Oh look, an escape hatch
The Vatican feels really really really really bad about what its priests did in Ireland. Really it does. It’s so so so so so sorry. It’s wounded to the core; it’s devastated; it’s super-upset; it’s crying into its pillow every night; it can hardly eat.
Unless…
What if it can say that what Catholic priests do is nothing to do with it?
Ah. Well in that case, it feels perfectly fine, because after all, it didn’t do anything. Yay!
Victims of sexual abuse by priests will no longer be able to sue the Catholic church for damages if a landmark judgment rules that priests should not be considered as employees.
In a little publicised case heard this month at the high court, the church claimed that it is not “vicariously liable” for priests’ actions. The church has employed the argument in the past but this was the first time it had been used in open court and a ruling in the church’s favour would set a legal precedent.
The use of the defence raises further questions about the church’s willingness to accept culpability for abuse.
Well yes, it does, rather, but be fair – you can’t expect the church to accept culpability for abuse if there’s some way they can wriggle out of it do you?
That would be silly.
Ironic, given that Jesus died for the sins of others. I guess his example isn’t good enough.
But. . . but. . . how is a priest not in the employ of the church?? How?? Who pays his bills? If he’s not employed by the church, does that mean he can just say “F-you” if the church doesn’t like what he’s preaching? No? Then how does the church justify getting to tell the priest what doctrine to preach?
Is it because I was never a Catholic? Is that why I don’t get it?
From the rite of ordination to the priesthood.
It may not be a very long contract of employment, but it sounds like one to me.
OK… *pinches bridge of nose between fingers* Let me see if I’m understanding this. The church’s culpability comes because some of its employees did something wrong. Therefore, in order to get out of it, they are trying to have priests declared non-employees, despite the ordination ritual Peter quoted and the WRITTEN FREAKING CONTRACT OF EMPLOYMENT THEY HAVE JUST LIKE EVERYONE ELSE DOES.
The initial premise is bull. An employer is not culpable for the actions of its employees, even if they took place during the course of theior duties. I work for a landscaping company; if one of our guys dragged someone into their van and raped them during working hours, the company directors would not go to prison.
The church’s culpability comes about because they systematically, consciously and over the course of decades, covered up dozens of known cases of abuse in order to protect the institution’s reputation and their own jobs. Perhaps I am missing something, but I fail to see how declaring priests non-employees is going to change that fact.
Anyone who doubts that priests are employees should check out his interesting, but egregious, case:
http://www.rcf.org/docs/Dowgiert.htm
incidentally, the SCOTUS last year upheld a 9th Circuit court of Appeals ruling that priests are employees and that the Vatican is responsible for the consequences of their conduct.
This sidesteps the issue of protecting offenders by concealing their crimes and transferring them to other areas where they can continue their ways. In civilized societies, not reporting a known crime is known as “accessory after the fact”. Protecting a known felon is called “aiding and abetting.” Both are felonies themselves. It’s no surprise then the church wishes to ignore those issues. If the didn’t Ratzinger and many of his co-conspirators would now be in prison.
While it is almost certain that the Church will be liable for the actions of its priests, and that its priests are best construed as employees, it may well not be vicariously liable. Instead, it may well be directly liable.
Vicarious liability
Vicarious liability arises when an employer is held to be liable for its employees’ torts. Traditionally, this meant that two factual findings had to be made:
1. The tort has to be committed during the course of employment, not in a situation where there is no ‘master and servant’ relationship. It was thus notoriously difficult to catch independent contractors, and one of the reasons many firms like to use contractors rather than employees is to avoid having liability sheeted home to the firm. The law asks, simply, if there is a contract of service (employment) or a contract for services (independent contractor). This situation has forced the bulk of independent contractors to take out insurance.
2. The servant needs to be on his master’s business, not his own; he simply carries out the master’s business badly (tortiously). The difference is between the delivery driver who stops by his wife’s work on the way to making a delivery (liable for accident or delay), and a delivery driver who stops by his wife’s work when there was no reason to be going in that direction (not liable for accident or delay).
What is the effect of this?
In the Catholic Chruch case, the second test is harder to satisfy. Employers do not hire employees to commit crimes. Remember, a crime is different from a tort, in that criminal liability is to society at large, not merely to the injured party. That is why the Crown/State/People prosecutes crimes, while individuals pursue tortious claims. Crimes are never going to be carried out ‘on the course of the master’s business’.
This led (historically) to the unwelcome situation where people were victims of crimes that were clearly connected to a ‘course of employment’, but could not recover because the court was dealing with a crime, not a tort. Of course, the criminal was always found directly or personally responsible, but was very often what the law calls ‘a man of straw’, a polite euphemism for ‘not worth suing’.
The solution – non-delegable duty
A non-delegable duty is where the employer owes the third party victim of crime a duty to take reasonable steps to safeguard that third party from being the victim of crime. It is non-delegable simply because, as mentioned above, a crime is committed not just against the victim but against the whole of society; we all have an interest in preventing crime. Imagine, for example, that Ophelia leaves her valuable jewels with me to care for while she goes on holiday. While she is away, I leave them with a third party, T, who absconds with them.
I’m thus personally liable to pay her damages. I’m held liable to pay her damages because I committed a tort in relation to her in the situation we’re considering – I breached the duty I owed Ophelia to take reasonable steps to safeguard her valuables. The law on vicarious liability is completely irrelevant here – I’m not held liable to pay Ophelia damages because T committed a tort in relation to her for which I’m vicariously liable. T committed a crime, and my duty to Ophelia is non-delegable.
This means that the Church is almost certainly directly liable to the claimants (plaintiffs, pursuers) in this case, but not vicariously liable, except…
Lister v Hesley Hall Ltd [2001] UKHL 22
Judgment is here: http://www.publications.parliament.uk/pa/ld200001/ldjudgmt/jd010503/lister-1.htm
In Lister, the House of Lords applied the law pertaining to vicarious liability to a situation where non-delegable direct liability should have applied.
In that case, Hesley Hall Ltd ran Axelholme House, which was attached to Wilsic Hall School in Doncaster. Local authorities would send children to the school and they would board at Axelholme House. Hesley Hall employed Mr and Mrs Grain to run the house and maintain discipline. The claimants stayed at Axelholme House between 1979 and 1982. During that time they were sexually abused by Mr Grain. They sued Hesley Hall, claiming that Hesley Hall Ltd was vicariously liable in respect of the torts committed by Mr Grain when he sexually abused the claimants. The Court of Appeal dismissed the claimants’ actions on the grounds that Mr Grain was not acting in the course of his employment by the defendants when he sexually abused the claimants. The House of Lords reversed the Court of Appeal’s decision, holding that because there was a ‘close and direct’ connection between what Mr Grain was employed to do and Mr Grain’s sexual abuse of the claimants, Hesley Hall was vicariously liable in respect of the torts committed by Mr Grain when he sexually abused the claimants.
This turned the whole law of vicarious liability and non-delegable duty on its head, and seems to have come about because the relationship between the Grains and Hesley Hall was obscure (employee? contractor?), which meant the Court fell back on a new test, that of ‘closeness and directness’. The law is thus in a state of confusion. If nothing else, it is clear that Lister is very bad law (how, one wonders, are we to measure ‘closeness and directness’?).
I hope the Irish courts do not follow Lister (which represents the current state of English law on point), and stick to the old law of non-delegable duty. The temptation to follow Lister will come if the Church as defendant can make a strong case that its priests are not employees, but independent contractors. I think this is a weak defence (if there are any other lawyers reading this, you will know what I mean by that).
If nothing else, a finding of non-delegable duty would sheet home to the Catholic Church that it, too, has an interest in preventing crime, and that its interest in preventing crime is greater than the preservation of its doctrines.
Apologies for the long comment, but having worked on a couple of analogous matters, this area of the law interests me.
Just like in the joke about the bar and the church PZ recently posted, the RCC, when consequences loom, very quickly drops the supernatural pretense.
“We aren’t responsible for what those priests did. How could we have known?”
“But, Mr. Pope, don’t priests receive a calling from god himself, and don’t you receive the ok from god himself concerning the priest’s ordination? Aren’t you infallible?”
skepticlawyer,
Thanks very much for that.
So the Vatican is taking the “vicar” out of “vicarious?”
Paul, you’re welcome.
Eric, that’s one way of putting it :)
Then why was the Church complicit in covering up the scandal….?