The Vicarious Liability of the Vicar of Rome

Vanderbuilt Law Review

"Under respondeat superior liability for employers, parties seeking to hold the Holy See liable for sexual abuse committed by a priest must first show that the Holy See knew or should have known that such abuse was occurring.51 Many American Catholic bishops and dioceses have fought to prevent the public disclosure of all documents possibly demonstrating knowledge of the abuse."

"...The 1962 Policy demonstrates that priestly sexual advances during or after confession concerned Curia officials enough to create secretive, specific procedures for handling the cases. It does not require laypeople or clerics to inform the civil authorities if the solicitation also amounts to a civil crime. It certainly encourages the shroud of secrecy that kept so many sex abuse cases under wraps for so long. On the other hand, the 1962 Policy clearly outlines an ecclesial procedure for an ecclesial crime." 

"...Traditional respondeat superior liability presents many problems when applied to the Holy See. The question whether a priest or bishop is an employee is not obvious on its face, and answering this question involves church doctrine. It also creates unfairness and unpredictability because it relies on state agency law. To resolve these problems, plaintiffs should try to frame their claims under command responsibility instead. This moves the question of authority and control from a doctrinal analysis to a factual one, and it provides a uniform method of liability applicable throughout the United States. While it does not provide the plaintiff a certain victory at trial, at least it allows the plaintiffs to hold the Holy See and its bishops and priests liable if the facts demonstrate that such a result is appropriate, for those who have done wrong, even clergy, should be brought to justice."