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U.S. courts allow sex abuse cases against Vatican to proceed in rare legal move

By Michelle Boorstein
Washington Post Staff Writer
Saturday, March 27, 2010; A05

Since the Catholic clergy sexual abuse scandal exploded in the United States almost a decade ago, advocates have been trying to find a way to learn the role the Vatican played. Now they have gotten further than ever in their efforts to holding the Holy See accountable in a U.S. courtroom.

Two federal appeals courts in recent months have allowed sexual abuse lawsuits against the Vatican to proceed in Oregon and Kentucky. Vatican attorneys have asked the Supreme Court to hear an appeal of the Oregon case. Attorneys for both sides in the Oregon proceeding were in Washington two weeks ago making their arguments before a roomful of U.S. government officials, who could wind up weighing in if the Vatican -- considered a foreign country with immunity to lawsuits -- is found a liable party in an American case.

If the Supreme Court declines to take up the case this summer and lets the federal appeals ruling stand, attorneys could begin subpoenaing decades of documents and calling Vatican officials under oath.

Correspondence between the Vatican and U.S. clergy has always been subject to subpoena if the documents are located in the United States, attorneys say.

Attorneys on both sides note the complexity of the cases, which at this point center on whether there are legal grounds to grant an exception to the Vatican's immunity from lawsuits. In the Oregon case, lawyers are arguing that priests around the world are "employees" of the pope for whom he is responsible. The alleged sexual abuse and what is subject to legal discovery could take years to sort out.

However, the possibility of access to Vatican documents and officials has taken on new importance with clergy abuse cases across Europe coming closer than ever to Pope Benedict XVI. He is being scrutinized for his actions as a cardinal in Munich, where a priest accused of molesting boys was reassigned to another parish during his watch, and later when he headed the Vatican's Congregation for the Doctrine of the Faith, which handled thousands of abuse cases.

"I want to know what the Vatican knew and when they knew it," said William McMurry, who is representing alleged abuse victims in the Kentucky case. "Whether it's letters from bishops or conversations with bishops. I want to know what [the Vatican's doctrinal office] knew and what they instructed U.S. bishops to do. We're trying to get what's never been uncovered before -- documents only the Vatican has. That's the linchpin of liability."

Jeff Anderson, who has represented hundreds of victims since the 1980s and is working on the Oregon case, said he also is determined to penetrate the Vatican's secretive culture.

"The reason this is such a grave problem in the Catholic Church is because the Vatican operates with such insularity and arrogance," Anderson said. "They remain legally impenetrable. This is the first foot in that door."

Jeffrey Lena, an attorney who represents the Vatican, declined to comment on the lawsuits.

Courts have tossed out other attempts to hold the Vatican liable. More common in such cases is for attorneys to list the Vatican as a party to the lawsuit, but not pursue it because of the cost and time involved. Anderson said he spent more than $100,000 and two years to serve the Vatican papers, which by its rules had to be translated into Latin and Italian.

"You're going to the equivalent of legal war," he said. "No one in their right mind would pursue this."

This week, Anderson released correspondence from the 1990s between the Holy See and Wisconsin bishops, who failed to persuade Rome to defrock a priest who had molested as many as 200 deaf boys. The bishops had contacted the doctrinal office, headed by Cardinal Joseph Ratzinger, now the pope. The letters, reported by the New York Times this week, offer a rare look at the internal deliberations of the church, which are typically kept secret.

Anderson said this was the first time he was able to obtain documentation involving the Vatican.

Thousands of abuse cases flowed through the doctrinal office during the 24 years -- between 1981 and 2005 -- that then-Cardinal Ratzinger was in charge. But the mechanics and rules of how the Catholic Church handled such cases are sometimes unclear.

Vatican protocols in 1922, 1962 and 2002 laid out how clergy were to handle several heinous crimes, including child sexual abuse. Some experts say it was not necessary to report such cases to Rome until 2001, when Ratzinger ordered dioceses to do so. Others say the two previous protocols also mandated telling the Vatican.

The protocols also required that the cases remain secret, but canon law expert the Rev. John Beal said the word "secrecy" really meant "confidential" -- in the same way grand jury testimony is understood to be. Nothing forbid bishops from reporting cases to civil authorities, said Deal, of Catholic University, although some priests read the rules that way.

"I'm sure, for a long time, and even now, some people think saying anything that will tarnish the reputation of the church is to be avoided," he said. "Much as here in Washington, we know people try to protect the president by keeping quiet things that shouldn't be. It's a bit misguided, but it happens."

Courts have for years been throwing out attempts to bring the Vatican into American lawsuits, rejecting, for example, the idea that the Vatican is involved in "commercial activity" in this country because some of its collections are used by Rome.

In the Kentucky case, U.S. District and U.S. Circuit court judges rejected the commercial exception but said the case could continue under an exception to foreign immunity if foreign employees and officials cause serious harm in the United States.

The Kentucky case involves three victims who alleged they were abused by three different priests between the 1920s and 1970s. The Oregon case involves a victim who was allegedly abused in 1965 by a priest who was moved from Ireland to Chicago to Portland -- and who was accused of abusing along the way.

Staff writers William Wan and Anthony Faiola and researcher Madonna Lebling contributed to this report.

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