privileged

By ( articles ) | Mar 14, 2004

You'll love this story from today's LA Times:

[Archdiocese of Los Angeles spokesman Tod] Tamberg said that, overall, Mahony should be seen as a national leader in reforming the church's sexual abuse policies.

It's not often we see eye-to-eye, Tod buddy, but -- provided we understand "reform" to mean "business-as-usual under a more marketable subterfuge" -- you never spoke a truer word.

Remember President Clinton's invention of a "protective-function privilege" to prevent the agents in his Secret Service detail from testifying before Congress about his pastoral outreach to Monica Lewinsky? As often, great minds think alike, and Cardinal Mahony has taken a page from Clinton's playbook:

To keep the files secret, Mahony's legal team is pushing a novel argument in both criminal and civil courts -- a claim of what his chief lawyer, J. Michael Hennigan, has called a "formation privilege" between a bishop and his priests.

The archdiocese asserts that the privilege stems from a bishop's ecclesiastical duty to provide a lifetime of formative spiritual guidance to his priests. As claimed by the archdiocese, the privilege would require that sensitive communication between a bishop and his priests involving counseling -- including documents relating to sexual abuse of minors -- be kept confidential.

Here's the rub. Cardinal Mahony is under pressure from victims' attorneys and from the DA's office -- both of whom are looking for documentary evidence of a cover-up -- to release personnel records. In addition to the reassignment of at least eight abuser-priests, Mahony is squirming under the progressively awkward embarrassment of Patrick Ziemann, whom he got appointed auxiliary bishop of Los Angeles in 1986 and who went on to become Bishop of Santa Rosa in 1992.

In 1999 it was revealed that Ziemann had by-passed canonical norms to have his Costa Rican catamite ordained for his diocese, so as to be on-call for personal sexual services -- an innovative, if hardly unique, exercise of the bishop's ecclesiastical duty to provide a lifetime of formative spiritual guidance to his priests. But the tie-in to Mahony concerns his 2001 authorization of a $5.2 million payment to settle a complaint against Fr. Michael Harris, whose abuse of students at a high school had been reported to, and ignored by, Ziemann. The payment spared Mahony the necessity of testifying about the circumstances under oath. To return to the LA Times article:

"I cannot and will not jeopardize those privileged communications," the cardinal wrote in a Feb. 28 letter to Los Angeles priests and other church leaders. ... Using the privilege claim, Mahony's lawyers have effectively employed the secrecy of grand jury proceedings as a shield against public disclosure, not only of the disputed files, but of the church's legal arguments as well.

Some day, perhaps, it may happen that a bishop is really capable of "formative spiritual guidance" and sincerely desirous of bestowing it on his priests. Confidentiality of correspondence might then serve an authentically religious purpose. More's the pity that it should be used as joker in the diocesan attorney's deck, and lost, if it is lost, as a one-shot tactical gambit in the obstruction of justice.