Academic journal article Brigham Young University Law Review

Continuing the Lord's Work and Healing His People: A Reply to Professors Lupu and Tuttle

Academic journal article Brigham Young University Law Review

Continuing the Lord's Work and Healing His People: A Reply to Professors Lupu and Tuttle

Article excerpt

One dark side of human behavior is that some adults seek gratification of their sexual desires from children and others who are vulnerable to these violations. A regrettable part of institutional behavior is that, at times, those in charge compound this human behavior through inaction or poor judgment. Indeed, institutions with special responsibilities for the care of children-schools, social service agencies, day-care centers, religious institutions, youth organizations, and others-must call this behavior what it is: always wrong and violative of the law. Persons who would abuse a child have no place in any organization with responsibilities that involve the care of children.1 Such conduct rightly deserves condemnation, and child-serving institutions may not allow such persons to work in them or shield them from prosecution.

The instant paper by Lupu and Tuttle makes a similar point: Religious organizations2 have learned, in some instances the hard way, that some persons entrusted with leadership as clergy or ministers have abused children.3 Religious organizations may not choose to allow a person who they know has abused a child to exercise ministry and expect there will be no consequences if the person abuses again. For these organizations, education, prevention, and effective response should be the hallmarks of policies against abuse of children. When harm has been done, an apology is not enough-action is required.4

Religious institutions must show that they have learned the lessons from failing to protect children adequately. By and large, these lessons are seen in policies and programs that both respond to abuse and prevent it by educating parents and others about abuse before it happens. The results are seen in lowered rates of abuse as churches incorporate these policies and programs into action mechanisms.5 But, in addition to preventing recurrences of abuse, churches must also heal the wound in the faith community caused by abuse and inaction.6 To do so requires outreach and reconciliation, and often monetary compensation.7

Dean Nicholas Cafardi has written that Americans show their displeasure through litigation.8 Using litigation as a yardstick, we are an unhappy people. Even though we might pretend otherwise in our communities and neighborhoods, the truth is that we do not all just "get along." Lawsuits are filed between neighbors over fences, between parents over the conduct of the PTA, and between disagreeing Christians over doctrinal matters such as where the Truth lies.9 Over the last generation, a number of factors have converged to make religious organizations more susceptible to suit. The expansion of liability theory is one factor that will be dealt with below. Another is the demise of charitable immunity generally,10 which has, in turn, resulted in an increase in insurance and changes to the structure of churches.11 Litigation is part of living and working in America, including practicing religion. When the subject of litigation is harm to children in this society, religious institutions have been caught up in a torrent of litigation.

Litigation over child abuse also mirrors the fact that society has lifted up the protection of children and has implemented better abuse- and neglect-reporting statutes. Beginning with the first mandatory reporting laws in 1974, society, through the law, has indicated that children deserve increased protection and attention.12 The media has translated these legal expectations into greater public awareness. Greater numbers of abusive incidents are reported today than thirty years ago, and negative attention has resulted in criminal and civil litigation. Catholic Church agencies report that about 4,000 persons claiming to be victims of clergy abuse have come forward or been identified, through litigation, to Catholic dioceses and orders since 2002.13 Every institution seems to face litigation, including churches.

However, unlike many corporate and business entities, it is difficult for religious organizations, whose main purpose is to provide for a worshipping community and for those in need of their care, to see litigation simply as a "cost of doing business. …

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