The Boston Grand Jury Report on Catholic Clergy Sexual Abuse:
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 to bring.

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 should be.

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 paragraphs.

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 retain power.

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 no indictments.

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 no victims.

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 priest.

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 sexual abuse.

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.

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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 protected].