When it was released on Aug. 14, 2018, a Pennsylvania grand jury report exposed decades of alleged clergy abuse and cover-ups by Roman Catholic bishops and other church leaders in six of Pennsylvania’s eight dioceses.¹ The impact of this unprecedented and comprehensive report was immediate and extensive,² and it continues to this day.³ Recently, the efforts of the New York and West Virginia attorneys general to address similar allegations through consumer protection and charities laws, rather than criminal process, have been in the news.

In New York, Attorney General Letitia James filed civil suit against the Roman Catholic Diocese of Buffalo and two of its former leaders alleging violations of New York laws governing non-profit corporations, religious corporations, and charitable assets.⁴ The suit, filed on Nov. 23, 2020, alleges that the diocese’s leaders failed to follow diocesan policies and procedures in response to allegations of sexual abuse within the diocese. As a consequence of the news reports in the early 2000s of widespread sexual abuse of minors by Catholic clergy, the defendants adopted, and thereafter publicly announced compliance with, specific policies and procedures for providing training, reporting and preventing sexual abuse.⁵ According to the New York complaint, although publicly appearing to appropriately address allegations of sexual abuse, the defendants, in practice, failed to take substantive action outlined by these policies and procedures. In a statement, the diocese said it is reviewing the lawsuit and reiterated it has “zero tolerance” for sexual abuse or sexual harassment by diocesan clergy, volunteers, and employees.⁶

At the other end of the litigation cycle, West Virginia Attorney General Patrick Morrisey suffered a defeat in his suit against the Diocese of Wheeling-Charleston as the West Virginia Supreme Court affirmed a trial court’s dismissal of the action based on a state statute that sharply limits the state’s authority to impose restrictions on educational institutions operated by religious organizations.⁷ The attorney general filed suit under the deceptive practices provisions of the West Virginia Consumer Credit and Protection Act (CCPA) and alleged that the diocese’s advertising promoting the safety of its educational services was deceptive because the diocese allegedly “knowingly employed admitted and credibly-accused sexual abusers in its schools and camps but neither disclosed that material information to consumers nor warned them of the alleged dangers inherent to the educational and recreational services it provided.”⁸ The West Virginia suit drew attention for being the first attorney general action pursuing a consumer protection case against a diocese and former bishop.

On Nov. 16, 2020, in a 4-1 decision, the West Virginia Supreme Court affirmed the trial court’s dismissal of the suit without addressing the state’s substantive claims. The court ruled that the deceptive practices provisions could not be applied to educational or recreational services offered by a religious institution, based on a West Virginia law that prohibits the state from imposing requirements on religious schools.⁹ The law imposes certain requirements, such as a 180-day instructional term and compliance with school bus safety regulations, however, if a church school satisfies those requirements, the law provides that the church school “shall [not] be subject to any other provision of law relating to education except requirements of law respecting fire, safety, sanitation and immunization.” According to the majority, the attorney general’s consumer protection suit conflicted with this provision. The court did not agree with the state’s argument that its suit was regulating the school’s advertising and business practices, not its educational services. The court’s opinion did not otherwise address the viability of using a consumer protection-based theory to pursue an action against a religious entity for statements or practices regarding its efforts to address sexual abuse by the clergy. The dissenting justice would have allowed the suit, finding the decision “incoheren[t]” and “transparently results-oriented” in a sharply worded dissent. The justice stated that “[t]here is no irreconcilable conflict between the [religious school law and the CCPA]. The CCPA relates to consumer protection; not to regulating the quality or substance of educational services.”¹⁰

Many attorneys general responded to the August 2018 release of the Pennsylvania grand jury report by gathering information or initiating investigations into allegations of clerical sexual abuse within their own jurisdictions.¹¹ While some investigations have already concluded, it remains to be seen whether any other states might, in pursuing a civil action, employ their states’ consumer protection laws or non-profit corporation laws in addressing allegations of unlawful acts or practices.

1. Off. of Att’y Gen., Commonwealth of Pa., Report I of the 40th Statewide Investigating Grand Jury (2018). [↩]
2. See, e.g., Laurie Goodstein & Sharon Otterman, Catholic Priests Abused 1,000 Children in Pennsylvania, Report Says, N.Y. Times, Aug. 15, 2018, https://www.nytimes.com/2018/08/14/us/catholic-church-sex-abuse-pennsylvania.html; Amanda Holpuch, More than 300 Pennsylvania Priests Abused 1,000 Children Over Decades, Report Says, The Guardian (Aug. 14, 2018), https://www.theguardian.com/us-news/2018/aug/14/more-than-300-pennsylvania-priests-committed-sexual-abuse-over-decades.  [↩]
3. See, e.g., Mark Scolforo, 2 Years After Grand Jury Report on Pa. Clergy Sex Abuse, Lawsuits Roll In, PA Real-Time News (Aug. 14, 2020), https://www.pennlive.com/news/2020/08/2-years-after-grand-jury-report-on-pa-clergy-sex-abuse-lawsuits-roll-in.html. [↩]
4. Press Release, N.Y. St. Off. of the Att’y Gen., Attorney General James Takes Action Against Catholic Diocese of Buffalo for Failing to Protect Minors from Sexual Abuse by Clergy (Nov. 23, 2020), https://ag.ny.gov/press-release/2020/attorney-general-james-takes-action-against-catholic-diocese-buffalo-failing. [↩]
5. U.S. Conf. of Cath. Bishops, Charter for the Protection of Children and Young People (rev. 2018). [↩]
6. Press Release, Catholic Diocese of Buffalo, Statement of the Diocese of Buffalo on the Lawsuit Announced by the Attorney General (Nov. 23, 2020), https://www.buffalodiocese.org/news/article/current/2020/11/23/100053/statement-of-the-diocese-of-buffalo-on-the-lawsuit-announced-by-the-attorney-general.  [↩]
7. State ex rel. Morrisey v. Diocese of Wheeling-Charleston et al, No. 19-1056 (W. Va. Nov. 16, 2020). [↩]
8. Diocese of Wheeling-Charleston et al, slip op. at 2. [↩]
9. W. Va. Code §§ 18-28-1 to 7. [↩]
10. State ex rel. Morrisey v. Diocese of Wheeling-Charleston et al, No. 19-1056, slip op. at 7 (W. Va. Nov. 16, 2020) (Workman, J., dissenting). [↩]
11. See, e.g.. announcements from attorneys general in the following states: CA, CO, KS, and TX. For a list of additional initiatives and press releases concerning allegations of clerical sexual abuse issued by state attorneys general following the release of the Pennsylvania grand jury report in August 2018, please see the chart below. [↩]