E-Mail This Article to a Friend Law and the law (continued) BY KRISTEN LOMBARDI

THEN AGAIN, Law and his underlings may not be off the hook just yet. Given all the damning evidence on the scale of clergy sex abuse in Boston, legal experts believe indictments could still materialize — but under federal law. Generally speaking, federal statutes are better equipped than state laws to address institutional criminal activity, fraud, and conspiracy. Observers overwhelmingly point to the Racketeer Influenced and Corrupt Organizations Act (RICO), as the vehicle most likely to yield charges. Passed in 1970, it was designed to go after the Mafia, whose leaders had long evaded prosecution. But its broad language can apply to institutions, including religious organizations, that systematically conceal criminal acts. RICO hinges on such violations as conspiracy, obstruction of justice, and fraud. It allows prosecutors to go after entities that use instruments of interstate commerce, such as telephone and mail service, to facilitate these offenses.

Hamilton, of Cardozo School of Law, is among the legal experts who advocate using RICO against the Boston archdiocese — or, for that matter, the entire American Catholic Church. She identifies the "same set of circumstances" in the clergy-abuse scandal as in successful RICO prosecutions against organized crime and labor unions. "You have an upper echelon of an organization fully aware of decades’ worth of crimes," explains Hamilton, an expert on the legal relationship between church and state. "That’s what it’s about. The huge numbers of [clergy-abuse] victims could only exist because of the acquiescence of the Church hierarchy."

Former US attorney diGenova, who, in his DC law practice, now specializes in criminal and civil RICO violations, agrees: "There’s not the slightest doubt in my mind some prosecutor interested in pursing RICO could," although he hastens to note that only an investigation can determine whether Law and his bishops did actually violate RICO. "But as a matter of legal theory," he says, the existing public record on the clergy-abuse scandal provides federal prosecutors with "ample basis to look into it."

Indeed. Some victims’ attorneys have already availed themselves of the RICO statute in civil suits alleging clergy sex abuse. Last year, Jeff Anderson, a St. Paul, Minnesota, lawyer who has gained national recognition for his work in this area, filed a RICO lawsuit against Roger Cardinal Mahony and the Archdiocese of Los Angeles. The suit also names the United States Conference of Catholic Bishops (USCCB), which sets policy for the American Catholic Church, as "co-conspirators in the criminal enterprise." The 38-page complaint, which is currently pending, claims that Mahony and his deputies "joined in a conspiracy" to conceal crimes, obstruct justice, evade criminal or civil prosecution, and engage in mail or wire fraud, among other things. (This past June, Mahony excoriated former Oklahoma governor Frank Keating, then head of a lay Catholic board investigating the scandal, for comparing the Church to La Cosa Nostra.) Anderson has handled more than 500 clergy-sex-abuse cases across the country since 1983. He has come to believe that "the pattern of misconduct by Catholic bishops" meets the RICO criteria. He and five of his colleagues filed this suit to get at what he calls "the top of the pattern wrongdoers" in a series of sexual assaults involving four victims and one priest.

Says Anderson, "Bishops, including those in Boston, acted like mobsters. They concealed felonies in a systematic fashion at the highest level."

Anderson — and many observers — have become even more convinced that bishops’ actions satisfy RICO definitions after flipping through a high-profile 1962 Vatican document known as Crimen Sollicitationis. The document, issued by the former Holy Office (now called the Congregation of the Doctrine of the Faith) on March 16, 1962, first came to light two weeks ago, when Boston-area victims and their advocates offered a copy to US Attorney Sullivan. The 40-page paper, "On the Manner of Proceeding in Cases of Solicitations," focuses on "crimes" initiated as part of the confessional relationship — in particular, sexual advances made by a priest toward a person during the act of confession. The paper then singles out other "worst crimes," such as "any obscene, external act" committed by a cleric "with youths of either sex." It lays out a procedure for bishops to handle allegations related to these crimes. Interestingly, it requires anyone aware of the "solicitation" to take a vow of silence "under the secret of the Holy Office" — or face excommunication. It orders priests to be transferred if possible. It even directs all records of unproven accusations to be destroyed.

Houston attorney Dan Shea, who represents clergy-abuse victims, including some in Massachusetts, located the 1962 document after reading a Latin reference on the Vatican Web site last year. To Shea, the Vatican paper seems substantial because it explains why Catholic bishops everywhere did "such dumb things" when dealing with pedophile priests over the years. Not only that, but it suggests a kind of blueprint dictated by the Church hierarchy for concealing certain acts of priestly sex abuse, including acts involving children. "From this document," Shea says, "we find that the Vatican is ordering all bishops to follow instructions and to maintain secrecy in these cases."

Anderson puts it more bluntly: "It’s the smoking gun that establishes that secrecy was written, codified, and mandatorily applied."

Since the document has been widely publicized, however, Church officials have disputed this notion. According to an August 7 statement by the Washington, DC–based USCCB, those who depict the 1962 document as a smoking gun "are taking [it] entirely out of context and therefore distorting it completely." Instead, they maintain that it outlines a narrow set of instructions for disciplining priests who use the confessional to solicit sex — not for priests who assault children in general. It deals "exclusively" with Church law, they say, and has "no bearing" on civil law whatsoever. "To suggest that it was intended as a ‘ground plan’ for handling these matters in the United States," the USCCB asserts, "is ludicrous."

But those pushing for RICO indictments remain undeterred. Even if the USCCB is right about the document’s narrow application, attorneys believe that it still has legal implications. Carmen Durso, the Boston lawyer who hand-delivered a copy of the paper to federal prosecutors on July 28, says it’s "a common ploy" for abusive clergy to use the Church’s sacraments as a means to prey on unsuspecting children. Currently, he represents an alleged victim of the notorious priest Paul Shanley. In September 1965, Durso says, his client went to see Shanley at the rectory of St. Patrick’s Church, in Stoneham. Eventually, Shanley suggested the two move to the church confessional, where he allegedly proceeded to fondle Durso’s client, who was then a teen. "We know that priests regularly used the confessional and sacristy to abuse kids," Durso says. Under guidelines in the 1962 paper, he notes, those cases would have been subjected to the papal secret.

Even if the document doesn’t turn out to be a "smoking gun," there appears to be plenty of evidence — among the pages of unsealed court records, media articles, and even the AG's report — to press forward under RICO. Anderson, for one, backs up his claims of RICO violations against LA bishops by citing a 1985 report distributed to US bishops (including Cardinal Law) that outlines the extent of the pedophile-priest problem. The study advises bishops to end their practice of purging the priests’ "secret files" and sending them to the Vatican archives — evidence, Anderson claims, of an ongoing concerted conspiracy. DiGenova, meanwhile, who has closely followed the Boston crisis, regards documents like the AG’s report to be "very probative of the knowledge of the Church about this literally ongoing criminal activity."

And so, it seems, the question isn’t really whether federal prosecutors can use RICO to go after Law and company. Rather, it’s if they will. After all, not many prosecutors want to target the Catholic Church — at least, not those with political ambitions. Sure, the enormity of the clergy-abuse scandal has harmed the Church’s credibility among rank-and-file Catholics. But experts say it hasn’t necessarily put off the nation’s power brokers, whose instinct is to defer to religious groups. In the wake of the Boston crisis, US Attorney Sullivan hasn’t made one public statement. The US Justice Department, under the aegis of religious conservative John Ashcroft, hasn’t uttered a word, despite the massive numbers of child molestations across the country. Even the Bay State’s two US senators, Edward Kennedy and John Kerry, have said little since Law stepped down in disgrace last December. If the bishops were corporate executives, diGenova maintains, "the federal government wouldn’t hesitate to at least investigate this conduct." But because they’re men of cloth, he says, "prosecutors have been loath to look at it so far."

Whether Sullivan has the courage to buck this trend — and to look beyond his own political interests — remains to be seen, of course. Martin, his spokesperson, refuses to confirm or deny that the US Attorney’s Office had launched an investigation into the Boston archdiocese. When asked about such a prospect, she simply reiterates, "We are reviewing all the materials."

This answer isn’t likely to satisfy victims for long. They understand that Attorney General Reilly didn’t have the proper tools to prosecute Law and his deputies at the time of their conduct. They understand that the Massachusetts legislature has passed recent measures meant to hold supervisors accountable for child sexual assault. They’re even pushing for more legislative reforms to ensure such wide-scale abuse never happens again. Right now, for example, they’re working to increase penalties for mandated reporters who fail to notify authorities about suspected abuse — from the current $1000 fine to $25,000 or a possible two-year jail term. They also want to abolish the criminal and civil statute of limitations for child-rape cases. And they’re even urging legislators to pass a state version of the RICO law — something that Reilly himself has publicly supported for the past 12 years.

But what victims want more than any of these things are indictments. Criminal charges, after all, mean true justice. They mean true accountability. So the failure to pursue every possible legal avenue on which to build charges — including federal indictments — would be irresponsible. Perhaps Rick Webb, of Speak Truth to Power, a local victims’-advocacy group, sums up the sentiment best: "I think justice is worth fighting for. Either give us an indictment or give us an explanation. That’s my feeling."