Suing the Holy See for Priest Abuse

If a priest engages in sexual abuse in Portland, Oregon, can victims of his abuse sue the Holy See? A federal district court in Oregon ruled last week that they could. In the case of Doe v. Holy See, available here, the plaintiff sued the Holy See for respondeat superior, negligence and fraud. The Holy See argued that it was immune from jurisdiction as a foreign sovereign under the FSIA. The defendant argued that the commercial exception and the tort exception both applied to the facts of the case.

Turning to the commercial activity exception, plaintiffs argued that the Holy See is a commercial actor. He argued that the Holy See is acting as a private actor, with a worldwide organization established to promote and expand its services in return for revenue. The court viewed the issue as a close call and argued that private individuals could provide religious guidance, education, and counseling services. But in the end the court concluded that injury inflicted by a sexually abusive priest is a claim sounding in tort and that it does not have jurisdiction under the commercial activity exception.

As for the tort exception, the court had to address whether the Holy See’s negligence occured within the United States and whether such conduct was part of the discretionary function exception. The court entertained the notion of identifying the territorial location of an omission, but settled on commissions. It held that the placement of the abusive priest in Portland was an act that occurred entirely inside the United States, satisfying the jurisdictional requirement. The court also concluded that the discretionary exception didn’t apply, because exercising the policy judgment of placing a child-molestor in a position in which he would have access to minors is “not the type of judgment the discretionary function is designed to shield.”

The Holy See also raised an additional argument of separateness. It argued under principles of state responsibility that the Holy See is a separate legal entity from the archdiocese of Oregon. Therefore, the Holy See should not be liable for conduct of a priest in Oregon under the Supreme Court’s jurisprudence in Bancec. The court held that the priest and diocese are instrumentalities of the Holy See. “If anything, Bancec supports a result contrary to the Holy See’s position. That is, viewing the Archdiocese and Order as separate instrumentalities of the Holy See would shield them from the wrongs allegedly committed by the Holy See. This is the message of Bancec: foreign states cannot avoid their obligations to third parties by engaging in abuses of the corporate form.”

I largely agree with the court that the Holy See’s conduct should not fall within the commercial activity exception and that its alleged negligence could have occurred, at least in part, within the United States. But I don’t understand the court’s argument regarding legal separateness. If the abuses occured at the level of instrumentalities in Oregon, then the sovereign government is arguing that the separateness of those instrumentalities should shield the Holy See from the wrongdoing of their subordinate entities. But if the sovereign exercised control over the subordinates then separateness can be overcome. As Mirror of Justice’s Robert Araujo put it, “I am sure many priests, brothers, sisters, and laity would be surprised to find themselves labeled as employees and agents of the Holy See.”

The entire discussion of applying principles of foreign sovereign immunity and state responsibility to the Holy See based on the sexual abuse scandal in Oregon seems far-fetched. It is premised on the notion that every priest, archdiocese, and order of the Catholic church are its agents and instrumentalities for purposes of state responsibility. Is this correct? Can one say with any confidence that the Holy See exercises the kind of control over American archdioceses that we can “pierce the corporate veil” and hold it liable for lower-level negligence and abuse? The opinion does not appear to be nearly as sophisticated in its analysis of state responsibility as the analogous Fifth Circuit case of Bridas v. Turkmenistan that I discussed last month here.