The Worthy Adversary

Author: Joelle Casteix

  • Class Action Sex Abuse Lawsuits Part 2: Lessons from Covington

    Class Action Sex Abuse Lawsuits Part 2: Lessons from Covington

    ~Part two in a multi-part series~previous post

    Settlement Class Actions Lawsuits are BAD for victims and BAD for transparency.

    But they are mighty good for bishops.

    Here is what we know about victims of child sexual abuse:

    • It can take decades for victims to come forward, because child sexual abuse is a crime of shame and secrecy
    • Victims of child sexual abuse should be able to come forward when THEY ARE READY
    • Statutes of limitation put artificial timelines on victims and let predators roam free. That is why SOL reform is so important.

    And here is what we know about class action lawsuits when it comes to child sexual abuse:

    In June 2005 in the Diocese of Covington, KY, church officials there settled a class action lawsuit with an undisclosed amount of victims (newspaper reports suggest approximately 200) for $120 million.

    Let’s look at the terms.

    1. No secret documents were released. No evidence of abuse or cover-up was disclosed.

    From the Baltimore Sun:

    The Kentucky case apparently does not require the Diocese of Covington to publicly disclose any internal church documents that could shed light on the extent of any abuse or how the diocese handled accusations against its priests.

    2. No names of child predators were made public. We don’t know who the predators are. The diocese didn’t have to tell the victims.

    From the Washington Post

    According to the diocese’s most recent public report, it has received 205 allegations against 35 priests, nearly 10 percent of the 364 priests who have ever worked for the diocese. Sixteen of the accused priests are dead; five have been laicized, or defrocked; and 14 have been permanently removed from ministry but remain priests, the diocese said.

    No names were released.

    There are only 19 named credibly accused priests from the Diocese of Covington on the BishopAccountability.com database.

    3. The diocese doesn’t have to pay all of the money

    Yes, the settlement was $120 million. But that’s a FINAL amount. From the Washington Post:

    But lawyers and victims’ advocates said there is a fundamental difference between the Covington settlement and other large settlements across the country. The fund created by the Kentucky diocese is the maximum amount it will have to pay. Depending on how many alleged victims come forward, it may spend less than the full $120 million. Any unused money will revert to the diocese.

    4. The class action stripped many survivors of their rights. Born before 1980 and sexually abused in Covington? You are subject to the evil-opt out. I will go into that in more detail in my next blog post.

    Let’s say that you are a survivor who had not come to terms with their abuse (or who didn’t realize that the damage they had suffered in their life was due to their abuse), or maybe you were in the depths of depression, addiction, etc., in 2004 when the opt-out passed. Or maybe you just didn’t know.

    Sorry. You’re a member of the class, whether you like it or not.

    What if you entered the military at age 18 and just retired this year. What if you may have an active statute in state court? Oops! Your case is in trouble. Big trouble.

    What about all of the NEW predators who have been outed since 2004? And all of the new victims who have been empowered to come forward? Like the women who were told that 15-year-old girls are to blame when they are raped by priests. Nope, they are members of the class. Covington can sit pretty. They don’t have to worry their little heads about a thing. New victims are shuffled into the class. New outed perpetrators remain nicely hidden.

    Wanna expose the bishop of abuse in the courts? Sorry. Get in the back of the line of the class. And they will dare you to call it a credible allegation. “You’re just in line for the money,” the bishops will say. “If you really had a case, you would sue.”

    5. Outside of the named plaintiffs, other survivors will be little more than a number.

    Let’s not forget what Mitchell A. Toups, one of the lead attorneys in the class-action case, told the Washington Post: the class-action suit could serve as a one-stop national clearinghouse to resolve all cases of abuse.

    That’s every bishop’s dream. Line them up, assignment them a number, pay them off, kick ’em out. It’s better and easier for the bishops than an Independent Reconciliation and Compensation Fund (IRCP). I will discuss class actions vs. IRCPs in a later post.

     

    Coming up in the next post: The Evil Opt-Out

    Other posts will discuss the RICO argument, and how class actions lock the courthouse doors for many victims, the illusion of accountability, and IRCPs vs. Class Action Lawsuits

  • A New Series ~ Settlement Class Action Sex Abuse Lawsuits

    A New Series ~ Settlement Class Action Sex Abuse Lawsuits

    ~Part one in a multi-part series~

    Class Actions: BAD for Victims. BAD for Justice. BAD for Transparency

    Class action lawsuits are a bishop’s dream and a victim’s nightmare. Let me explain:

    Earlier this week, news reports discussed a federal class action lawsuit filed on Tuesday against the Vatican and the US Conference of Catholic Bishops.

    (This class action lawsuit is not to be confused with this civil public nuisance lawsuit against the US Conference of Catholic Bishops, also announced this week. It is NOT a class action. The civil public nuisance is a case filed by six individuals. Confusing, I know.)

    What are class actions for?

    Class actions, in a nutshell, are used when a group of people (the “class”) suffers the same or similar injury and damages can be standardized.

    Let’s look at some typical examples:

    • Airlines deliberately overcharge thousands of people for airfares.
    • Five or six companies who manufacture denim jeans collude and hike the price of jeans so that all of the buyers of those jeans suffer the same damage.
    • A national gym chain overcharges people on their annual dues
    • A credit reporting company is hacked and the SSN’s and birth dates of millions is breached (leaving these consumers vulnerable to identity theft forever). The company “neglects” to inform consumers for months

    The damage? Consumers are overpriced x dollars or x percent or millions of people are vulnerable to identity theft and are left in the dark about the risk for months. Then, a bunch of people get together and say, “Hey, we wuz robbed!” They get an attorney, form a class and file a class action lawsuit.

    That’s when you (as a member of the “class”) get the formal letter in the mail that says “If you do nothing, you will be considered a member of this class and will receive a settlement.”

    If you decide to do something different, that is called an “opt-out.” In general terms, if you opt-out, you maintain the right to pursue legal action at a later date. Do most people read the fine print of those emails or letters? No.

    Then about twelve months later, you get a check for $3.45 or a coupon for 50% off a one-way airfare in the continental US.

    Who makes the big money? The attorneys. While a large portion of the money is divided among the class, the huge chunk is given to the attorneys. Members of the class get pennies on the dollar. It’s how the math works.

    Which leads us to the next question:

    Why do settlement class action lawsuits not work for sex abuse victims?

    There are many answers. But we will address two in this blog post:

    1) Sex abuse is a personal injury in the legal sense (with focus on the PERSONAL). Every victim’s case is different and can bring forward new and unique evidence.

    The six men who are the lead plaintiffs of the class have very different cases. They were abused in different states and in different dioceses. At least one was abused by an order priest. Some have received court settlements. Others have received out-of-court settlements. At least one is in a state that is currently fighting for statute of limitation reform and has never been able to file a lawsuit and be heard in court. This class action may not allow him to file a suit when the time comes (we will address that in part 3).

    My own case is very different from the six men who are the lead plaintiffs in the class. I was abused by a lay person at a Catholic school and my case was covered up by the system. I am a woman. In fact, most of the victims I am talking to these days are women—women who feel silence by the media and the church’s focus on the male victims.

    Women’s experiences are all very different (as are their outcomes/damages—pregnancies, abortions, children, shame because of our gender, etc.) from the men. The fact that there are no women as lead plaintiffs is a whole other issue, but let’s just focus for now on the difference in experience.

    But here is one thing we can agree upon: the damage and the injury when it comes to child sexual abuse are far different than being overcharged for an airline ticket or being cheated on your gym membership.

    2) Every victim deserves to be heard

    The beauty of our civil justice system is that it allows for the plaintiff (the sex abuse victim) to be heard. This is why Statute of Limitation (SOL) Reform is so important. When victims are allowed access to the civil courts, they do many things:

    • Expose their predators in court and protect children and communities
    • Gain access to valuable evidence regarding the person who assaulted them, the people who covered up for that predator, and can then turn that information over to law enforcement (including attorneys general, grand juries, cops, district attorneys, etc.)
    • Rebalance power and put predators on notice: they will be reported and will be exposed.

    Class action lawsuits do none of these things. Instead:

    • When someone is a member of the class, they are a forced to be member unless they “opt out”—even if that victim was not ready to come forward
    • There is most likely no discovery on individual cases in a class action
    • Individual names of predators and evidence in individual cases are most likely not exposed in a class action.
    • A victim has no individual voice if they stuck in the class (they didn’t know to opt out)
    • Individual child rapists and those who cover up for them are most likely not held accountable or exposed in a class action.

    “But Joelle,” you say. “This is about RICO. You aren’t looking at the big picture.”

    Oh, no. I see the big picture. It’s not class action.

    The big picture has many moving parts. It’s SOL reform. Independent law enforcement investigations (attorneys general, grand juries, district attorneys, police). Rebalancing power. Exposing predators. Big data.

    So, what should survivors do?

    Talk to an attorney (one who is NOT representing the class).

    My opinion? Don’t join. If you are already a member, talk to an attorney. See if the class action may disqualify you or others from bringing lawsuits in state court in the future. Or, if those cases are brought to state court, is there a chance (if the class is certified) that good individual child sex abuse civil cases could get sucked into the class against the will of the victim who fought to get his or her day in court?

    Remember—SOL reform allows victims to come forward when they are ready, gives each victim a voice, and exposes predators. Class actions … well … don’t do any of those things. And don’t let individual victims decide for themselves.

    That’s just like the bishops like it.

    Think my analysis is all bunk? Don’t take my word for it. Here is what Mitchell A. Toups, one of the lead attorneys in the class-action case told the Washington Post: (emphasis mine)

    Toups said the class-action suit could serve as a one-stop national clearinghouse to resolve all cases of abuse, rather than through a series of local suits. The suit estimates the proposed class may consist of over 5,000 members, whose names are already known to the church. In addition to financial damages, the suit seeks a declaratory judgment that the church must discipline and report known offenders; institute policies of transparency, to include publishing the names of all offenders; and create protocols to prevent or effectively handle future episodes of abuse.

    Uh … WHAT?! One-stop national clearinghouse? I’m sorry, but no “one-stop national clearinghouse” is going to expose decades of child rape and cover-up. Would such a “clearinghouse” have exposed the confession that my rapist signed? Or the cover-up document trail that allowed him to get new teaching jobs?

    No.

    Would a “one-stop clearing house” treat me with the dignity and respect I deserve as a victim of a horrific sex crime?

    No.

    Would a “one-stop clearing house” expose what we learned in Los Angeles, Joliet, Gallup, Fairbanks, or the dozens of other dioceses in states that have or had good laws?

    I do not know Mr. Toups. But his remark above shows the same lack of compassion I have heard from every bishop when it comes to sexual abuse. And it scares me to the core.

    Coming up in the next post: Lessons from Covington

    Other posts will discuss the RICO argument, and how class actions lock the courthouse doors for many victims, the illusion of accountability, and how class actions benefit the bishops far more than the victims.

     

     

  • Did the Vatican save the US Bishops from themselves?

    Did the Vatican save the US Bishops from themselves?

    Michael Sean Winters has written an excellent piece on the Baltimore USCCB Bishops’ Conference. He called the entire conference—from DiNardo’s leadership to the proposed reforms—”amateur hour.”

    My take on his editorial goes a step further: Pope Francis and the Congregation of Cardinals may have saved the US Bishops from themselves. DiNardo and team never had any intention of changing their ways—they were shamed into it. When called to the carpet, the bishops were ill-equipped to react in any meaningful way.

    He says (emphasis mine):

    But, when the bishops began discussing the proposals on Nov. 13, it quickly became obvious that the proposals were ill-conceived and would have fallen apart on their own, without any help from Rome. Erecting a national oversight commission, at considerable expense and with additional bureaucracy, to monitor 200 bishops, very few of them likely to have broken their vows of celibacy, didn’t seem very practical once they began discussing it. The proposed commission would report allegations to the nuncio but that happens now and no one had bothered to ask the nuncio if he wanted a commission to help him in his work. The Standards of Conduct seemed poorly framed and vague. The whole thing seemed amateurish.

    Ask the nuncio if he wanted help? Let’s face it, the cover-up of child sex crimes is not stopped by layers of bureaucracy—layers formed by the people who created the cover-up in the first place. And the Vatican is certainly not known as the perpetual font of child safety transparency.

    These so-called reforms were thrown together as window dressing to appease angry Catholics and stave off impending investigations. What would have happened had the bishops been allowed to implement them?

    Fortunately, or not, we will never know.

    Read the whole article.

     

  • UPDATED: Francis put the brakes on Baltimore. Now what?

    UPDATED: Francis put the brakes on Baltimore. Now what?

    UPDATED 5:14 pm:

    From the Washington Post:

    Instead, Cardinal Daniel DiNardo — the president of the U.S. bishops’ conference — told the group that the Vatican’s Congregation for Bishops had asked the bishops not to take action until after a worldwide meeting of church leaders in February.

    This is very interesting. The congregation is the group of bishops that has authority over the smaller conferences, such as the US Conference of Catholic Bishops. They are all under the authority of the Pope.

    I have an opinion on why and how they put the kibosh on the vote:

    The US Conference of Catholic Bishops was attempting to set some serious precedence: a code of conduct, submission to outside authority for investigations, etc. Would such policies extend worldwide? This could spell trouble for bishops in jurisdictions where there are no scandals because there are no victim-friendly laws.

    Plus, the proposed reforms had the distinct possibility of flouting Canon 22:

    Can. 22 Civil laws to which the law of the Church yields are to be observed in canon law with the same effects, insofar as they are not contrary to divine law and unless canon law provides otherwise.

    **translation: we follow the laws we like, and ignore the ones we don’t

    The congregation wasn’t going to wait to find out the U.S. Bishops’ vote tally. They went to the Pope and said, “We’re shutting it down.” He said, “Sure thing. One less hassle for me.”

    **************

    ORIGINAL POST

    There is a lot to be said for being lazy.

    I was going to write about the proposed Baltimore bishops’ meeting agenda yesterday, but put this blog post off until this morning. Good thing—because our pal Pope Francis made the whole meeting moot.

    From the Washington Post:

    In the opening minutes of their meeting, the bishops heard a surprising report: Pope Francis had asked them not to vote on any of their proposals.

    The pope does not want U.S. bishops to act to address bishops’ accountability on sexual abuse until he leads a worldwide meeting of church leaders in February, the president of the U.S. Conference of Catholic Bishops, Cardinal Daniel DiNardo, told the gathered bishops as the meeting opened Monday morning.

    “At the insistence of the Holy See, we will not be voting on the two action items,” DiNardo said. He said he was “disappointed” by the pope’s directive.

    I like the use of the word “directive.” Granted, it was put there by the Post’s writer, but it tells of the gravity. This is not an “ask.” This is an order.

    The thinly veiled threat

    This quote below by Archbishop Christopher Pierre, the Vatican’s Ambassador to the United States (not the one busted with child pornography) also intrigued me. In it is a thinly veiled threat to any civil law enforcement who dares to try and tell the church how to run its affairs. He seems to be talking about lay review boards—but when you look at the larger scope of his own priest who was busted for porn and was on the lam from TWO federal governments (Canada and the US), only to be “found guilty” by the Vatican—he’s talking about any civil authority:

    But then Pierre, a French bishop sent by Francis to Washington in 2016, quoted a French author who said that “whoever pretends to reform the church with the same means to reform temporal society” will “fail.”

    Now what?

    Chicago Cardinal Blase Cupich suggested that the bishops continue with their agenda and have a non-binding vote. You can view the proposed agenda here (this links to a wordy and lengthy editorial piece, sorry).

    The bishops had planned on discussing things like a code of conduct for themselves (how novel), more lay review boards with real (?) investigative authority, punishing adult relationships (you know, that whole “abuse of power” thing that is forbidden anyway by celibacy), and other stuff.

    Me? I think that the bishops believe that Francis swooped in and saved the day. There are a bunch of men with high blood pressure and fatty livers in Baltimore who are breathing huge sighs of relief right now. Instead of fighting over codes of conduct, Cupich and his cronies are putting in their orders for filet mignon and ’10 Chateau Lafite Rothschild Pauillac. It’s R&R in Baltimore.

    They think they dodged a huge bullet. But they didn’t. Now they have to protect their phoney baloney jobs.

     

     

  • Some thoughts on this week’s Baltimore Bishops’ Meeting

    Some thoughts on this week’s Baltimore Bishops’ Meeting

    Spoiler warning: The US Conference of Catholic Bishops is taking us for a bunch of rubes.

    The bishops are relying upon two things: 1) the public’s lack of institutional memory; and 2) Catholics’ reliance upon the bishop’s artificial moral authority.

    #1 Lack of Institutional Memory

    Let’s start with #1. The best way to do this is to compare compare scandals: 2002 and 2018.

    The 2002 Catholic clergy sex abuse and cover-up scandal was prompted by the Boston Globe Spotlight exposé and subsequent cover-up scandals nationwide. The 2018 meeting is prompted by the Pennsylvania AG report and subsequent AG investigation announcements across the country.

    The bishops are in crisis, pure and simple.

    Your average 30-year-old reporter was fourteen in 2002. And unless they had a family member who was abused, chances are that the story was nowhere near their radar screen. This is all new to them.

    So let’s compare stories.

    From Laurie Goodstein’s (who is still on the beat, BTW) June 2002 story on the Dallas meeting in the New York Times:

    A day before the nation’s Roman Catholic bishops are to meet in Dallas to debate how to respond to the clergy sexual abuse scandal that has devastated the church, another bishop resigned under the shadow of sexual abuse accusations.

    Sound familiar? It gets better. Later in the article:

    The meeting in Dallas will deal only with the issue of sexual abuse. As a sign of how grave the crisis is considered to be, the bishops have put off discussion of other issues until their next meeting, in the fall.

    Now, from the November 9, 2018, Washington Post:

    In a highly unusual move, the bishops will put aside almost everything else on their agenda for the annual meeting of the U.S. Conference of Catholic Bishops next week to focus solely on rectifying their policies on abuse.

    Or in this case, not so unusual. It’s what they do when they are in freefall.

    Now, let’s look at who complained about the policies. From the 2002 New York Times article:

    ”The more you nuance, the more hazy it gets, and I think the people are saying, give us a clear standard,” Cardinal McCarrick said. ”As I listen to my brother bishops and as I listen to the people, I think they may feel that one act, even if it happened 30 years ago, should disqualify a man for continuing in the ministry. I’m not there yet.”

    And now we know why McCarrick wasn’t “there yet.”

    From the 2018 Washington Post Article:

    This proposal is likely to provoke the most controversy among the bishops. “I think the whole thing of a code of conduct for the bishops to me is unnecessary. We have a code of conduct — it’s called the Gospel of Jesus Christ. It’s called living a good, holy life,” said Bishop Christopher Coyne of Vermont’s Diocese of Burlington. “This is the life that we’re called to live as bishops. That would be a code of conduct enough.”

    After a moment of reflection, Coyne modified his view. “I wish it wasn’t necessary, but it is. Given what has happened in the past and has happened currently, it is.”

    Really? No code of conduct for the bishops who have covered up child sexual abuse for decades? It’s not like codes of conduct are foreign to them. Let’s take a look …

    Code of Conduct, Diocese of Harrisburg

    Code of Conduct, Diocese of Charleston

    Code of Conduct, Diocese of Buffalo (ugh)

    Code of Conduct, Diocese of Allentown

    I could go on, but it would get boring. So I will leave you with the CODES (plural, mind you) for the Diocese of Burlington.

    Coyne considers codes of conduct “good for thee, but not for me.” If I were him, I would say, “Lay those rules on me. My burden should be the greatest of all.” His reticence – that “moment of reflection” –  is telling.

    #2 Artificial Moral Authority

    The bishops will be devoting a full day of the three-day meeting to prayer.

    But before it all gets started, the bishops will pray. Their meeting Monday will be chock full of ritual. Mass. Guided prayer and reflection about the grievous effects of sexual abuse. Time for confession.

    A full day in prayer and contemplation can be rare for busy bishops, Rogers said. “We’re all very action-oriented people. It’s easy to forget, leading the complex organization of a diocese — all the parishes and schools. This invites them out of the administration of the church, and into why the church is here to begin with.”

    They have had plenty of time to pray (sixteen years, in fact, since the 2002 scandal). The bishops have millions of Catholics praying for them.

    I don’t recall a single lesson in the New Testament where a wrongdoer, when given a choice between making amends and praying, was told by God, “Hey, I have a great idea. Instead of doing good works for those you have so terribly wronged, why don’t you waste a day and celebrate rituals in secret with your buddies in crime. It’ll be fun.”

    What can you do?

    Show the bishops you’re not a bunch of rubes. Stop giving. Push back. Join an advocacy group like STOP to change laws and demand accountability. Stand up for those who speak out.

    I’ll discuss the bishops’ proposed “schedule” in a later post.