The news from Germany is grim but unsurprising. As a German archbishop in 1980, Pope Benedict approved the transfer of a child-abusing priest to a new location where the priest enjoyed continued access to vulnerable children. The story is not surprising because it has been retold repeatedly around the world as numerous Catholic priests, bishops and archbishops covered up the sexual abuse of children and accommodated the abusive priests. Across the large Catholic world, only one priest spoke out against the abuse of victims, and he was shunned and marginalized by church authorities. Estimates are that some 9% of American clergy--over 9000 priests--were abusers. Every day's news confirms that the abuse was extensive. The numbers of identified abusers continues to climb in nations across Europe.
We know many details of the abuse today only because courts of law finally opened their doors to abuse victims and forced the church to stop hiding its wrongdoing behind the First Amendment. For years the church argued that its decisions about the priests' employment were matters of religious freedom and its employment documents were privileged from court review. Church officials argued that the law should not touch them but should focus on the misconduct of the abusive priests (whom they never reported to the police). Church officials actively told the victims to keep their mouths shut out of loyalty to the church, and in some cases even persuaded the victims to sign oaths of silence about their complaints.
Over time even Catholic judges and prosecutors started to protect the victims. Seven American dioceses faced bankruptcy because the costs of the abuse were so enormous. Tort liability made possible some redress for victims and some accountability by the church.
One last hurdle remains, however: suing the Holy See itself. Whether the Vatican can be subjected to lawsuit over the sexual abuse may wind up in the hands of the six Catholics who now sit on the U.S. Supreme Court.
The Holy See is both a foreign government and the head of the Roman Catholic Church. Some American abuse victims sued the Holy See for its participation in the scandal, namely its policies of secrecy that assured that wrongdoers would go undetected and unpunished and kept crimes against children from being reported to the police. The Holy See claimed immunity from lawsuit under the Foreign Sovereign Immunities Act. The Act, however, does not immunize tortious conduct.
The Sixth Circuit ruled that any conduct that occurred outside the United States was immune from suit but that lawsuits could proceed against Holy See personnel in the U.S. who negligently supervised abusive clergy. The Ninth Circuit ruled that a lawsuit against the Holy See could proceed under a tort theory called respondeat superior, which imputes the abusive priest's negligence to the Holy See. Oregon law allows such liability for employers, and the Ninth Circuit wisely applied that theory to the Holy See. It would be a shame to immunize employers like the Vatican from tort liability. Respondeat superior exists to force employers to become aware of and prevent the tortious conduct of their employees. The abuse cases are a good place to employ respondeat superior.
Unfortunately, the United States government intervened in the Sixth Circuit case on the side of the Holy See. After the Holy See appealed the Ninth Circuit's ruling, the Supreme Court asked the government to express its opinion about the Holy See's immunity. This week's events in Germany (which disclosed only now the church's cover-ups from thirty years ago even though the church's highest authority was involved) remind me of the important purposes of the civil courts. Tort law and the civil courts compensate victims and deter misconduct. So far lawsuits have been the only force capable of holding the American bishops accountable. It is time for the same accountability to apply to the Bishop of Rome.