But why isn't Bernard Law in jail? (Part 2)

The law, lawyers, and the court.
Dec. 19 2002 6:33 PM

But Why Isn't Bernard Law in Jail? (Part 2)

Cardinal Law
A cardinal's sin

Almost a year ago, Slate's "Explainer" answered the question: Why isn't Boston's Cardinal Law in jail? The question was somewhat rhetorical. Since Massachusetts didn't have a mandatory reporting law, the answer was that the cardinal was under no legal obligation to come forward with information about sexual abuse of children by priests he'd supervised.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Almost a year later, more lawsuits have been filed, depositions have been taken, church documents have been turned over, and we have a clearer picture of what precisely the cardinal has done, or not done, over the past decade and a half. What's emerged is horrifying. Law was not only aware of egregious sexual misconduct among his subordinates but was apparently engaged in elaborate efforts to cover up incident after incident of child rape. Worse yet, he breezily reassigned clergy known for sexually abusing children to work with more children—conduct not all that distinguishable from leaving a loaded gun in a playground.

Last week, under increasing pressure, Law resigned. Many Americans breathed a sigh of relief. But many also wondered, silently: "Is that all? Does Law get to pack up his hat and retire to Orlando and a second career in canasta?" And the question lingers, more urgently than it did a year ago: Why haven't criminal charges been filed against him? What Law has done goes far beyond "not reporting" suspected child abusers. This was no crime of omission. It is now clear that Law affirmatively engaged in a pattern of shielding child rapists and recklessly allowing them unfettered access to yet more victims. A high-school principal or the CEO of any company in America would have been indicted months ago.

The evidence speaks for itself: Last spring, Law admitted in a deposition that he was aware that John Geoghan had reportedly raped at least seven young boys in 1984 yet nevertheless approved the transfer of Geoghan to another parish, working with other boys. Other documents revealed that Law similarly knew of and ignored decades of reported child abuse by Paul Shanley, placing Shanley in ministries with access to other children. Shanley is currently facing trial on 10 charges of child rape and six counts of indecent assault and battery. Law is jetting back and forth to Rome.

Throughout his tenure, Law seemed to reserve his warmest sympathy for the abusers, not the victims. He lied to a West Coast bishop about Shanley's history. He signed a document attesting that another known child-molesting priest, Redmond Raux, had "nothing in his background" to make him "unsuitable to work with children." Last week, more court documents revealed that the archdiocese gave new jobs to two priests, one of whom was known to have molested boys while the other had supplied cocaine to a teenage lover. Law's responses to these and earlier disclosures? The molesters had been cleared by physicians; the church kept bad records; his subordinates vetted the transfers; he forgot; he never knew; he's sorry.

"Sorry" may not be good enough. Not for the victims—many of whose lives would not have been devastated but for Law's recklessness—and not for the rest of us. According to a summer poll conducted by ABC News and Beliefnet.com, eight out of 10 Americans believe bishops who failed to act on abuse allegations should be prosecuted criminally.

This message may finally be getting through. It's been suggested that Massachusetts Attorney General Thomas Reilly was being soft on Law to protect his elected position among Catholic voters. Similarly, the Los Angeles Times reported that L.A. District Attorney Steve Cooley went far too easy on Los Angeles' Cardinal Roger Mahony because, as a Catholic himself, Cooley was too conflicted to zealously pursue the investigation. But the tide seems to be turning, and finally prosecutors have begun to empanel grand juries to investigate criminal wrongdoing in the upper echelons of the church. While only individual priests and no church leaders have so far been charged with crimes, over a dozen states have started to turn their criminal law machinery on the supervisors.

And last week, Law and seven bishops who worked for him were subpoenaed to testify before a grand jury. Attorney General Thomas Reilly is finally making noises suggesting that the cover-up on the part of the church leaders was indeed criminal. For months, he had been insisting that there were simply no criminal laws on the books under which Law could be charged.

Reilly should consider taking a page from John Ashcroft's book. The U.S. attorney general, never a man to be deterred by a shortage of enforceable laws, alternately invents new ones or rejiggers existing ones to suit his ends. It's long past time that Reilly, Cooley, and their counterparts around the country started filing indictments. And their legal theory should be simple: A church official who knowingly puts a habitual child molester in a position to abuse more vulnerable children is aiding and abetting a crime.

The conventional wisdom is that getting criminal convictions won't be simple. Reilly is correct that without child endangerment statutes, Massachusetts will have a tough time finding a hook for criminal prosecutions. (Child endangerment statutes were finally enacted in September in Massachusetts, but they cannot be applied retroactively). One tack being considered by Reilly's office is to pursue church leadership under a state statute that criminally prosecutes companies for failures to stop wrongdoing by their employees—corporate vicarious criminal liability. Under this rule, the archdiocese could be sued as a corporation, just like any other, and Law would be liable merely because he was in a position of authority to prevent the crimes but didn't. The penalty is fines, not jail time, but it's a start.

Another route involves prosecuting church leaders for obstruction of justice. Some experts say that the Boston Archdiocese hasn't actually obstructed any criminal investigation; it did turn over its documents. But in Phoenix, Ariz., prosecutors have suggested that Bishop Thomas O'Brien may soon face criminal obstruction charges for allegedly counseling victims' families not to approach police.

One more tack being considered by the Massachusetts AG's office is to file charges against Law as an accessory after the fact to the abuse. But to be an accessory, experts insist that you must intend for the abuse to occur; in other words, it's not enough that Law knew his subordinates would molest again. It seems that not caring one way or another is insufficient.

In some jurisdictions RICO suits have been filed, using racketeering laws to prosecute the seemingly untouchable higher-ups in the church. Although early this month, a Cleveland grand jury cleared two bishops of racketeering charges, finding that their mishandling of sex abuse claims didn't amount to criminal racketeering. This was a pretty creative use of the RICO laws, and it might work in other cases where the supervisors were more complicit in the coverups.

Last week, New Hampshire got a taste of how criminal indictments—or the threat of criminal indictments—may play out in the coming months. In settling a civil case, the Diocese of Manchester admitted that, had criminal charges been filed, the diocese itself would likely have been found guilty. Whether this kind of admission will embolden other prosecutors to file criminal charges or just use the threat as leverage in civil suits remains to be seen. But what's becoming clear across the country is that the taboo is broken; that the church can still be a holy institution, but its criminals are not sacred. Civil suits and cash reparations are just not enough. Church elders who unloosed monsters on suffering children for decades cannot be treated as though they were above the law. Shakespeare wrote: "The law hath not been dead, though it hath slept." It's past time for the law to wake up and punish the guilty.

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