DSD and the Catholic Church

This week’s New Yorker has a great article on Ken Feinberg’s work helping the Catholic Church manage its sexual abuse crisis. Feinberg and Camille Biros created and run the Independent Reconciliation and Compensation Program (IRCP), which processes claims of sexual abuse by priests. The IRCP started in New York in 2016 and other dioceses from across the US have started getting involved.

The design of the IRCP is pretty simple and somewhat resembles Feinberg’s approach with the Victims Compensation Fund. Basically, the IRCP provides eligible people with some opportunities to be heard, and then generates settlement offers that victims can take in exchange for not suing the Church. But within this simple framework, as you might imagine, there are some profoundly difficult choices.

Take, for example, the decision to have Feinberg and Biros run the program. They are outsiders, and the fact that they are independent of the Church undoubtedly provides some measure of comfort and legitimacy to those who might not trust a Church-run program. At the same time, however, their independence furthers the disconnect between the victims and the perpetrators, a disconnect that is often already exacerbated by the passage of time and the movement of people. In other words, having outsiders run the IRCP may provide legitimacy but also may prevent the Church from assuming the full burden of its obligations.

More broadly, the essentially transactional nature of the system is problematic given the context. As we know, creating reconciliation “systems” is always fraught. This does not mean these systems are not worth trying, but it does mean that our expectations around how much can be done and how quickly must be constantly revisited. It’s fascinating to consider whether and how a dispute processing system can truly help the Church come to terms with its moral, spiritual, and financial responsibilities. As author Paul Elie points out, the IRCP calls up comparisons to the confessional booth and indulgences, both mechanical means (and thus not necessarily heartfelt or genuine ones) of absolving a bad actor of responsibility. “Is the Church today,” Elie writes, “essentially outsourcing a reckoning with its past?”

In 2003, when I was a law student, I enrolled in HLS’s first dispute systems design clinic. My project was, generally speaking, the sex abuse crisis in Boston (though we may have called it the “sex abuse scandal” — interesting to reflect on that framing now). There were three of us on the project team, and we actually believed that in one semester we could put into place systems that would help Catholics and others deal with their concerns in a meaningful, orderly way. What we found was that we could barely wrap our arms around any part of the problem — it was so large and unknowable, so unthinkably horrific, that we spent all of our time doing conflict assessment and trying not to commit ethical violations (e.g., raising parishoners’ expectations around what was possible). Our final report was more than one hundred pages and really just scratched the surface of what was going on.

I mention my experience because it provided me with the tiniest inkling of understanding about just how difficult the sex abuse crisis will be for the Church and for Catholics to work through. It’s not just a matter of coming up with systems to deal with the effects of the crisis, although this is indeed incredibly important work. Perhaps we can also turn our systems thinking to the roots of the crisis as well. Elie writes, “Beneath all these problems is a problem of truth.” It would be great to think more deeply about how our work in conflict resolution and dispute systems design can help us do more than just create settlement systems that tend to preserve the status quo. Maybe this work can help us interrogate the complex infrastructures of modern life and provide us with more avenues for revolutionary change.

2 thoughts on “DSD and the Catholic Church”

  1. This article (both from Jen) and New Yorker will be great to teach from. I have been asked to consider helping with a “TRC” like process for #metoo in Hollywood– I won’t do for many reasons, (see my Harvard Neg. L. Rev. article (2009) on the ethical issues in DSD) but these issues present important concerns about the differences in “aggregate” justice, releasing the wrongdoers and what is best for particular individuals when harm is great and also very variably experienced…. But, I think DSD is really a much better way to think about these issues than traditional civil or criminal procedure and is at the core of ADR values. Thanks to Jen for posting and sharing. Really useful.

  2. The IRCP was created under a bad faith umbrella. The hope was to settle with as many victims as possible prior to any law changes. Knowing that many victims were unaware of The Child Victims Act, and many victims were told not to get personal lawyers, the program was just part of the coverup. Many who accepted offers have been victimized again.

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