Weak statutes led to no indictments

By Stephen Kurkjian, Globe Staff, 7/24/2003

Attorney General Thomas F. Reilly knew from the start how difficult it would be to bring a criminal indictment against Cardinal Bernard F. Law and his top deputies for failing to put a stop to sexual abuse of children by priests.

Not because Reilly, a Catholic, didn't want to. A fellow prosecutor says Reilly was ''passionate'' about the case and fully prepared to prosecute the leaders of the Boston archdiocese for what he considered outrageous misconduct.

But Reilly couldn't proceed because he lacked the legal tools. Laws that would have eased prosecution didn't exist in Massachusetts at the time of the offenses. What laws there were required something he didn't think he could prove: criminal intent.

''The intent by all church leaders was to protect the reputation of the church,'' Reilly said yesterday. ''The intent was to maintain secrecy. [But] there was no intent that we have found to assist in any way in criminal acts.''

In his 76-page report, which directed harsh criticism at Law and his top bishops in the archdiocese, Reilly said his staff looked at several criminal statutes to determine if the evidence would support an indictment. They considered prosecuting Law and the bishops as accessories before or after the fact of a felony, for conspiracy, or for obstruction of justice. They weighed indicting the archdiocese itself for its failure to intercede to stop the abuses of its agents, the priests. Even the testimony of the bishops before a grand jury was scoured to determine if any misstatements might be sufficient to bring a perjury indictment.

In each case, Reilly and another prosecutor in his office said yesterday, either insufficient evidence was uncovered to justify an indictment or there was not a specific statute on the books that prohibited the conduct.

''Certainly no one is more disappointed than I and my staff that we cannot prosecute these cases criminally,'' Reilly told reporters. But to have sought an indictment against any of the bishops or the archdiocese when the statutes did not clearly support a charge would have been a violation of his constitutional responsibilities, he said.

For example, Reilly found that:

Bishop Robert Banks failed in 1989 to tell the Suffolk district attorney's office, which was investigating a complaint against the Rev. John Geoghan, that the archdiocese knew of prior allegations of abuse against Geoghan.

In some states, such a failure to make a full disclosure to investigators can justify a charge of obstruction of justice. Similarly, Bishop Alfred Hughes failed to inform prosecutors in Plymouth County after they had indicted the Rev. John Hanlon on sexual abuse charges that he had learned of a second Hanlon victim.

But according to one of Reilly's deputies, the requirements are stricter in Massachusetts to justify an obstruction of justice charge. Prosecutors would have had to show that Banks and Hughes held back the information to interfere knowingly with the investigations.

Both Cardinal Law and Cardinal Humberto Medeiros, his predecessor, allowed priests against whom they had received specific allegations of abuse to be transferred to other parishes inside the archdiocese or to dioceses in other areas of the country, where they were accused of further abuse. In some states, Law and Medeiros, if he were alive, might have been vulnerable to being prosecuted for such acts as an accessory before or after the commission of a felony.

In Massachusetts, however, the accessory after the fact statute requires proof that the aid rendered by Law or Medeiros was provided with the specific intent of helping an offender escape prosecution or avoid detection. To prosecute an accessory before the fact of a felony charge, the prosecutors needed to show that Medeiros and Law acted with knowledge that doing so would result in further abuse.

Reilly's office also considered the possibility of bringing a felony charge against the archdiocese, as a corporation, for the abuse committed by their priests. Such a prosecution would rely on a legal theory, set down in decisions of the Massachusetts Supreme Judicial Court, that holds corporations responsible for the misdeeds of their agents.

Wendy Murphy, a former prosecutor who focused on child abuse, urged Reilly's prosecutors to bring the case on such grounds. But she said they declined on the grounds that the court's decision requires a showing that the archdiocese benefited from the abuse by their priests. That was a test Reilly didn't think prosecutors could meet.

''I was disappointed, but I believe they had an arguable position,'' Murphy said yesterday.

That Reilly was prepared to seek indictments was clear to Philip T. McLaughlin, the attorney general of New Hampshire, whose office gained a settlement in a criminal case against the diocese of Manchester, N.H., for conduct similar to that found in Boston. The two men met in Reilly's office before the Massachusetts investigation was announced.

''From what I observed, he had a passionate commitment to go forward, a passionate commitment to bring a criminal case,'' McLaughlin recalled yesterday.

What Reilly was lacking, he said, were two statutes McLaughlin used in New Hampshire to construct his case: one requiring that clergy report to civil authorities their suspicions of child abuse, and another permitting the prosecution of any person or institution that fails to protect children and thus endangers them.

The Massachusetts Legislature only last year passed a law requiring clergy to report suspected cases of child abuse as well as a child endangerment law.

Gerald D'Avolio, executive director and principal lobbyist for the Massachusetts Catholic Conference, said that conference members -- Law and the other three bishops who head dioceses in Massachusetts -- had not lobbied against earlier proposals during the 1990s, even though they were concerned that, under a reporting law, priests might be forced to divulge information learned during confessions.

The proposals ''just never got enough steam during those years for us to have to take a position,'' D'Avolio said yesterday. The conference backed the proposal in 2001 once legislators, spurred by publicity over the Geoghan case, began talking seriously about the proposal.

Senator Mark C. Montigny, a New Bedford Democrat who had sponsored clergy reporting bills since the mid-1990s, said that Law and the three other bishops had a ''moral obligation'' to support the proposal long before 2001.

''The bishops were the only ones who knew how serious the problem was, how many priests deserved to be reported to authorities,'' Montigny said yesterday.

Stephen Kurkjian can be reached at [email protected].

This story ran on page A18 of the Boston Globe on 7/24/2003.
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