Vatican Lawyer Jeffrey Lena on Immunity and Responsibility
(30 Jun 10 – RV) Earlier this week, the U.S. Supreme Court declined to review a lawsuit
that challenges the Vatican's immunity from prosecution in clerical sex abuse cases.
Jeffrey Lena is the California-based attorney currently representing the
Holy See in the Oregon case of Holy See vs John Doe.
In the following
interview, Mr Lena responds to erroneous reporting in the mass media, and reiterates
that “the fact that the Holy See is not involved, and the priest in question was not
an employee of the Holy See, is not to say that the victim is not truly a victim.
He surely suffered as no child ever deserves to suffer, and there is no question
in this case that this man was victimized by a priest”:
Q: Mr Lena, The media reading of the issue can appear to be somewhat simplistic.
Headlines is several Italian newspapers were variations on the theme of:
- "Vatican risks bankruptcy" - "U.S. Supreme Court denuies Holy See
immunity" - "Green light to million-dollar pay-outs for abuse victims"
- "Pope could be called to testify"...
Mr Lena: “As to
the risk that the Vatican may go into bankruptcy, that is completely unfounded. In
the first instance this case is still discussing jurisdiction. We haven’t gotten
anywhere near the question of whether there is liability in the case, so nobody should
be concerned about that. In addition even if there were a question of liability,
there are very strict rules about collection and it’s not even an issue in this case.
The second point was relating to the Supreme Court denying immunity. The Supreme
Court did not deny immunity. What the Supreme Court did was decide that it wasn’t
going to address a question which we had wished to bring before it. That was a question
that on the substantive law I think we were right. The United States agreed with
us, but the Supreme Court simply determined that at this time, it was not interested
in hearing the case. The fact that it wasn’t interested in hearing the case, as I
say, did not deny immunity and was no comment on the merits of our position.
‘Green light to payouts’ – no, its not a green light to payouts. As I say we are
still discussing jurisdiction in the case and that’s simply not on the radar at all.
I did read in several of the Italian papers discussion of the depositions of the Pope
and Cardinal Bertone and Cardinal Sodano. That is all completely unfounded. I don’t
have a doubt that there will be an attempt. I think that the attorney on the other
side is interested in trying. The law will protect them however. It is important
to acknowledge that the fact that the Holy See is not involved and that we must clearly
take this position, and that the priest in question was not an employee of the Holy
See, is not to say that the victim is not truly a victim here. He surely suffered
as no child ever deserves to suffer, and there is no question in this case that this
young man was victimized by a priest. However, responsibility for damages for that
suffering, which justly should be paid, fall upon the religious order which supervised
him, controlled his activities, and transferred him. Not on the Holy See.
Q: The central argument seems to be how to prove whether or not particular individuals
were or were not employees of the Holy See. How does one go about doing that?
Mr Lena: “Well, let me say as an initial matter, this case like some of the cases
which have been attempted in the past, brought a variety of issues. The plaintiffs
attempted to claim fraud, they attempted to claim negligence, they attempted to claim
conspiracy. We have already eliminated all of those claims from the case long ago,
notwithstanding the fact that those are all still appearing in the headlines. So
the case is presently narrowed down to one issue, which is whether or not the priest
in question, Andrew Ronan, was an employee of the Holy See. Now the factors that
generally determine whether a person is an employee, include day-to-day control of
the person, payment to the person for services rendered, insurance for the person,
the understanding of the parties as to whether or not the person is employed, and
there are a variety of other factors. None of these factors are met really in this
case. This is a priest who was entirely unknown to the Holy See until after the events
in question. The plaintiffs attorney has suggested in the papers that because this
priest had gone to Ireland and then returned to Ireland , somehow that was an “international
transfer” and therefore the Holy See must be involved, and that’s just really based
upon a misunderstanding of how the Catholic Church works, of how Religious Orders
operate and various other misunderstandings.
As to evidence, there is
some evidence in the case, and this is important to point out. Mr. Anderson, who is
the attorney for the other side, hasn’t mentioned this to the press, but the fact
is that he has gathered a lot of evidence and it all points in the other direction.
It suggests that this priest was a priest of a religious order active in the United
States and Ireland which had full control over this priest and was knowledgeable about
this priest, but that neither the diocese involved nor the Holy See had any knowledge
or control over him”.
Q. Is the Supreme Court decision likely
to impact on other cases currently being heard in the U.S. ? And, at worst, is it
likely to open the way to a plethora of new lawsuits against the Vatican ?
Mr Lena: “I would not exclude that someone may attempt to file another
lawsuit. Its important to understand that the obstacles which that lawsuit would
face are exactly the same obstacles that this lawsuit faces. The denial of the petition
for certiorari, by the Supreme Court which again I say was not a denial in any way
of immunity, related to a very narrow issue, to the scope of employment under the
federal law. This is an issue that has no bearing on any other case. Presently there
is a case in Wisconsin known as the Murphy case which Mr. Anderson wishes to bring
against the Holy See, that case is thus far completely inactive. Then there is a
case in Kentucky , that case addresses a very different issue which is whether or
not the bishop in the Archdiocese of Louisville is an employee of the Holy See a theory
that is equally unfounded. So those are the two cases thus far and there really are
none other. As I say, it may be that out of misperception one or two cases are now
filed, but I don’t anticipate that those will have any more success than these cases
have.