Bishop Avoids Charges
Phoenix Prelate Gives up Power in Sex Abuse Cases

By Alan Cooperman
Washington Post
June 3, 2003

In return for avoiding indictment on a felony charge of obstructing justice, the Roman Catholic bishop of Phoenix admitted that he concealed sexual abuse of children by priests and agreed to remove himself from all decisions on such cases in the future, prosecutors said yesterday.

The prosecutors described the agreement as the most serious legal admission of personal wrongdoing by a Catholic prelate since the sexual abuse scandal erupted in the United States. Catholic legal scholars said it represented an unprecedented degree of intervention by civil authorities into the church's management and raised thorny constitutional issues.

Winding up a year-long grand jury investigation, Maricopa County Attorney Richard M. Romley also announced the indictment of six former Phoenix priests on sexual abuse charges. One of them has died since the indictment, and two have been arrested in the past month.

"I acknowledge that I allowed Roman Catholic priests under my supervision to work with minors after becoming aware of allegations of sexual misconduct," Bishop Thomas J. O'Brien said in a three-sentence statement, which he signed May 3 and prosecutors made public yesterday.

"I further acknowledge that priests who had allegations of sexual misconduct made against them were transferred to ministries without full disclosure to their supervisor or to the community in which they were assigned," O'Brien said. "I apologize and express regret for any misconduct, hardship, or harm caused to the victims of sexual misconduct by Roman Catholic priests assigned to the Diocese."

Under a separate, five-page legal agreement, the bishop promised to revamp the management of the diocese of 430,000 Catholics, which he has headed since 1981.

In particular, O'Brien, 67, promised to delegate his authority in sexual abuse cases to two new administrators: a "moderator of the curia" -- roughly equivalent to a chief of staff -- and a "youth protection advocate." According to the agreement, they are responsible for reporting allegations to the police and enforcing the diocese's sexual misconduct policy.

Romley said that if O'Brien, or his successors as bishop, intervene in the handling of priests accused of sexually abusing minors or the priests' alleged victims, the prosecutor's office has the right to reopen the case and bring criminal charges.

"I've got the hammer over his head forever. He signed on behalf of the church," Romley said in a telephone interview.

Some Catholic lawyers, however, questioned whether O'Brien had the right to sign away the powers of the bishop's office, and whether such an arrangement would be constitutional.

"A bishop of the Roman Catholic Church does not have the power to permanently redefine the powers of a bishop. He can agree himself not to do something, but he can't bind his successors to do something that is contrary to Roman Catholic canon law," said Patrick J. Schiltz, dean of the law school at the University of St. Thomas in Minneapolis.

"A specific plea agreement would not necessarily raise a constitutional problem. But an agreement that carries beyond Bishop O'Brien, that applies generally to the office of bishop in that diocese . . . is starting to edge toward the constitutional line if not going beyond it," said Douglas W. Kmiec, dean of the Catholic University law school in Washington.

Romley said he was confident that the agreement would pass constitutional muster.

"These kinds of arguments were made daily" in months of arduous negotiations with Catholic officials in Arizona, the prosecutor said. "I assure you that there were so many lawyers on the church's side, if they thought they had an opportunity to win, they would have taken it."

Victims' groups expressed disappointment that the Arizona prosecutor opted not to indict O'Brien, who would have been the first bishop in the United States charged with a felony related to sexual abuse by priests.

"So many prosecutors around the country have said, 'We would do it if we could. We just lack the legal tools.' Here's a guy who said he could have done it, but he didn't," said David Clohessy, executive director of the Survivors Network of those Abused by Priests. "It's disappointing, because it's the one approach that has yet to be tried and many survivors and lay people think would be a truly effective deterrent."

Romley has said publicly that the grand jury investigation developed enough evidence to indict O'Brien for obstruction of justice. According to a source close to the probe, O'Brien allegedly instructed a priest in 1985 to persuade a Catholic family not to report an incident of sexual molestation to the police, and when the priest refused to carry out that order, the bishop allegedly forced him out of the church.

Romley said yesterday that he chose to negotiate an agreement, rather than to proceed with a prosecution, because it was the "only way to ensure real change" in the diocese.

"My primary objective during this entire investigation was to have the abuse stopped, and to make sure there were adequate controls in place that it would not happen again," he said.

O'Brien declined through a spokeswoman yesterday to answer questions about the allegations or the agreement. His office issued a brief statement saying, "This has been a very difficult time for our entire Diocese, for me, for our priests and especially for the victims of sexual misconduct."

More than a dozen prosecutors across the country have been conducting similar grand jury investigations. Several have resulted in indictments against priests, and a few have produced scathing reports. The closest outcome to Arizona's was in New Hampshire, where the bishop of Manchester signed an agreement in December acknowledging that prosecutors had sufficient evidence to charge the diocese with child endangerment. But that is a misdemeanor in New Hampshire, and it applied to the diocese as a whole, not to Bishop John B. McCormack personally.

Five U.S. bishops have resigned over sexual abuse charges, including Cardinal Bernard F. Law of Boston, who acknowledged making serious errors and apologized. But none of those bishops have faced criminal charges

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