February 28, 2004
January 9, 2004
Protecting the guilty
uestion: If that predator, defrocked priest John Geoghan, had been exposed in 1980, when his obsession with young boys first came to the attention of those at the highest levels of the Archdiocese of Boston, would he still have been assaulting the children entrusted to his care 15 years later?
We know the answer and so, to his lifelong regret, does Cardinal Bernard Law. Law and the church spent years trying to avoid scandal - shuffling Geoghan and others like him from parish to parish and paying millions in hush money to the victims. I do not doubt the sincerity of Law's repeated apologies, but what he never talks about is that he had the church's lawyers in court to the end trying to block the Globe's effort to unseal this shameful record of abuse. Those were not crimes of a wayward priest a decade earlier, but the decision of an admired cardinal just one month ago.
Sometimes it takes a scandal to cleanse a soul. But for the church -- just like Corporate America -- our legal system has become a place to bury scandal, not make it right. Confidentiality agreements such as the ones the church insisted on in settling dozens of cases have their uses, but as we are painfully learning they also come with a tremendous hidden cost. Some states -- Florida and Texas most notably -- have moved to limit secrecy agreements in cases involving public safety. If Massachusetts does not act now, then when?
Last year I wrote about a 10-month-old girl who was left a quadriplegic when a Massachusetts ambulance company botched a rescue call and then tried to cover up the mistakes. The company paid a $10.2 million settlement, but a confidentiality agreement kept even the state Department of Public Health, which regulates ambulance service, in the dark. The agency says it is investigating, but admits the trail is so cold at this point that it is unlikely to be able to do much. The rest of us still aren't allowed to know the name of the ambulance company.
Secrecy agreements are far too common. "You would be shocked by the percentage of cases that settle pursuant to a confidentiality agreement," says Paul Martinek, editor of Lawyers Weekly USA. Says Jeffrey A. Newman, a Marblehead attorney who privately settled two cases against Geoghan and has come to regret many others he negotiated over the years: "If I could only tell you the true stories of the information I know that is subterranean, you would be shocked."
Every day Corporate America buys the silence of those it victimizes. How many wrongful death suits did Firestone quietly settle before its problems came to light? The despicable tobacco industry used a confidentiality agreement to shut up its most famous whistler-blower, Jeffrey Wigand. Disney Co. avoids publicity about those hurt on the rides at Disneyland by requiring secrecy clauses in its settlements.
I do not pretend this is a simple issue subject to simple solutions. Victims understandably want to be compensated and get on with their lives. Defendants -- corporations, institutions, and individuals alike -- have a right to protect certain information. Confidentiality pacts can serve both their interests. But it is a difficult balancing act. What of "the greater good," society's interest at large? What about our need to know of products that kill, ambulance teams who injure, priests who rape?
We need a recalibration that favors a culture that is open, not closed. That is the opposite of our legal system today, where we don't even know how many settlements come wrapped in a secrecy agreement. Either the Legislature or the courts -- or both -- must raise the bar for what can be buried in a private agreement.
"I'm ashamed I took their money now," a victim of a priest in Weymouth told the Globe's Spotlight Team. "I should have gone and reported to the police, or filed a lawsuit and called a press conference to announce it. If we had done that, this problem would have been exposed long ago."
What price secrecy?
Steve Bailey can be reached at 617-929-2902 or by email at email@example.com.
This story ran on page F1 of the Boston Globe on 2/01/2002.