U.S. v. Robel and the Catholic Church scandal

[Lynne]

U.S. v. Robel and the Catholic Church scandalThe way Eugene phrases the question ("government imposing a duty  to investigate". . .)  suggests that one's statements cannot ever be used as evidence of mental states, awareness, knowledge, or notice. (And wasn't there a thread earlier about claims that what one reads establishes what one is likely to do in the context of reading books about terrorisim, or bombs, or something?)
       The issue in the Shanley cases is whether the Church was reckless or negligent in moving Paul Shanley around from parish to parish with knowledge of complaints *not only*  about  his "speeches" at meetings of NAMBLA, but also complaints to church officials  that he was molesting children. Molesting children is a crime, not just a deviation from Church doctrine or an internal Church matter. Shanley's speeches tend to show that he approved of such conduct, which potentially makes the claims of abuse more credible.   IMHO long as speech has relevance to issues of notice,  negligence or even recklessness in tort or crime, it would seem to me that statements made by Shanley  are relevant to establishing the existence of awareness and fault on the part of Church authorities, and it is in this context that these cases and depositions  are proceeding.   
Lynne
Prof. Lynne Henderson
Boyd School of Law--UNLV
4505 Maryland Pkwy
Box 451003
Las Vegas, NV  89154
702-895-2625
  ----- Original Message ----- 
  From: Volokh, Eugene 
  To: CONLAWPROF at listserv.ucla.edu 
  Sent: Tuesday, October 29, 2002 9:00 AM
  Subject: U.S. v. Robel and the Catholic Church scandal


          A few weeks ago we had a very interesting discussion about U.S. v. Robel, and a story I heard this morning on NPR reminded me of it, in a very different fatual context:.  Here's the N.Y. Times story today that discusses the issue:

  http://www.nytimes.com/2002/10/29/national/29PRIE.html?pagewanted=print&position=top 
  "Bishop Knew Boston Priest Had Praised Man-Boy Sex," By PAM BELLUCK 

  "When he was a top official in the Roman Catholic Archdiocese of Boston, Bishop Thomas V. Daily, who now heads the Diocese of Brooklyn, promoted a priest to lead a suburban parish in 1983 even though he had received numerous complaints that the priest was advocating sex between men and boys, according to a deposition released today.

  "The priest, the Rev. Paul R. Shanley, has since become a central figure in Boston's clergy sexual-abuse scandal, and is accused of molesting at least 25 people, six of whom say they were abused as young children at that suburban parish. . . .

  "The bishop also acknowledged that he did little in response to a string of complaints that Father Shanley was giving speeches outside of Boston that endorsed sex between men and boys and was attending the formative meetings of the North American Man-Boy Love Association. . . .

  "For example, Bishop Daily, who was the Boston Archdiocese's second highest-ranking official from 1975 to 1984, was asked in the deposition about accusations he received in 1977 that Father Shanley had said in a speech that 'the adult is not the seducer; the kid is the seducer.' . . .

  "Yet in the deposition, Bishop Daily acknowledged that there was no indication that the archdiocese investigated those or subsequent similar accusations, discussed them with Father Shanley or did anything to reprimand him."

          As I understand it, the particular claim that's now at issue against the church is one of negligent hiring or negligent supervision -- and the question of Shanley's speeches is relevant because (the tort theory goes), given those speeches, the church should have investigated Shanley further to determine whether he was in fact molesting boys.  My sense that this is the theory is reinforced by another sentence from the story:  "Yet in the deposition, Bishop Daily acknowledged that there was no indication that the archdiocese investigated those or subsequent similar accusations, discussed them with Father Shanley or did anything to reprimand him."

          To the extent that this is the theory, is it consistent with the First Amendment?  As a practical matter, I agree that it would be smart for a church to look closely at priests who are advocating behavior that violates the church's laws.  Likewise, it would be smart for a private defense contractor during the Cold War to closely investigate employees who seem to be involved in pro-Communist groups or who say pro-Communist things, just as during World War II it would have been smart for them to investigate seeming Nazi sympathizers, and today it would be smart for them to investigate people who seem to sympathize with terrorists.

          But may the government impose a duty to investigate people based on their expressed political, social, or moral views, on pain of massive legal liability if they fail to investigate, and the people later misbehave?

          Eugene 

          

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