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Washington bishops vs. state AG: Who has a point?

The Washington state attorney general is seeking a court order to enforce a sweeping subpoena of Church records from the state’s three dioceses, claiming the bishops are obstructing an investigation into historical instances of clergy sex abuse.

Seattle Archbishop Paul Eitenne. Image via Archdiocese of Seattle.

The Archdiocese of Seattle and the Dioceses of Spokane and Yakima have issued blunt responses, insisting the AG is acting unconstitutionally and has rejected good faith offers to cooperate.

Washington is the twenty-third state AG’s investigation into Catholic dioceses, and similar investigations elsewhere have generated pushback from bishops, Church officials and lawyers — including allegations of political targeting of the Church, unconstitutional behavior, and political posturing. 

But in other instances, those investigations have also led to the painful uncovering of decades of mishandling of cases, cover ups, and major settlements for victims.

But as the standoff in Washington continues, does either side have a point? And what should Catholics make of it all?


Last week, attorney general Bob Ferguson, a Catholic, announced publicly that he was seeking an enforcement order after subpoenaing all diocesan records related to clergy abuse dating back to the 1940s.

Ferguson, who is currently running for governor, had previously refused to even acknowledge that a statewide probe was underway, which it has been since July of last year. But he claimed last week that he is “disappointed, as a Catholic, that the Church refuses to cooperate with [his] investigation” which he is conducting under the state’s Charitable Trusts Act, which grants him powers to “investigate transactions and relationships of trustees and other persons.”

Ferguson says his aim is to establish if “charitable dollars” were used to facilitate or cover up clergy abuse.

The bishops of Washignton have hit back, claiming that they were already working in what they thought was good faith with the AG’s office. 

In fact, the Archdiocese of Seattle said they’d previously requested holding a joint press conference with the AG to discuss how to share information publicly without compromising victim confidentiality.

The Diocese of Spokane similarly expressed surprise at the AG’s bid for an enforcement action, and noted that it had already made a public disclosure of its history when it went through bankruptcy proceedings. 

The Diocese of Yakima, meanwhile, responded that its “offer to engage in a collaborative, constructive, and public process that could benefit all residents of Washington has not been accepted.” 

“Nor has the Attorney General’s office identified a valid legal basis for the extraordinary demands made on the Diocese,” said the Yakima diocese.

While all three dioceses reiterated their commitment to justice for abuse survivors and a willingness to cooperate with the AG’s office, both Yakima and Spokane noted that the AG’s office appeared to be zealously pursuing its investigation into historical child abuse against the Church in particular, despite local Catholic dioceses showing a decades-long commitment to reform.

All three dioceses have pushed back on the scope of the AG’s demand for records dating back more than 80 years, including files on any allegation of abuse — even spurious or disproven claims — against clergy, employees or volunteers, and all communications with the Vatican about abuse claims and cases.

The AG’s office is also demanding the dioceses turn over their financial records and details of any compensation paid to survivors.

On the face of it, the dioceses would appear to have grounds for legal objection. 

Ferguson has said “Washingtonians deserve a public accounting of how the Catholic Church handles allegations of child sex abuse, and whether charitable dollars were used to cover it up,” while citing his office’s authority to investigate “investigate transactions and relationships of trustees and other persons” under the Charitable Trust Act as the legal rationale for the subpoenas.

However, the statute contains an exemption from oversight for religious organizations. While Ferguson has insisted that “the exclusion does not apply in the context of child sexual abuse,” it is not clear if that interpretation of the law is his to make.

Similarly, in demanding diocesan communications with the Vatican, the AG’s Office would appear to be crossing into the internal governance of a Church, something protected by the First Amendment and, in the case of canonical proceedings concerning clergy, technically a sovereign legal process of the Holy See.

The dioceses also contend that turning over records and files of survivors’ accounts of their own abuse would be a violation of their confidentiality and could re victimize them.

While Feguson has defended the scope of his investigation by citing other similar efforts by AGs in other states, those examples actually offer something of a mixed bag. While it is true that in places like New York sweeping results were achieved concerning dioceses like Buffalo, in Wisconsin the AG’s Office had to back down after dioceses there fought back against what they argued was a deliberate “targeting” of the Catholic Church by unconstitutional means.

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As the legal process in Washington plays out, it is reasonable to note that “full transparency” is perhaps an easy thing to call for when discussing historical abuse allegations, but complicated to commit to in justice.

In addition to real instances of abuse, some priests have in the past been the subject of unproven, even in some cases clearly false or malicious accusations which dioceses have recorded and investigated before closing the file. 

Such clergy might reasonably protest that turning over records of false claims against them presents a real danger to their reputations and ability to function in ministry. 

Though, in those cases, dioceses themselves should shoulder some of the blame — both in Washington and around the country — for creating an expectation that all accused clergy be named publicly, even if there is no finding of guilt.

For years, following the 2018 Pennsylvania grand jury report issued by the state AG there, American dioceses have made public lists of “credibly accused” clergy. In some cases, these lists have been an effort to vindicate the experiences of survivors, even if there is no avenue for canonical or civil prosecution, or to encourage other possible victims of an abusive cleric to come forward. But in other cases, the practice has meant listing priests before any canonical process has begun, any defense from the accused heard or any finding of guilt determined. 

The Archdiocese of Seattle’s own such list includes 83 clergy, and the state AG is demanding all files related to them, as well as any priests who have been the subject of accusations which the diocese did not deem “credible.”

Some survivors’ advocates argue that naming names of accused clergy is an essential part of recognizing the suffering of survivors. While publishing the name of a deceased cleric might seem unfair, they argue, it’s often the closest to justice their victims can get.

They also argue that a list of “credibly accused” clergy from the diocese can help victims come forward — seeing the name of their abuser on a diocesan list can give them confidence that they will be taken seriously, they say, and assure them that they are not alone.

But a small number of U.S. dioceses have refused to issue such lists, echoing warnings from the Vatican, which has - for years - pushed back on the practice, and publicly told dioceses to refrain from using terms “credible” and “substantiated” to described allegations which have not yet been subject to a canonical or civil legal process, and when clerics have not had the opportunity to defend themselves.

Critics of the practice of publishing lists of names of accused clerics have also warned that when an accusation isn’t proven, the fact that a priest’s name has been on a list at all can make it difficult - sometimes impossible - for the bishop to return him to pastoral ministry, creating a class of “unassignable” priests who haven’t been found guilty of anything, but cannot move on with their lives.

In New Orleans, a bankruptcy judge ordered the archdiocese to cease paying stipends to clerics on the public “credibly accused” list in 2020, and in 2022 extended the order to those whose accusations weren’t deemed “credible” — even if those priests hadn’t undergone any kind of canonical process at all.

It is also worth bearing in mind that, in seeking records dating back to the 1940s, the Washington AG’s office is looking to subpoena records of allegations dating back more than half a century, possibly without any living parties to them and which would be impossible to gather new information on.

And, it is worth remembering, the confidentiality of diocesan records doesn’t just concern historically accused clerics — files also often include witness statements from those who came forward during an investigation, and the identity and circumstances of victims, all of whom could have been previously assured of confidentiality and have their own rights to their good reputations.

Of course, canon lawyers might point out that the Church has long had policies on the retention and purging of archives for exactly these reasons, meant to ensure that records of proven cases are kept but that false accusations are not kept in perpetuity. 

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When it comes to accusations that the Washington AG is singling out the Church for special and unfair levels of investigation, dioceses there and across the U.S. can reasonably point to decades of serious institutional reform aimed at overhauling how accusations against priests are handled and survivors offered justice. 

And the year-on-year results suggest these reforms are working.

But the wider issue facing U.S. dioceses, including in Washington, is that state AG’s are only partially concerned with individual allegations against specific priests. As often as not, as in Washington, state investigations are focused primarily on systematic episcopal misconduct and negligence stretching back years.

And the reality is that there is still a two-tier approach in the Church to handling allegations against priests and bishops.

Despite reforms like Pope Francis’ 2019 motu proprio Vos estis lux mundi, meant to usher in a new era of episcopal accountability, the reality is that the Church remains practically opposed to transparency in cases of bishops accused of negligence or misconduct in the handling of abuse cases.

Investigations against bishops are almost never voluntarily announced by the Vatican or U.S. dioceses, and Church authorities are often openly hostile to questions when they are independently reported. 

Even more rarely are the results of investigations into bishops’ conduct made public. In the rare instances when an American diocese or bishop (as in St. Paul-Minneapolis or Brooklyn) pushes for transparency, the Vatican blocks the public disclosure of the details of the case, such that an archbishop can be found to have made “several instances of ‘imprudent’ actions” and merit considerable Vatican sanction, but no indication can be given as to what he is meant to have done. 

The public perception that, for all the Church’s strides in stamping out sexual abuse by priests, it remains far less committed to reckoning with episcopal misconduct is recognized as a leading factor in the breakdown of trust between lay Catholics and their bishops, and between bishops and their own clergy.

In 2022, Washington DC’s Cardinal Wilton Gregory said that the U.S. bishops had not earned trust among most Catholics that they’ve handled serious sexual misconduct, abuse and coercion well in the life of the Church

While some bishops have gained trust by being “forthright, honest and open with their people,” the cardinal said, “when you look at the corporate identity of the episcopate, we still have a long way to go because, once again, the actions of one influence the credibility of another.”

“With each revelation that involved a bishop not taking appropriate action, with each revelation that a bishop himself was engaged in this terrible criminal behavior, the progress that was made over months and years was weakened,” Gregory added. 

“With every sordid revelation (of sexual abuse or improper response by a bishop), the task becomes more difficult, the climb becomes steeper.”

The Washington, DC, cardinal’s observations about being “forthright, honest and open with their people” drew accusations of hypocrisy at the time — Gregory himself has refused for years to release archdiocesan files on his predecessor, the former cardinal Theodore McCarrick — but his observation about “the corporate identity of the episcopate” still rings true.

As his observation relates to the other Washington, on the other side of the country, it is worth noting that a lack of transparency and accountability for bishops’ handling of abuse cases is a live issue.

As recently as 2022, the previous Bishop of Yakima, Carlos Sevilla, SJ, was formally reprimanded by the Vatican over his handling of allegations of clerical sexual abuse in the state following a Vatican ordered investigation carried out by Seattle's Archbishop Paul ​​Etienne.

But while Sevilla confirmed at the time that he received a formal rebuke from Pope Francis for “mistakes” he made in office, the Vatican refused to disclose publicly what he had done. In fact, even Sevilla’s successor in the Yakima diocese, Bishop Joseph Tyson, was denied a copy of the report on his predecessor.

Taking lessons from similar investigations in other states, the Washington dioceses would seem to have several reasonable legal objections to the AG’s attempt to demand what amounts to effectively total access to all diocesan records. Whether those objections are sustained by the court could prove to be a judicial coin toss — and the subject of lengthy appeals.

Meanwhile, questions about the AG’s motives and the extent to which he is singling out the Church for special scrutiny may have substance, even if they sound discordant as the Church seeks to affirm its commitment to reform, and to acclaim its internal standards as just. 

There are real arguments in justice for caution in dealing with unproven and even historically unprovable allegations against clergy. But at the same time, the reality is bishops in Washington and elsewhere have in large part set a precedent in this regard, which state attorneys general are now simply following.

And as the case of the former Bishop of Yakima calls to mind, the Vatican itself, and often local bishops too, still refuse to deal openly and transparently with each other, let alone with the faithful, on episcopal misconduct cases.

That being the case, is it any wonder if the state AG thinks there’s something to look into?

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