Law and Politics Book Review
November 23, 2008
Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse by Timothy D. Lytton. Cambridge, MA: Harvard University Press, 2008. 304pp. Hardcover. $35.00/£22.95/€24.50.
ISBN: 9780674028104
Reviewed by John C. Blakeman, Department of Political Science, University of Wisconsin at Stevens Point
Although academic book reviews do not normally start with a discussion of the book jacket of the work under review, with Timothy D. Lytton’s new book, HOLDING BISHOPS ACCOUNTABLE, the cover is indicative of the content. On the jacket is a photograph of Cardinal Bernard Law, former Catholic Archbishop of Boston, departing a news conference during the 2002 annual meeting of the US Conference of Catholic Bishops. The Conference is one of the main policymaking arms of the American Catholic Church, and in this instance it was the primary institution responsible for formulating the American church’s response to the rising tide of lawsuits brought by victims of sexual abuse committed by Catholic priests. By 2002, as Lytton’s account makes clear, the church’s institutional failure to deal with clergy abuse was becoming abundantly clear. In the photo, Cardinal Law is holding a sheaf papers and folders as if he is on his way to court, and he is somewhat hunched over, with a very stern, glaring look on his face. His right fist is clenched. He looks as if he has just been grilled by the press about something especially unpleasant, and he is very angry about it. He looks embattled.
Timothy Litton’s book is a detailed view of how litigants used tort law to sue the Roman Catholic Church in America over clergy sexual abuse of children. It adds to the literature on tort law, and law and society in general, and provides a critical, meticulous look at how tort law overtook the Catholic Church’s self-regulation of clergy misconduct and forced the church and government policymakers to confront a larger, more national problem. For Lytton, tort litigation against the church was “essential in bringing the scandal to light . . . focusing attention on the need for institutional reform, and spurring church leaders and public officials into action” (p.4). Lytton situates his analysis within the context of showing how tort litigation against “one of the largest, richest, and most powerful institutions in America” was more than just about dispute resolution between injured parties and the church. Tort cases served to bring about policy reform by enhancing “the efforts of church officials, law enforcement, and state governments to develop and enforce polices aimed at reducing clergy sexual abuse” (p.7).
Lytton presents a short history of clergy abuse litigation to frame the rest of his discussion. He discusses a few high profile abuse cases, beginning in the 1980s, and shows that the course of litigation over several years was “a time of learning” for both sides. “Bishops [*1021] were developing a better understanding of the problem . . .,” and “victims and attorneys were uncovering the role of church officials in facilitating child sexual abuse by clergy” (p.16). As he notes in detail later in the book, understanding how clergy abuse litigation progressed is important to understanding how victims’ attorneys and church officials altered their litigation strategies as each side became more experienced. Plaintiffs’ attorneys, for example, got much better at using discovery methods in civil litigation to compel more, and damaging, information from the church. The church developed several defense strategies as well – some successful, some not – to protect itself from an increasing number of lawsuits. The history is important, as it shows not only that the church was often aware of abusive priests, but it often sought to cover up clergy abuse by transferring priests to other parishes, and it buried incriminating evidence in secret diocesan files in keeping with an entrenched culture of secrecy in the church that sought to hide as much information about clergy abuse as possible. Interestingly, Lytton even exposes a church discussion to transfer some clergy files to the Vatican where they would be beyond the reach of civil discovery.
Lytton discusses several statistical measures of clergy abuse litigation too. He notes that the United States Conference of Catholic Bishops commissioned a study in 2002, researched by scholars at the John Jay School of Criminal Justice, that revealed thousands of allegations of abuse against priests between 1950 and 2002. As well, Lytton surveys insurances companies that paid out abuse claims, and he also surveys plaintiffs’ attorneys that filed lawsuits against the church. Even though Lytton notes that an accurate accounting of the number of lawsuits against the church is not possible, he strings together several sources of data to show that not only was there a very rapid increase in litigation in the 1980s and 1990s, but that thousand of lawsuits were ultimately filed.
The author follows his history and statistical discussion with an in-depth analysis of the legal issues involved. Here Lytton examines the diverse legal issues raised in lawsuits against Catholic diocese, from the many different types of plaintiffs’ claims to the various defenses the diocese raised. For instance, plaintiffs raised typical tort claims in an effort to hold the church vicariously liable for the actions of its servants (priests), along with various negligence claims for the inability of diocese to exercise reasonable care over their subordinates. It is noteworthy that many lawsuits were settled by the church prior to trial; thus there are no reliable statistics about the success negligence and vicarious liability claims in court. Of special importance in this section, especially for scholars of religion and politics and church-state relations, are the various defenses that the Catholic Church raised. One easy defense was based on state statutes of limitations, since many sexual abuse claims were filed years after the alleged conduct occurred. As Lytton notes, the church employed statute of limitation defenses, not necessarily to avoid liability altogether, but to limit it. However, such a strategy is a mixed blessing for the church; although it protected diocese “from potentially devastating liability,” [*1022] it also “opened up the Church to charges that it [used] a legal technicality to avoid liability in cases where it is clear that abuse occurred” (p.61). Other defenses raised by the church were predicated on First Amendment Free Exercise Clause concerns (for courts to impose liability on the church would violate the church’s free exercise of religion), comparative negligence (victims of sexual abuse and their parents were negligent in allowing unsupervised visits between their children and priests), charitable immunity, and clergy-communicant privilege. Lytton’s discussion of the how diocese attempted to defend themselves is thorough and offers insight into how the church sought to protect its resources and status and limit the damages it would have to pay. Importantly, Lytton points out that some defenses were more successful than others, and by and large courts in different jurisdictions often viewed defenses differently. That is, sometimes a diocese’s defense would work in one jurisdiction; in other courts, and at other times, it would not.
In the next section Lytton turns his attention to two important issues. First, he discusses how plaintiffs framed their legal narratives both in terms of the “problem of child exploitation by individual clergy members,” and in the context of the Catholic Church’s institutional failure to come to grips with clergy sexual abuse early and take steps to stop it. The story, or frame, of the church’s institutional failure became the dominant frame by which the news media presented the story nationally. The impact, as Lytton details, was that the “filing of numerous claims against the Church created and sustained a news theme,” which also led to even more clergy abuse cases filed against Catholic diocese” (p.100). Lytton’s analysis linking how plaintiffs theorized their torts cases – or framed them – to how the media reported on clergy abuse is interesting, in that he shows how court documents (plaintiffs’ filings) generated information that the media then used for reporting purposes.
Lytton next analyzes how institutions, from the church itself to state legislatures and local prosecutors, placed clergy sexual abuse on their own policy agendas in response to ongoing tort litigation. The Catholic Church, for example, began to devote more resources to discovering and dealing with abuse on its own, from the diocesan level to the US Conference of Catholic Bishops to the Vatican. More importantly, at least in terms of the impact of tort law, is how government institutions began to respond to the increasing number of lawsuits. Prior to high profile abuse cases, local and state law enforcement agencies had typically been reluctant to prosecute priests and deferred to diocesan disciplinary measures. However, Lytton shows that deference to the church was often a political liability for local prosecutors after only a few years of clergy abuse lawsuits. As well, many state legislatures by 2002 were debating changes to statutes of limitations on child sexual abuse, in part as a response to ongoing litigation raised by adults who had been abused by clergy as children.
The church raised several affirmative defenses, as noted above, and it also stonewalled plaintiffs’ attempts to garner information from church sources. In a very informative analysis, Lytton shows how the church used various means at its [*1023] disposal to conceal information from discovery during litigation. Indeed, the church’s very culture encouraged it to cover up clergy abuse. For example, the church hierarchy with its top down management style did not encourage accountability among priests and others, and there was a “firm commitment” to keeping the government – and courts – out of the church’s affairs, which led many bishops to handle abuse allegations internally without involving local or state law enforcement. In addition, church doctrine in some ways supported reticence too, as many bishops viewed their role as protecting the church and the “mystical body of Christ” from defilement, and thus refused to be completely open and responsive to abuse allegations (p.142). And, as Lytton notes, canon law also dictates that each diocese should have a secret archive that are only accessible by that diocese’s presiding bishop. Lytton’s analysis shows how plaintiffs’ attorneys gradually chipped away at church secrecy through the discovery phases of litigation, and over time judges also loosened discovery rules to make it easier for plaintiffs to access church documents that not only supported tort claims against individual priests but also showed more broadly the institutional failures of the church hierarchy. Lytton here tells an important story about how in early cases information from the church was hard to come by. Over time, and as more abuse cases were filed and plaintiffs’ attorneys became more skilled at suing the church, discovery processes shifted from being essentially pro-defendant to pro-plaintiff. The church’s ability to frustrate discovery waned, and attorneys and judges began to seek and compel more information from it.
The final section in HOLDING BISHOPS ACCOUNTABLE assesses the overall impact of clergy abuse litigation on the church and other institutions. By amassing several different and diverse types of data, such as contributions to the church, donations to and expenditures by Catholic charities, and public opinion polls, Lytton notes that the church has been damaged in some respects, but not in others. The institutional prestige of the church has suffered, and the litigation and scandal “has seriously eroded the bishops’ credibility among both Catholics and the general public” (p.181). As Lytton correctly notes, Catholic Bishops’ statements on pressing social issues, from nuclear disarmament to welfare reform have historically been taken seriously by American Catholics and the general public. However, in the wake of the abuse scandals, as Lytton quotes one bishop, catholic leaders realized that their ability to be a moral voice “had been severely compromised” (p.182). Yet, charitable giving to catholic charities did not appreciably diminish, nor did the church’s provision of social services, even given the more than $2 billion in damages that the church has had to pay.
Finally Lytton focuses on how “tort litigation played a complementary role” to the manner in which other policymaking institutions addressed clergy sexual abuse. As he notes, tort lawsuits “reframed the problem and placed it on the agendas of other policymaking institutions, and generated new information for addressing it” (p.202). Civil litigation is public, as Lytton points out, thus clergy abuse litigation added transparency to an often closed process by which the church [*1024] resolved abuse allegations. Such transparency has implications for policymaking by giving tort claimants “the potential to frame issues, gain agenda access, and disseminate information” (p.210). Thus, through a very public accounting of clergy abuse claims, the church was forced to confront its own institutional failures, and other political actors, from local prosecutors to state legislators had to devise policy responses to address a growing crisis.
HOLDING BISHOPS ACCOUNTABLE is a thoroughly researched, readable, engaging account of how tort law brings about changes in public policy and in institutions. It is appropriate for several different types of political science courses. For example, it could be used in undergraduate and graduate courses on religion and politics, since Lytton deftly shows how Catholic Church doctrine and institutional practice affected the church’s conduct as a defendant in tort litigation. Lytton also places the church in the context of larger political and legal relationships with plaintiffs’ attorneys, local and state prosecutors, and other government actors and institutions, and thus provides interesting insight into the political choices that the church made when confronted with clergy sexual abuse, and how other political actors and institutions responded to those choices. The book is also useful for upper level undergraduate and graduate courses on the judicial process and law and society. Its detail on how plaintiffs structured, or framed, their arguments, how plaintiffs used civil discovery to seek information, and the church’s various attempts to safeguard that information, provides a fascinating window on the tort litigation process. Students and scholars of the judicial process, law and society, and law, religion, and politics, will find Lytton’s research very interesting and insightful.
This article was found at:
http://www.bsos.umd.edu/gvpt/lpbr/reviews/2008/11/holding-bishops-accountable-how.html
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