Many priests' cases may be too old to be prosecuted

By Maureen Boyle, Brockton, MA Enterprise - Feb. 24, 2002

As the number of people alleging that former priest James Porter had molested them reached more than 60 in Massachusetts, prosecutors in Bristol County in 1992 were faced with a daunting task.

How many of the cases - some dating back 30 years - could be substantiated and how many of those could be tried?

"That was probably the oldest case the office handled," Bristol County Assistant District Attorney Cynthia Brackett said.

Eventually, Porter would be charged with molesting 28 children - cases that fell within the statute of limitations at the time - and, in a plea bargain, was sentenced to 18 to 20 years in prison.

Today, prosecutors throughout the state are facing that same issue as the Archdiocese of Boston sends packet after packet of sketchy information about cases involving former and current priests accused of, but never charged with, sexual misconduct.

While the Catholic Church is naming priests and providing vague details to district attorneys, prosecutors say many of the cases - if substantiated - may be too old to bring to court, or may not even be crimes under the law as it existed at the time.

"The majority of these allegations are well outside the statute of limitations," Plymouth County District Attorney Timothy Cruz said. "The majority of the stuff we are getting is well beyond 15 or 20 years old."

Norfolk County District Attorney William Keating said the information that authorities have gotten so far is too sketchy to take action.

"We are at an initial stage," Keating said. "We have bare-bones information at this point."

So far, the names of 80 active and former priests suspected of abuse in the past 40 years have been turned over to prosecutors by Cardinal Bernard Law.

That step was taken after defrocked priest John Geoghan was convicted of fondling a 10-year-old boy in Waltham amid claims that he fondled or raped more than 130 people since 1995. Geoghan is now serving a 9- to 10-year state prison term.

Also, so far this year, three area priests have been accused - but not charged - with sexual misconduct and suspended from church duties.

While claims that men of the cloth may have engaged in sexual misconduct is disturbing, the behavior may not be illegal - depending on when it occurred, what happened and with whom.

There is a six-year statute of limitation on cases involving inappropriate touching - such as grabbing the genitals.

If the touching incident occurred prior to 1986 and was considered "consensual," it isn't a crime, even if the victim was a 13-year-old.

The law has since been changed, making it indecent assault and battery - generally inappropriate touching without sexual penetration - and a crime if the victim is under age 16, even if the boy or girl consents.

"Cases that are generally in the area of 30 years old are not within the statute," Cape and Islands First Assistant District Attorney Michael O'Keefe said. "From a legal perspective, there is simply no prosecution."

Rape cases involving child victims can be a bit easier to prosecute, thanks to changes in the law, but it can still be tricky, several said.

In 1985, the statute of limitations in child rape cases was increased from six to 10 years.

Two years later, the law changed, noting the legal time clock would start ticking until the child either first reported the allegation or turned 16 - whichever came first.

In 1996, the statute of limitations was increased to 15 years. That essentially extended the statute for any crimes that fell within the earlier law. The law also was changed, essentially stopping the legal time clock if the suspect left the state.

"If you moved to Ohio for six years, it is not running," Dana Curhan, an appellate attorney, said. "Theoretically, you could move to New Hampshire and live there for 50 years and come back and are accused, the statute hasn't even run yet."

Checking dates and counting years is a key element in prosecuting even the strongest of child rape cases, several said.

"It takes a little bit of time and research. You are going back, seeing if the person had left the Commonwealth, seeing when the allegations were made, what was the date. Often these children were young, uncertain about dates, that is a big challenge right there," said Bristol County Assistant District Attorney Cynthia Brackett, head of the child abuse and sex assault investigative unit.

The passage of time can also pose a hurdle for defendants.

"How are you going to come up with an alibi for something that happened 25 years ago?" Curhan said. "It is probably harder to defend because a lot of times you can't find people who can corroborate your side of the story and you usually have a very strong victim who said, 'This is what he did to me.'"

O'Keefe said allegations of misconduct do not always lead to criminal charges, and noted the same may hold true with the information provided to prosecutors by the Archdiocese of Boston about priests whose names surfaced in sexual misconduct cases.

"They are not charged with anything and in most cases, it is obvious to me that ... they will not be," O'Keefe said of the cases. "These are lists of people who were complained about at some remote period of time. Instead of the victims choosing to come to police or prosecutors, they chose to make a deal to settle their complaint privately. The prosecutor's job is to see justice done ... If people choose for whatever reasons not to bring a particular matter to light, then that is a decision that they have to live with."