The Vatican on Monday will make its most detailed defense yet against claims that it is liable for U.S. bishops who allowed priests to molest children, saying bishops are not its employees and that a 1962 Vatican document did not require them to keep quiet, The Associated Press has learned.
The Vatican will make the arguments in a motion to dismiss a federal lawsuit on jurisdictional grounds filed in Louisville, Kentucky, but it could affect other efforts to sue the Holy See.
The Vatican's U.S. attorney, Jeffrey Lena, said it will include a response to claims that the 1962 document "Crimen Sollicitationis" — Latin for "crimes of solicitation" — barred bishops from reporting abuse to police.
Lena said Sunday there is no evidence the document was even known to the archdiocese in question — much less used — and that regardless it didn't mandate that bishops not report abusive priests.
Lena said the confidentiality imposed by Crimen did not trump civil law and was applied only in formal canonical processes, which bishops had the discretion to suspend if there was a conflict with reporting laws.
"It is important that people — particularly people who have suffered abuse — know that, contrary to what some plaintiffs' lawyers have consistently told the media, the canon law did not bar reporting of these crimes to the civil authorities," Lena told the AP.
'Smoking gun' document?
The document describes how church authorities should deal procedurally with cases of abuse of children by priests, cases where sex is solicited in the confessional — a particularly heinous crime under canon law — and cases of homosexuality and bestiality.
The attorney behind the Kentucky case, William McMurry, said in a recent e-mail that the document is "a smoking gun."
"It's evidence of a 'written' policy that demands no mention be made by a bishop of priest sex abuse," he said. "Since our case, and no other, is about holding the Vatican accountable for the bishops' failure to report to civil authorities, any policy that gags the bishop is relevant and material."
The Holy See is trying to fend off the first U.S. case to reach the stage of determining whether victims actually have a claim against the Vatican itself for negligence for the failure of bishops to alert police or the public about Roman Catholic priests who molested children.
The case was filed in 2004 by three men who claim they were abused by priests decades ago and claim negligence by the Vatican. McMurry is seeking class-action status for the case, saying there are thousands of victims across the country. McMurry also represented 243 sex abuse victims who settled with the Archdiocese of Louisville in 2003 for $25.3 million.
The Vatican is seeking to dismiss the suit before Pope Benedict XVI can be questioned or documents subpoenaed.
Its motion is being closely watched as the clerical abuse scandal swirls around the Holy See, since the court's eventual decision could have implications for a lawsuit naming top Vatican officials that was recently filed in Wisconsin and another one in Oregon is pending before the Supreme Court.
The Vatican is expected to assert that bishops aren't its employees because they aren't paid by Rome, don't act on Rome's behalf and aren't controlled day-to-day by the pope — factors courts use to determine whether employers are liable for the actions of their employees, Lena told the AP.
He said he would suggest to the court that it should avoid using the religious nature of the relationship between bishops and the pope as a basis for civil liability because it entangles the court in an analysis of religious doctrine that dates back to the apostles.
"He (McMurry) wishes to invoke religious authority to construct a civil employment relationship, and our view is that it's an inappropriate invitation to the court to consider religious doctrine," Lena said. "Courts tend to avoid constructing civil relationships out of religious materials."
Hiring vs. oath of office
McMurry has alleged that the Vatican had clear and direct control over bishops, mandated a policy of secrecy, and is therefore liable for the bishops' failure to report abuse. He is seeking unspecified damages.
McMurry has said that based on district and appellate court rulings, he doesn't need to prove bishops were employees of the Vatican but merely "officials." He noted that they take an oath of office. The pope appoints, disciplines and removes bishops.
If a bishop wants to spend more than $5 million he must ask permission from Rome, and if he wants to take a three-month sabbatical, he needs the Holy See's OK, said McMurry's main expert witness, the Rev. Thomas P. Doyle, a canon lawyer who worked at the Vatican's U.S. nunziature.
"For the defense to claim that what's necessary is to show day-to-day monitoring is unrealistic," Doyle said. "That is not a viable argument to show the Vatican has direct control over the bishops."
The AP in March reported on an outline of the Holy See's strategy in Kentucky that was contained in a litigation plan filed with the court. On Monday, the Holy See is expected to flesh out that outline by filing a motion to dismiss the case on the grounds that the court doesn't have jurisdiction under the Foreign Sovereign Immunities Act, which protects sovereign states from being sued in U.S. courts except under certain circumstances.
Lena provided some details of the Vatican's approach to the AP ahead of the court filing. The motion also seeks to dismiss the case on the grounds that plaintiffs haven't stated a claim and attacks the factual basis for jurisdiction, including whether the 1962 document ever appeared in the diocese.
Lena has said even Doyle has rejected theories that the document was proof of a Vatican-mandated policy of cover-up. Doyle has said it was evidence of a culture of secrecy that the Catholic Church has perpetuated for centuries.
The Holy See has in previous court filings noted Doyle's own writings and depositions in U.S. court cases against archdioceses, including in Louisville, where Doyle said he hadn't found "any written evidence that the procedures outlined in Crimen were used in a prosecution in the archdiocese of Louisville."
On Sunday, Doyle said his words had been misconstrued.
"He's clearly misunderstood, misconstrued or twisted the things I've said and radically changed their meaning," Doyle said. "I made that statement as an expert witness to indicate the intended negligence on the part of the bishops, not the lack of existence of the law."
He said bishops around the country were all informed about Crimen, and the fact that it remained confidential didn't mean they didn't know about it. He noted that several bishops have said in depositions that they knew of Crimen's existence or had been taught it in seminary.
"The fact that the document was not publicly known is not any way evidence that it was not a viable piece of ecclesial legislation, because it was," he said.