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  Diocese and AG Maintain Different Views on Scope of Audit

By J.M. Hirsch
The Associated Press, carried in Boston.com [Manchester NH]
January 20, 2005

MANCHESTER, N.H. --A lawyer for the state's Roman Catholic diocese told a judge Thursday it was ready to submit to an audit of its child protection policies, but prosecutors said the evaluation the church envisions is meaningless.

The Diocese of Manchester and the attorney general's office have been at odds for nearly two years over the scope and cost of an audit of church policies intended to protect children from sexual abuse.

Annual audits for five years are required by a 2002 agreement between the church and state that ended a criminal investigation of whether diocesan officials knew members of the clergy were abusing children but failed to protect them.

The agreement landed in court when the diocese and state couldn't agree on the terms of the audit. The church says it agreed only to a check of whether it has policies and whether it trains people in them. The state says that unless it verifies the effectiveness of those policies, the audit is useless.

"The state leaps to the conclusion that because we all agree these are good goals, the state is empowered to do whatever it pleases with the audit," church lawyer David Vicinanzo said Thursday during a Hillsborough County Superior Court hearing.

Following the hearing, he said the diocese welcomes an evaluation, confident it will show the policies are working.

But Attorney General Kelly Ayotte questioned why such confidence hasn't led the church to consent to the audit.

"If they think whatever audit is done is going to show they are in compliance and that their policies protect children, what are they afraid of?" she said.

As part of the 2002 agreement, prosecutors agreed not to seek criminal indictments against the church. In exchange, the diocese agreed to enact strict new child protection policies, admit its actions had harmed children, and open itself to audits.

Most of the allegations that prompted the state's investigation date back decades.

Much of Thursday's hearing focused on the nature of the audits.

Vicinanzo argued that the agreement clearly calls for an audit of compliance, not effectiveness. He accused the state of agreeing to one thing in 2002, then later trying to change the terms. The diocese should be evaluated only on clear criteria, such as whether policies were created, not a vague and so-far undefined notion of effectiveness.

Vicinanzo also said the state's interpretation puts the attorney general's office and potentially the court in a position of judgment over the diocese, which he called an unconstitutional entanglement of church and state. He said the attorney general's office has been insensitive to the dangers of state interference in the church.

But Associate Attorney General Ann Larney said the diocese can't use that argument to avoid a thorough evaluation.

"The diocese can't avoid responsibility by agreeing to a contract with the state and then complaining it's not allowed," she said.

Judge Carol Conboy seemed to agree, noting that while there are limits to relationships between state and religious entities, the church agreement would seem to imply some sort of waiver and assumption that what is agreed to is permissible.

Larney also said church and state entanglement concerns applies more to interference with religious doctrine and practice, not adherence to laws and contracts. And she said checking effectiveness is at the heart of the agreement.

"What the state wants to do, regardless of what you call it -- compliance or effectiveness -- is to make sure the diocese does what it promised to do," she said.

"If we are not permitted to draw conclusions or make some sort of sense whether this is being carried out, the agreement is meaningless," Larney said.

The lawyers also wrangled over the anticipated $445,000 price of the audit. The agreement does not mention who should pay. The church had said it is the state's responsibility. The state initially said the diocese should pay, but since has offered to split the cost.

Conboy also allowed David Braiterman, a lawyer for a group of Catholics who have been critical of the church's handling of the abuse crisis, to speak at the hearing. He asked Conboy to enforce the state's version of the audit.

"They (the diocese) are trying to scale down the cost and scope of the audit to a place the church is comfortable with," he said.