Bishops Have Eluded Sex Abuse Indictments
Experts Cite Hurdles for Prosecuting Those Who Did Not Stop Others' Crimes

By Alan Cooperman
Washington Post
June 4, 2003

A year ago, as more than a dozen prosecutors across the country convened grand juries to investigate sexual abuse in the Roman Catholic Church, some lawyers and victims' advocates predicted that it was only a matter of time until a bishop would be indicted.

Most of those prosecutors have now finished their investigations or are bringing them to a close. They have brought criminal charges of rape and molestation against relatively small numbers of priests, subpoenaed church files, heard victims' testimony and questioned some bishops. In a few places, such as Long Island, N.Y., and Manchester, N.H., prosecutors have produced scathing reports on the local diocese's history of covering up sexual abuse of children.

But no bishops have been indicted.

The closest was in Phoenix, where prosecutors said Monday they had gathered what they believed was sufficient evidence to charge Bishop Thomas J. O'Brien with obstruction of justice. In the end, however, they declined to prosecute O'Brien in return for his promise to appoint two independent administrators and a lawyer to handle allegations of child sexual abuse, and to put $600,000 of diocesan money into special accounts for victims.

The two largest and most complex grand jury probes, in Boston and Los Angeles, are continuing. According to public officials familiar with those proceedings, however, the Boston prosecutors have all but ruled out an indictment of the city's former archbishop, Cardinal Bernard M. Law, who resigned in December over the sexual abuse scandal.

In Los Angeles, prosecutors are still considering whether there is sufficient evidence to indict Cardinal Roger M. Mahony on charges of conspiracy to commit felony child endangerment or conspiracy to obstruct justice. They expect a judge to decide soon whether to give them thousands of pages of church documents that the bishop has said are privileged because they include psychological evaluations of priests.

"We will go wherever the evidence leads us," William Hodgman, the deputy Los Angeles district attorney in charge of prosecuting sex crimes, said yesterday. "We are eagerly anticipating rulings by the court which will clear the way to get at the evidence we believe is there."

Mahony has denied any wrongdoing and is cooperating fully with the investigation, said his spokesman, Tod M. Tamberg.

Victims' groups expressed disappointment this week at the decision by prosecutors in Phoenix not to proceed with an indictment, and some victims' advocates said they believe such decisions are largely political.

"Should some bishops be indicted? Probably. But I don't think they're going to get one," said Monsignor Kenneth E. Lasch, of the Church of St. Joseph in Mendham, N.J., a leading voice within the clergy for assisting victims. "There's still something about indicting a Roman Catholic bishop in this country that's distasteful and politically not the proper thing to do in many places."

Prosecutors and legal experts said, however, that there are huge legal hurdles to prosecuting a bishop who has not committed sexual abuse himself, but has not prevented abuse by others.

"The first problem is proving criminal intent," said Robert M. Bloom, a professor at Boston College Law School. Even when prosecutors can show "all kinds of inaction" by bishops in the face of sexual misconduct by priests, it is not easy to prove that "they conspired with these bad priests to allow this to continue," he said.

Since the scandal broke, many states have made it a crime not to report child abuse, but such laws cannot be imposed retroactively.

In New Hampshire, prosecutors were able to turn to a state law on child endangerment that imposed a broad obligation on churches and other organizations to safeguard children in their care. In California, the child endangerment law is not as far-reaching, but prosecutors say that if they can show a single violation of the law within the current statute of limitations, they can reach back further in time to try to prove a conspiracy by church leaders to protect sexual abusers.

Prosecutors in numerous other jurisdictions have expressed frustration with their state laws and statutes of limitations. Grand juries have indicted a small number of priests, including one in Cleveland, two in St. Louis, six in Phoenix and nine in Los Angeles. But on Long Island and in Westchester, N.Y., grand juries were stymied by time limits on prosecuting sexual abuse cases and issued stinging reports calling for changes in state laws.

In Kentucky, more than 200 lawsuits have been filed against the Archdiocese of Louisville, many alleging not just abuse by priests but also a pattern of concealment by their superiors. Yet Commonwealth's Attorney David Stengel decided there was no point in calling a grand jury to investigate the diocese's leaders, said his spokesman, Jeff Derouen.

"The problem in Kentucky is that not reporting [sexual abuse] is a misdemeanor, and misdemeanors have a one-year statute of limitations," Derouen said.

One of the most extraordinary acts of frustration by a prosecutor took place in Fall River, Mass. There, a grand jury was able to indict one priest last year, but Bristol County District Attorney Paul F. Walsh Jr. publicly named 20 others he suspected of committing abuse. Defense lawyers accused him of abusing his office, and Walsh acknowledged in an interview that "we normally do not name suspects we cannot prosecute."

But, he noted, prosecutors are human, too.

"When you have someone telling you about how they were repeatedly raped, and the church knew about it and went on its merry way, when you see it up close and personal, it's awful," Walsh said. "You can't take the human side out of it. It was nasty stuff, and somebody should be brought to task for it."

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