Sunday, April 21, 2002

Church, county may go to court

Fight intensifies over priest files

By Dan Horn
The Cincinnati Enquirer

        A judge may soon be forced to put an end to the intensifying battle between prosecutors and Catholic church officials in Cincinnati.

        The sides spent the past few days arguing about why the church has refused to turn over some documents related to sexual abuse allegations against priests.

        Both claim they have the law and morality on their side. Both accuse the other of making unreasonable and unethical demands.

        Both have hinted that a court order may be the only way to settle their differences.

        “This is extremely unusual and unfortunate,” Hamilton County Prosecutor Mike Allen said Friday. “We'll probably be trotting over to Common Pleas Court to resolve it.”

        The dispute over church records arose when county prosecutors began investigating allegations of misconduct involving “fewer than five” Cincinnati priests.

        The disagreement is rooted in sharply different interpretation of Ohio law.

        Prosecutors contend the Archdiocese of Cincinnati is obligated to turn over most, if not all, of its records relat ed to sexual misconduct allegations.

        Lawyers for the archdiocese argue that attorney-client privilege and rules governing clergy confidentiality prohibit them from handing over everything.

        “There are documents that under statute will not be provided,” said Mark VanderLaan, an attorney for the archdiocese. “All documents which are legally permissible are being provided.”

        If the two sides can't work out their differences, the presiding judge in Common Pleas Court will be asked to do it for them. The judge, Thomas Crush, would review the records in private and decide whether they should be released to prosecutors.

        The prosecutor's request for information raises fundamental questions about the rights of clergy to protect statements made in confidence and the rights of law enforcement officers to investigate possible crimes.

        The archdiocese maintains that the expectation of privacy between a priest and a parishioner who seeks his counsel cannot be cast away because prosecutors demand information.

        “Anybody who goes to a therapist or a doctor or a member of the clergy has a right for what they say to remain confidential,” said the Rev. Robert Drinan, a Georgetown University law professor.

        “This has been around for centuries,” he said. “People would not go to their therapist or priest or doctor if their deepest secrets would become known.”

        Typically, the person who provided the information can give a doctor or therapist permission to discuss it with others. The same is true for priests, but only if the information was not provided during confession, which priests are never allowed to discuss.

        Mr. Allen said the information he's seeking would not violate the sanctity of confession. But he said he is entitled to written records related to abuse allegations.

        The church contends at least some of those records are covered by clergy confidentiality.

        “It's very important that people who bring their troubles to clergy have their confidence preserved,” said archdiocese spokesman Dan Andriacco. “People tell the clergy very private things they wouldn't tell anybody else.”

        He said the allegations against the “fewer than five” priests in Cincinnati fall into that category. In each case, Mr. Andriacco said, the victim came to the church to ensure no other children were harmed.

        And in each case, he said, the victim asked that the priest receive treatment, not a jail sentence.

        Ohio law requires clergy and other professionals to report allegations of abuse. But church officials say that rule does not apply when the victims come forward as adults years later, as they did in the Cincinnati cases.

        Mr. Allen said the church is splitting legal hairs. He said the archdiocese had a legal and moral obligation to immediately report the allegations.

        Instead, he said, the archdiocese is using clergy confidentiality “as a shield” to protect itself. Church critics say the same thing is happening in other cities where priests face abuse allegations.

        Clergy confidentiality “would hold more water for us if we had not seen it abused time and again,” said David Clohessy, director of the Survivors Network of Those Abused by Priests in Chicago.

        He said clergy can protect the privacy of those who seek their counsel while alerting police to a dangerous priest.

        “I reject this either-or proposition,” Mr. Clohessy said. “Church officials can say to police, "We removed Father Jack today because of an abuse allegation. We can't tell you a name, but you can do what you need to do.'”

        In Cincinnati, a court showdown seems inevitable. Church attorneys have said they might ask a judge to intervene because of Mr. Allen's public criticism.

        Mr. Allen said he might ask a judge to review the records and decide the issue once and for all.

        He said he also would not hesitate to summon church officials, including the archbishop, to testify before the grand jury.

        “I think that ultimately a judge is going to have to decide what is privileged and what is not,” Mr. Allen said.


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