Child sex abuse cover-up is alleged

By Jason Riley
The Courier-Journal

A federal judge in Louisville issued a "historic" decision yesterday by refusing to dismiss a lawsuit against the Vatican that alleges a cover-up to protect priests who molested American children.

"This is the first and only case which has as its sole objective holding the Vatican financially accountable for all of the childhood sexual abuses committed in the U.S.," said Louisville attorney William McMurry, who filed the suit in 2004 on behalf of three men who allege abuse dating as far back as 1928.

If U.S. District Judge John Heyburn II’s decision stands, it could open the door for attorneys to take depositions of Vatican officials — including Pope Benedict XVI — obtain copies of church records and documents and ultimately determine "what prompted all of the bishops to keep quiet, hide these pedophiles and refuse to report child abusers," McMurry said. He called the decision "historic."

But Jeffrey Lena of Berkeley, Calif., counsel for the Vatican, known legally as the Holy See, said Heyburn’s decision rejected portions of McMurry’s lawsuit and left the case hanging on a "fairly weak linchpin" — that U.S. Catholic clergy are employees of the Vatican.

"The Holy See is just not responsible for this, and that’s the bottom line," Lena said. Regardless, the case could be entangled in appeals for years before eventually ending up at the U.S. Supreme Court, McMurry and Lena said.

One of the three plaintiffs is Michael Turner of Louisville, who also filed the first in a wave of roughly 250 sexual-abuse lawsuits against the Archdiocese of Louisville between 2002 and 2003. The litigation culminated in a $25.7 million settlement with most of the plaintiffs. McMurry and his legal team received 40 percent of most plaintiffs’ payments.

The two other plaintiffs in the Vatican suit are James H. O’Bryan and Donald E. Poppe, both of whom live in California and say they were abused by priests while growing up in Louisville. All three are asking for unspecified monetary damages from the Vatican.

McMurry 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.

Legal scholars contacted yesterday said they hadn’t thought the lawsuit — the only sexual-abuse suit naming the Vatican as the sole defendant — would make it this far, and they still doubt it will survive.

"The Holy See is not responsible for the day-to-day supervision, appointments and discipline of individual clerics," said Mark Chopko, general counsel for the U.S. Conference of Catholic Bishops.

Other legal experts say that no matter the result, it may be impossible to win damages from the Vatican, which is a sovereign state with many legal protections.

"The question is whether you can get a judgment against the Vatican and have them actually pay," said Carl Tobias, a law professor at the University of Richmond. "I’m surprised you can get jurisdiction in a U.S. court over the Vatican."

But Jeff Anderson, a Minnesota-based attorney who filed a similar suit against the Vatican in 2003 that also has been allowed to go forward, said since the Vatican does business in this country, it submits itself to U.S. laws and legal obligations.

In his ruling, Heyburn refused to dismiss allegations that the Vatican failed to report incidents of child abuse and failed to warn parishioners that their children would be under the care of known or suspected pedophiles. The other claims that remain against the Vatican, according to the ruling, are outrage and emotional distress and violations of the customary law of human rights.

Heyburn, however, did dismiss a negligence claim that the Vatican failed to provide safe care of children entrusted to the clergy. The judge also dismissed deceit and misrepresentation claims.

Lena said the Vatican did not present any evidence before the decision. He said the ruling is based on a preliminary legal challenge in which the judge must treat the facts stated in the complaint as if they were true.

David Clohessy, national director of Survivors Network of those Abused by Priests, said the ruling is a step "towards the truth."

"This is part of a slow but clear trend by judges everywhere to hold wrongdoers responsible for child sex crimes, even if they wear clerical garb."

McMurry is basing a large part of his claim on a secret 1962 Vatican document. Leaked to the public last year, the document, approved by then-Pope John XXIII, calling for strict secrecy in handling priests accused of soliciting sex in the confessional, he said.

McMurry called it 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. They say it only required secrecy in the church disciplinary process and did not prevent a bishop from reporting crimes to police.

McMurry is seeking to have the Vatican suit certified as a class-action case, saying he believes there are "at least several thousand" victims nationwide.

Given Pope Benedict XVI’s age, 79, McMurry said he will request that attorneys be able to depose the pope now. McMurry said that is important because the pope was a bishop on a commission that dealt with priests accused of sexual abuse. "He knows where all the bones are buried," McMurry said.