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Spotlight Report

  Eileen McNamara  

Courts must end secrecy

2/27/2002

he Catholic Church is not the only institution from which secrecy needs to be purged if children are to be protected from sexual predators.

Lawyers, no less than clerics, and judges, no less than cardinals, must choose openness over concealment if the courts are to avoid the loss of confidence now plaguing the church.

It is past time to outlaw the kind of confidentiality agreements and impoundment orders that kept the public in the dark about the extent of pedophilia in the priesthood. Secrecy serves the self-interest of perpetrators and the institutions that harbor them, never the needs of victims.

Curiously, the lawyers who have acquiesced to the church's demand for confidentiality as part of negotiated settlements are among the most ardent advocates for child abuse victims in Massachusetts.

In hindsight, Laurence Hardoon says it was a bad idea to suggest, as part of a settlement in 1992, that the Rev. Robert M. Burns posed no further threat to children. Burns was arrested three years later on charges of molesting two other children, an outcome Hardoon might have anticipated. He is, after all, the same man who, as a child abuse prosecutor in Middlesex County, observed that "once a predator, always a predator."

Attorney Jeffrey Newman also signed confidentiality provisions as part of two settlements in the case of former priest John Geoghan, but he says he wouldn't do it again. "I readily admit that the lawyers are part of the problem," he says. "The consequence of confidentiality was that further harm was done to children. There is no escaping that fact."

He now informs potential clients that he will not agree to a confidentiality provision as part of any settlement. "It's always thrown in at the end of a negotiation by the other side," he says. "There's no benefit to the victim; it only benefits the entity being sued. I won't sign them anymore."

Newman's position is problematic, however. If a lawyer refuses to follow the wishes of his client, he could find himself before the Board of Bar Overseers. "That's why I tell them how I feel at the outset," he says.

Massachusetts Attorney General Tom Reilly thinks secrecy agreements "should be prohibited as a matter of public policy" in child abuse cases. Prosecutors, he notes, now are being stymied in their efforts to investigate suspect priests by the refusal of the Boston Archdiocese to share information, citing confidentiality provisions of its civil settlements with abuse victims. "We'll get that information one way or another," Reilly vowed.

The decision of judges to seal the records from public view in these cases is no less destructive. Superior Court Judge Margot Botsford now says she would not have impounded court papers in the child rape case against the Rev. Richard O. Matte in 1995 "if I had been aware how widespread this issue was." But how could she have been when she and her judicial colleagues were all so quick to accede to the church's request that the records be sealed?

Concerns about a child's privacy -- the disingenuous rationale for secrecy offered by the archdiocese -- are easily addressed by redacting the victim's name.

A few years ago, Newman drew up legislation for the Massachusetts Academy of Trial Attorneys that would have restricted the use of confidentiality agreements but "it never got out of the chute," he says. "There is such a strong economic incentive to keep settlements secret that business interests killed it before it was born. It was the kind of thing that needed its own time and place to get the public behind it."

Courtesy of the Boston Archdiocese and lawyers like himself, that time may have come.

Eileen McNamara can be reached by e-mail at mcnamara@globe.com

This story ran on page B1 of the Boston Globe on 2/27/2002.
© Copyright 2002 Globe Newspaper Company.


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