BOSTON — The Catholic clergy sex-abuse scandal started out mainly as a source of pain and embarrassment for Catholics. Now it has now become the reason given for unprecedented interference into the affairs of the Church by the state.

That is the belief of a number of attorneys who met on the issue at university symposiums in April.

Media coverage of sex abuse by priests — and the failure of bishops to stop it — reached a high point last year when a notorious Boston pedophilia case was prosecuted in the courts. The New York Times estimates that only 1.8% of priests have even been accused of sex abuse, and studies suggest only 0.3% of priests are pedophiles, but the anger of Catholics and the pain of victims have fueled unprecedented legal challenges to the Church.

Patrick Schiltz, associate dean at the University of St. Thomas School of Law in Minneapolis, believes many of the lawsuits being brought against the Church necessarily bring state intrusion into the Church's life.

As an example, Schiltz told a symposium at Boston College Law School about one type of lawsuit that claims there is a fiduciary relationship, or position of trust, between the bishop and his people that is violated any time a clergyman commits sexual abuse.

“Determining whether a pastor or bishop breached such a duty,” Schiltz said in his paper, “does not involve an inquiry into whether he acted as a reasonable minister, some courts explain, but instead requires that the court ask whether the pastor or bishop acted ‘with utmost good faith and solely for the benefit’ of the [victim].”

That raises all kinds of issues, Schiltz said, including competing loyalties between laity and priests. But more importantly, “some courts have purported to assess what acts of ministry are or are not in the best interest of congregants.”

Schiltz is not concerned with “courts reaching the conclusion that a pastor acts wrongly when he sexually exploits a congregant” since fiduciary law isn't needed to say that.

“Rather, my concern is with courts second-guessing the decisions made by bishops and others in authority within a church,” he said.

But David Clohessy, executive director of Survivors Network of those Abused by Priests, thinks those decisions need to be second-guessed. His group has pushed for legislation that would suspend the statute of limitations and for courts to force dioceses to reveal their files on priests who are accused of sexual misconduct, among other measures.

Speaking to the Register from the first National Conference on Clergy Abuse that was held April 10 at Yeshiva University in New York, Clohessy said “no institution can effectively police itself. Therefore, those who are victimized have to have the option in the courts, especially when seeking justice in the institution doesn't work.”

He thinks there is “absolutely no evidence” there will be any real changes in state law regarding clergy, as some say.

Of those worried about changes to state laws, Clohessy said, “My impression is that it sounds like Chicken Little.”

New Hampshire Method

But state legislatures are not the only venue in which state interference is happening. At the Boston College conference, John Baker, a law professor at Louisiana State University, said the agreement reached between the New Hampshire attorney general and the Diocese of Manchester is particularly onerous.

The state placed on the diocese “a burden over and above state law,” Baker said. “It is an outrageous expansion of existing law.”

The agreement states the attorney general will not indict the diocese as long as it implements the five-year deal. Part of the agreement says the state will annually audit the diocese's efforts at child sexual abuse prevention, including what programs it is using. It also places additional reporting requirements on all diocesan personnel.

N. William Delker, senior assistant attorney general in New Hampshire, disagreed with Baker's assessment.

“The diocese agreed,” he said, “that if they were indicted they would have been convicted. In order for us to sustain a conviction, we would have had to have both the law and the facts on our side.”

But Baker said it was impossible to tell if that would have happened or not. He said the attorney general's action sets a precedent that will only increase state interference.

“The next time there's a crisis,” he said, “it'll be worse.”

The bishops of New Jersey also made an oversight agreement with county prosecutors and the state attorney general last year.

“I have not seen any instance of prosecutorial excess,” said Bill Bolan, executive director of the New Jersey Catholic Conference. “And I say that as a former prosecutor.”

In fact, it was entered into under completely different circumstances, he said. The bishops of New Jersey entered the agreement voluntarily, but the New Hampshire deal was reached only after the attorney general said he would indict the diocese for the abuse patterns.

Getting the Priests?

Though Clohessy said the Survivors Network of those Abused by Priests had absolutely nothing to do with New Hampshire, it appears the organization would like to see the New Hampshire method applied to New Jersey.

After the New Jersey agreement was announced, the state chapter of the network issued a press release saying it was unhappy with the agreement and called for further action by the attorney general against the state's bishops.

This included:

Econvening a statewide grand jury with subpoena powers;

Erequiring a quarterly disclosure of where all priests who have been “credibly accused” of sex crimes are;

Eeliminating the statute of limitations;

E the attorney general allowing Survivors Network of those Abused by Priests to assign “survivor liaisons” for each diocese “to assist in the prosecution of abuse cases and promote our presence in the state to support victims";

Eand asking that the attorney general plan with the network “a public forum with prosecutors and bishops to address the ongoing public safety crisis in the Church.”

These new developments seem to have one thing in common, said William Donohue, president of the Catholic League for Civil and Religious Rights, and that's that they single out the Catholic Church.

“If it was about protecting kids,” the laws would be equally applied to all people, he said.

Donohue cited as one example New York state's new mandatory-reporting law. Last year, the Legislature debated a law that would require all professionals who have contact with children to report sexual abuse.

But that was effectively stopped when Planned Parenthood complained it would require the organization to report statutory rape. Now the law states that people who are in a “position of trust” must make a report.

“It's all about getting the priests,” Donohue said, “and not protecting kids.”

Thomas A. Szyszkiewicz writes from Altura, Minnesota.