Wednesday, 9 November 2011

Court rules on RC priest/bishop relationship

Updated again Monday evening

A High Court judge has ruled that a Roman Catholic bishop may be held vicariously liable for the acts of one of his priests, even though the priest is an office holder rather than an employee. There are reports that the ruling will be appealed.*

The full text of the judgment is available here (PDF).

A good explanation of the case by Adam Wagner at UK HumanRights Blog Bishop can be vicariously liable for priest’s sex abuse, rules High Court

Press reports:

Guardian Riazat Butt Catholic church can be held responsible for wrongdoing by priests

BBC High Court rules Catholic Church liable over priests

Independent Jerome Taylor Catholic church liable over priests

Channel 4 News Catholic church liable for priests charged with abuse

Updates
Neil Addison has written about this case at Religion Law Blog under the headline Catholic Bishops and Vicarious Liability for Priests.

The RC Bishop of Portsmouth, Crispian Hollis, issued a statement, available here as a PDF, or over here, which inter alia made clear that no decision had yet been taken about whether or not to appeal this decision.

Posted by Simon Sarmiento on Wednesday, 9 November 2011 at 9:02am GMT | TrackBack
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Comments

Has anyone sued a local education authority over an abusing teacher? This to me, whilst tragic and unforgiveable..looks like persecution.

Posted by: robert ian williams on Wednesday, 9 November 2011 at 1:40pm GMT

The same ploy was tried by the CofE some years ago in order to avoid employment law. It didn't work then and shouldn't work for the RC Church. The description of priests as 'office holders' is an evasion of the responsibility of their superiors and those pay, manage and deploy them and must not be allowed to stand. Hurrah for the High Court.

Posted by: Richard Ashby on Wednesday, 9 November 2011 at 2:34pm GMT

Robert, I don't know about England, but in the United States educational authorities are regularly sued over the misdeeds of a teacher. You might look at reports of abuse of children by a football coach at Pennsylvania State University (commonly called Penn State). The coach is liable for his actions; but his superiors are probably also likely to be liable for their failure to act when first informed of the abuse. Similar suits have also come in other areas: when there are alleged misdeeds by a physician, suits against the hospital, other physicians, nurses, and others are common. They aren't necessarily carried through, but they are commonly filed.

In the United States clergy in congregations are commonly (at least for tax purposes) considered self-employed or contractors, because of the independence of the congregation, and the independent judgment of the cleric. However, this judge is making a case (and a pretty salient one) that in the hierarchical context of the Roman Catholic Church the priest is not a contractor, at least in relation to the bishop, but an employee. As has been observed, it has to do with who controls the place, tools, and requirements of employment. I don't know whether judges in superior venues will find it compelling; but the initial judge has a point.

Posted by: Marshall Scott on Wednesday, 9 November 2011 at 5:38pm GMT

"Respondeat superior." Either the bishop is an authority over the priest or he isn't. Unless the RCC handles things very differently to the US in the UK, I take it that the bishop has a good deal to say about the work of the priests under his jurisdiction -- unless they are "religious" clergy, in which case their Order may have the responsibility lodged with them. Marshall's note about the standards for determining "employment" are likely relevant. In the "traditio instrumentorum" the bishop quite literally "equips" the priest for at least one aspect of his work.

Posted by: Tobias Haller on Wednesday, 9 November 2011 at 7:12pm GMT

And in Britain it's common practice to sue a hospital or the NHS for the failings of an individual doctor.

Posted by: Erika Baker on Wednesday, 9 November 2011 at 7:34pm GMT

I see your point Marshall. imagine if a woman claiming to be a priest and tried to operate in a Catholic parish and she claimed that the Bishop was not her employer and he couldn't stop her.

I think the Church were wrong to use this approach...it could backfire and it is almost disingenuous.

Posted by: Robert ian Williams on Wednesday, 9 November 2011 at 10:12pm GMT

"I think the Church were wrong to use this approach...it could backfire and it is almost disingenuous."

Patience is a virtue. I knew that if I waited long enough then Robert would make a statement about the Roman Catholic Church which I would agree with, and that great day has arrived.

Best wishes Robert.

Simon

Posted by: Simon Dawson on Wednesday, 9 November 2011 at 11:08pm GMT

Fair warning to those seeking to invent a hierarchy in TEC as a 'national church' with metropolitical authority in a single office of PB (which seems to be stalling in the light of Title IV questions, at least for a season). We held a conference on comparative polity two years ago and this was pointed out. Hierarchy comes with accountability and legal exposure for matters like sexual misconduct.
The Diocese of Dallas at last Saturday's Diocesan Convention reiterated the position of the TEC Constitution on the role of Dioceses in discipline, as stipulated in Article XI. Where Title IV is in conflict with TEC Constitution, the latter prevails.

Posted by: c.r.seitz on Wednesday, 9 November 2011 at 11:42pm GMT

I guess that certain of the bishops - of whatever Church - are keen to preserve their authority over their clergy - until something happens that renders them 'responsible at law' for their adverse behaviour.

A true Bishop will remain with his/her sheep, and the under-shepherds; encouraging and correcting where circumstances (and the Holy Spirit) direct.

The R.C. Church, in general, has always considered itself immune to secular authority - as witness the appalling statistics of child-abuse.

Posted by: Father Ron Smith on Thursday, 10 November 2011 at 8:24pm GMT

Christopher Seitz seems not to accord to the Presiding Bishop of TEC the status that is due the nomenclature of her office.

Surely the 'President' presides over something? Whether this is the House of Bishops or the General Convention, the title has implication.

Posted by: Father Ron Smith on Thursday, 10 November 2011 at 8:28pm GMT

Mr Smith
My comment should not have been hard to understand. The PB in TEC presides at General Convention and HOB and has other duties explained in the TEC Constitution.

My point was that if there is success in changing the PB's role--and that is being tested in this season--there will be attendant accountability such as is the topic of this thread. But that has not happened. But it could.

At present, the TEC Constitution gives to Dioceses the authority/duty to discipline Priests and Deacons, consistent with its understanding of the role of Dioceses. The Episcopal Diocese of Dallas has affirmed the TEC Constitution in its own Diocesan Canons in respect of discipline. It clarifies that General Convention cannot overrule the Constitution unless it seeks to do so in the manner the Constitution requires for amendments.

The Constitution of TEC is a public document and you can easily access it. Having served as a priest in Canada, Scotland and the CofE, it has been borne in on me how different polities exist in the AC. Perhaps you could make a study of that yourself and acquaint yourself with the TEC polity. I gather you are from New Zealand.

Posted by: c.r.seitz on Thursday, 10 November 2011 at 11:59pm GMT

Given the topic of the thread I should probably also add the obvious, in the light of recent developments. When Bishop of Nevada, the present PB received into Orders a man who had been dismissed from the Roman Catholic Priesthood, who had sexually abused boys in a choir he oversaw, and whose psychiatric report indicated a proclivity to re-offend. She has never responded in public about this. One suspects there is nothing she can say. I would seriously doubt that this kind of use of her Episcopal office in 2004 is elevating her role at the present moment in the eyes of the House of Bishops. One can wonder whether Title IV will actually be brought to bear in her own particular case. It is hard to know what kind of defense could be given for the decision to put into priestly Orders a man with Bede Parry’s past and I doubt if we have heard the end of this story. One can only pray that there was no further abuse after his reception into Episcopal Orders. Parry has just recently given a statement regarding his abuse and it does not put the PB or TEC in a very estimable light. Obviously he could be prevaricating. But it does not appear to be that kind of statement. This is all very serious and very unfortunate.

Posted by: c.r.seitz on Friday, 11 November 2011 at 12:22am GMT

As much as I dislike Seitz's views and purpose, personally, I think he is simply making the point, here, that acknowledging the primatial status of the PB opens TEC to having a primate held legally accountable for Bede Parry's sexual misconduct. I tend to agree, but believe that justice done in this outweighs even church.

The Dallas thing is . . . whatever.

Posted by: MarkBrunson on Friday, 11 November 2011 at 4:34am GMT

I still find it rather sad that an Anglican academic in Canada (Mr.Seitz) should so consistently seek to denigrate the Presiding Bishop of another Province of the Communion (TEC) by repeating scandal about one of the clergy she accepted into the Church when Bishop of Nevada.

As a priest (presumably) Mr. Seitz must surely understand that bishops are not always privy to a full run-down on the sexual history of one of their proffered ordinands. And, even if there was some shadow of doubt about the provenance of an ordinand, sometimes charity has to be called into play to give a person a second chance - to prove themselves. I've not much doubt that Mr.Seitz, if her were ever called into episcopal orders, would never make any mistake about whom he ordained, But then, not everyone is perfect.

I have met Bishop Katharine, and I'm pretty sure she's not someone so delinquent in her exercise of her Presidency of the Episcopal Church as her consistent detractors are prone to describing her.
I understand how Mr.Seitz is exercised, within his tiny group of conservative ACI theologians, to put the Church 'to rights' in North America, but this really is not the way.

Posted by: Father Ron Smith on Friday, 11 November 2011 at 9:30am GMT

To clarify re: Brunson.

1. The PB does not have metropolitical authority and Title IV appeared to encroach on that, and so on the TEC Constitution, in respect of discipline. Hence the constitutional action in the Diocese of Dallas. So this is not about 'acknowledging' something, but rather seeking to make an unconstitutional change and having it blunted. Even Executive Council member Fr Harris has called for a necessary Title IV review at GC 2012.
2. Frankly, as it stands, Title IV can reach to the PB regardless of alleged claims re: changing the PB's role. Indeed, as written, Title IV *requires her to report her own offenses,* should there have been such in Nevada. That is presently being debated.
3. Brunton's larger remark is right and it was the point I was making. If you create a line-hierarchy, you flirt with opening the office holder to legal accountability such as is the topic of this thread. Title IV as written appears to want to give the PB this unconstitutional power, even as it widens the net to catch any and all via a national process. The disciplining of Bishops was always a matter of fellow Bishops. Now new features have emerged alongside this principle.

Posted by: c.r.seitz on Friday, 11 November 2011 at 2:27pm GMT

Mr Smith

For the avoidance of doubt, I am canonically resident in the Episcopal Diocese of Dallas. I have been a clergyman in TEC for thirty years. I am Canon Theologian in my Diocese. My father, uncle, grandfather, and two brothers have served as Priests and theologians in TEC. I am not speaking of 'another Province' but of my own.

I will leave it to others to decide whether it was prudent to receive into Orders a man who had been dismissed from the Priesthood, whose psychiatric report was read by Nevada officials, and who had confessed to sexual misconduct. The very idea of restricting the ministry of a Priest as excluding contact with minors is itself an oxymoron. We see in the Penn State case what an enormous risk one takes if people are left in positions of authority. I can only repeat that one prays there were no further instances of abuse.

I consider the call for the PB to speak publicly about this matter salutary, especially when issued by prominent progressives like Jim Naughton. I do not consider it 'denigration.'

Posted by: c.r.seitz on Friday, 11 November 2011 at 5:15pm GMT

Am I missing something here? If a Church (be it the Catholic Church or say, the Church of England) operates a whole structure and organisation countrywide, including the power to dismiss priests, to intervene in matters would bring the Church into disrepute, and to provide all kinds of youthwork in the name of the Church... then surely there is already a form of line-hierarchy and furthermore, there SHOULD be a form of line-hierarchy, to provide a responsible consistency of procedures, of oversight of young people, of processes to handle complaints, and to exercise as far as possible a duty of care?

So even if an individual priest was found guilty of a crime, the line-hierarchy should step up to the mark and take responsibility for the presence of effective procedures, the following of those procedures, and the higher responsibility for dealing with incidents, in order to be basically responsible and caring, fulfilling duty of care.

In short, while individual sin will always happen, institutionally the Church should accept responsibility too, for all the thousands of young people in its care (for example), and the duty to have policies and procedures in place that are properly followed.

Posted by: Susannah on Friday, 11 November 2011 at 7:24pm GMT

I fear I am repeating myself.

Susannah, of course this will be so in 'line-hierarchy' provinces where the top of the line may well be an Archbishop (so C of E). There will be challenges there, too, in respect of legal accountability, as the thread indicates.

But TEC has a Presiding Bishop with carefully specified powers and duties.

The dioceses are charged by TEC constitution to discipline Priests and Deacons. TEC has no ecclesiastical court as the C of E does.

To introduce a 'line-hierarchy' is a departure from TEC Constitution, though it may be familiar to you and something to consider pro and con within the polity of the C of E.

Every province of the Communion has a different polity. If you want TEC to adopt a line-hierarchy, then a PB-newly-become-metropolitan would need to think about matters of indemnification as a correlate of such a change.

In the case of Bede Parry, even liberal TEC folk say an obvious implication of our own non-line-hierarchical polity is that the Nevada Diocesan was responsible for accepting into Orders a dismissed RC Priest with a record described above.

Posted by: c.r.seitz on Saturday, 12 November 2011 at 1:38am GMT

From your striving above, Mr.Seitz, to advise us all of the polity of TEC regarding the role of the P.B., it seems that you, too, would not be keen on TEC joining up with the Covenant movement - lest the non-hierarchical faculty you discern as unique within TEC become subject to the same hierarchical polity of, e.g., the Churches of England and certain African Churches whose Primates 'rule the roost'.
Question: Are you a Covenant supporter?

Posted by: Father Ron Smith on Saturday, 12 November 2011 at 10:39am GMT

Mr Smith
TEC has historically been a diocesan church. The Presiding Bishop was a Diocesan Bishop until the middle of the last century. There was historically the avoidance of a metropolitical/national hierachical polity. That is the TEC many of us do not wish to change. The Presiding Bishop is just that, and not an Archbishop/Metropolitan.
I don't think TEC should covenant or will covenant, because mutual submission in Christ is at odds with a self-identity as prophetic and special. This thread is not on TEC or covenant, but obviously a great many people would argue that the covenant is not hierarchical in the sense of single province's internal polity. Strictly speaking, they are correct.
But TEC is not likely to covenant because it is focused on itself as a denominational church in the USA, not a reformed catholic movement in an international Communion. Its priority is on its own denominationalism. But I suspect there will be a last charge from moderate liberals to sign the covenant, by altering its content in some way.

Posted by: c.r.seitz on Saturday, 12 November 2011 at 2:03pm GMT

While I haven't studied the matter in detail, it's fairly clear that the Presiding Bishop of The Episcopal Church is, canonically, one of the least powerful (if not the least powerful) of the Primates.

Which, of course, caused additional problems at Primates meetings, where some Primates with great authority presumed that +KJS's signature constituted a commitment to force TEC to adhere to certain things when, of course, +KJS had no such power.

IIRC, Chris and his friends from that side of the aisle were quick to jump on +KJS with allegations of duplicity when she declined to assert powers she did not and does not have.

Posted by: Malcolm French+ on Monday, 14 November 2011 at 6:15am GMT

Does that mean, then, Mr. Seitz, that you would not have TEC sign up to the Covenant - under any circumstances - whether liberalised or not? It would be good to hear from a 'non-aligned' onlooker like yourself; who is actually inside TEC.

Posted by: Father Ron Smith on Monday, 14 November 2011 at 8:48am GMT

"The R.C. Church, in general, has always considered itself immune to secular authority - as witness the appalling statistics of child-abuse."

"Father" Ron is, as usual, not very honest about facts. I suppose he is well aware of the many statistics and reports, from the John Jay report and onwards, that show that sexual abuse is just as common (or as rare in percentage of clergy) in protestant denominations as in the Catholic Church! However the homosexual aspect seems to have been higher in the Catholic Church than in protestant denominations!

Posted by: Antony on Monday, 14 November 2011 at 9:07am GMT

Malcolm, I seem to recall a certain English Archbishop expressing similar feelings about his own freedom of action to make commitments on behalf of his church, or to take positions independent of it!

I think it is generally understood that Bishops, and even Primates, are only authorized to teach what the(ir) church teaches, and enforce the laws each church has crafted. Even the papal scope of "Infallibility" is limited to that sort of contextualization. As the past president of the League of Women Religious once observed, the pope can insist that all religious follow their rules concerning the habit, but cannot demand they all eat spaghetti on Tuesday.

The PB could not bind TEC not to ordain partnered gay bishops any more than Canterbury could mandate that the C of E do so. Neither of them controls their church in this way, and neither has the power to override conciliar decisions of their own proper church.

Posted by: Tobias Haller on Monday, 14 November 2011 at 3:17pm GMT

Thank you for your opinion, *yet again*, Dr Seitz.

Marketing requires repetition, yes?

Posted by: MarkBrunson on Tuesday, 15 November 2011 at 5:17am GMT

Agreed, Tobias. But referring back to Christopher's earlier point, it appears to me that the Presiding Bishop of TEC has far less canonical authority on most matters as compared to many (most?) other primates.

Posted by: Malcolm French+ on Tuesday, 15 November 2011 at 4:31pm GMT

In Canada we have lived with vicarious liability for churches since at least 1998. In the late 1990s and the early 2000s there were thousands of law-suits leveled against the dioceses and General Synod by survivors of abuse at church-run Indian Residential Schools. It led to one diocese suspending operations, and nearly did in the General Synod. There were also law-suits against Presbyterians, RC religious orders, and the United Church of Canada. As the federal government of Canada were the ones that set up the schools for the churches to operate, they had ultimate responsibility, but judges apportioned vicarious liability to both the government and church organizations. In the end the feds stepped in and negotiated a settlement that involved the denominations making a payment to them, and the government being otherwise responsible for all liability.

We have survived vicarious liability, and I would recommend my colleagues in England to get on with acknowledging responsibility where officials in the hierarchy have covered up or should have known what was happening. Real harm took place, and it is incumbent upon us as Christians to make amends.

Posted by: Bruce Bryant-Scott on Wednesday, 18 July 2012 at 10:33pm BST
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