abuse are “credible” or “substantiated?” The Bishop? His Chancellor or other delegate? A committee? Some law firm? What standards do any one, or more, of these individuals use to determine whether the claims are “credible” or “substantiated?” Standards of civil law? Canon law? Internal policies? Can we be sure the bishop made such findings impartially, or did he do so to protect himself? What conflicts of interest existed that were taken into account? What procedures were employed in the determination? Did the accused represent himself? Was he given the opportunity to be represented by counsel? Did he have the opportunity to confront his accuser? Was he even told the identity of his accuser? Did he acquiesce to charges irrespective of culpability for any of the reasons mentioned above—tired of the ministry and looking for a way out, or “offering up” the charges made against him? Did he have other undesirable “baggage” that colored the investigation against him? Were the standards employed twenty or thirty years ago the same standards applied today? Were outside professionals–psychiatrists, forensic examiners, detectives—employed? Were they not employed when they should have been employed? Were they screened for suitability and bias?
These are important questions for both sides—priest and bishop. And that these questions can be raised therefore highlights the crucial difference between informal and formal claims. By informal, we mean those outside the conventional legal process, where determinations are made apart from civil or criminal proceedings, and irrespective of whether some one person, or others, determines that the accusations are “credible.” By formal claims, we mean those that arise through the judicial process—the civil and criminal courts. Those courts, however imperfect, are the tribunals we trust to make proper findings of fact, and conclusions of law. Decision-making apart from the courts may well be superior—and even controlled by clear provisions of Canon Law—but that is of no consequence, because courts of law necessarily trump all other forms of decision-making. Truth is the goal of any investigation; legal process is merely the recognized means of determining it. And it matters not when a bishop rightly determines that a cleric should be removed from ministry due to “credible” claims of sexual abuse, or when General Motors determines that a supervisor should be fired due to “credible” claims of sexual harassment. The issue is whether the bishop is right to publish the names of those so accused.
But neither the bishop, nor any private employer, is a recognized surrogate for the American civil and criminal court system. In fact, some diocesan statements candidly admit they assume no such surrogacy and note, by way of disclaimer, that just because someone’s name appears on the list, does not mean “a presumption of guilt” exists. This admission is extraordinary. The bishop is publishing a list, ostensibly to let the public know which of his former clerics has been accused of sexual abuse, but he is cautioning the public to know that such individuals might be innocent of those charges. One would expect that caution would tip in favor of non-disclosure, not disclosure. It does not work to say, in effect, that: “I have reason to think you are a sexual abuser, but I don’t know for sure if you are.” A published list is tantamount to a bishop’s “Megan’s List,” without any of Megan’s Law behind it. Ironically, clerics who have been adjudicated of sex abuse crimes will already be on a “Megan’s List.” What is worse (for accused clerics): Individuals on Megan’s List can get their names removed; the bishop offers no such allowance for those on his list.
And that is precisely what is at stake here when a bishop decides to publish the names of those whom he thinks have had “credible” accusations made against them. Those whose names are so published therefore have potential claims for defamation, and other civil claims, which the civil courts will review, to determine the truth of those accusations, not whether they were “credible.” If the accusations are untrue, then whether the bishop believes they were “credible” is irrelevant; he has published defamatory information.
Claims Against The Bishop
Because a bishop stands before his priests in the same role that an employer does for his employees, it is worth considering the kinds of civil claims a former cleric may make against his bishop for having published his name on a list of those whom the bishop believes that credible accusations of sexual abuse exist. First, there is defamation—known as “slander” where oral communications are concerned, and “libel” when communications are in writing. Defamation is simple in concept: a plaintiff must prove (1) the defendant made a false and defamatory statement concerning the plaintiff; (2) the defendant made an unprivileged publication to a third party; (3) the publisher acted, at least negligently, in publishing the communication; (4) special damages, at least in some cases.
The first element—whether a communication is defamatory—is established if the communication “tends so to harm the reputation of another as to lower him in the estimation of the community, or to deter third persons from associating with him,” (as the Restatement on the Law so states). As the law readily finds defamatory communications to exist when they indicate that the plaintiff was involved in a serious crime involving moral turpitude or a felony, a bishop’s indication that a former cleric may have committed sexual abuse surely meets this standard. It matters not whether the bishop believes the allegations are true, and is simply, for the sake of accountability, publicizing allegations made by others. A claim for defamation is sufficient when it impugns the cleric’s good name or reputation, which, of course, would happen here, given the explosive nature of the charges made. If the bishop were to simply pass on allegations made by others, the bishop can be held liable for defamation by neglect.
The bishop would be on untested grounds to argue the second prong of a defamation: that he had a “privilege” to publish this information to third parties. A bishop’s decision to reveal accusations to an inquiring employer may be, but is not always, permitted. In such cases (often recognized by a specific state statute), the bishop may enjoy a privilege to communicate such information. But we are unaware of any court that has allowed a bishop (or for that matter, any private employer) to make a gratuitous public disclosure of such information as a matter of “privilege.” In short, if a bishop aims to publish the names of accused clerics, the bishop should be prepared to defend the truth of every one of those allegations, or suffer the consequences for having defamed them.
Another likely claim a former cleric could raise against the bishop would be a claim for intentional infliction of emotional distress. Such claims are established when the plaintiff shows a defendant has engaged in extreme and outrageous conduct, and that such conduct has caused the plaintiff to suffer severe emotional trauma. What conduct is extreme and outrageous? Courts vary on this. But to our knowledge, they have not sanctioned publication of lists of names of employees merely accused of misconduct. Solid arguments can be advanced that a bishop’s publication of names of individuals, who are presumed innocent as a matter of law, is both extreme and outrageous, especially as it conflicts with every known employment practice in the United States. The presumption of innocence lies at the core of the American judicial system. Even those individuals charged with despicable crimes, like child abuse, enjoy that same privilege: that they are innocent until proven guilty. A bishop would rob them of that privilege by letting them be tried in the court of public opinion, which is hostile to the point of being judged “lethal,” murder and suicide both included.
And the anguish former clerics could suffer is both real and extreme. What families could be broken up, what friendships could be destroyed, what jobs could be lost, what contracts could be terminated, simply because one’s name appears on a list of former clerics for whom “credible” accusations of sexual abuse existed? What physical attacks, what emotional outbursts, what suicides will occur because one’s name is on a list? Whatever such damages may occur, the bishop could well be liable for them all. How ironic that a bishop, who aims to demonstrate his concern for one victim of abuse, will thereby create another victim of abuse—and end up paying large amounts of damages to each in the process. How doubly ironic that a bishop who initiates such a policy may someday find himself on the list.
Two other similar common law claims may lay within the former cleric’s domain: invasion of privacy, and interference with a contract. A former cleric who proves a bishop has made public a false reference, or disciplinary matter about him, could make a claim for invasion of privacy. In addition, a former cleric who proves the bishop gave false or misleading information to others that led to the termination of a contract (employment or otherwise) could make a claim for intentional, or negligent, interference with contractual relations. Current employment contracts of these individuals would certainly fall within this scope. Would a bishop really wish to accept liability for all former clerics who lose their current jobs because of his publication of their names?
Attracting The Media Hurricane
One unintended consequence of publishing names of accused clerics is the media interest that may arise because of it. Those who are hostile to Church interests do not praise a bishop for his openness; instead, they question his motives for doing so. Rightly or wrongly, questions may arise over why the bishop is releasing these names. Is he doing so to deflect scrutiny over his past conduct? Does he think this will avail him of support when later questionable actions of his come to light? Nothing in the history of modern media relations indicates either of these scenarios would work to his advantage. Nor will he have any control over which way the hurricane will blow when a media frenzy occurs. Nor will he have any control over the media leaks that will occur from those in his own bureaucracy, who have less than pure designs. If the threat of civil liability does not deter a bishop from publishing names of accused individuals, the prospect of a media hurricane should. Far from receiving credit for publishing those names, the bishop may well receive opprobrium, and for reasons unconnected to the particular publication.
And then there are those victims who themselves have moved on with their lives. How they will be shielded from media attention remains to be seen if, and when, disclosure of their identities arises by naming names of the accused. And for those who truly are victims, it is far from clear how a ten-second clip on the evening news, or a quote on the front-page daily, will better their lives, as they relive details they have tried to leave behind. Arguably, the bishop advances his claimed interest in accountability, but at the expense of the victim whose past is now dredged up again for further review.
One reason (among many) why private companies refuse to publish names of accused offenders is the effect such publication would have on morale. As most employees would say, “My colleague’s name published today; my name, tomorrow.” What priest will not wonder whether his name will be publicized, and forever connected to heinous misdeeds, if some allegation is made against him, and if he finds himself twisting in the wind unable to counter it, and if his bishop (or his delegate) finds the claim “credible?” One need not have a fertile imagination to think of the myriad of ways in the past several years that priests have been thrown into the diocesan buzz saw, and been cut to pieces, their lives ruined, as fear-mongering has led to a spiritual “Reign of Terror,” where the loss of one’s collar feels like the loss of one’s head. At a time in history when priests are most in need of support, comes a millstone in place of a life-ring.
If a bishop were truly interested in “accountability,” why not poll the priests who serve under him, and see if they think such a policy serves that interest? What percentage would it take to convince him the action is inappropriate and unwarranted—70, 80, 90 percent? Is it hard to imagine that nine out of ten priests would oppose such an initiative? We don’t think so, based on our limited queries. Is any administrative decision worth acting upon when ninety percent of your rank and file are opposed to it? Cannot the Holy Spirit be discerned through consensus?
While to our knowledge, no former cleric has yet sued a bishop for landing on a “credibly accused” list, we suspect that the time is at hand for such lawsuits. A great many priests have felt betrayed and mistreated by accusations made against them, and their stories are legion. If they have declined legal action to date, it is for many reasons, fear being chiefly among them—fear of media attention, fear of retaliation (such as loss of pension or health benefits on which they critically rely), fear of challenging their spiritual leader. But fear will eventually give way to indignation, and indignation to civil suits; the bishops should not be surprised if and when a counter-offensive occurs. The bishops have enjoyed a de facto immunity from such suits to date; they will face a difficult task in finding de jure immunity when those suits eventually occur.
WWJD? What is the Imitatio Christi in such situations?
Finally, we are left to ponder what we should have considered first: What would Jesus do? Would Jesus publish the names of individuals for whom only reasonable grounds of guilt exist, when those individuals are presumed innocent as a matter of law? We are unsure he would even publish the names of individuals who are found guilty in criminal proceedings—“Let the dead bury the dead” (Lk 9:60). We are not suggesting Jesus would take no corrective action or discipline. Far from it. But corrective action or discipline is not at issue. What is at issue is the mere voluntary publication of names, and we see no Gospel interest advanced in doing so. To the contrary, we see an initiative designed to protect the bishop, and his quest for transparency, that may benefit him, but will harm others.
In sum, we see no good reasons why bishops in the United States should depart from the path that every other employer observes who is subject to the same legal system. They should let the legal system control the truth-finding process of guilt or liability for sexual abuse claims, and not substitute it for their own judgment, however well-intentioned. Such a practice not only exposes them to significant legal liability, unwarranted media attention, and bad morale; it is not even the Christian thing to do.
