Searching for Adequate Accountability: Supervisory Priests and the Church's Child Sex Abuse Crisis

By Wasserman, Benjamin D. | Duke Law Journal, February 2017 | Go to article overview

Searching for Adequate Accountability: Supervisory Priests and the Church's Child Sex Abuse Crisis


Wasserman, Benjamin D., Duke Law Journal


ABSTRACT

In 2002, the Boston Globe published a report exposing child sex abuse by priests and a cover-up by supervisory priests. Supervisory priests--church officials who supervise lower-ranking priests--concealed reports of sexual abuse by lower-ranking priests and created substantial risks of sexual abuse to children. Prosecutors tried to hold supervisory priests accountable by turning to statutes that either did not capture the moral culpability of priests, like statutes prohibiting obstruction of justice or contributing to the delinquency of a minor; or that did not legally encompass their misconduct, like child-endangerment statutes. Child endangerment captures the moral culpability of supervisory priests' misconduct, but child-endangerment statutes based on the Model Penal Code (MPC) do not legally cover supervisory priests or their acts. Though supervisory priests chose to suppress reports of child sex abuse, prosecutors cannot constitutionally shoehorn misconduct into statutes--like child endangerment--that were never before interpreted to apply to individuals like supervisory priests. Instead of breaching the supervisory priests ' constitutionally guaranteed notice that their conduct constituted child endangerment, prosecutors should encourage state legislatures to: 1) extend statutes of limitations for crimes against minors and include clergy as mandatory reporters; 2) amend child-endangerment statutes to include supervisory priests and those similarly situated; and 3) criminalize the reckless creation of a substantial risk of child sex abuse, and the reckless failure to alleviate that risk when there is a duty to do so. Absent legislative action, prosecutors should use statutes that represent a lesser degree of moral culpability, such as contributing to the delinquency of a minor or mandatory-reporter statutes. Enacting statutes that both legally encompass and adequately reflect the blameworthiness of supervisory priests will hopefully deter similar misconduct and protect children from sex abuse in institutional settings.

INTRODUCTION

On September 27, 2015, in Philadelphia, Pennsylvania, Pope Francis told victims of child sexual abuse by Catholic priests that all responsible will be "held accountable." (1) But to whom and to what type of accountability was the pope referring? Even though the Catholic Church's (Church) child sex abuse scandal was exposed by the Boston Globe in 2002, (2) pervasive child sexual abuse by priests continues, with over 2000 new credible, substantiated (3) allegations since 2010. (4) Achieving accountability measures for the priests' victims through the U.S. criminal-justice system has proved easier said than done. Problems holding individuals accountable have been especially prevalent with the prosecution of high-ranking supervisory priests, such as bishops, archbishops, and parish leaders. (5) Supervisory priests are typically bishops or other "diocesan leaders [who are] responsible for the care of [other] priests whose ability to carry out their responsibilities in ministry is impaired by physical or psychological illness," such as sexual behavior with a minor. (6) Supervisory priests often "received ... report[s] of sexual abuse of a minor by a priest of the diocese [and chose] how to respond to the victim and family and how to make choices about a course of action for the priest involved." (7) After receiving reports of abuse by lower-ranking priests--typically pastors, associate pastors, or resident priests (8)--supervisory priests sometimes "transferred known abusers to other parishes ... where their reputations were not known ... in direct conflict with [clinicians'] advice," "misled [parishioners about] the reason for the abuser's transfer," "tried to keep their files devoid of incriminating evidence," "rarely provided information to local civil authorities and sometimes made concerted efforts to prevent reports ... from reaching law enforcement." (9) By doing so, supervisory priests provided abusive priests with "a continuing supply of victims. …

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