THE STATE
A Novel Tack by Cardinal
To keep accused priests' files secret, Mahony is asserting a type of confidentiality privilege that one scholar says 'just doesn't exist.'
By William Lobdell and Jean Guccione
Times Staff Writers

March 14, 2004

Enmeshed in a high-stakes battle to maintain the secrecy of church documents involving priests accused of molesting children, Los Angeles Cardinal Roger M. Mahony has adopted a legal strategy more aggressive than that of any other bishop in the country, according to scholars and attorneys.

At the center of the fight are thousands of pages from priest personnel files that Mahony has succeeded for more than a year and a half in keeping from prosecutors, lawyers for victims and the public.

Officials at the Roman Catholic Archdiocese of Los Angeles concede that the files include evidence that Mahony and other church leaders improperly handled some cases involving abusive priests.

"We believe that our early decisions were correct at the time they were made but, as our understanding grew, we concluded that those early decisions had generally been too tolerant," said spokesman Tod Tamberg. "In retrospect, then, some of our early policies were mistakes."

Tamberg said that, overall, Mahony should be seen as a national leader in reforming the church's sexual abuse policies. But the cardinal's opponents say that, if all the files became public, they would hobble his leadership of the largest Roman Catholic diocese in the United States.

To keep the files secret, Mahony's legal team is pushing a novel argument in both criminal and civil courts — a claim of what his chief lawyer, J. Michael Hennigan, has called a "formation privilege" between a bishop and his priests.

The archdiocese asserts that the privilege stems from a bishop's ecclesiastical duty to provide a lifetime of formative spiritual guidance to his priests. As claimed by the archdiocese, the privilege would require that sensitive communication between a bishop and his priests involving counseling — including documents relating to sexual abuse of minors — be kept confidential.