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Bar News - July 26, 2002 Morning Mail - Regarding Clergy Abuse Mediation This is an open letter to all members of the New Hampshire Bar involved in any way with cases alleging sexual abuse by clergy. The Catholic Diocese is attempting to settle as many sex abuse claims as possible by mediating with victims who do not have assistance of counsel. This involves encouraging victims to attend a "pastoral interview" for "an open and candid discussion with a pastoral representative of the Diocese." I am quoting from a form dated June 12, 2002, and paid for by the Diocese. Not surprisingly, this form also says that by participating in the pastoral interview, the Diocese "does not waive any of its legal defenses, and specifically reserves the right to raise any and all legal defense available to it ... in the event the matter is not resolved at a pastoral interview". Apparently the "open and candid interview" will involve pumping the victim for as much information as possible, which could be used against him in any later proceedings. In other words, this is a perversion of the confessional. And do you think that the Diocese will also confess its sins during the "open and candid discussion"? We should all be concerned when members of the Bar are involved in efforts that colorably, to even the slightest degree, subvert victims' rights to advice of counsel. Let there be no mistake: Any mediation involving psychologically traumatized people without legal representation cannot produce valid settlement of claims. On the contrary, such proceedings can and will generate new claims - not only against the Catholic Diocese, but also against any lawyers involved in these deceptions. Every American is entitled to access to legal representation. This includes equally the victims, the abusers and those who have covered up the abuse. There is no dishonor in representing anyone. But there are dishonorable ways of persuading ignorant and traumatized people that they do not need lawyers. Nor can individuals meaningfully give up the right to legal representation until they first have a lawyer to explain to them what rights they are giving up. No one in their right mind would suggest a mediation procedure in which a victim sits in a closed room with her rapist and the two try to "work things out." But victims of clergy abuse have not only been raped by individual criminals, they have been raped by a church in which they put their trust and their faith. Mediation without legal representation of the victim is a cruel hoax. "Pastoral interviews" of victims unrepresented by counsel are an ungodly exploitation of faith and a cheap legal trick. Do you think that a traumatized person without legal counsel can sit on one side of a mediation table while the full panoply of the Roman Catholic Church, together with all the legal muscle money can buy, is on the other side, and that somehow a fair settlement will result? That would, indeed, be dealing in miracles - which is not our line of work. If there is anything that the clergy sex abuse scandal teaches us, it is that claims of cover-up and misrepresentation in these matters will surface even decades later. Perhaps I have the gift of prophecy, for I predict that there will be a new scandal - not just against the Roman Catholic Church, but also against all lawyers who attempt to settle claims with victims while bamboozling them out of the right to legal counsel of their own. Mark M. Rufo
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