Holy See v. Doe

          This week the Supreme Court denied cert. in Holy See v. Doe, a case in which the Vatican appealed the Ninth Circuit's decision to allow a torts lawsuit against the Holy See to proceed. John Doe sued the Holy See, which is both a foreign state and the central government of the Roman Catholic Church, arguing that the Holy See was liable for the sexual abuse of Doe by Catholic priest Father Andrew Ronan. Although the Ninth Circuit dismissed Doe's claims against the Holy See for negligent retention and supervision of  Ronan and failure to warn Doe, it allowed Doe's lawsuit to proceed under a legal theory called respondeat superior, which holds employers strictly liable for the negligence of their employees. 

          Respondeat superior usually allows employers to be held liable only when the employee's conduct is within the scope of his employment. For that reason, most respondeat superior lawsuits against the church for sexual abuse have been dismissed because sexual abuse is not supposed to be part of the job. Oregon law, however, where Doe's suit was brought, holds that when the priestly and pastoral duties are the necessary precursor to the abuse, the lawsuit can proceed. In other words, because Doe met Ronan in church and other ecclesial settings where Ronan was acting as a priest, the scope of employment requirement was met.

          Now we await the trial. The Vatican's lawyer will defend the suit by arguing that Ronan was not an employee and that the Vatican was not even aware of Ronan's "very existence" until after the suit was filed. It would be great if that defense allowed the plaintiff the opportunity to demonstrate that the Holy See was too busy pursuing other problems--namely denying requests by divorced Catholics to remarry, publicly disciplining priests in Brazil and Peru for preaching that the church should work to empower the poor and oppressed, rein[ing] in a Dutch theologian who thought lay people should be able to perform priestly functions, and an American who taught that Catholics could dissent from church teachings about abortion, birth control, divorce and homosexuality--to pay attention to its abusive priest-employees.
          Most interesting is a recent report that Pope Benedict (then Cardinal Ratzinger) did not take action against abusive priests because he thought that the huge drop in the number of priests looked bad for the church and needed to be stopped.  “Look at it from the perspective of priestly commitment,” said the Rev. Joseph Fessio, a former student of Cardinal Ratzinger’s and founder of the conservative publishing house Ignatius Press. “You want to get married? You’re still a priest. You’re a sex offender? Well, you’re still a priest. Rome is looking at it from the objective reality of the priesthood.”  The objective reality was that the church wanted to keep as many Father Ronans in the priesthood as it could. For that it deserves tort liability.