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Article Explains Reasons for Appeal on Documents
Recently, lawyers for the Archdiocese of Los Angeles asked the U.S. Supreme Court to set aside lower court rulings that would give federal prosecutors access to 14 documents in the Church's confidential files. (Important Note: That's 14 documents. It is not - repeat not - hundreds and hundreds of pages of documents, as you might have been led to believe by media coverage of the issue over the past year or so.)
The Archdiocese believes that this handful of documents falls under the First Amendment's protections of religious practices because they involve intimate communications between a bishop and priest, the confidentiality of which is essential to Catholic practice. (Priests are assured that when they come to their bishop in times of spiritual, economic, emotional or psychological difficulty, these conversations will remain private. It's for this reason that records of such pastoral care are kept separate from routine personnel files, access to them strictly limited.)
This is an important issue, with implications for all religious groups, not just the Catholic Church. Yet media coverage of it has been spotty, confused or downright wrong in reporting the Archdiocese's position, what that position is based on and the reasons for it.
Finally, however - better late than never, we suppose - the Los Angeles Times has published an op-ed piece from freelance journalist and lawyer Eric Berkowitz which lays out the case. Coincidentally, Mr. Berkowitz's article ran the day after the Church's appeal to the Supreme Court was filed. While that was too late to clear up some of the misunderstandings in stories about the appeal, one can only hope it will have the effect of making future coverage fairer and more knowledgeable.
In his article, Mr. Berkowitz notes that "bedrock Catholic doctrine" makes it a requirement for a Bishop or Archbishop to care for his priests' overall emotional and spiritual well-being, including issues involving sexuality and chastity. That the bishop is the person a priest turns to in time of need is a part of the very structure of the Church.
As Mr. Berkowitz explains: "Priests are encouraged to self-report their troubles, after which the bishop can order counseling, reassignment or, if necessary, relief of duty." (Because the Los Angeles Archdiocese has so many priests - about 1,000 - the Archbishop has "deputized" a vicar for clergy to perform some of these functions for him in some circumstances.)
"Clearly, this system has not worked well," Mr. Berkowitz admits. Yet, he continues, the Church can reasonably argue that the process will not work at all if confidential files are opened to public scrutiny. Already, the prospect that what a priest says in private might become public or be used against him in court is resulting in a reluctance by priests to seek help. "But if priests don't talk about their urges and problems to their counselors beforehand, the only mechanism for dealing with potentially abusive priests will be criminal prosecution after the damage is done," Mr. Berkowitz writes.In the broad context, Mr. Berkowitz continues, "as with the attorney-client and psychotherapist-patient privileges, the protection of clergy-penitent communications expresses society's collective decision that it is more important to guard a confidential relationship than it is to expose what happened in a particular case." These relationships are applicable not just to priests and their bishops but to the general public as well because for many people "the ability to communicate freely with their clergy serves the same function as psychotherapy."
Of course, the difficulty in regard to the documents at issue in Los Angeles is that they may deal with sexual abuse. Why protect the communications of accused child molesters? Because, Mr. Berkowitz argues, "when the privilege is weakened for some people, it is weakened for all of us."
But since upholding the clergy privilege and keeping documents about accused child molesters from prosecutors would be "politically unpalatable," Mr. Berkowitz suggests, the lower courts had to find a loophole. And this they did by ruling that the involvement of the vicar for clergy in the counseling process introduced a "third party" into the picture and erased the notion of bishop-priest confidentiality.
But "this is bad reasoning," argues Mr. Berkowitz. "In an organization as vast as the Archdiocese, it is unrealistic not to allow (the Archbishop) to be assisted by the vicar. It would not have been a stretch to include the vicar in the (Archbishop's) zone of confidentiality."
A desire "to get bad guys," may be understandable, writes Mr. Berkowitz, but it "makes us sometimes devalue our own rights."
The Archdiocese of Los Angeles has published an Addendum to the Report to the People of God. The Addendum contains three sections:
- Current information about programs to safeguard children and deal with reports of abuse;
- A list of priests against whom allegations of abuse have come to light since the original publication of the Report in February 2004;
- Summaries of the Clergy Files of the Archdiocese for priests named in lawsuits that are part of the on-going settlement and mediation process.
To read the Addendum and the original Report to the People of God please go to our Library
The California Court of Appeal ruled Sept. 22 that the Los Angeles Archdiocese could not make public the proffers - summaries of its files - that it has prepared regarding priests accused of sexual abuse.
At the same time, however, the Court said that while the Archdiocese could not release the proffers themselves, it could make public the information on which the summaries are based. Attorneys for the Archdiocese said that they planned to make such information available to the public as soon as the Court's order becomes final.
Many victims of abuse have indicated that publishing the proffers would aid in their healing, and it has been the intention of the Archdiocese to do so since last fall when the proffers were prepared. However, a number of the alleged offenders objected to any disclosure of their names or details of the allegations against them until they can be proven in a trial. It was their appeal which led to the Court of Appeal ruling.
For more information on the ruling please go to the Media Watch section of this site.
The California Court of Appeal released its ruling July 25 on certain Archdiocese documents sought by a grand jury.
The Court ruled that one of the documents at issue, a memo to a priest's psychotherapists detailing the priest's personal history, was protected by the patient-psychotherapist privilege and should not be given to the grand jury. A number of other documents, however, were not protected by that or other privileges and should go to the grand jury, the Court said.
Nothing will happen to the documents immediately because the matter will probably be appealed to the state Supreme Court.
In their ruling, the Appeal Court judges clearly recognize the existence of both a privilege protecting communications between a psychotherapist and a patient and between a priest and a penitent. This strengthens the position of the Archdiocese as it moves forward.
This case involves grand jury subpoenas for church documents relating to two priests. In September 2004 a court referee ruled that a number of documents had to be turned over to the grand jury. The Archdiocese and the two priests filed separate appeals.
The Archdiocese is seeking to protect only 15 documents, about 20 pages all told. The two priests, however, are seeking to protect all of the documents.
The Archdiocese's position is that the documents, which involve confidential communications between bishop and priests, are protected by the Religion Clauses of the First Amendment, in addition to the various privileges, and that revealing them to a grand jury would be an unwarranted intrusion into the way the Catholic Church practices its religion.
Archdiocese lawyers have pointed out on numerous occasions that the District Attorney already has all the information he needs to launch any prosecution.
Proffer Release Blocked
In a last-minute ruling April 12, the California Supreme Court blocked the Archdiocese from publicly releasing
126 proffers, documents summarizing the essential contents of Church files regarding priests named in the more
than 500 lawsuits against the Archdiocese. The Supreme Court action came on a motion filed on behalf of several
of the priests and hands the matter back to the 2nd District Court of Appeal, with the instruction that the lower
court issue a written opinion on the issues. The Appeal Court had earlier cleared the way for releasing the
proffers by turning down an appeal from the priests.
Many victims of abuse have suggested that publishing the proffers would aid in their healing and reconciliation
with the Church, and it remains the firm intent of the Archdiocese to do so as soon as it is permitted by the Court.
However, many of the alleged offenders object to any disclosure of their names or details of the allegations against
them until they can be proven in a trial.
Lawyers for the Archdiocese prepared the proffers as part of the process of mediating and settling the more than 500
lawsuits alleging that the Archdiocese is legally responsible for failing to prevent abuse suffered by the plaintiffs.
The intent of the proffer procedure is to provide the information needed for the parties to negotiate a fair and
reasonable settlement while at the same time maintaining the Church's duty to protect the contents of spiritual and
confidential communications between priests and the Archbishop, Chancellor and Vicar for Clergy.
It is the firm belief of the Archdiocese that the confidentiality of religious communications is protected by the
Religion Clauses of the United States Constitution and analogous provisions of the California Constitution. Litigating
this question, however, might have delayed a settlement for many years, and it was to avoid this that the Archdiocese's
lawyers suggested preparing the proffers. All parties agreed to the procedure.
The Archdiocese's lawyers prepared a proffer for each priest accused of abuse in the current lawsuits subject to the
mediation process - a total of 126 such documents. (Proffers were not prepared for clergy whose conduct is not at issue
in the current mediation process, and for this reason the total number of proffers is less than the number of alleged
offenders listed in the Report to the People of God, published in February 2004.) As the proffers were prepared, they
were submitted to the Court. The Court then compared each one to the original files of the Archdiocese to determine
that it was complete and accurate. Once this had been confirmed, the proffer was delivered to the lawyers for the
plaintiffs.
The Archdiocese originally planned to publish the full set of proffers Jan. 4. However, Donald Steier, attorney for
several of the accused priests, won a stay from the Court of Appeal. That stay was to expire at 5 p.m. April 12, and
the Archdiocese planned once again for publication.
But just minutes before the deadline, the California Supreme Court, acting on a new appeal by Steier, intervened.
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