Experts say grand juries unlikely
to indict Catholic bishops who supervised abusive priests
By Rachel Zoll, Associated Press, 06/23/02
As prosecutors turn to grand juries to investigate
sex abuse by Roman Catholic clergy, church observers are wondering
whether the ultimate target of criminal charges will be a
cardinal or bishop who mishandled molester priests.
Several legal experts say that successfully
prosecuting a church leader for protecting abusers would be
a formidable task, since attorneys would need to prove that
a bishop meant to help offenders commit crimes. The details
revealed since the abuse crisis erupted in January do not
support that theory, they say.
Yet the possibility remains that a prosecutor who found a
case within the statute of limitations would bring charges
in the current atmosphere of public outrage over the scandals.
"They're elected officials and they're responsive to
the electorate," said Robert M. Bloom, a professor at
Boston College Law School.
"One could argue they've convened a grand jury for political
reasons. One could also argue they are looking to make sure
that there are no other priest predators out there."
As the molestation crisis intensified this year, prosecutors
began speaking publicly of their anger over church leaders'
failure to report many abuse claims to civil authorities.
Grand juries have been convened in nine states to investigate
priests and dioceses.
In Cincinnati, Prosecutor Michael Allen subpoenaed Archbishop
Daniel E. Pilarczyk in April, but excused him after the archbishop's
lawyers provided prosecutors with undisclosed evidence they
had demanded. The archdiocese's chief record-keeper, Chancellor
Rev. Christopher Armstrong, did testify.
Among the most aggressive prosecutors has been Massachusetts
Attorney General Thomas F. Reilly, who convened a grand jury
after Boston Cardinal Bernard Law acknowledged allowing a
pedophile priest to stay in church work.
Law's admission put every U.S. diocese under scrutiny. At
least 300 priests have been taken off duty over allegations
of sexual abuse, but most of the claims are years old and
outside the statute of limitations.
Reilly has been investigating whether Boston church officials
committed any crimes by transferring molester clergy from
parish to parish. He has recently indicated criminal charges
are unlikely, but he could seek a court order, under the state's
civil rights law, to force changes in how the Boston Archdiocese
handles abuse claims.
"In criminal prosecution, you need intent," said
Cary Edwards, a former New Jersey attorney general. "The
church seemed to have its head in the sand. It was a bad moral
act. But the institution was in denial that this was a criminal
G. Robert Blakey, a professor at the University of Notre
Dame Law School, said if he were a prosecutor, he would also
search for a means to hold the bishops criminally accountable.
But he said there's no apparent way it could be done.
On the charge of aiding and abetting a crime, the prosecutor
would have to prove that the bishop intended to transfer the
offender to help him molest children. Although many prelates
were guilty of bad judgment and arrogance, Blakey said, it
appears they shuttled errant clergy among parishes to stop
-- not facilitate -- the priests' wrongdoing, even though
that strategy failed.
A criminal negligence charge also would be difficult to prove,
since church leaders tried to stop the offender by sending
him to treatment, Blakey said.
And for a conspiracy charge, the prosecutor would have to
prove that the bishop and the priest agreed that the clergyman
could molest children -- another unlikely scenario, said Blakey,
who wrote the federal anti-racketerring law.
"The harm these administrators have done by moving these
people is incalculable," Blakey said. "But if you
wanted to indict a bishop, you'd have to have a theory about
how the bishop helped the priest."
Patrick Schiltz, dean of the University of St. Thomas Law
School in Minneapolis, believes district attorneys know they
cannot bring charges but have been using grand juries anyway
-- to intimidate church leaders and win points with voters.
"When you're a prosecutor and you convene a grand jury
to investigate things that everyone would concede are years
and in some cases decades beyond the statute of limitations
-- that's a gross abuse of power," said Schiltz, who
has defended dioceses in hundreds of civil abuse lawsuits.
But other legal experts say prosecutors are justifiably upset,
considering many offenders escaped punishment.
Edwards said he saw a model in the successful recent prosecution
of accounting giant Arthur Andersen. Federal attorneys charged
the entire company with obstruction of justice for document
shredding and destruction of computer records related to audits
of bankrupt Enron Corp. A similar charge could be brought
against the church for covering up abuse, he said.
"If I were still a prosecutor, I would be looking very
heavily at indicting the church as a corporation," Edwards
said. "You can't put a corporation or the Catholic church
in jail, but you can fine them."
However, Edwards said he thought a district attorney would
use that strategy only if there was "a real smoking gun,"
-- some strong evidence that becomes public.
Most prosecutors, he said, have no interest in prosecuting
"very well-meaning bishops and cardinals of the church
for making a mistake."
Juries investigating Catholic misconduct cases. (As of