Cardinal Sins: How the Catholic Church Sexual Abuse Crisis Changed Private Law
Forthcoming in the Georgetown Journal of Gender and the Law, XXI (2019)
46 Pages Posted: 17 May 2019
Date Written: January 1, 2019
Even by the standards of the scandal plagued Catholic Church, 2018 was a very bad year. For several decades now, the unfolding of the Catholic Church sexual abuse crisis has been front-page news. It has wreaked havoc on hundreds of thousands of lives, cost the Church billions of dollars and done irreparable harm to a once-revered institution. Along the way it has also helped to transform the all-important private law of responsibility. When the crisis began to break in the early 1980s, the few victims who sought legal redress faced a daunting array of obstacles. Limitations periods alone had the effect of barring almost all child sexual abuse claims. Immunities helped to shield the Church from liability. Private law was generally hostile to institutional liability, particularly where the harm resulted from the criminal act of an individual. All of that has changed. Among the catalysts for change, the Catholic Church sex abuse crisis looms large. The scale of the crisis and the universal nature of the Church were certainly both important factors, but so too was the Church’s response. From the initial impulse to cover up instances of abuse right through to choices made in the legal and political arenas, it appeared willing to do almost anything to protect itself, apparently regardless of the consequences. Yet the Church had traditionally benefited from special treatment precisely on the ground that it was not an ordinary self-interested legal actor. The tension between the Church’s mission and its approach began to attract notice. Courts and legislators were prompted to act. Longstanding protections such as limitations periods and immunities began to fall. As the Church continued to aggressively defend itself in court, the accumulating precedents did not reflect well on it. The troubling continuity between how the Church treated initial allegations of abuse and how it handled the legal claims of survivors suggested an ethos that placed the preservation of the institution above the interests of the child. In this context, a broader idea of institutional liability started to seem important and even necessary. Changes in liability rules followed and the very idea of responsibility began to shift. Ironically, the Church’s determination to protect itself at any cost brought about the very result it most feared. In the process, it also helped to work a dramatic transformation of private law.
Keywords: civil liability, historic wrongs, Catholic Church, Institutional abuse, legal change, limitations periods, vicarious liability, novel tort law claims, private law theory
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