Prosecuting the Church

Crime and Punishment

New York Times/April 14, 2002
By Frank Bruni

Washington -- As public outrage continues to build over the still-spreading scandal of child sexual abuse by Roman Catholic priests, many Americans who once held religious leaders above secular reproach are now demanding that ways be found to hold them accountable.

Lawsuits have not done the trick. Over the last two decades, dioceses across the country have faced hundreds of civil actions and paid an estimated $1 billion in damages. Yet the church has not made the fundamental changes many feel it must.

As a result, some lawyers and victims' advocates are now thinking the once unthinkable: people at the top of the Catholic hierarchy - bishops and archbishops - should face criminal prosecution over the crimes of their priests.

It hasn't happened yet, and may never happen, say many lawyers, because it is extremely difficult to convict anyone of a crime he did not commit, knowingly abet or explicitly endorse.

"Criminal statutes are very difficult to apply in a situation like this," said Thomas F. Reilly, the Massachusetts attorney general.

Mr. Reilly ought to know, given the 800 pages of internal church documents released last week in Boston pertaining to the case of Father Paul Shanley, a Boston-area priest who was repeatedly accused of sexually abusing boys.

The material includes astonishing examples of his superiors not only ignoring those complaints, but also placing him in, and recommending him for, jobs in which he would have continued access to children. It has forced Cardinal Bernard Law, the archbishop of Boston, to offer yet another defensive explanation of his actions in a letter he sent to priests on Friday.

According to the documents, Boston church officials were twice told about two incidents in the late 1970's, when Father Shanley made public statements in defense of pedophilia, including at an early meeting of the North American Man-Boy Love Association. And in 1991, when church officials settled a lawsuit that accused the priest of sexual abuse, one senior official, in an internal memo, wrote, "Paul Shanley is a sick person."

But Cardinal Law and his deputies continued to protect Father Shanley, facilitating his transfer to southern California and then his placement in a job at a Catholic guest house in Manhattan.

A few legal experts said that this kind of document trail could support a criminal prosecution of church leaders. But still, they said, certain facts would have to align almost perfectly.

For church leaders to be charged as accomplices to, or abettors of, child sexual abuse, experts said, the first hurdle would be to prove that Father Shanley had committed a crime within the geographically relevant statute of limitations. Next, the prosecution would have to prove either that church leaders believed he was a predator beyond reform, destined to molest again, or that they had actively and deliberately encouraged his actions.

"If a cardinal had a peephole from his office into a priest's office and said to a child, `Go in there and do what Father John tells you to do,' that would be, in New York, as close to `acting in concert' as you get," said Linda A. Fairstein, the former head of the sex crimes unit in the Manhattan district attorney's office.

The evidence against church leaders so far seems to fall short of that standard - as it often does in analogous situations.

Laura Rogers, a senior lawyer for the National Center for the Prosecution of Child Abuse, said she could not recall a single case in which, say, a principal or hospital supervisor had been found criminally culpable for the sexually abusive actions of a teacher or doctor.

If there was any punishment, she said, it usually came in civil court, where victims and their families could sue for financial compensation. This is precisely what has happened with church cases, because the standards of proof are lower in civil than in criminal court.

Church leaders could also face criminal charges of concealment or obstruction of justice. But once again, the standard of proof is high. To begin with, prosecutors would have to show that those charged had deliberately hindered law enforcement officials from bringing an abusive priest to justice.

In some cases across the country, church leaders have admitted that complaints about sexual abuse were met with exhortations from diocesan or archdiocesan officials to keep the matter quiet. But many lawyers say even this does not rise to the level of criminal culpability, because the actions did not derail a criminal investigation already under way.

"Typically, obstruction of justice needs to be in connection with a grand jury or criminal proceeding," said John J. Gallagher, a former federal prosecutor in New York who now does criminal defense work. "Did you put in false affidavits? Did you suborn perjury? Did you destroy documents?" That kind of wrongdoing in defense of a civil lawsuit could also lead to criminal charges. But Sylvia Demarest, a Dallas lawyer who has seen the church act in ways she considers obstructive to lawsuits she has filed against it, says not once has a prosecutor followed up.

The church's criminal invulnerability could begin to crack, however, in part because lawyers for victims and victims advocates are more determined than ever to uncover the kind of information prosecutors would need. The Shanley files, for example, were obtained and released by a lawyer, not by the police. Another lawyer, Jeff Anderson of St. Paul, Minn., said prosecutors were less and less worried about going after the church because of the changed public climate. Just last week, the district attorney of Suffolk County, N. Y., announced that he was convening a special grand jury to look into child sexual abuse in the Catholic church. Legal experts said this had never happened before. And in Massachusetts, the attorney general and the district attorneys of five of the counties within the Archdiocese of Boston have formed a special task force to examine and discuss the cascade of evidence about abusive priests, along with the question of whether church leaders have any criminal culpability.

"Prosecutors follow public opinion and knowledge, and the pressure is mounting," Mr. Anderson said. Referring to church leaders, he added, "I'm betting better than even odds that in the next 30 to 60 days, you're going to see somebody charged."

Many experts disagree, but they concede that criminal statutes vary so widely from state to state that anything is possible. The law is a flexible tool; in determined hands, it can pry open or whittle away at seemingly unyielding objects. Several lawyers say it might be possible to use federal or state racketeering laws, initially intended to break up mob activity, to portray the church as an ongoing criminal enterprise, the crime being the widespread and sustained victimization of children. Mr. Anderson accused the church of racketeering in a recently filed civil suit.

In some states, there might be statutes that could allow prosecutors to charge church leaders with violating the civil rights of children. Mr. Reilly has looked into that in Massachusetts, but he says the relevant statutes are unlikely to be applicable to criminal charges. Even so, it is noteworthy that he seems to be taking such a long, hard look at the behavior of officials at the highest echelons of the Catholic church. Marci A. Hamilton, a professor at the Benjamin N. Cardozo School of Law in Manhattan, said the impulse to prosecute was bound to arise, given the lurid nature of the scandal and the well-publicized efforts to cover it up.

"Right now, we're in a circumstance where the emerging scandal is so shocking that the failure to prosecute at all looks irresponsible," Ms. Hamilton said.