Not all the news is fit to print (part three)

what the media missed in the sexual-abuse scandal

by Patrick J. Schiltz

Editors note: This is the conclusion of a three-part series. In last month’s issue, Schiltz described some of the "big picture" distortions of recent media coverage. This month he concludes with a few of the "small picture".

I have been describing some of the "big picture" distortions of recent media coverage. I want to finish by describing just a few of the "small picture" distortions-that is, a few of the building blocks that have been used to construct this distorted structure.

First, over the past two years, all of us have read horror stories about bishops permitting abusive priests to remain in ministry. These stories were horrible because what the bishops did was often horrible. It should be noted, however, that something rather important was usually left out of these stories: In most cases in which a bishop decided to permit a priest accused of abuse to remain in ministry, the bishop was relying on the advice of a psychologist. That psychologist told the bishop either that the priest likely did not commit abuse or that, although the priest did commit abuse, his problem was now under control.

On countless occasions, psychologists gave bishops terrible advice about abusive priests-and, of course, this bad advice led to terrible consequences for victims and the broader church. Yet these psychologists have gotten off scot-free in the media.

Suppose you have a cough. You go to your doctor, and the doctor tells you that you have nothing to worry about. Later, you learn that you have throat cancer, and you should have been receiving chemotherapy all along. In this situation, we would be angry with the doctor, not with you. After all, the doctor is the expert, and you can hardly be blamed for relying on what the expert told you.

Bishops, too, often consulted experts-sometimes the most respected and experienced experts in the nation. Bishops, too, were often told that they had nothing to worry about. Bishops, too, relied on that advice to their detriment. Yet the media have consistently blamed bishops for following bad advice, rather than the experts for giving the bad advice.

Second, over the past two years, all of us have read many stories about the hardball tactics used by attorneys who defend churches. Such tactics have indeed been used, and the attorneys who have used them deserve all the criticism they have received. That said, let me draw your attention to a couple of things not mentioned in the press. First, if you were to collect all the articles about hardball tactics used by church attorneys, and if you were to read every one of those articles carefully, you would find that, with few exceptions, they tend to describe the same dozen or so examples. Think about this for a moment. There have been thousands-perhaps tens of thousands-of clergy sexual-abuse cases filed against churches. Any time a church attorney engages in a hardball tactic, you are likely to hear about it, because it is in the interests of plaintiffs' lawyers and victim advocates to call it to the attention of the media. Yet only about a dozen or so examples of these hardball tactics have come to light.

Does this not suggest that hardball tactics are quite rare? Does this not suggest that hardball tactics are, in fact, used far less often in church cases than in nonchurch cases? Why, then, is this newsworthy? And if this is newsworthy, why are the hardball tactics used by some of the attorneys who sue the church not also newsworthy? To my knowledge, no journalist has ever reported on a hardball tactic used against a church, even though the use of such tactics against the church is at least as common as the use of such tactics by the church.

Here's a second point about the use of hardball tactics: If you investigate the reports of hardball tactics used by church attorneys, you will find that, in most cases, the culpable attorney was an insurance defense attorney. Insurance defense lawyers are not selected by the church, paid by the church, or controlled by the church. Such attorneys generally see their job not as preserving the good name of the church, but as saving the insurance company money.

I spent a good deal of time in practice trying to persuade insurance defense attorneys who were representing my clients not to engage in hardball tactics. Most attorneys cooperated with us, but a few did not, and there was nothing we could do about them. Insurance policies give the insurance company the right to control the defense and obligate the church to cooperate with the attorney selected by the insurance company. As long as the attorney is not violating any ethical rule, there is nothing that a church can do to prevent the attorney from playing hardball.

Finally, a few words about "secret settlements." Here is the story that we have all heard many times: When churches would pay settlements to victims, we are told, churches would insist on secrecy agreements, prohibiting victims from disclosing any details of their abuse, saving churches from embarrassing publicity and, in some cases, allowing pastors to go on abusing. Many media outlets have run such stories, often carrying quotations from plaintiffs' attorneys condemning this practice, and sometimes featuring victims who, after being paid to keep quiet, broke their word and essentially dared the church to try to take back its money.

In the fifteen years I have been advising churches, I have always considered these secrecy agreements to be worse than useless. As far as I can remember, I never asked for one (although my clients were on a few occasions parties to secrecy agreements that had been requested by others). That said, let me make three points about secrecy agreements.

First, in many cases-perhaps a majority of cases-it was the victim who asked for the secrecy agreement. There is a reason why victims often sue as "Jane Doe" or "John Doe" and often seek protective orders from courts. Victims are understandably concerned to protect their privacy. That concern does not go away when the case is settled.

Second, even when it was the church that asked for a secrecy agreement, in the vast majority of cases that agreement extended only to the amount of the settlement. I have been involved in hundreds of settlements, and I literally cannot recall one that required the victim not to talk about his or her abuse. Such clauses are uncommon.

Finally, even with respect to these uncommon clauses-that is, clauses insisted upon by churches that required victims to remain silent about their abuse-what happened to the other half of the story? If it was wrong for defense attorneys to buy secrecy, why was it not wrong for plaintiffs' attorneys to sell it?

After all, it was plaintiffs' lawyers who would sometimes call church attorneys and say that, unless they were paid an outrageous amount, they would file a complaint against the church and call a press conference to publicize it. It was plaintiffs' lawyers who would sometimes make two settlement demands-a lower demand that did not include a secrecy agreement and a higher demand that did. It was plaintiffs' lawyers who would happily sell secrecy and happily take their 40-percent cut of the price of that secrecy. And yet some of these same plaintiffs' lawyers now tell reporters how very, very wrong it was for churches to buy what they were selling. With just one or two exceptions, I do not know of a reporter who has paused to contemplate the obvious hypocrisy of these lawyers.

I know that I have been harsh in my criticism of the press, but I also think that the criticism is justified. All of those in positions of power have an obligation to exercise that power responsibly. Years ago, too many bishops and priests acted irresponsibly in exercising their power, and the result was thousands of victims of clergy sexual abuse. Today, far too many journalists are acting irresponsibly in exercising their power. The victim of that abuse of power is the truth.

 

Patrick J. Schiltz holds the Saint Thomas More Chair in Law at the University of Saint Thomas School of Law in Minneapolis. While in private practice between 1987 and 1995, he represented churches in hundreds of clergy sexual-misconduct cases. He continues to consult with church leaders about such cases.

 

(c) 2003 Commonweal Foundation, reprinted with permission www.commonwealmagazine.org