Generally, in order for the separation clause of the First Amendment to have any real meaning, the Ecclesiastical Abstention Doctrine has to be a jurisdictional barrier to litigation and not just liability.  The real horror of litigation is the cost of litigation; liability may make the headlines, but the cost of litigation is a burden that might even be greater than the value of winning.

In Doe v Roman Catholic Bishop of Springfield, Slip Op. (Mass. 2022), the Plaintiff alleged being a victim of sexual misconduct perpetrated by certain church leaders in the 1960s but only being able to remember it forty years later when the stories of other victims appeared in the news media.  The Plaintiff sought to report the assault in 2014.  A church sponsored investigation at first treated the Plaintiff’s complaint as not credible.  The church did not report the matter to law enforcement until 2018.  The news media in 2018 reported that the church review did not confirm the Plaintiff’s allegation.  A second review commissioned by the church later lifted it to “compelling and credible.”  The church in 2020 apologized both for the alleged rape of Plaintiff and the “chronic mishandling” of the Plaintiff’s allegation since 2014.  The Massachusetts appellate court held the common law charitable immunity doctrine, abolished by the state legislature in 1971, nevertheless applied to the allegations of sexual assault in the 1960s.  The charitable immunity doctrine was founded on the premise that funds received by a church or charity did so as a public trust and had the duty to assure the funds were spent on the mission, and not on cost of litigation or liability.  Thus, those counts were immediately dismissed.  The mishandling of the complaint of the Plaintiff in 2014 remained actionable because the conduct complained of occurred after the charitable immunity doctrine was abolished.  The Ecclesiastical Abstention Doctrine was held not to be a jurisdictional bar to litigation, even if it was or might be a bar to liability.

Treating the Ecclesiastical Abstention Doctrine like an affirmative defense, rather than a bar to jurisdiction as in the case reported, means while liability may someday be limited or eliminated, the cost of litigation will continue until there is a final decision by summary judgment or trial.  Discovery could be limited in such cases to jurisdictional facts which might blunt the impact.  While it would seem that the Ecclesiastical Abstention Doctrine’s applicability, because it is an effort by courts to obey the separation clause of the First Amendment, should be handled at the outset to tame the hungry lion of the cost of litigation, some courts will not reach that conclusion in the absence of specific legislative intervention.

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