- The Washington Times - Saturday, August 24, 2002

As prosecutors turn to grand juries to investigate sex abuse by Roman Catholic clergy, church observers are wondering whether the ultimate target of criminal charges will be a cardinal or bishop who may have mishandled molester priests.
Several legal analysts say that convicting a church leader for protecting an abuser would be a formidable task because the prosecution would need to prove that a bishop meant to help the offender commit the crime. Details revealed since the abuse crisis erupted in January would not support that theory, they say.
Yet a prosecutor who finds a case within the statute of limitations is likely to bring charges in the current atmosphere of public outrage over the scandals.
"They're elected officials and they're responsive to the electorate," said Robert M. Bloom, a professor at Boston College Law School.
"One could argue they've convened a grand jury for political reasons. One could also argue they are looking to make sure that there are no other priest predators out there."
As the molestation crisis intensified this year, prosecutors began speaking publicly of their anger over church leaders' failure to report many abuse claims to civil authorities. Grand juries have been convened in nine states to investigate priests and dioceses.
In Cincinnati, prosecutor Michael Allen subpoenaed Archbishop Daniel E. Pilarczyk in April, but excused him after the archbishop's attorney provided prosecutors with undisclosed evidence they had demanded.
Among the most aggressive prosecutors has been Massachusetts Attorney General Thomas F. Reilly, who convened a grand jury after Boston Cardinal Bernard Law acknowledged allowing a pedophile priest to stay in church work.
Cardinal Law's admission put every U.S. diocese under scrutiny. At least 300 priests have been taken off duty over accusations of sexual abuse, but most of the claims are years old and outside the statute of limitations.
Mr. Reilly has been investigating whether Boston church officials have committed any crimes by transferring molester clergy from parish to parish. He has indicated criminal charges are unlikely, but he could seek a court order, under the state's civil rights law, to force changes in how the Boston Archdiocese handles abuse claims.
"In criminal prosecution, you need intent," said Cary Edwards, a former New Jersey attorney general. "The church seemed to have its head in the sand. It was a bad moral act. But the institution was in denial that this was a criminal act."
G. Robert Blakey, a professor at the University of Notre Dame Law School, said if he were a prosecutor, he also would search for a means to hold the bishops criminally accountable. But he said there is no apparent way it could be done.
On the charge of aiding and abetting a crime, the prosecutor would have to prove that the bishop intended to transfer the offender to help him molest children. Although many prelates were guilty of bad judgment and arrogance, Mr. Blakey said, it appeared they shuttled errant clergy among parishes to stop not facilitate the priests' wrongdoing, even though that strategy failed.
A criminal-negligence charge also would be difficult to prove, since church leaders tried to stop offenders by sending them to treatment, Mr. Blakey said.
For a conspiracy charge, the prosecutor would have to prove that the bishop and the priest agreed that the clergyman could molest children another unlikely scenario, said Mr. Blakey, who wrote the federal anti-racketeering law.
"The harm these administrators have done by moving these people is incalculable," Mr. Blakey said. "But if you wanted to indict a bishop, you'd have to have a theory about how the bishop helped the priest."
Patrick Schiltz, dean of the University of St. Thomas Law School in Minneapolis, believes district attorneys know they cannot bring charges, but have been using grand juries anyway to intimidate church leaders and win points with voters.
"When you're a prosecutor and you convene a grand jury to investigate things that everyone would concede are years and, in some cases, decades beyond the statute of limitations, that's a gross abuse of power," said Mr. Schiltz, who has defended dioceses in hundreds of civil abuse lawsuits.
But other legal analysts say prosecutors are justifiably upset, considering many offenders have escaped punishment.
Mr. Edwards said he saw a model in the successful prosecution of accounting giant Arthur Andersen. Federal attorneys charged the entire company with obstruction of justice for document shredding and destruction of computer records related to audits of bankrupt Enron Corp. A similar charge could be brought against the church for covering up abuse, he said.
"If I were still a prosecutor, I would be looking very heavily at indicting the church as a corporation," Mr. Edwards said. "You can't put a corporation or the Catholic church in jail, but you can fine them."
However, Mr. Edwards said he thought a district attorney would use that strategy only if there was "a real smoking gun."

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