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Pretending Decades of Covering Up Child Abuse Is Not a Crime:
Why the Phoenix Settlement Agreement Is Insufficient

Thursday, Jun. 05, 2003

Recently, in Phoenix, Arizona, Maricopa County Attorney Rick Romley entered into a settlement agree with Bishop Thomas O'Brien - yet another high-level cleric implicated in the cover-up of clergy abuse. Pursuant to the agreement, Bishop O'Brien admitted that he had failed to report clergy child abuse, and indeed, had covered it up for decades.

However, the Bishop did not concede that in so doing, he had committed a crime. And after signing the agreement, Bishop O'Brien apologized to the public, as it required. But he also declared that he had done nothing criminally wrong.

O'Brien's statements show that the agreement was a terrible mistake on the part of Phoenix prosecutors. By comparison, New Hampshire prosecutors reached an agreement with Manchester's Bishop John McCormack that did acknowledge criminal wrongdoing as part of the agreement. Moreover, it was accompanied by a scathing report that made it possible for the public to assess the criminal conduct, and understand its extent.

The gravity of Bishop O'Brien's conduct demanded at least the same treatment - and, indeed, could have served as a basis to prosecute the Bishop. To see why, an analogy from outside the context of the Catholic Church is helpful.

An Analogy: Why Being a Bishop Should Not Preclude Criminal Charges

Suppose that, over the course of several decades, a highly regarded day care center operator was aware that at least 50 of her employees had sexually abused children. But each time she learned of such abuse, rather than firing the employee, she simply moved the employee to another classroom.

Meanwhile, when parents came in to complain to the day care center operator, she persuaded them that they should not report the abuse to authorities. Instead, she persuaded them, they should work with her to sustain the integrity of her very successful day care center.

Finally, a newspaper reporter discovers the story and reports it. What would happen next?

In this context, it seems obvious. The day care operator would become Public Enemy Number One. Her center would instantly be closed. The local prosecutor would righteously mount his public podium, and announce that he was leveling serious criminal charges against the perpetrators, the operator, and the center.

Given her choice to turn a blind eye to known sexual abuse, the operator could be targeted not only for obstructing justice by covering up the crimes, but perhaps even as an ongoing accomplice to them: It was she, after all, who ensured that the abuser could strike again, with a new classroom of unknowing, unwary children for the picking.

The operator might be offered a plea agreement, but only on the condition she would testify against her employees, and ensure their convictions, and turn over all relevant evidence. Even so, it would be very unlikely that the operator would, herself, avoid serving a substantial jail sentence.

Alter these facts just a bit - by replacing the day care center operator with Bishop O'Brien, and the center with the diocese. You now have the situation in Phoenix. At least 50 priests and parish employees sexually abused children in the last several decades. The Bishop knew about it. He shuffled the priests around, persuaded parents not to go to the authorities, and ignored Arizona's mandatory reporting statute.

The net result in permanently harmed children is no different between the two scenarios. The only difference is the Roman collar.

The analogy to a secular context should make it plain that the settlement agreement Phoenix prosecutors offered Bishop O'Brien was a gift. It disserved both past victims, and the public interest that justice be done.

Maricopa County Attorney Rick Romley seems convinced he could have convicted O'Brien on charges of obstruction of justice. So why didn't he pursue them? If he believed he was protecting the Church, he was dead wrong. The best thing for the Church would be a new bishop - one who complies with the law and one whose first instinct is to protect children from abuse.

Nor is this a matter of respect for the Church. Those who truly have respect, and high expectations, for the Church should favor prosecutions here. Those who recoil from the notion of bringing a man of the cloth to the defendants' table, and potentially sending him to jail, should ask themselves, Would I favor prosecution for the identical acts if perpetrated by the day care center operator? And if so, shouldn't society be able to expect more from respected members of the clergy, not less?

The Only Positive Facet of the Agreement: Church Reform in the Interest of Children

To be fair to Romley, while he should not have allowed such a lax settlement when it came to O'Brien's criminal acts, he did at least extract some much-needed reform measures from the Church. Unfortunately, though, this amounts to protecting future children at the expense of ignoring the trauma abused children suffered in the past, for which Bishop O'Brien is culpable.

Romley was quoted in USA Today saying, "It's not an easy call. But my primary consideration in this entire investigation is that I must assure that the abuse of innocent children stops and to make sure that it never happens again." But why not both initiate a prosecution of the bishop, and make a negotiated deal with the next bishop that requires protection of children in the future?

After all, our hypothetical childcare center operator would have gotten no less. If her day care center had been allowed to continue to operate at all, it would have done so under new management and the watchful eye of the County Attorney.

At least the Church reforms that Romley has accepted, and the Bishop has promised, seem to be meaningful ones, even if they are no substitute for prosecution. According to the agreement, O'Brien must appoint a Moderator of the Curia - the equivalent of a chief of staff - who will have final authority over allegations of sexual child abuse and the policy to be applied in such instances. There will also be a Youth Protection Advocate (YPA), who will take responsibility for implementing and enforcing the diocese's policy. The YPA will also be able to consult a special counsel, whose advice will be independent of anyone in the diocese. Finally, there will be a Victim Assistance Panel, composed of respected mental health professionals, which will clear requests from victims and their families for counseling.

In addition, the diocese will contribute $300,000 to the Maricopa County Attorney's Victim Compensation Fund for victims of criminal sexual misconduct; set aside $300,000 for counseling of its victims; and pay $100,000 to cover the costs of the investigation.

Finally, the diocese and the County Attorney's office will institute a training program to educate diocesan personnel on issues involving sexual misconduct and, within a year, will hold a joint summit on the issue.

These are all positive developments. But what of the decades of illegal activity, and the desert full of suffering, caused by the diocese?

A settlement agreement like this one simply cannot send the same message that a full-scale criminal prosecution, conviction, and sentence would have. Nor can it provide the public airing of evidence that is sorely needed here - particularly since this is a case in which a revered institution has used its privileged place to silence victims.

Had a trial been conducted (or at least a detailed report issued as in New Hampshire), the public could have reviewed the evidence for itself, and the victims would be allowed to have their claims vindicated publicly. Now this catharsis may never take place, unless victims succeed in overcoming statute of limitations issues with respect to civil suits, and even then, money does not buy justice.

Prosecutors Should Be Courageous In Prosecuting Church Higher-Ups

There is no question that it takes tremendous courage on the part of a prosecutor to empanel a grand jury to consider criminal charges against a Roman Catholic bishop or cardinal, and to prosecute those charges if the grand jury indicts.

The bishops and cardinals are, of course, part of the entrenched power elite of a community, with fervent supporters. If the prosecutor has political ambitions, this is not a step he or she will take lightly. Church members who do not want to believe that such elements exist in their Church may turn even the most credible accusations into claimed instances of "Catholic-bashing."

Prosecutors should take courage, however, from the fact that there are scores of parishioners, especially those with children in affected parishes, who are rooting (even if silently) for the law. There are also plenty of priests who, themselves, want to see the bad elements within the Church excised. They, too, find the relentless, orderly shuffling of pedophile priests from parish to parish, state to state, and even country to country chilling.

The contrast between the cold calculations of the bishops, and the spiritual, emotional, and physical suffering of the victims is simply too great for any self-respecting law enforcement officer to be deterred by fear of bad political consequences. At some point, it is necessary to do the right thing, come what may. These are not the sorts of cases where prosecutorial discretion naturally disfavors prosecution. This is not borderline conduct. Rather, such prosecutions would be important impositions of accountability for premeditated, serial crime by those in power.

The Next Step: The First Prosecution of a Bishop or Cardinal

Phoenix and New Hampshire prosecutors have, at least, overcome their leeriness at even charging bishops or cardinals. Sooner or later, a prosecutor somewhere will dare to go further, and to actually prosecute the Church hierarchy for its knowing participation in the ongoing criminal sexual abuse of scores of children.

Would such a prosecution present a constitutional issue with respect to the Establishment or Free Exercise Clauses? Not at all. The Church does not believe, as part of its theology or mission, in the sexual abuse of children. Thus, typical problems that arise in true Establishment and Free Exercise cases would not arise here.

For one thing, there is no need for the court to interpret religious law, as might be the case, for instance, in an internal battle for power within the church. If a Bishop goes to jail, the Church, not the court, will choose a successor.

For another thing, there is no conflict here between religious belief and secular law, for no religious belief inspired these crimes or their cover up. Meanwhile, even if faith had played a role, that would provide no constitutional defense, as I have explained in an earlier column. Wisely, the Constitution - as interpreted in the Supreme Court's current free exercise precedent - does not stand between religious entities and generally applicable, neutral criminal laws.

In short, from the perspective of the Religious Clauses, there is simply no constitutional issue here at all. In the end, prosecutors are facing the run-of-the-mill problem of having to apply a generally applicable rule of law to violators of that law.

That's why the day care operator analogy works so well. Like the day care center operator, the Church erred grievously in fulfilling its duty - common to parents and caretakers, both secular and religious alike - to protect children from harm.

For this reason, prosecutors, grand juries, and courts addressing the clergy abuse scandal should be confident that the Constitution provides no impediment to their acting to serve the public interest by bringing religious individuals and entities to task for violating the criminal law. Now we will have to wait to see if any brave prosecutor, somewhere in this country, has the nerve to do so.

Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns, including those on the Catholic Church clergy abuse scandal, can be found on this website. Her email address is

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