Vatican sovereign immunity upheld

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The U.S. District Court for the District of Minnesota has dismissed a lawsuit brought by four plaintiffs who were sexually abused by Roman Catholic priests when they were children. In Keenan v. Holy See State of Vatican City, decided Aug. 14, the court found that the Holy See has sovereign immunity.

Three brothers—Benedict, Luke, and Stephen Hoffman, as well as James Keenan—are now adults who were abused by Roman Catholic priests assigned to parishes in dioceses in Minnesota.

The Rev. Curtis Wehmeyer was assigned to the Church of the Blessed Sacrament in St. Paul. In 2004, Wehmeyer tried to engage two younger-looking men at a bookstore in a sexual conversation. Following this, Wehmeyer was placed on a monitoring program for problem priests. Problems with Wehmeyer persisted. A sheriff’s deputy told an archdiocesan official that he thought Wehmeyer had a sex addiction after being repeatedly seen in a park where men seek anonymous sexual encounters. Nevertheless, Wehmeyer was promoted to pastor of the Church of the Blessed Sacrament.

From 2006 to 2012, Wehmeyer groomed and sexually abused the Hoffman brothers. In 2012, the brothers’ mother reported the sexual abuse to law enforcement. Wehmeyer was arrested and pleaded guilty to 20 charges of criminal sexual abuse and possession of child pornography. He was sentenced to five years in prison.

The Rev. Thomas Adamson was ordained as a priest in the Diocese of Winona. He had a lengthy history of sexual misconduct, abusing minor boys as early as the 1960s. After committing multiple instances of sexual abuse, Adamson was transferred to Risen Savior Catholic Church. He was ordered to not have any contact with youth, but he had unsupervised and unlimited access to minors. One of those minors was Keenan, who was sexually abused by Adamson in 1981.

Fourteen causes of action, including nuisance, breach of contract, violation of the Minnesota Uniform Deceptive Trade Practices Act, and negligence, were brought against Holy See. Holy See is the government of the Catholic Church, operating from Vatican City State. The pope is the head of both the Vatican City State and the Holy See. The sexual abuse victims were represented by Jeff Anderson and Associates, a firm representing survivors of childhood sexual abuse.

“Defendant Holy See has known about the widespread problem of child sexual abuse committed by its clergy for centuries but has covered up that abuse and thereby perpetuated the abuse,” the complaint reads. “Secret settlement agreements with victims have been used to silence the victims and their families and to protect the abuser from criminal prosecution by United States and state authorities.”

“While the ‘public’ policy of Defendant Holy See is to forbid child sexual abuse by priests and clerics within its control, the actual ‘private’ or secret policy is to harbor and protect its abusive priests, clerics, bishops, archbishops, cardinals, agents, and employees from public disclosure and prosecution, in order to maintain the Supreme Pontiff’s rightful claim of control and thereby ensure that its parishioners, followers and financial contributors will keep confidence in the institution, continue to view Defendant Holy See and the Supreme Pontiff as deserving of allegiance, and, therefore, continue to contribute money and property to Defendant Holy See,” the complaint continues.

The Holy See moved to dismiss the case, arguing that the Foreign Sovereign Immunities Act (FSIA) deprived the court of subject matter jurisdiction. Foreign sovereignties are presumptively immune from suit, and federal courts lack subject matter jurisdiction unless a specified exception applies. One exception is the “commercial activity” exception, defined as a “regular course of commercial conduct or a particular commercial transaction or act.”

The plaintiffs argued that the Holy See engaged in commercial activity in Minnesota. It argued that Holy See engaged in commercial activity by collecting monetary contributions and soliciting people to become members and contribute to the financial operation of the Roman Catholic Church. The court disagreed that the FSIA’s commercial-activity exception to sovereign immunity applied.

“The bottom line is this: The gravamen of Plaintiffs’ claims is sex abuse, but plaintiffs do not argue that the sex abuse alone was a commercial activity, and they allege no plausible connection between that abuse and any of the Holy See’s assertedly commercial activities,” the court concluded. “Every court to have decided the question has determined that claims against the Holy See arising from clerical sexual abuse do not plausibly meet the FSIA’s commercial-activity exception,” the court wrote, citing multiple federal court cases. “A common thread running through these cases is the conclusion that sexual-abuse claims are not based upon commercial activity because the claims ‘sound in tort.’”

The plaintiffs also argued that the tort exception to the FSIA applied. Foreign sovereignties are not immune from federal jurisdiction in cases where money damages are sought for personal injuries caused by tortious acts or omissions acting in the scope of his employment that occur in the United States.

The court recognized that the plaintiffs alleged plausible showing that Holy See knew of a sexual abuse problem and that the clergy acted pursuant to the Holy See’s directives. An exception to the FSIA tort exception prevented the claims from going forward: Claims based upon performance or the failure to perform a discretionary function were not subject to the tort exception.

“Defendant Holy See has mandated a multi-level policy of mandatory secrecy over all matters,” plaintiffs alleged.

The court was not persuaded. “At their core, Plaintiffs’ arguments seem directed at showing that the Holy See’s policy of secrecy regarding clergy sex abuse was appalling policy,” the court determined. “And there is no doubt Plaintiffs and others like them rightly claim that the secrecy policy made the abuse they suffered and survived possible.”

But the court concluded it was not able to evaluate the reasonableness of the foreign sovereign’s policy under the FSIA’s discretionary function exception. “The policy counts, not because it is rational or virtuous, but so long as the choices it reflects were ‘susceptive to policy analysis, regardless of whether social, economic, or political policy was ever actually taken into account,’” the court wrote. “The Holy See’s secrecy policy clears that low bar.”

Counsel for Holy See did not respond to request for comment.