The Boston Grand Jury Report on Catholic Clergy
Why Its Conclusion that Criminal Charges are
Stale is Wrong
By Marci Hamilton, Find Law's Legal Commentary
Thursday, July 31, 2003
If one had ever needed proof that children are a politically
powerless group, the recently released Boston grand jury report
on Catholic clergy sexual abuse provides it.
The report deems the Church's conduct "wrong."
But what it really is, is criminal.
Nevertheless, Massachusetts' brave Attorney General Thomas
Reilly could not find a single criminal charge to bring against
the Church. He found just enough facts to concede that there
was a problem. (Even he could not pretend the problem did
not exist). But he conveniently concluded that any charges
that might have been made against the Church were too stale
That's simply not true. Valid criminal charges could be brought
against the Church, and prosecuted, now, as I will explain.
In light of this legal reality, the Attorney General's failure
to prosecute is outrageous. So many children--likely over
1,000--were so grievously injured, as the report itself admits.
And the Attorney General's finding that the statute of limitations
has run, only rewards the Church's cover-up of these injuries
- and encourages other, similar cover-ups in the future.
By comparison, Maricopa, Arizona County Attorney Rick Romley
did not even issue a report at the end of his grand jury proceedings.
That's disgraceful. But so is issuing a report that pretends
criminal charges should not be brought, when plainly, they
The Extent of the Abuse, and the Church's Cowardly Cover-Up
The Massachusetts report concludes that over 780 children
were abused by 250 priests and Archdiocese employees between
1940 and the present. And that's a conservative estimate:
Massachusetts Attorney General Thomas Reilly has conceded
that the number of victims is probably over 1,000. Meanwhile,
survivors' groups believe the number is significantly higher.
Coverage of the scandal has made clear that very few of the
victims were abused only once, and that implies that literally
thousands of instances of child abuse occurred in this archdiocese
alone. Thousands of crimes - and thousands of torts as well
- were committed against some of the most vulnerable victims
imaginable: Children abused by the men they and their families
trusted the most, and then abused again by the bishops and
their administrations who made the Mafia's devotion to secrecy
look amateurish. In light of this factual record, it is nothing
less than outrageous that the Attorney General is doing nothing.
Worse, the report also documents the Church's cover-up. The
Church's ferocious desire to keep the abuse secret, the report
shows, led the Church time and time again to place fresh child
victims into the hands of known pedophiles. Those pedophiles
should have been sent straight into the criminal justice system
as soon as their abuse was discovered. Instead, the Church
knowingly shuffled abusing priests around, putting new children
in jeopardy over and over. As the report states, "Any
claim by the Cardinal or the Archdiocese's senior managers
that they did not know about the abuse suffered by, or the
continuing threat to, children in the Archdiocese is simply
not credible." Well, duh.
By placing itself above the law, the Church magnified the
initial evil a thousand times over. If the sheer number of
heinous crimes committed does not move the Attorney General,
he should consider, as well, the message that it sends to
allow a powerful institution, over a long period of time,
to cover up terrible crimes.
The Attorney General's Dodge on Criminal Charges
What the Attorney General should have done is simple: Bring
criminal charges against the Church under any and every theory
that possibly fits. After all, there is no question that crimes
were committed, or that the Church had a role in them. The
report's explanation for not bringing criminal charges--the
single most important question a public prosecutor's report
covering thousands of crimes must answer--is a few broad-brush
It completely fails to explain why Reilly did not charge
the Church with being an accessory after the fact. The report
defines accessory after the fact of a felony as requiring
"proof beyond a reasonable doubt that the defendant rendered
aid to a felon with the specific intent to help him avoid
or escape detention, arrest, trial, or punishment." One
must wonder, given the news reports, the recent disclosure
that the Vatican has mandated secrecy on these issues at least
since 1962, and the report itself, along with the other issued
grand jury reports, when exactly did the Church cease being
an accessory after the fact? As the Attorney General's Office
must be well aware, and the report confirms, the Church has
been an accessory after the fact for decades and still is.
The same questions are pertinent to obstruction of justice.
For the other charges, there could be a battle over the statute
of limitations, but the enormity of this travesty against
children demands public prosecutors to go out on a limb, even
to make new law. Any good lawyer knows that it is often a
fact question as to when the statute of limitations start
to run. Let the Church's defense lawyers try to argue that
the charges are stale. But as the prosecutor, do not make
that argument for them, in advance!
It's largely the Church's own fault that so much time passed
before these perpetrators could be brought to justice. So
how can the Church now argue that this very passage of time
makes the case for prosecution less compelling?
In the end, even losing the statute of limitations argument
in court could be a win for the prosecution, in a sense. It
would represent an honorable attempt to enforce the law in
the face of recently discovered, heinous violations. It would
draw attention, perhaps nationwide, to the inherent injustice
of too-short statutes of limitations for child abuse. And
it would force the Church hierarchy to either shoulder responsibility,
by waiving the statute of limitations point, or suffer publicly
for its attempt to get off on a technicality.
And these aren't the only recent crimes that could be charged,
only a sampling. Federal RICO charges are another possibility,
as I argued in a recent column. Indeed, the one virtue of
the Boston report is that it does provide a lot of information
for the federal authorities regarding the shared information
about pedophiles between the bishops, which goes a long way
toward proving a RICO violation. For those who persist in
thinking RICO has only been used against the mafia, they need
to read up on corrupt unions. RICO is the prosecutor's tool
of choice against the type of institutionalized corruption
and illegal behavior embodied by the Church in these circumstances.
The victims who marched Reilly's report over to U.S. Attorney
Michael Sullivan and demanded RICO charges be brought against
the Church fundamentally understand that some public prosecutor
must take action, and that the federal government may well
be the best choice.
Public Servants Who Refuse to Prosecute Heinous Crime Are
Unfit to Serve
Had there been thousands of instances of child sexual abuse
in Massachusetts at the hands of a single day care chain,
over a long period of time in the past, public officials would
be stampeding the podium to denounce it. And they would be
pushing each other aside to head the effort to put the perpetrators,
their superiors, and the CEO in jail.
Obviously, then, the real reasons the Church's crimes are
not being prosecuted likely has little, or nothing, to do
with their supposed staleness. Rather, it has to do with the
defendants whom an indictment would have to name.
Apparently, the Massachusetts Attorney General has little
desire to actually protect children. It would seem that he
cares about image first and foremost - and apparently has
let his gubernatorial aspirations get in the way of his job.
If so, he is an unfit public servant. His job is to serve
and protect, not to sacrifice basic values in an attempt to
A politician's duty is to do the right thing, even if it
is the hard thing, or the controversial thing. But he is not
the only public servant to put personal political ambition
ahead of the prosecution of a powerful church that has knowingly
permitted thousands of children to be sexually abused for
over half a century.
The silence is deafening. President George Bush has done
absolutely nothing. Nor has his Department of Justice, or
local United States Attorneys. Congress--always so swift to
hold hearings on any topic that will grab headlines--has sat
on its hands. They can't get enough of regulating the Internet
to protect children against pornography that may lead to harm,
but they cannot begin to even think about bringing a religious
institution to account for actually harming thousands of children.
Once again, were the Church a day care center chain, we would
have had more hearings in Congress than C-Span could cover.
The Governors, who oversee their Attorneys General, are not
standing up for the rights of children. Many state legislatures
have taken a "wait and see" attitude toward legislative
reform on these issues.
A few state prosecutors - like those in Massachusetts, New
York, and New Hampshire - have gathered information that is
soul-shattering and at least published it. But they have issued
Heroes are few, but the potential still exists. In California,
District Attorney Steve Cooley impaneled a grand jury, but
the archdiocese is resisting discovery mightily. Cleveland,
Ohio prosecutor William Mason leveled charges against a retired
priest and six former employees of a church-run home for troubled
youth. Hamilton County Ohio prosecutor Mike Allen has been
fighting to get documents from the archdiocese on the issue;
one priest and on ex-priest have been indicted so far.
Meanwhile, District Attorney Lynne Abraham in Philadelphia
asked for an extension for her grand jury investigating the
scandal. There, the Church's claim that there are only 35
known victims hardly jibes with the numbers coming out of
Boston. A report is due by year's end.
The Church's Weak Defenses Offer No Reason Not To Prosecute
Meanwhile, the Church has offered a few, exceptionally weak
arguments against prosecution. But none holds water.
The Church has stated that the number of pedophiles in the
Church is no greater than in the general society. That seems
untrue. The Boston numbers indicate otherwise; experts say
about 2 percent of the general society may be inclined to
abuse children. In the Massachusetts church, the number is
more like 6-10 percent. Moreover, it is irrelevant.
The question is not whether the Church has a disproportionate
number of abusers. The question is, when it learned of abuse,
what did it do? The answer is disgraceful. There is not a
single other institution in the country that has knowingly
let thousands of children suffer at the hands of its own members
or employees to this degree. Not one.
The Church also claims that this problem is a thing of the
past; there are no recent victims. There may be relatively
few recent reports of abuse - though it is hard to trust the
Church even on that point - but that does not mean there are
It cannot be overstressed that the victims are children,
abused by adults who are important, trusted religious figures
in their lives. Experts have explained repeatedly that children
who have been abused by trusted adults tend not to report
the abuse. It is psychologically extremely difficult for a
child to have to admit a betrayal by, and then break off a
relationship with, a priest whom he or she trusted to the
hilt. The child fears losing the love and attention of a trusted
adult, and perhaps even the gifts or toys that go with it.
Often the priest-predator chooses an emotionally needy child
with too little love in his or her life, in the first place,
making it all the harder for the child to leave.
And even if a child is brave enough to breach the relationship
and tell their parents about the abuse, their parents tend
not to believe them. That may be changing now, but not everywhere,
nor for everyone. Parents do not like to face the idea that
they may have, even unwittingly, exposed their children to
serious trauma and harm by letting them spend time with a
The Church's last refuge is always the First Amendment, but
the argument itself is a desecration of religious liberty.
There is no liberty to engage in a criminal cover-up of child
The Massachusetts Attorney General's Office Needs to Generate
Its Own To-Do List
The Boston report ends with a deeply dissatisfying list of
actions the Church needs to take, as though the Church, which
the report has now documented as thinking of itself as utterly
beyond the law, will break its code of silence for anyone,
least of all the rule of law.
What is needed is a list of actions the Attorney General's
Office will take in the future to ensure this never happens
to the children within its jurisdiction again. As the Report
notes, the AG is responsible for ensuring the safety of children.
Yet, there is not a single reference to what the Attorney
General's Office might do in the future to ensure the safety
of children from abuse by trusted members of the clergy. There
is no institution of a special hot line for child victims,
and there are no educational programs to be distributed through
the schools, and no special training for teachers and professionals
on what to look for in a clergy abuse victim, or for priests
to help them learn the new law in Massachusetts that requires
them to report abuse. No monitoring program. No mandatory
set of meetings with church higher-ups over the next decade
to discuss the problem. No program for the new bishop on what
to do about child abuse, from a public perspective. Nothing.
The AG's Office does not even commit itself to studying the
issue (the last refuge of those who intend to avoid responsibility).
It says it will be "vigilant," but obviously has
no plan. In effect, the Church has had its dirty laundry aired,
and is now off the hook. It may once again try to get its
own house in order. We all know where that leads.
The Framers, and especially James Madison, worried that there
would be an insufficient number of virtuous leaders to take
positions of power, that they would be more interested in
power than public service. So far, the Catholic clergy abuse
scandal has proven how right they were to worry.
The discovery of thousands of instances of child sexual abuse
- all within a single institution that knew of such abuse
for decades and let it go forward - should have led to dozens,
even hundreds, of indictments. To date, though, all we have
is talk, with no action.
Marci Hamilton is the Paul R. Verkuil Chair in Public Law
at Benjamin N. Cardozo School of Law, Yeshiva University.
An archive of her columns, including those on the Catholic
clergy abuse scandal, may be found on the Find
Law website. Her email address is email@example.com.