E-Mail This Article to a Friend Law and the law State laws prevent Tom Reilly from prosecuting Cardinal Law and his bishops for their part in the pedophile-priest cover-up, but some say the feds could indict them for racketeering BY KRISTEN LOMBARDI

IT’S BEEN CALLED the worst case of child molestation in modern times. Ever since the clergy-sex-abuse scandal dominated headlines last year — exposing a staggering number of child molestations by priests and an appalling pattern of cover-ups by Church leaders — critics of the Archdiocese of Boston have demanded jail time for the predatory priests and the archdiocesan bishops who enabled them. Last month, the calls to indict Bernard Cardinal Law and his onetime lieutenants came to a rather anticlimactic denouement: on July 23, Massachusetts attorney general Tom Reilly unveiled a comprehensive report on the sex-abuse crisis roiling the Boston archdiocese. It detailed widespread damage; indeed, it found as many as 237 priests had preyed on 789 children in 45 communities dating back to 1940. Reilly called the scandal "one of the greatest tragedies to befall children in this Commonwealth, ever"— but concluded nonetheless that it’s not possible to indict the bishops who hid pedophile priests, given that their actions violated no state laws at the time.

The explanation didn’t come as a surprise. Ever since Reilly launched his office’s investigation in March 2002, he’s said that he doubts state laws would allow for prosecution. He reiterated as much on July 23: "No one is more disappointed than I that we cannot prosecute these cases criminally. The laws don’t permit it."

But the sheer injustice of it all — especially given the lengths to which Law and his underlings went to conceal sexual offenses, as the AG’s report plainly documents — has left critics frustrated. On July 28, a mere five days after the report’s release, victims of clergy sexual abuse and their supporters turned to US Attorney Michael Sullivan instead. They hand-delivered a two-page letter to Sullivan, in which they urged him to "consider whether these offenses" — the pattern of cover-ups by bishops — "are punishable under any federal laws." They’ve since called on the state’s top federal prosecutor to investigate archdiocesan managers under federal conspiracy and racketeering statutes. John Harris, of the New England Survivors Network of Those Abused by Priests (SNAP), is organizing the push for a federal investigation because, he says, "We’re not going to get anywhere at the state level." He adds, "I’d like the federal laws examined so we get these people out of society. They’re a danger, and they need to be behind bars."

To date, Sullivan has remained conspicuously silent about a possible investigation. Samatha Martin, the spokesperson for the US Attorney’s Office, confirms that Sullivan has received the July 28 letter from victims, as well as a copy of the AG’s report. But that’s about it. She says simply, "We have received all the materials and are reviewing the matter."

As Sullivan plays it close to his vest, legal observers have yet to rule out the possibility of future federal indictments. According to Joseph diGenova, who served as US attorney in the Washington, DC, district throughout the 1980s, the 18 months of relentless press coverage on the clergy-abuse scandal have brought to light a mountain of information. Much of it shows just how much bishops in Boston — and across the nation — knew about the problem of clergy sexual abuse, yet they did nothing to stop to it. "The known public record," he says, "indicates an amount of knowledge that, in a corporate setting, federal prosecutors would find very disturbing." DiGenova points to federal laws on conspiracy and racketeering as "obvious" places for federal prosecutors to begin building a case, although he cautions that such charges "would not be easy to prove." To him, though, that’s not really the issue. Rather, he says, "The issue is whether this conduct is worthy of federal investigation, and I’d say, ‘Yes, it is.’"

TO BE SURE, the way Cardinal Law and his underlings handled the problem of clergy sex abuse seems criminal. In his 76-page report, "The Sexual Abuse of Children in the Roman Catholic Archdiocese of Boston," Reilly outlines a consistent pattern of covering up child molestation by priests that, in his words, "borders on the unbelievable." His 16-month investigation found that archdiocesan officials knew clergymen were preying on children, yet worked to conceal the crimes. They failed to investigate abuse. They failed to report abuse to police. They failed to divulge pertinent details on the few priests who were facing criminal prosecutions. All the while, they shuttled molesters from parish to parish — or, if the allegations didn’t stop, from diocese to diocese. In short, the report found, Law and his deputies maintained a "culture of secrecy" resulting in years of sex offenses against nearly 1000 victims.

Despite this egregious pattern, however, Reilly has offered victims little in the way of real justice. The AG’s report cites four state laws under which prosecutors might have brought charges against bishops for their cover-up activities — but ultimately couldn’t. They considered going after bishops for conspiracy, for obstruction of justice, and for being accessories before or after the fact of a felony. Of those, the last appeared to present the best chance of indictment. The accessory-after-the-fact statute — which defines such an accessory as someone who "harbors, conceals, maintains, or assists the felony ... with intent to help him avoid or escape detection" — sounds as though it were written for Church leaders. Even Kurt Schwartz, the chief of the AG’s Criminal Bureau, which analyzed statutes to determine potential charges, acknowledges as much. "All this behavior," he concedes, "does sound like accessory after the fact."

But the problem, according to Schwartz, is that the law requires something that the evidence couldn’t necessarily prove: criminal intent. As prosecutors, he explains, "We have to ask why the Church kept the abuse secret, not what [that conduct] caused." Evidence gathered by the Criminal Bureau pointed to several reasons for the cover-ups: first and foremost, bishops wanted to protect the Catholic Church from scandal — and from the diminished power and prestige that would come with it. Some of them also believed that Church canon law prohibited them from reporting clergy sex abuse. Although the explanations are undoubtedly misguided, Schwartz says, prosecutors can’t discount them. "Church officials did, in fact, consider these factors," he says. Moreover, to go after the bishops in court, he and his colleagues would have to show that the bishops knew about criminal investigations and tried to thwart justice — a tough thing to prove, he says, when police had no clue about the vast majority of clergy-sex-abuse cases to begin with, and therefore could hardly investigate.

But even those incidents in which police knocked on bishops’ doors seeking information don’t measure up. Consider, for example, the actions of Bishop Robert Banks. In June 1989, Suffolk County prosecutors approached Banks, who now heads the Diocese of Green Bay, Wisconsin, while investigating the notorious priest John Geoghan. Banks knew about Geoghan’s long history of sexual misconduct; indeed, he knew Geoghan had confessed to molesting children. Yet Banks kept his mouth shut about these details. Then there’s Bishop Alfred Hughes, now archbishop of New Orleans. In 1992, Hughes received a call from the Plymouth County District Attorney’s Office regarding a Hingham pastor named Father John Hanlon, who had been indicted on child-rape charges. Hughes knew Hanlon had other victims. But he withheld the names of those who had complained to the Boston archdiocese.

Sounds like these bishops lied to police to protect priests, right? Except that neither Banks nor Hughes was ever asked about other victims, according to Schwartz. And because Massachusetts did not mandate that clergy report suspected child abuse until last year, they had no duty to disclose anything else. Such conduct is, Schwartz says, "morally reprehensible," but not criminal. Of course, the two incidents raise questions about the efficacy of these investigations. As Phil Saviano, of the New England SNAP, puts it, "Not only did we not have appropriate laws, but we didn’t have appropriate investigators."

Since the AG's Office released its report last month, Reilly has come under fire for failing to bring charges against Law and company — and not just from Boston-area victims. Marci Hamilton, of the Cardozo School of Law, in New York City, penned a scathing July 31 column for the online publication FindLaw in which she called the lack of indictments "outrageous." In an interview, Hamilton told the Phoenix that Reilly should have "pushed the legal envelope." After all, she says, there’s no doubt that archdiocesan leaders concealed "the most egregious instance of child abuse in US history." Hamilton takes issue with the AG's report’s claim that bishops didn’t actually mean to cause abuse. As she sees it, prosecutors merely had to show "objective intent" — i.e., if a reasonable person would have known that the bishops’ actions would allow pedophiles to keep abusing children, then the intent to permit ongoing abuse can be attributed to the bishops. They could have chosen to protect children by giving up abusers and exposing their crimes. But they chose to cover it all up — and protect the Church. Adds Hamilton, "The notion that the Church didn’t intend these heinous crimes is a cultural myth."

The AG’s Office has decried the actions of Law and others. When unveiling his findings at the July 23 press event, Reilly described the bishops’ conduct as "deplorable." What critics fail to recognize, according to Schwartz, is that Massachusetts criminal statutes don’t follow a cause-and-effect theory. Yes, bishops kept child sex abuse secret, which, in turn, perpetuated the abuse. But while this analysis may be legitimate in civil suits, it falls short under the criminal laws that existed before last year. "It’s not enough to say officials kept law enforcement from knowing about widespread criminal activity, therefore they’re criminal," Schwartz says.

Naturally, those harmed by the archdiocese’s practice of secrecy find such legalese deeply dissatisfying. Though victims regard Reilly as sincere, they cannot fathom that Law and company have managed to evade punishment. On the one hand, the AG's report details just how far the Church hierarchy went to shield child molesters. On the other hand, it says that nothing can be done. For many, it’s an unacceptable scenario. Says Saviano, "It’s hard to believe these bishops will get off scot-free, and there’s nothing the Commonwealth can do about it. That doesn’t sit right with me."