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Church lawyers to question therapists

By Michael Rezendes and Walter V. Robinson, Globe Staff, 1/17/2003

hree months after the Archdiocese of Boston publicly reached out to sexual abuse victims and promised to pay for their counseling, church lawyers this week began requiring therapists who have been treating the alleged victims to answer questions under oath about their patients' emotional condition.

That step, though it is standard practice for trial lawyers, provoked outrage yesterday from advocates for sexual abuse victims and the attorneys who have asked for jury trials for two of the more than 500 people who allege they were abused by priests in the archdiocese.

''This is the ultimate bait-and-switch strategy,'' said David Clohessy, national director of the Survivors Network of Those Abused by Priests. ''It's terribly disingenuous and hurtful to say to victims, `Come see us and we'll give you help,' and then turn around and use their private therapy sessions against them. It is every survivor's worst fear.''

The first of the pretrial depositions of the therapists, taken on Tuesday, appeared to catch some archdiocesan officials by surprise. Barbara Thorp, the official in charge of the church's victim outreach program, has expressed anger that the therapists are being questioned and forced to turn over notes of their counseling sessions, according to an adviser to the archdiocese.

Last night, Donna M. Morrissey, the archdiocesan spokeswoman, said the archdiocese wants to settle all the cases without ''painful'' litigation. But she said that because the law firm Greenberg Traurig has decided to take cases to trial, ''Then we are clearly obligated to defend ourselves.''

Morrissey said she did not know whether Bishop Richard G. Lennon, who took charge of the archdiocese when Cardinal Bernard F. Law resigned last month, was aware of the decision to issue subpoenas to the therapists, whose bills are being paid by the church.

Within a week of Law's departure, Lennon said he wanted to quickly settle the sexual abuse claims. Lawyers for the victims hailed the ''new tone.'' But the dispute that erupted yesterday is just one sign that the tone has soured.

An effort to win agreement for a moratorium on legal action, so there can be settlement talks, has failed. And with Greenberg Traurig seeking trial dates, the archdiocese is hiring seasoned litigators to fight back.

Today, a lawyer hired by the Boston Archdiocese from Colorado will argue in Suffolk Superior Court that all of the sexual abuse claims should be dismissed because of the church's First Amendment protections.

The first deposition of a therapist was taken Tuesday by Timothy P. O'Neill, an attorney for Brooklyn Bishop Thomas V. Daily, a former aide to Law who is named as a defendant in the lawsuit for his supervisory role. The therapist has been counseling Anthony Driscoll, an alleged victim of the Rev. Paul R. Shanley.

In cases where plaintiffs are claiming emotional damage, it is standard practice for defense attorneys to depose treating therapists and to ask for their records, legal specialists said.

But because the archdiocese has repeatedly said that its chief concern in attempting to manage the clergy abuse crisis is the welfare of victims, their advocates said Lennon has a moral obligation to protect the confidentiality of the therapy.

''It may be standard legal practice, but Bishop Lennon has to ask the question, `What's the best pastoral thing he can do to help the Archdiocese of Boston?''' said James E. Post, president of Voice of the Faithful, the lay group that formed last year in response to the crisis.

Roderick MacLeish Jr., an attorney representing Driscoll, said church attorney Wilson D. Rogers III told him last month that church attorneys would refrain from deposing therapists and issuing subpoenas for their treatment records.

MacLeish said Rogers made the statement after MacLeish agreed to postpone Law's continuing deposition.

In a letter to Rogers's father and law partner, Wilson Rogers Jr., dated yesterday, MacLeish said, ''The issue is not whether you have a legal right to take such depositions of treating social workers. The issue is whether the Archdiocese of Boston can tout its healing program for victims while at the same time take deposition(s) of their current therapists.''

But O'Neill, who deposed therapist Jeannine Breton, said he was never told of such an agreement, and insisted that it is his obligation to take pretrial testimony from treating therapists.

''It would be malpractice not to depose his licensed social worker,'' O'Neill said. ''Anthony Driscoll has put his psychological status at issue. He is claiming that all of his problems are related to childhood sexual abuse at the hands of Shanley. I have an obligation to test the credibility and details of the claims.''

Michael Avery, a Suffolk University law professor and the author of a widely used manual on rules of evidence, said plaintiffs who allege emotional damage are routinely required to disclose the contents of their discussions with therapists.

''Once you make your emotional condition an issue you waive any privileges you might have had,'' Avery said, adding that the evidence from therapists, although available to defendants and their attorneys, would be kept from the public until trial.

Avery also said that in cases where continuing emotional harm is the alleged result of trauma suffered long ago, judges are likely to allow defense attorneys wide latitude when questioning therapists in order to determine whether unrelated abuse may have contributed to a victim's problems.

Wendy Murphy, a former prosecutor who represents sexual abuse victims, said the right of defense attorneys to depose therapists and examine their records in such cases has been misused by some defense attorneys as a strategy designed to get victims to drop their claims or accept small settlements.

''It's an intimidation tactic that forces people to choose between privacy and justice,'' she said.

But Murphy also said, ''If you sue for emotional damage or psychological harm, by definition you've waived any right to confidentiality because the person you're suing has the right to challenge the legitimacy and integrity of your claim.''

Michael Rezendes can be reached at [email protected].

This story ran on page B1 of the Boston Globe on 1/17/2003.
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