L.A. cardinal keeps abuse cases secret

`Formation privilege' requires confidentiality, archdiocese argues

March 14, 2004|By William Lobdell and Jean Guccione | William Lobdell and Jean Guccione,LOS ANGELES TIMES

LOS ANGELES - Enmeshed in a battle to maintain the secrecy of church documents involving priests accused of molesting children, Los Angeles Cardinal Roger M. Mahony has adopted a legal strategy more aggressive than that of any other bishop in the country, according to scholars and attorneys.

At the center of the fight are thousands of pages from priest personnel files that Mahony has succeeded for more than a year and a half in keeping from prosecutors, lawyers for victims and the public.

Officials at the Roman Catholic Archdiocese of Los Angeles concede that the files include evidence that Mahony and other church leaders improperly handled cases involving abusive priests.

"We believe that our early decisions were correct at the time they were made, but as our understanding grew, we concluded that those early decisions had generally been too tolerant," said spokesman Tod Tamberg. "In retrospect, then, some of our early policies were mistakes."

Tamberg said that, overall, Mahony should be seen as a national leader in reforming the church's sexual abuse policies. But the cardinal's opponents say that if all the files became public, they would hobble his leadership of the largest Roman Catholic diocese in the United States.

To keep the files secret, Mahony's legal team is pushing in criminal and civil courts a novel legal argument - what his chief lawyer, J. Michael Hennigan, dubbed a "formation privilege" between a bishop and his priests.

The archdiocese asserts that the privilege stems from a bishop's ecclesiastical duty to provide a lifetime of formative spiritual guidance to his priests. Under the privilege, sensitive communication between a bishop and his priests involving counseling - including documents relating to sexual abuse of minors - must be kept confidential, the archdiocese says.

Any action by the state to breach that privilege would violate state law, which shields communications between a priest and a penitent, and the state and federal constitutions' guarantee of religious freedom, the archdiocese's lawyers argue.

"I cannot and will not jeopardize those privileged communications," the cardinal wrote in a letter Feb. 28 to Los Angeles priests and other church leaders. The files could include items such as notes by the cardinal or other church investigators on their conversations with victims, witnesses and accused priests; psychological evaluations of alleged abusers ordered by the church; letters about priests' conduct; and assessments by supervisors.

Some church lay leaders and canon law experts - as well as victims' advocates and prosecutors - have expressed reservations and, in some cases, outrage about the cardinal's stance.

Marci Hamilton, a law professor and church-state scholar who has advised lawyers suing the archdiocese, summed up her description of the formation privilege this way: "It just doesn't exist."

Norman Abrams, interim dean of the University of California, Los Angeles School of Law and a privilege expert, said he had never heard of the formation privilege.

Last month, Mahony's legal tactics were criticized by an independent Catholic national review board that issued a report on the sex scandal.

"This argument did little to enhance the reputation of the church in the United States for transparency and cooperation," the report stated. The document also advised bishops and others that "the church cannot and should not hide behind its lawyers or the law blindly and in all circumstances."

The priest abuse scandal won't go away "unless we have transparency and openness," said William Donohue, head of the Catholic League for Religious and Civil Rights, a conservative advocacy group based in New York.

Hennigan defended the archdiocese's legal tactics: "There is no suggestion in the report that our positions are not principled or lack authority in law," he said, referring to the National Review Board's statement. The formation privilege is "close and sometimes identical to the priest-penitent privilege."

The Los Angeles Times is a Tribune Publishing newspaper.

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