Church should follow basic corporate compliance procedures, lawyer says

After the allegations of criminal sexual abuse and serial sexual misconduct against then-Cardinal Theodore McCarrick became public this summer, one prominent Catholic lawyer in Houston was perplexed why the Church did not utilize compliance methods that even small to mid-size U.S. corporations routinely follow.

Ed Sullivan, a Houston-based labor and employment trial lawyer who routinely makes the elite Super Lawyer rankings, decided to write an open letter (available here) to his archbishop: Cardinal Daniel DiNardo, who currently serves as the president of the United States Conference of Catholic Bishops (USCCB).

“I am an experienced trial lawyer in Houston who specializes in employment law, so I am familiar with litigating cases in which even the largest and most capable corporations sometimes struggle in people management. I see the mistakes some of those organizations make and frequently speak to their representatives about implementing best practices to minimize liability. The Church in the United States makes many preventable errors with regard to abuse cases — the most common of which is the repetitive violation of the so-called ‘rule of holes,’ meaning, if you are in a hole, stop digging. Each time these scandals happen we hear the same words and call to prayer. The same tropes used by our leaders will not work anymore with the laity. In other words, they do not get the Church ‘out of the hole,’” the letter reads.

The letter is meant to contribute to the discussion the bishops will have during their Fall meeting in November about the aftermath of the McCarrick situation.

After the allegations against McCarrick became public, he became the first person to resign from the College of Cardinals in nearly a century.

Speaking to Crux, Sullivan said he was “gobsmacked” after reading about McCarrick. He is a practicing Catholic, admitted he “put my head in the sand a bit” during the 2002 crisis, when reports about abuse in the Boston Globe led to the resignation of Cardinal Bernard Law and the establishment of the Charter for the Protection of Children and Young People.

“I believed that proper procedures had been implemented to minimize further abuse. I was also encouraged that my own diocese seems to be scandal free, and my personal experience with my parish and my children’s various parochial schools led me to believe that the problem had been largely solved,” the lawyer said.

He said after the McCarrick story broke, he began following the various statements of the nation’s bishops and got the feeling that “we have been down this road before.”

“I became discouraged that more calls for prayer and pastoral support would not, by themselves, be appropriate to help solve this obvious long-term problem,” Sullivan told Crux.

In his letter, he made three suggestions for the USCCB, based on the maxim “sunlight is the best disinfectant”: 1) The USCCB must no longer allow dioceses to confidentially settle cases of clergy abuse; 2) the USCCB should no longer permit its dioceses to assert the affirmative defense of the statute of limitations in these cases; and 3) the USCCB must create a mechanism by which victims, including seminarians over the age of 18 as well as priests, can freely report the abuse and harassment of other priests and bishops without fear of retaliation.

These suggestions are controversial, Sullivan admits, and probably would raise the eyebrows of most lawyers – especially the suggestion about the statute of limitations.

“Every lawyer will always raise this defense; it’s the first one we all think of when lawsuits are filed,” he said.

“I think they are too zealously utilizing all the protections that the law provides. In other words, they are relying too much on their lawyers,” Sullivan said.

“Lawyers believe — and in many cases they are correct — that they can best help their clients by minimizing their monetary exposure. Money is not all the Church should think about; and short-term monetary losses have to be weighed against long-term disillusionment with the faith,” he explained.

However, Sullivan also says he is not an expert in how the Church administers herself, but thought with his experience and expertise, he would “throw out a few ideas that might help in the future.”

Michael Dunnigan is a canon lawyer and a civil lawyer, and he teaches canon law at Saint Meinrad Seminary in Indiana.

He said that he hopes that Sullivan’s letter will inaugurate a serious discussion of possible remedies for the McCarrick scandal, although he was quick to clear up some misconceptions.

“The USCCB has authority only in specific areas. It does not have general authority over the dioceses throughout the country. As a result, it cannot simply forbid diocesan bishops from asserting the statute of limitations or from settling cases confidentially,” Dunnigan told Crux.

He also defended the protection afforded by the statute of limitations, “especially the case where the alleged incident occurred three or four decades ago and where there are real doubts about the witnesses’ ability to remember the facts accurately.”

Dunnigan said the statute of limitations is also important for protecting falsely accused clergy, saying he was “concerned that the price of denying to perpetrators the peace that the statute provides will be to deny the same peace to the wrongfully accused.”

Sullivan said these are issues that “need to be thought through,” but said if the point is to bring as many victims forward as possible, “then we should not discourage individuals from pursuing justice.”

“The Church wants to raise the statute of limitations defense while simultaneously offering pastoral care. Pastoral care is vitally important, but so is justice. Victims need to feel vindicated in the justice system,” he said.

Sullivan said the Church needs to follow the example of corporate America, in which “ultimately … everyone is accountable.”

“I think the bishops lack a culture of compliance and accountability. What mechanism exists for priests abused or ignored by a bishop? Go to Rome? Good luck with that,” said the Houston lawyer.

“Every major corporation in America has an anonymous hotline to report complaints, including sexual and racial misconduct. The laws here in the U.S. expressly make retaliation illegal, and in many cases are subject to the same penalties as the underlying act. The Church would find herself well served by looking at the example of corporate America and implementing mechanisms for victims to freely report without retaliation anyone who is crossing the line,” said Sullivan.

Dunnigan agreed that there needs to be a reporting procedure that reduces or eliminates the fear of retaliation.

“This is a worthy goal, but also a challenging one. Emerson famously said, ‘when you strike at a king, you must kill him,’ and this saying sheds light on the key fear in this context—that one might strike at a powerful person like an Archbishop McCarrick or a Harvey Weinstein, but might wound him only enough to make him angry,” he told Crux.

Dunnigan noted this means there has been “an enduring reluctance” by victims to make complaints that weren’t anonymous.

“I do not know whether we should expect this fear ever to disappear entirely,” he said.

In his letter, Sullivan pointed out that, “In the span of my lifetime priests went from some of the most trusted and respected members of society to some of the most feared and disdained.”

He blamed the Church’s handling of abuse cases of creating “an assumption of culpability” and said to DiNardo, “I am sure you know better than anyone how hard it is when others seem to associate our Church with child molesters.”

Sullivan told Crux “the rules and procedures the Church has are not working.”

“It might be a case where we need better rules. I can’t speak to that. I am concerned that the fox appears to be guarding the henhouse. The only way out of that situation is through transparency and disclosure, two traits the bishops seem incapable of comprehending,” he said.