For a while, it seemed as if the Philadelphia Archdiocese had escaped relatively unscathed from the sexual-abuse scandals that devastated the Boston Archdiocese and many others. To be sure, there had been private lawsuits, and the Philadelphia Inquirer provided maximum coverage to the survivors who came forward, but few suits were successful. Local Catholics were encouraged that the Philadelphia district attorney and grand jury, which had been investigating archdiocesan sexual-abuse allegations since 2002, had produced no criminal indictments. So Philadelphia Catholics had reason to believe the archdiocese’s claims that just a few priests had been accused, and that those cases had been handled sensitively, promptly, and responsibly.
Those hopes were dashed, to say the least, by the release of the grand jury’s report on September 15. The massive document details accusations against 169 Philadelphia priests since 1967, and claims full substantiation of allegations against 63 of the priests by witness testimony and archdiocesan documents. Largely a collection of case studies, the report examines what priests allegedly did to the children entrusted to their care. The abuse cut across generations, class and ethnic distinctions, city and suburb. The narrative contains examples of abuse that have become painfully familiar to Catholics, but also instances of truly appalling perversity. Not surprisingly, the report’s tone is one of rancor and outrage.
Archdiocesan leadership is harshly criticized for its handling of allegations, and for what the grand jury regards as evasive and dishonest responses to its inquiries. The report explicitly, and often sarcastically, dismisses the archdiocese’s claims that it took seriously all credible allegations of sexual abuse, that it acted responsibly in sending accused priests into professional therapy, and that it removed the worst offenders from ministry and sent others to serve in settings where they could not threaten children. While the report’s tone and dismissive argumentation raise questions about bias, the archdiocese’s own documents—contained in the report—leave little doubt that even when well-intentioned, archdiocesan leadership too often failed to protect the most vulnerable members of its flock.
Grand jury reports like Philadelphia’s produce predictable reactions: shock, indignation, demands for explanation, and calls for atonement and reform. Reaction in Philadelphia took a different turn. The archdiocese responded immediately with an unsparing attack on the D.A. and the grand jury. Cardinal Justin Rigali was defiant. The archdiocese’s formal response characterized the report as a “discriminatory investigation,” insisting that the “grand jury was used as a sword to attack the church and build support for insidious prejudgments.” The statement criticized the report for failing to acknowledge the “very encouraging” results in the archdiocese’s attempts to eliminate clerical abuse. Archdiocesan spokesmen claimed the report was motivated by anti-Catholicism.
Controversy immediately erupted in Philadelphia and elsewhere—not about the report itself, but about the archdiocese’s reaction to it, especially the allegation of anti-Catholic bias. For many Philadelphia Catholics, this response was yet another manifestation of the obduracy and clericalism that fueled the scandals from the start. Defenders of the archdiocese saw the response as a brave counterattack on a biased investigation that was determined to embarrass the church, even if it could not produce any indictments.
Whether one buys that defense or not, it reveals the most important fact about the report: after forty months of assiduous investigation, the grand jury could not produce a single indictment of anyone for any crime. Why—and what, if anything, can or should be done about it?
The grand jury found plenty of evidence that would have supported indictments of individual priests for the crimes of rape, statutory sexual assault, involuntary deviate sexual intercourse, indecent assault, endangering the welfare of children, and corruption of minors. Yet none could be issued because the statute of limitations had expired in every case the grand jury found. The statute of limitations defines the period of time in which an indictment must be brought after an offense. The Pennsylvania statutory-limitations period for sexual crimes has been lengthened several times since 1982, but the prosecutor is stuck with the statute in effect at the time of the offense. The concept of repressed memory is of no help. Under Pennsylvania law, the limitations period begins from the time of the original act, not from the time a victim recovers a repressed memory. Because all the alleged abuse uncovered by the grand jury happened years ago, all the priests identified in the report escaped prosecution.
Frustrated as they were by their inability to indict abusive priests, the D.A. and the grand jury seemed even more exasperated by their inability to indict archdiocesan officials for what it perceived as a policy of cover-up. The statute of limitations probably had expired in these cases as well, but the more serious problem was that the grand jury could not establish that the “enablers” or “facilitators,” as the report described them, actually committed any crimes.
The grand jury considered three possible crimes: conspiracy, endangering the welfare of children, and obstruction of justice. The crime of conspiracy requires proof of specific intent that the underlying offense occur. For example, to indict an archdiocesan official for conspiracy to rape, the grand jury would need evidence that the official shared the goal that a rape occur, even if he did not participate in the act itself. The jury had no such evidence. In Pennsylvania, criminal liability for endangering the welfare of a child applies only to those directly responsible for supervising the welfare of a child. While archbishops and chancery officials may have been responsible for overseeing priests who supervised children, they were too distant from the children to be prosecuted as supervisors themselves. Similarly, the grand jury could not find any obstruction of justice, largely because the crime is narrowly defined under Pennsylvania law.
Particularly galling to the D.A. and the grand jury was a quirky legal impediment to prosecuting the archdiocese for what they regarded as a “policy of protecting abusive priests over children.” Pennsylvania law allows criminal prosecution of incorporated entities like business corporations, but not unincorporated associations like the Philadelphia Archdiocese. The report stated that the archdiocese would have been subject to prosecution had it been a corporation “because it clearly tolerated sexual assaults and consciously disregarded a substantial, unjustifiable, and unreasonable risk that additional abuse would occur.” But the report may be making too much of that possibility. Establishing criminal “enterprise” liability requires showing a level of intentional wrongdoing that would have been quite difficult to prove.
The question of what to do about the statute of limitations is a difficult one. The grand jury recommended that the state legislature eliminate the statute of limitations for prosecuting sexual abuse of children. The U.S. Supreme Court has held, however, that eliminating the criminal limitations period could function only prospectively, not retroactively, so it would be useless in prosecuting past abuse. The grand jury also recommended making unincorporated associations subject to criminal prosecution, but that would also have only prospective effect, and still leave prosecutors with the challenge of establishing enterprise liability. The report’s additional recommendation that supervisors of supervisors be liable for endangering children would raise troubling interpretive questions that could inhibit the expansion of liability. Changes in the criminal law, therefore, are not likely to produce different results for grand jury investigations of past clerical abuse in Pennsylvania or anywhere else.
Does the grand jury’s failure to indict mean that its forty-month investigation won’t have legal consequences? Possibly not. Its vast compilation of information will be valuable to survivors’ lawyers who are eager to bring civil suits against the archdiocese—principally for negligence. The report functions as a road map that would make such cases easier to prove. Private plaintiffs, however, will still run up against the civil statute of limitations. The relevant civil limitations periods are two to five years from the offense, barring most suits against the archdiocese. Plaintiffs in Pennsylvania and elsewhere have tried to convince courts, but with little success, that the statute should be suspended because a diocese had fraudulently concealed wrongdoing until after the limitations period had expired. Survivors’ lawyers can exploit the grand jury report only if the Pennsylvania legislature decides to suspend the statute of limitations altogether for a year, as the California legislature did in 2003.
The consequences of taking that step should be weighed carefully, however. The California suspension produced over seven hundred lawsuits and massive settlements that may total more than $1.5 billion. The Philadelphia Archdiocese’s settlements would be smaller, but proportionately severe. No one disputes the justice of compensating survivors, but it must be asked whether liability on that scale, which would devastate the archdiocese’s charitable, educational, and pastoral efforts, is justifiable. If that kind of liability occurs in Philadelphia, the grand jury’s failure to indict will seem of little importance after all.
Related: Another Long Lent: The Abuse Crisis Resurfaces in Philadelphia, by Nicholas P. Cafardi
