Lawsuit over sex abuse by priests faces hurdles
By Peter Smith and Andrew Wolfson
June 6, 2004 — A Louisville attorney filed a federal lawsuit against the Vatican yesterday, accusing leaders of the Roman Catholic Church of orchestrating a cover-up of priests who allegedly molested thousands of American children.
William McMurry — who last year represented 243 victims in reaching a $25.7 million settlement with the Archdiocese of Louisville — filed yesterday’s suit on behalf of three men alleging abuse as far back as 1928 in the Louisville area.
McMurry is seeking to have the lawsuit certified as a class-action case, saying in the suit that he believes there are “at least several thousand” victims nationwide.
“This lawsuit is designed to lay the responsibility for all childhood sexual abuse committed by priests in America at the feet of the responsible party, and that’s the Vatican,” McMurry said in an interview with The Courier-Journal.
Although dioceses in Louisville and elsewhere have paid settlements, he said the “financial responsibility should be shared, if not borne entirely, by the Vatican.”
A receptionist at the Vatican embassy in Washington referred questions to the Vatican’s press office in Rome, which closed before the suit was filed yesterday morning.
Mark Chopko, general counsel for the U.S. Conference of Catholic Bishops, called McMurry’s suit a “long shot” that likely will be dismissed. Chopko also questioned McMurry’s decision to sue on behalf of plaintiffs who already settled with dioceses. “They have already had their day in court.”
In the suit — filed in U.S. District Court for the Western District of Kentucky — McMurry is asking for unspecified monetary damages from the Vatican. He also is requesting injunctions requiring the Vatican to “cease its violations of the internationally recognized human rights of children” and “to report all allegations of childhood sexual abuse” in the United States.
And he is asking a federal judge to supervise the Vatican’s conduct for 10 years. The suit was assigned to Judge John G. Heyburn II.
Legal scholars say McMurry will face towering obstacles in what they say is the first class-action suit against the Vatican regarding sexual abuse, and the first sexual-abuse lawsuit to name the Vatican as the sole defendant.
Other lawyers have named the Vatican as a co-defendant with dioceses and religious orders in sexual-abuse lawsuits. Those cases either have been dismissed or are pending.
Even if a court finds that McMurry’s clients have a legal standing to sue, it will be hard to prove that the Vatican knew about abuse and failed to act on it, said Boston lawyer Roderick MacLeish Jr., who has represented more than 400 plaintiffs in priest-abuse cases.
“I have reviewed thousands of pages of documents surrendered by the Archdiocese of Boston but haven’t seen a scintilla of evidence showing the Vatican knew what was going on,” he said.
The Vatican, known legally as the Holy See, occupies a 109-acre enclave of Rome, and it is recognized as a sovereign state with many legal protections.
Suing the Vatican “always makes a good press release, but it’s bad law,” said the Rev. Thomas Reese, editor of America, a national Catholic magazine. “Nobody has successfully sued the Vatican in any of these cases, and I doubt that this case will get any farther.”
Louis Giovino, director of communications for the Catholic League for Religious and Civil Rights, said McMurry is “grandstanding” and “looking to exploit this issue.”
“If he’s so worried about children, how come he’s not investigating (abuse in) schools and other religions … as opposed to just smashing the Catholic Church?” Giovino said, comparing the suit to blaming “all the Islamic organizations for Sept. 11.”
McMurry, who has been studying international law for the past eight months, said foreign nations can be sued in federal court if either their actions or their “commercial” activities in the United States cause injury here. He alleges that church fund-raising constitutes a commercial activity.
In the lawsuit, McMurry said that the Vatican sought “to maintain its aura of infallibility and thereby ensure that its parishioners, followers and financial contributors will not lose faith and fail to contribute money and property” to the church.
But lawyers and legal scholars yesterday predicted that McMurry will have a difficult time making his case in court, or even keeping it there.
“The plaintiffs are basically saying that if the Vatican had told about the abuse instead of covering it up, it would have impeded their ability to raise funds,” said Josh Marcus, a Miami lawyer who is chairman of the American Bar Association’s international law section. “But that doesn’t sound like commercial activity to me.”
Rick Kurgis, who teaches international law at Washington & Lee University in Lexington, Va., called McMurry’s contention that Vatican fund-raising constitutes a commercial activity “a pretty big stretch.”
McMurry also alleged that the Vatican violated at least two international conventions — the Universal Declaration of Human Rights and the Convention on the Rights of the Child — by tolerating sexual abuse.
And he called the Holy See’s sovereign status “a joke,” noting that it lacks voting rights in the United Nations.
McMurry is basing a large part of his claim on a secret 1962 Vatican document, approved by then-Pope John XXIII, calling for strict secrecy in handling priests accused of soliciting sex in the confessional.
McMurry called the document — leaked to the public last year — a “smoking gun” that also requires Catholic church leaders to keep secret other allegations of sexual misconduct.
Some experts in church law have downplayed the significance of the document, titled “Crimen Sollicitationis” or “Crime of Solicitation.” They say it only required secrecy in the church disciplinary process and did not prevent a bishop from reporting crimes to police.
“To say this document is the linchpin of an international conspiracy is ludicrous,” Chopko said. “It is a big lie.”
The Rev. Tom Doyle of North Carolina, a canon lawyer whom McMurry has consulted, said the 1962 document is not a “smoking gun,” but he said it is evidence of the Catholic Church’s “obsession with secrecy.”
“The pattern and the practice of cover-up and denial is so similar throughout the United States and in other countries,” said Doyle, contending that the bishops “must be getting their orders from somewhere.”
In 2002, when the sexual-abuse crisis peaked, American Catholic bishops approved policies on preventing abuse and barring abusive priests from ministry.
McMurry and Doyle, however, contend the Vatican is still not addressing the role of the hierarchy in the abuse scandal.
“Hopefully, this lawsuit will get somebody’s attention over there,” said Doyle, who has testified on behalf of victims.
McMurry wants the court to certify two classes of abuse victims — those who have received payments from dioceses and those who have not.
One of the three plaintiffs filing yesterday is Michael Turner of Louisville, who also filed the first in a wave of roughly 250 lawsuits against the Archdiocese of Louisville between 2002 and 2003.
The litigation culminated in a $25.7 million settlement with most of the plaintiffs a year ago this month. McMurry and his legal team received 40 percent of most plaintiffs’ payments.
Turner was molested by the now-imprisoned Rev. Louis E. Miller in the 1970s, when Turner attended St. Aloysius Church in Pewee Valley. Turner, 46, said he joined the suit to complete unfinished business — finding out who was responsible for tolerating abuse.
“The most wonderful thing about filing a lawsuit like this is you get to fight, and most sexually abused children and adults never get to fight,” he said.
The other two plaintiffs, James H. O’Bryan and Donald E. Poppe, have not settled with any diocese, McMurry said.
Both men live in California and say they were abused by priests while growing up in Louisville.
O’Bryan, 83, of Albion, Calif., said in a March 3 letter to McMurry that he was molested by a “Father Lawrence” at St. Cecilia Church in western Louisville in 1928. O’Bryan said he was volunteering in the school library when the priest approached him from behind, put his hand in the boy’s pocket and fondled his genitals.
He said he told his mother, who believed him and confronted the priest’s supervisor, but the priest and most of O’Bryan’s other relatives doubted him.
According to Cecelia Price, spokeswoman for the Archdiocese of Louisville, a Rev. Lawrence Kuntz worked at St. Cecelia from 1928 to 1935 and died in 1952. Kuntz belonged to the Resurrectionist religious order, which also operated the parish at that time, Price said.
O’Bryan said in a telephone interview yesterday that he joined in the lawsuit after learning in February about a report by the John Jay College of Criminal Justice, which said 10,667 people alleged abuse by 4,392 priests between 1950 and 2002.
“I just feel appalled at things that are going on,” O’Bryan said. “… I would just like to see the Catholic Church changed.”
O’Bryan said he didn’t know his legal recourse until talking with McMurry earlier this year and decided to join in the pending suit against the Vatican.
“I’m Irish. I don’t mind a little fight,” O’Bryan said.
McMurry said Poppe was molested by the late Rev. Arthur Wood, who died in 1983 and was named as an abuser by 39 plaintiffs who settled with the archdiocese last year.
While McMurry said he began planning the lawsuit after learning of the 1962 document, he became more motivated, he said, after visiting the Vatican last summer and being denied entrance to St. Peter’s Basilica because he was wearing shorts.
McMurry said he was offended at being inspected by “clothes police” concerned that “too much skin may be seen” in church.
“It’s so offensive that an organization can publicly be so righteous, and in truth and fact, destroy the utter foundations of our society by allowing children to be abused,” he said. “That disparity is nauseating.”
McMurry’s co-counsel in the case is Marci Hamilton, a professor at Cardozo School of Law in New York and a specialist on law related to religion.