The Philadelphia Grand Jury's Report on Clergy Child Sex Abuse in the City's Archdiocese: A Lesson for All States

By MARCI HAMILTON
hamilton02@aol.com
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Thursday, Sep. 22, 2005

Those in Philadelphia who would like to pretend clergy abuse is not a real problem, or an ancient problem, ought to sit down and read all 671 pages of the report.

It is sobering - recounting the stories of over 60 abusing priests and more victims, and establishing, to a virtual certainty, that there are many others victims about whom we don't even now.

Not all of the abuse is decades old. The abuse is often ritualistic, always sick, and destroys both girls and boys.

Yet the report's legal conclusion will be troubling to many: According to the D.A.'s Office, there is no possibility of bringing criminal charges against the newly discovered perpetrators or the Archdiocese. Nor is there a chance of bringing charges against Cardinals Bevilacqua and Krol, or Secretary for Clergy Monsignor William J. Lynn.

That conclusion does not stem from any finding that the institution, or these men, did not engage in indictable offenses. Rather, it is simply because the statute of limitations has expired on all of the criminal charges that might, earlier, have been lodged.

The report heavily underlines what has long been clear: It's time for all states to abolish child abuse statutes of limitations for criminal charges in the future. (This cannot be done retroactively, according the Supreme Court's ruling in Stogner v. California.) It's also time for all states to retroactively and prospectively abolish statutes of limitations for civil claims based on child sex abuse.

A Clergy Abuse Report That Reveals Great Evil, and Great Harm to Victims

The citizens of Pennsylvania - and especially its legislature -- should be shocked by the Philadelphia D.A's report, because it is inconceivable that the Commonwealth's laws could be so utterly inadequate to address so great an evil.

I too would have been shocked by my experience in assisting with the report. But to me, the report's conclusions were all too familiar.

I have testified and litigated on the side of clergy abuse victims in numerous states; as readers of this column know, I also frequently write on the subject. As a result, I have met too many victims, and seen too much suffering, to have been able to hold onto the hope that perhaps Philadelphia's could be an Archdiocese that did not have such problems.

At this point, I strongly doubt there is any Archdiocese or diocese in this country immune from this plague. And I have come to this experience on the basis of harsh experience, with the hope it might have been otherwise. My husband and kids are Catholic; I'm Presbyterian. Certainly, I have no quarrel with Catholicism, and I am a religious person.

However, the actions of some of the Catholic Church's leaders have left me appalled, disgusted, and dismayed with them -- and also with a Church that continues to support them, while leaving children to be preyed upon, and leaving adults who once were just such children, to suffer abuse's lasting harms.

The Philadelphia investigation, like so many before it, unearthed strong evidence of enormous harm and evil. In the face of this evidence, it is extremely dispiriting for those of us who believe in the American system to think such wrongdoing cannot result in criminal charges. What the report chronicles, after all, is a series of horrific crimes against the most vulnerable of victims.

Why The Archdiocese's Response Is Unconvincing

The Archdiocese's "response" to the report should be subtitled, "It's All About Us." Setting aside the throw-away opening and closing paragraphs, its 60+ pages continues the callous disregard of children that has been repeatedly evident since this controversy began.

Unbelievably, the Archdiocese's repeatedly tries to make it sound as though the lack of indictments absolves it of criminal and moral responsibility. But the truth is, they got off on a technicality.

Moreover, in civil cases, they may not be so lucky - for as I noted above, while extending criminal statutes of limitations retroactively has been held unconstitutional, that is not true of civil statutes of limitations. Under our Constitution, civil statutes of limitations may, indeed, be retroactively extended. Let us hope that in Pennsylvania, they are - and that when the cases are litigated, victims cite the Archdiocese's pitiful response to the D.A's report as evidence in favor of a large award of punitive damages.

Let's put the technicality of the statute of limitations aside, and look at the substance of the report. It is unequivocal. On the merits, but for the statute of limitations, the dozens of priest perpetrators, who were placed in one parish after another, were guilty of rape, statutory sexual assault, involuntary deviate sexual intercourse, indecent assault, endangering welfare of children, and corruption of minors. The tragedy is that victims need such a long period of time to come forward and none had the capacity to come before the grand jury within the statute of limitations. It is still everyone's hope involved in this investigation that those who were more recently abused will be able to stop the cycle of abuse and come forward now.

The Archdiocese and its officials were guilty, too, though Pennsylvania law contains enough ambiguities in its conspiracy, endangerment of children, and crimes against the administration of justice that they would have argued against any liability. Suffice it to say that if Pennsylvania does not want a day care center chain, youth groups, or schools to do in the future what the Archdiocese has done, it needs to amend its criminal statutes that affect childhood sexual abuse. The ambiguities plus the short statutes of limitations led to indictment.

The Report Rightly Recommends Abolishing the Criminal Statue of Limitations

Admirably, the Philadelphia grand jury report lists legal reforms that are absolutely essential if there is to be justice. Most crucially, the report suggests an immediate abolition of the statute of limitations for criminal charges in child sexual abuse cases - meaning that in future cases, victims will be able to get justice whenever they come forward.

At this point, this suggestion should be a no-brainer for any legislator who has any inclination to protect children. Adults who abuse children usually terrify them into silence, and that silence usually lasts for decades. The imbalance of power alone counsels against giving them or those who aid them any relief from criminal liability through a statute of limitations.

Thus, when the statute of limitations is as short as it has been in some states -- two years, dating from the abuse itself, or even two years dating from discovery of the harm caused by the abuse (in Pennsylvania it is now twelve years from the date of majority) -- the perpetrator gets a morally and legally unacceptable haven from the law.

Moreover, the principles behind the statute of limitations have no real force in this arena. Statutes of limitations make sense for "malum prohibitum" crimes, such as technical tax violations. No one should have to face indictment based on a ten-year-old tax return; memories do fade, and records can be lost.

But when it comes to "malum in se" - conduct that is obviously evil by its very nature - short statutes of limitations simply allow evil to go unanswered. Appalling and inherently evil crimes - like committing, or covering up, or failing to report child sex abuse, or aiding and abetting the perpetrator so he can strike again - should not fall within the statute of limitations. Murder has no statute of limitations; nor should murder of a child's future via sexual abuse.

The Report Also Rightly Recommends Opening a Civil Statute of Limitations "Window"

The Philadelphia report further suggests -- in the interest of deterrence and ferreting out current abusers, that Pennsylvania enact a law opening a statute of limitations "window" for civil claims.

Such a law would permit those who suffered child sexual abuse to file lawsuits against the institutions and perpetrators, even if the current, inappropriately short statute of limitations has already expired. Over a stipulated time period, such suits could be filed without being subject to a statute of limitations defense.

Such a law is absolutely necessary. To date, and to my knowledge, the Philadelphia Archdiocese has offered only piddling amounts to victims. A window would force them to recompense victims for actual harm, not simply the harm the Archdiocese feels like compensating.

Another Possible Legal Change: Allow Criminal Charges Against Non-Corporations

One other reform, in addition to those suggested in the D.A.'s report, is also a good idea.

The Archdiocese is an "unincorporated" association. As a result, it cannot be criminally charged for the reckless tolerance of childhood sexual abuse within the organization, according to Pennsylvania law. So even if the criminal statute of limitations were to be prospectively extended, as the D.A.'s report suggests, it would encompass the leaders of the organization, but it still would not reach the Church and similar institutions, unless this legal principle also changes.

In Pennsylvania, a corporation that recklessly tolerates harm to children by its employees would be criminally liable. An unincorporated association ought to be criminally liable for the same unconscionable conduct.

Internal Reforms Are Not the D.A.'s Province, Nor Are They a Substitute for Law

The Archdiocese's response at once argues that it always had a good system in these cases. And at the same time, it suggests that the D.A.'s office should have recommended, not legal reforms, but internal reforms on the part of the Archdiocese itself.

These two positions are contradictory: According to the Church, the D.A.'s Office ought to have suggested reforms for non-existent problems. But even putting that aside, both positions are weak.

First, let's look at the claim that the internal processes were effective.

The Archdiocese claims, in essence, that if there was a charge of abuse, and the abuser admitted to it, the Archdiocese always removed the abuser. Read the report for the truth on this point, however; the evidence does not look nearly as tidy as the Archdiocese's lawyers would have one believe.

And in any event, the Archdiocese apparently admits, conversely, that if the abuser denied the claims, he was not removed. Imagine if every serious criminal who said he was innocent, was simply believed by police - and he was left on the streets while the authorities did a half-hearted investigation!

There was a choice here, and the institution sided with its employee, and therefore against vulnerable children. Accused molesters who opted to lie stayed in place, close to children, because the Archdiocese chose that they would.

I believe it is this untenable, inhumane position - weighting the denials of the institution and its priests heavily, and giving no credence at all to the claims of children - that has sparked much of the angry reaction to clergy abuse among rank-and-file Catholics, as well as other citizens. It's their children, after all, whom the Church presumed to be liars.

Second, let's look at the Archdiocese's decision to criticize the grand jury for not suggesting internal reforms for the Archdiocese.

To begin, that is hardly the D.A.'s role. There were two wrongs here, each of which compounded the another - the actions of the Archdiocese, and laws that were ineffective to deter or punish those actions. Only the latter is the D.A.'s domain.

D.A. Abraham has full authority, on the basis of a lengthy grand jury investigation, to recommend sweeping changes in the law needed to protect children, and that is exactly what she did. Had she done more, the Archdiocese probably would be claiming that she was trying to interfere with Constitutional Free Exercise rights! That is precisely what happened after other such reports were released.

The Archdiocese may learn from those recommendations, or it may continue to pretend - without the remotest plausibility -- that its procedures were adequate for the protection of children. It shouldn't be faulting the D.A.'s office for failing to do the house-cleaning the Archdiocese itself ought to have done many years ago.

Making Evidence Public Should Be Only a Prelude to Legal Reform

Ten, or even twenty, years from now, the question will be asked whether Pennsylvania adequately responded to the facts laid out before it in the Philadelphia grand jury's report. No longer can lack of knowledge be used as an excuse.

Childhood sexual abuse - in Pennsylvania and every other state - cannot continue to be governed by laws that favor abusers and the institutions knowingly continuing to employ them.

Doubtless, the Catholic Church will continue to lobby against such reforms, making reform difficult. But the fact that justice is hard to achieve, is no excuse for not striving for it.

Too many children have been hurt too much, for too long. The failure to change, at this point - with all this evidence before us - would be inexcusable.

The facts demand reform, and the politics, for once, need to be set aside for the sake of our children.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is Hamilton02@aol.com. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).

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