Church Settlement Unmatched
State Remains out Front in Handling of Abuse Case
By Daniel Barrick
April 27, 2003
No other state has managed the kind of deal the New Hampshire attorney general struck with the Diocese of Manchester. Some observers say that's just as well.
When the state attorney general's office announced its settlement with the Diocese of Manchester last year, prosecutors across the country stopped and listened.
From California to Massachusetts, Arizona to Illinois, officials investigating sexual abuse by clergy thought New Hampshire might have designed a template to guide them in their own cases.
But so far, the New Hampshire model has been a tough act for others to follow. One year after the abuse scandal erupted, New Hampshire remains the only state to successfully conclude an investigation of a Catholic diocese on charges of child sexual abuse.
Prosecutors here have fielded calls from more than a half dozen other investigators seeking to share strategies. But several factors - including weaker endangerment laws and restricted access to church documents - have prevented other states from brokering the kind of deal achieved here last December.
Meanwhile, critics have begun to warn that replicating the New Hampshire settlement would be unwise. They believe the state went too far in its threats of criminal charges against the diocese.
"This precedent could threaten other dioceses," said John Baker, a law professor at Louisiana State University. "When the church is submitting to oversight like this, the attorney general is out of bounds.... The institutional integrity of the church suffered as well."
In December, after 10 months of investigation by state prosecutors, the Diocese of Manchester admitted to endangering children by sheltering abusive priests over the course of 40 years. Church officials agreed to tighten the way they monitored and reported abusers. They also agreed to annual audits of their personnel records by the state attorney general's office. In exchange, the state dropped its threat of a criminal indictment against the diocese and high-ranking church officials.
The landmark settlement also forced the diocese to make public 9,000 pages of documents that detailed decades of alleged sexual abuse by more than 40 priests and cover-ups by the men in charge of the diocese. Former New Hampshire attorney general Phil McLaughlin has said making those records public was the most important result of his investigation. And as the details have emerged, some Catholics have called for both Bishop John McCormack and Auxiliary Bishop Francis Christian to resign.
Since announcing that agreement four months ago, Will Delker and James Rosenberg, the assistant attorneys general who led the state's investigation, have spoken with prosecutors from across the country, many of whom are conducting their own far-ranging investigations into abuse and cover-ups in the church. Their questions have ranged from First Amendment considerations to how best to secure court orders for church documents. Most have requested copies of the state's report released in March, which outlines the investigation and the legal theory upon which the state based its case.
New Hampshire's child endangerment law offered state officials wide leeway in bringing a case against the diocese. That law extends beyond parents or legal guardians to include anyone who violates "a duty of care" to a child - in other words, not just abusers themselves but those who have a responsibility to protect children from abuse.
New Hampshire has had such a law since 1973, much longer than most other states. Massachusetts, by contrast, did not have any child endangerment statute until last year.
And prosecutors here applied those laws in novel ways. Observers have focused particularly on the state's central legal theory: corporate liability. In treating the diocese as a corporation, much as federal prosecutors would in investigating a Wall Street firm, the state took the unprecedented step of holding church officials responsible for the wrongdoing of individual priests. Applying the "duty of care" clause to the diocese as a whole was the linchpin in the state's argument.
"The church is no different than Enron or MCI, if they're doing things as an entity," said Chuck Douglas, a former state Supreme Court justice who has represented several abuse victims in civil suits against the diocese. "A corporation can only act through individuals, but the state was dealing with high officials here, bishops and chancellors."
Prosecutors here were also helped by relatively long statutes of limitations in child sex crimes. Current laws allow prosecutors to charge child abusers until the victim's 40th birthday. In many other states, cases must be brought within five or 10 years of the alleged abuse. Such restricted timeframes have stymied prosecutors elsewhere.
For example, in February, a grand jury in Long Island, N.Y., issued a scathing report accusing the Diocese of Rockville Centre of covering up decades of abuse. It couldn't issue an indictment because New York's five-year statute of limitations on child abuse had expired in many of the cases. Legislatures in several other states - including Massachusetts, Illinois, California and Kentucky - have recently considered bills that would extend or remove statutes of limitations in sex crimes.
Delker and Rosenberg also point to the unrestricted access they were able to secure to tens of thousands of private diocese records. Last June, Delker, Rosenberg and another investigator spent nearly a week poring through filing cabinets in the diocese's archives room - without any oversight from church officials. In other parts of the country, such accommodation has been rare. From Boston to Los Angeles to Mississippi, dioceses have fought court orders to release personnel documents, claiming protection on religious freedom grounds.
"Everyone is shocked when I tell them the access we got," Delker said of his conversations with other prosecutors. "They're like, 'Wow, how did you do that?' "
A legal first
The scandal has moved in different directions across the country. Last month, the diocese of San Bernardino, Calif., sued the archdiocese of Boston for failing to warn about an allegedly abusive priest, the Rev. Paul Shanley, being transferred to a California parish.
Elsewhere, prosecutors and church officials continue to battle over access to information. In Ohio, lawyers recently filed a racketeering suit against the Diocese of Cleveland. And grand juries in Los Angeles, Boston, Philadelphia, St. Louis, Phoenix and other cities are investigating criminal charges against the dioceses there. So far, none of them has brought criminal indictments against a diocese.
Most prosecutors interviewed for this article declined to comment for the record about how the New Hampshire settlement might apply to their own investigations. But all acknowledged that that case was a first.
Bill Hodgman, a prosecutor with the Los Angeles district attorney's office, said he and his investigators studied the New Hampshire case "with great interest." They paid particular attention to First Amendment issues and the theory of corporate liability upon which New Hampshire prosecutors would have based their indictment.
Hodgman said the breadth of New Hampshire's child endangerment laws offered options not available to California prosecutors.
"A criminal indictment is a potential tool for us, but the laws here make it more problematic to pursue it," Hodgman said. "But in New Hampshire, they did it."
The report has clearly had an impact beyond legal circles. Since its release, two lay groups have called for the resignation of the state's top bishops. Diocese officials have tried to keep protesters from distributing literature on parish property. And individual lawsuits against accused priests continue to work their way through the courts. Last week, a jury in Laconia failed to reach a verdict in the case of the Rev. George Robichaud, who was accused of raping a teenage boy.
But legal scholars are divided over the influence of the New Hampshire settlement. Some experts say the strategies used by prosecutors here - especially the application of corporate liability - should be tested in other parts of the country. But others argue that the results achieved by the state attorney general's office set a dangerous precedent that other dioceses would be wise to avoid.
Baker, the LSU law professor, has spoken with lawyers on both sides of the New Hampshire settlement and has accused the attorney general's office of "outrageous interference" in church affairs. He questions the legal arguments upon which the state based its case, accusing investigators of applying a lower burden of proof in seeking criminal charges against the diocese.
"Individual priests were guilty of a crime, yes," Baker said. "But (the state's) case is based on vicarious liability (by the diocese). It's a 'should-have-known' standard. That's not a criminal standard."
The diocese alluded to such arguments in a report released last month, in response to the state's conclusions. In that document, diocese officials wrote they "do not necessarily agree with all aspects of the analysis, which, in many ways, contains novel theories and approaches for New Hampshire prosecutions. The Diocese understands there are technical legal defenses to many of these theories."
Other critics say settlements like New Hampshire's, if they become common, could have a chilling effect on the nature of the priesthood.
"When you rely on liability on the part of the church, and the criminal prosecution of priests, you set up an adversarial relationship between bishops and priests," said Douglas Laycock, a law professor at the University of Texas.
When an entire diocese acknowledges criminal wrongdoing, as in New Hampshire, "they forfeit every scrap of trust," Laycock said. The candidness shown by New Hampshire church officials provides fodder for lawyers seeking to bring big-money lawsuits against the diocese and individual priests, he added. The result is a perfect environment for escalating awards from sympathetic juries - often for cases of a much less egregious nature than the type brought by state prosecutors, Laycock said.
"The need is for a middle ground, and in this climate it's hard to get to a middle ground," he said. "The danger is with private plaintiffs' lawyers looking for settlements in a hostile environment."
New Hampshire prosecutors acknowledge that their case rests on some unprecedented strategies, but they dispute implications that they overstepped and defend the strict oversight they secured in the settlement.
"There's no question that our theory of prosecution was novel and aggressive," said Rosenberg. "But we have proof beyond a reasonable doubt that there was cover-up by church officials. ... The diocese in this case agreed to let us do this. It happens every day; the defendant gives up some constitutional rights."
The decision to settle rather than press criminal charges "better reflected the reality of what the situation was," Delker added. The thousands of documents released last month would have remained hidden if the state had taken the diocese to court.
"We felt like we got more by settling than by going to trial," Delker continued. "The public got to see the full scope of the actual problem, as opposed to some technical, thin slice of the problem that was a function of statutes of limitations and cooperation with victims. ... The fact that there was a technical barrier to prosecuting doesn't change the fact that there was a problem."
Both prosecutors said that the deal with the diocese raises delicate questions about state involvement in church affairs. The diocese is letting the attorney general's office conduct an annual audit of its abuse reporting and training practices over the next five years. Few judges would be willing to provide such a condition. But it's precisely that kind of ongoing involvement that Rosenberg says ensures the effectiveness of the diocese's new policies.
"The court would have been reluctant to give that broad oversight. We're overseeing a pretty significant function here," said Rosenberg. "It's an area of concern from both our standpoint and (the diocese's) standpoint. But for the public to be confident with this settlement, we needed that kind of safety net.
(Daniel Barrick can be reached at 224-5301, ext. 322, or by e-mail at firstname.lastname@example.org.)
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