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Spotlight Report

  Eileen McNamara  

Prosecutors not to blame

7/23/2003

Bishops are not above the law; in Boston, they are just beyond its reach.

The protesters outside Attorney General Tom Reilly's offices yesterday were right to charge that deference saved Cardinal Bernard F. Law from criminal indictment; they were wrong to accuse prosecutors of doing the genuflecting.

The rest of us did that, long before Reilly impaneled his grand jury.

Investigators examining the scandal in the Boston Archdiocese had 16 months to find a legal basis to hold Law criminally accountable for protecting sexual predators. The church had fully decades to ensure that none existed.

It was not prosecutors, but legislators, who exempted the clergy from the mandatory reporting laws that govern cases of child abuse in Massachusetts. It was not grand jurors, but lawyers and judges, who signed off on confidential settlement deals that protected the identities of rapists in Roman collars. It was the news media, not the attorney general, which conferred the status of sacred cow on the now-disgraced former archbishop through years of fawning coverage.

The exasperation of victims echoed in the complaint of Paul Baier, president of the advocacy group Survivors First. ''We are not asking -- we demand -- that Attorney General Reilly find ways to indict,'' he said, as if bending the law to suit our current outrage could somehow compensate for failing to anticipate the fruits of our past deference.

It seems so obvious to those who have been harmed and to those who suffer for them. How could Law and those deputies who repeatedly transferred predatory priests to unsuspecting parishes not be guilty of violating some criminal statute? Obstruction of justice? Accessory to a crime? Criminal neglect?

But the law is not so simple. To have found Law or Bishop John McCormack, now of Manchester, N.H., or Bishop Robert J. Banks, now of Green Bay, Wis., criminally liable, the grand jury would have had to see evidence of their intent to cause harm to the children who were later victimized. A tough proposition to prove in a Commonwealth that, until last year, exempted priests from mandatory reporting laws and that, until last year, had no child endangerment statute.

At least a dozen grand juries have been convened across the country in the last 18 months to investigate the Catholic Church's handling of sexual abuse claims. Prosecutors in other jurisdictions have even considered whether members of the church hierarchy could be charged under antiracketeering statutes. But no state, even those with tougher child protection laws, has indicted a bishop.

The closest any state has come to holding the hierarchy accountable was in New Hampshire and Arizona. Both McCormack and the Rev. Thomas J. O'Brien, the bishop of Phoenix until he was arrested in a hit-and-run death last month, signed agreements acknowledging thre was sufficient evidence to prosecute them for their roles in shielding abusive priests. In exchange for immunity, those bishops agreed to submit to civil oversight of their child-protection policies.

Reilly does not have the threat of prosecution to hold over the head of Archbishop-designate Sean Patrick O'Malley, but he should not need it. His report will be a moral indictment of Law and all of his minions who did so little to protect the children.

O'Malley is about to be installed at the head of an archdiocese that has been as battered by his predecessor's clumsy and insensitive handling of this scandal as by the scandal itself. But the past need not be prologue. Where Law stalled and obstructed settlement talks with the 500 victims of Boston priests, O'Malley could demand an end to the legal foot-dragging. He could insist the cases be resolved, with or without the cooperation of all his insurers. Not to do so, after all the pain and all the deference of the past, that would be criminal.

Eileen McNamara is a Globe columnist. She can be reached at mcnamara@globe.com.

This story ran on page B1 of the Boston Globe on 7/23/2003.
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