"Workers of God": The Holy See's Liability for Clerical Sexual Abuse

Article excerpt

I. INTRODUCTION .................................................................. 1507

II. BACKGROUND .................................................................... 1510

A. Sovereignty of the Holy See and Its Control Over Catholic Affairs ................................ 1510

B. The Holy See's Knowledge of Clerical Sexual Abuse .......................................................... 1515

C. The FSIA and the Recent Cases Attacking the Holy See's Immunity ........................................ 1517

III. IS RESPONDEAT SUPERIOR ACTUALLY SUPERIOR? ............ 1519

A. "Do Not Be Called Master' ": Priests And Bishops as Employees of the Holy See .................. 1520

B. "Render Unto Caesar What Is Caesar's, and to God What Is God's": The Ecclesial Abstention Doctrine in American Courts ............... 1527

C. "Do Not Consider Who a Person Is; Give Ear to the Lowly and to the Great Alike": Unfair and Unpredictable Application of the FSIA ............................................................. 1532

IV. COMMAND RESPONSIBILITY AND LIABILITY ....................... 1536

A. Command Responsibility in U.S. Courts .............. 1536

B. Applying Command Responsibility to the Catholic Church ..................................................... 1537

V. CONCLUSION ...................................................................... 1540

I. INTRODUCTION

In the 1970s, no Boston priest was more electrifying than Paul Richard Shanley. Ordained in 1960, he sought and received from his bishop, Boston cardinal Humberto Medeiros, a mission to minister to "sexual minorities" in 1970 and became a well-known Boston "street priest."1 Wearing jeans and smoking Kool cigarettes, he gathered about him runaway gay teenagers and advocated fiercely for gay rights.2 Yet one of the boys drawn to him was the same one Shanley would be convicted of sexually abusing in 2005. 3 In a civil suit seeking damages from the Archdiocese of Boston for its role in hiding Shanley's abuse, the plaintiffs submitted at least twenty affidavits from Shanley's victims detailing abuse from 1961 to 1988, including accounts of child sexual abuse and oral and anal rape.4 One victim's affidavit states that during the abuse, "Father Shanley would explain to me that he was a 'worker of God' and that the acts of abuse were sanctioned by God."5

God is not amenable to suit in the United States for the acts of His agents, but many victims have sued American bishops and dioceses in the Catholic Church.6 These suits have resulted in over $2 billion in settlements.7 Yet some victims are seeking the even deeper pockets of the Holy See, the ecclesial administrative body of the Catholic Church governed by the pope.8 The Holy See, an internationally recognized sovereign that maintains formal relations with 176 sovereign states and has permanent observer status at the UN General Assembly,9 would normally receive immunity from suit through the Foreign Sovereign Immunities Act ("FSIA").10 However, in two recent cases, O'Bryan v. Holy See11 and Doe v. Holy See,12 the Sixth and Ninth Circuit Courts of Appeals have held that suits against the Holy See may proceed through the tortious act exception of the FSIA.13 The plaintiffs alleged that the Holy See was liable through respondeat superior, a common law theory of vicarious liability holding employers liable for their employees' tortious acts within the scope of their employment.14

Although respondeat superior is an attractive theory of liability to overcome the Holy See's sovereign immunity, it also presents a host of thorny theoretical and practical problems. First, the Holy See's unique status and the unique religious organization it administers present difficult issues when applying traditional agency law. Priests, who are citizens of the nations in which they work and maintain few material ties to the Holy See, seem a far cry from the usual sovereign agents who find themselves in court, such as diplomatic attachés and state-owned banks. …