To Sin or not to Sin? The Ongoing Legal Battle in the Catholic Church over Clergy Abuse

by Juliette Draper

The 2015 movie Spotlight tells the story of the Pulitzer-Prize winning team of Boston Globe journalists who released an exposé on the rampant sexual abuse within the local Catholic Archdiocese.[1] The film, a dramatized retelling of the event, highlights only a fraction of the greed, corruption, pedophilia, and subsequent cover-ups made within the Roman Catholic Church during the past several decades.

In 2018, a Pennsylvania grand jury released a report documenting hundreds of incidents of child molestation within six dioceses in Pennsylvania over a period of 70 years.[2] The scathing report identified more than 1,000 victims of clergy abuse and exposed elaborate efforts by the Church to cover it up. The impact of the staggeringly comprehensive, and at times sickeningly-detailed, report was immediate and immense. The Grand Jury report highlighted how, “despite some institutional reform, individual leaders of the church have escaped public accountability,” largely unscathed both reputationally and legally.[3] Cardinal Donald Wuerl, the Archbishop of Washington D.C., was cited in the report as vouching for abusive priests during his previous tenure as Archbishop of Pittsburgh.[4] Wuerl subsequently resigned from his post due to the outrage over his mishandling of the sexual assault allegations.[5]

Wuerl was only one of many casualties from the investigations on the mishandlings of the Church. The crisis alone, as further emphasized after Wuerl’s resignation and the Pennsylvanian report, raised a number of issues regarding the sheer number of cases, the scale of liability for personal injury, and the annual “limit” on the statute of limitations for criminally or civilly prosecuting a case.[6] The Catholic Church crisis also revealed how the Church had systematically protected abusive wrongdoers, calling into question what legal repercussions the institution could face in the private law of civil wrongs.

The sex abuse scandal prompted a reevaluation of institutional liability regarding the immunities provided to institutions such as charities, churches, and governments.[7]

Churches and governments have historically been shielded from private law liability. However, the Canadian case, Blackwater v Plint (2005), raised the issue of whether institutional defendants should be found liable for the malevolent actions of their members.[8] The case was brought forth against the Government of Canada and the United Church, in 1996, by former students of an Indian residential school who sought damages for sexual abuse they experienced while residing in the dormitory.[9] The Canadian Supreme Court decision held the Canadian government and the United Church liable for the assaults due to the institutions’ joint involvement in the education of the Indian children. Chief Justice Brenner stated that the Church owed “a duty of special diligence to the plaintiffs’ because of its complete control over their lives and education.”[10]

The Supreme Court of Canada also rejected the doctrine of charitable immunity, which, in practice, would have exempted the United Church from liability. Charitable immunity holds that charitable or nonprofit organizations cannot be found liable for intentional torts.[11] The Court ruled in Blackwater that “a class‑based exemption from vicarious liability finds support neither in principle nor in the jurisprudence. Exempting non‑profit organizations when government is present would not motivate such organizations to take precautions to screen their employees and protect children from sexual abuse.”[12] Blackwater was thus a pivotal case in shaping institutional liability as it held a church liable for sexual abuse by adding the caveat that charitable immunity is impermissible as “protection” when the well-being of others is at risk.

The institutional abuse of children and the unsatisfactory institutional responses which prompted a great deal of legal activity in Blackwater incited another reevaluation of the doctrine of charitable immunity in Picher v. Roman Catholic Bishop of Portland (2013). The case concerned William Picher, who brought a suit against former Priest Raymond Melville for claims of “negligence, sexual assault and battery, invasion of privacy, intentional infliction of emotional distress, clergy malpractice, and breach of fiduciary duty.”[13] Picher also sought damages against the Bishop of Portland for “negligent supervision, breach of fiduciary duty, canonical agency, and fraudulent concealment of facts.”[14] Melville defaulted on the claims while the Bishop denied the allegations. As a legitimate corporate entity, the Bishop stood as the “representative” of the Catholic Church and, in theory, operated as a non-profit organization.[15] In the trial court, the Bishop moved for a summary judgement based on a defense of the doctrine of charitable immunity. The court granted the Bishop’s motion, ruling that the Bishop qualified as a charitable organization, as he, “has not waived its charitable immunity pursuant to 14 M.R.S. § 158 because it has no insurance coverage for the claims made by Picher,” further holding that, “the doctrine of charitable immunity covers both intentional and negligent torts.”[16] Picher appealed this summary judgement to the Supreme Judicial Court of Maine.

The Supreme Court of Maine ultimately vacated part of the trial court’s summary judgement and ruled that charitable immunity did not protect the Bishop from the alleged intentional tort of fraudulent concealment. The Court instead ruled that the doctrine prevented negligence claims based on the sexual abuse of a minor.[17] In this manner, Picher revolutionized the legal interpretation of charitable immunity by discrediting the ability for the doctrine to be used as a defense for all intentional torts. The court based this decision on three reasons: “the doctrine was discredited in almost all other jurisdictions;” “section 158 did not expand the scope of the doctrine to cover intentional torts,” and “prior decisions by the court had maintained the doctrine, but refused to expand it.”[18] These rationales, coupled with the Court’s definite statement that the charitable immunity “doctrine has generally been acknowledged as bankrupt,”[19] established a precedent that vicarious liability for the claim of fraudulent concealment would henceforth be held as separate and distinct from vicarious liability for alleged sexual abuse.[20]

The legacy of Picher lies in the following distinction the majority opinion made: that the doctrine of charitable immunity is meant to protect the funds of non-profit organizations from destructive litigation costs, and is not intended to prevent churches from being held legally responsible for suppressing allegations of sexual assault.

The distinct trend that emerged out of both Blackwater and Picher was the movement away from immunities, as these were now perceived to be capable of undermining the act of protecting children from abuse. Picher astutely pointed out the underlying truth: the vast majority of jurisdictions in the United States no longer recognize charitable immunity as a defense to tort claims.[21] However, some states have responded to claims to grant church immunity by imposing restrictions on the amount a plaintiff can recover from non-profit organizations.[22]

As a whole, private law liability expanded due to a reevaluation of negligence as a cause of action. These changes in private law proved to be deadly both to the Catholic Church’s pocket and to its reputation. The unwillingness of the upper members of the clergy to prevent and actively educate against the emotional and physical abuse of children sparked thousands of lawsuits and cost the Church millions of dollars.[23]

Yet the overall legal treatment of the Catholic Church redefined institution-specific immunities while reworking the underlying understanding of liability. The sex abuse crisis weakened the image of the Catholic Church as a grand institution with “a few bad seeds” by revealing the ruthless cover-ups orchestrated by church leadership. This revelation undermined the idea that wrongs were committed by individuals, and facilitated the decline of other special economic and societal protections endowed by the doctrine of charitable immunity. Instead, the Church was now held, under the rising idea of institutional responsibility, to an increased level of scrutiny.[24]

The clergy sexual abuse scandal drastically altered the narrow reading of vicarious liability that had traditionally protected the Catholic Church, hurtling the international, archaic institution into adopting a more complex picture of responsibility.







[1] Spotlight (Open Road Films 2015).

[2] Pa. Att’y Gen. Josh Shapiro. 40th Statewide Investigating Grand Jury Report 1, Pᴀ. Gʀᴀɴᴅ Jᴜʀʏ (August 14, 2018), http://media-downloads.pacourts.us/InterimRedactedReportandResponses.pdf?cb=364148.

[3] Id. at 10.

[4] Id. at 222.

[5] Bill Chappell & Tom Gjelten, Pope Accepts Resignation of D.C. Archbishop Donald Wuerl Amid Sex Abuse Crisis, NPR Nᴇᴡs (Oct. 12, 2018), https://www.npr.org/2018/10/12/656829266/pope-accepts-resignation-of-cardinal-wuerl-archbishop-of-washington#:~:text=Pope%20Francis%20has%20accepted%20the%20resignation%20of%20Cardinal%20Donald%20Wuerl,as%20the%20bishop%20of%20Pittsburgh.&text=On%20Friday%2C%20Wuerl%20said%20his,on%20healing%20and%20the%20future.

[6] Id.

[7] Mayo Moran, Reshaping Responsibility: The Emerging Private Law of Institutional Wrongs, Forthcoming in K. Barker (ed), Pʀɪᴠᴀᴛᴇ Lᴀᴡ ᴀɴᴅ Pᴏᴡᴇʀ Hᴀʀᴛ Pᴜʙʟɪsʜɪɴɢ (Oxford), Ch. 11. (2016), https://ssrn.com/abstract=2885449.

[8] Blackwater v. Plint, [2005] 3 S.C.R. 3, 2005 SCC 58. For a more detailed discussion of the Blackwater litigation, see: Moran, The Role of Reparative Justice in Responding to the Legacy of Indian Residential Schools.64 Uɴɪᴠᴇʀsɪᴛʏ ᴏғ Tᴏʀᴏɴᴛᴏ Lᴀᴡ Jᴏᴜʀɴᴀʟ 529, 550-553 (2014).

[9] Id.

[10] Id. at 228

[11] See Thomas v. Second Baptist Church of Long Branch, 337 N.J. Sᴜᴘᴇʀ. 173 (App.Div. 2001).

[12] Id.

[13] William Picher v. The Roman Catholic Bishop of Portland et. al., 2013 ME 99, 82 A.3d 289 (2013).

[14] Id. at 289

[15] See Fortin v. Roman Catholic Bishop of Portland, 2005 ME 57, ¶ 3 & n. 1, 871 A.2d 1208, 1212. (It operates as a non-profit organization and owns, maintains, and operates multiple churches, schools, and other properties. It has no capital stock and no provision for making dividends or profits, and it derives most of its revenues from charitable sources, although parochial school tuition and fees are not considered one of its charitable sources of revenue).

[16] See Picher at 289.

[17] Id. at 294.

[18] Id. at 295.

[19] Id. at 296.

[20] Id. § 31, 974 A. 2d at 396

[21] See Picher, 974 A.2d at 301 n.6

[22] Mayo Moran, Cardinal Sins: How the Catholic Church Sexual Abuse Crisis Changed Private Law, 21 Gᴇᴏ. Jᴏᴜʀɴᴀʟ ᴏғ Gᴇɴᴅᴇʀ ᴀɴᴅ ᴛʜᴇ Lᴀᴡ 95 (2019).

[23] Christina Capatides, Catholic Church spent $10.6 million to lobby against legislation that would benefit victims of child sex abuse, CBS Nᴇᴡs (June 6, 2019), https://www.cbsnews.com/news/catholic-church-scandal-spent-10-million-lobbyists-fight-extension-statutes-of-limitations-child-sex-abuse-vicims/.

[24] Mayo Moran, Cardinal Sins: How the Catholic Church Sexual Abuse Crisis Changed Private Law, 21 Gᴇᴏ. Jᴏᴜʀɴᴀʟ ᴏғ Gᴇɴᴅᴇʀ ᴀɴᴅ ᴛʜᴇ Lᴀᴡ 95, 131 (2019).

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