The Federal Investigation into the Catholic Church's Los Angeles Archdiocese Based on Allegations of a Coverup of Child Sex Abuse: Why the Grand Jury Probe Should Be Welcomed, Not Criticized

By MARCI A. HAMILTON
Thursday, Feb. 5, 2009

Recently, it was announced that Los Angeles United States Attorney Thomas P. O'Brien was starting a grand jury investigation into allegations of a child sex abuse coverup by the Catholic Church's Los Angeles Archdiocese. The announcement was met with consternation and defensive cries from various Catholic quarters. Before they drown out the larger public good, however it is worthwhile to spend some time with the facts – which, I will argue, show that a grand jury investigation is exactly what should be occurring now.

Professor Kmiec's Argument: The Claims of Abuse Were "Well-Litigated"

Pepperdine law professor Douglas Kmiec (who has also been a guest columnist on this site) quickly posted a lengthy critique on Catholic Online, arguing that "wading into this already well-litigated matter gives every appearance of 'piling on.'" In support of his claim, he pointed to the fact that the Archdiocese settled civil claims with over 500 victims for a total of $660 million. The fact, though, is that the claims never were "well-litigated." Kmiec is right about one thing: The end result was a settlement, not hundreds of trials, which would have released mountains of information to the public.

The apparent reasons behind the settlement are very pertinent: First, early on, the church hierarchy succeeded in getting many claims consolidated together, so as to avoid individual litigation. Many survivors wanted their day in court and opposed consolidation, but this procedural move by the hierarchy meant that large collections of cases were treated as though they were single cases with judges overseeing many at one time. That way, the hierarchy could argue to reduce per-person claims, because the size of the total award would be large no matter what and the hierarchy could more effectively and efficiently control what information about the coverup would be released.

Second, the Archdiocese settled essentially on the eve of trial, when it appeared that the Cardinal would have to testify regarding his obvious knowledge of a great deal of abuse. In other words, the settlement was a tactic to keep a further lid on damaging information. Thus, despite the settlement, relatively little information, especially given the amount that is still under the sole control of the Archdiocese, has reached the public.

Kmiec still claims, however, that the public has enough information. He writes: "What's more, the hypothetical prosecution cannot really be said to promote greater disclosure, as the Cardinal already issued a 2004 report giving individualized detail of priests accused of abuse." Yet that report is better described as a mere outline. Moreover, and more importantly, as part of the Los Angeles settlement, Cardinal Mahony promised to release millions of pages of files on the abusers, the abuse, and the coverup. Survivors insisted on it as a necessary element of the settlement.

These promises have not yet been worth the paper they were printed on. Mahony's lawyers, on behalf of their client, have been in court ever since the agreement was signed, to oppose release of each of the papers, one by one. As Los Angeles County District Attorney Steve Cooley has said, "Three years ago, I urged Cardinal Mahony to provide the fullest possible disclosure of evidence of sexual abuse by clergy. Despite two court rulings ordering full disclosure, Cardinal Mahony continues to claim 'confidentiality privileges' that no court has recognized." Few citizens know that the Archdiocese's lawyers still continue to drag the plaintiffs' lawyers to court on a regular basis to evade Mahony's promise to reveal all of the relevant secrets. It is not over, and the reason it is not over is because of the continuing tactics of truth-evasion practiced by Mahony.

The Church's Claims of a New "Zero Tolerance" Policy Are Belied by the Evidence

Kmiec goes on to claim that "under Rome's supervision, which the Holy Father personally reasserted just months ago in his visit to America, abusers have been defrocked and a 'zero-tolerance' policy is in place." But Kmiec is simply too smart to make such hollow claims. If zero-tolerance is the policy, then the Cardinal has made a mockery of it.

The facts speak for themselves. In 2006, Los Angeles police questioned church and school officials about Daniel Murphy Catholic High School's Dean of Students, John Malburg, against whom current child sex abuse allegations were being asserted. (Malburg comes from a prominent Los Angeles family.) Yet, despite receiving clear notice from authorities that there were claims of abuse asserted against Malburg, the Archdiocese did not suspend him and kept the information secret. When Malburg was arrested and charged six months later, and parents complained that they had not been timely alerted about the allegations, the Archdiocese blamed the police, saying that they had asked that the information be kept secret. The LAPD, in the Los Angeles Times, said it had never made such a request.

And Malburg is far from the only example demonstrating the Los Angeles Archdiocese's and sadly the larger Church's continuing tolerance – and, indeed, protection – of alleged child abusers. Fr. Nicholas Aguilar Rivera allegedly abused at least 26 boys in Los Angeles in a mere nine months. In August 2007, church records about Aguilar were released to the public. The records indicated that then-Msgr. Thomas Curry notified Aguilar about the release of the records, leading Aguilar to escape to Mexico to avoid prosecution, where there are credible allegations that he went on to molest more children. The upshot? Far from being demoted for violating the "zero-tolerance" rule, Curry was promoted to be one of Mahony's auxiliary bishops, and was never disciplined for putting more children within reach of a priest whom evidence strongly suggests is a serial pedophile.

Then there is Franciscan monk Gerald Chumik -- an admitted child molester who has been a fugitive from his native Canada for fourteen years. Until 2005, Mahony had permitted Chumik to live in the Los Angeles Archdiocese; Chumik left only because the Survivors Network of those Abused by Priests and others demanded that he be turned over to the authorities. Even in the face of these reasonable demands, Mahony did not go to the authorities; instead, he let Chumik move to Missouri.

This is not remotely zero-tolerance. Rather, it is just plain tolerance of pedophiles. Mahony has not made a clean break from the internal culture and rules requiring coverup and secrecy, and his actions and omissions have obviously created danger for children in other states and countries. According to Kmiec, though, "this is not the equivalent of a federal public or corporate corruption offense meriting 20 years in the federal pen." Explain that to the kids evidence strongly suggests were abused by Malburg, the Mexican kids believed to have been abused by Rivera, or to Chumik's acknowledged victims, wherever they may be. Explain that to the parents at Malburg's school who surely trusted in all of the public assurances from the Pope on down about zero-tolerance, whose children attended school with a credibly accused pedophile and were told nothing about it until the authorities were involved.

Other Arguments Against the Grand Jury Investigation Are Also Completely Unconvincing

Others came to Mahony's defense as well, including Professor G. Robert Blakey of Notre Dame Law School, who said the investigation was "outrageous" because the alleged conduct at issue is unrelated to the federal government. That is a mistake, though. It is a fact that predator priests often have been sent across state or national boundaries (see above). The national and international movement of pedophiles makes the task of a full investigation by any local district attorney impossible. Moreover, many of the perpetrators have taken their victims across state lines, frequently for "vacations" or camping trips. The United States should have been involved long ago, and one can only speculate what took the Department of Justice so long to consider investigating what are obviously federal crimes.

Professor Nicholas P. Cafardi, of Duquesne University School of Law, called the inquiry "an intrusion into the church's First Amendment rights." For him, "It's time for this to be over. L.A. has settled with all of their claimants." Yet it is crucial to recall that one of the very reasons the victims participated in the civil settlement was to obtain the release of the Archdiocese's records on abusers – and recall that they continue to wait as the Archdiocese balks, claiming non-existent privileges. The First Amendment is no dispensation from the law or decency. Moreover, since when do crime victims have to choose between civil and criminal justice? Those molested deserve compensation from those responsible, those at risk deserve protection, and the rest of us deserve real justice in criminal court.
According to the Los Angeles Times, the Archdiocese issued a statement referring to picketing abuse survivors as "an angry mob" and asserting that "there is no priest currently in the ministry in the archdiocese who had been found to have abused a minor." Yet the latter point offers no comfort: As I explained above, there were virtually no trials and no "findings" in the settlement involving hundreds of victims, likely because the Archdiocese did not want its sins, omissions, and crimes spelled out.
Religious Rules Against Airing "Scandal" Cannot and Should Not Be Enforced in Our Secular Justice System
Finally, it is most telling that the Archdiocese's defenders would become so worked up over the start of a grand jury investigation. They are opposing the gathering of information and evidence. Why do they care so much, if all the information to be released is out, as they claim? And why do they care so little about children that Mahony's recent, appalling record regarding credible child-abuse allegations does not give them pause?
The answer likely lies in culture and theology. There is an internal rule within the Church against "scandal." That is, believers are not supposed to bring shame to the Church by airing its dirty laundry in public. The same principle can be found in Orthodox Judaism, in which it is known as chilul hashem. The phrase literally means "desecration of God's name," but is used to prohibit giving the community a bad name. The parallel is notable, for certain Orthodox Jewish organizations have become the latest religious groups whose secret coverup of child sex abuse is being exposed to the public. Despite their very different religious beliefs, the two religious groups' organizational operations with respect to child sex abuse within their community are strikingly similar. Each has something to learn from the other. The Orthodox can learn that internal control of sex abuse never works and the Catholics can get over the destructive tendency to cling to notions of persecution when in fact they are simply on the wrong side of the law.
If U.S. Attorney O'Brien has hit upon a "novel" legal strategy, as has been alleged, so be it. We have an epidemic of child sexual abuse, which is attributable in part to a lack of imagination and sometimes political will on the part of prosecutors and courts. O'Brien should be applauded for joining the small group of federal prosecutors who are now taking a stand for children who suffer abuse in religious settings. Let's hope that, in the Obama Administration, more U.S. Attorneys will take the same courageous stance. Making children a top priority would be a true change in federal policy.


Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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