In church lawsuits, high bar for conviction

Should the leaders of America's Roman Catholic church be held criminally liable for enabling or abetting the sex abuse by priests that occurred in their parishes and dioceses?

That's the central question behind a growing effort to probe criminal misconduct among top church officals. The moves come amid mounting public pressure for accountability - of the sort imposed on Enron and Arthur Andersen this year, when top leaders or entire organizations were punished for their connections to some employees' misdeeds.

For many legal and cultural reasons, simply indicting top church leaders - let alone convicting them - is difficult. It's complicated by everything from statutes of limitations to ethnic politics.

Still, the legal threats are escalating.

• In Boston, Cardinal Ber-nard Law has reportedly been subpoenaed to appear before a grand jury investigating possible criminal misconduct by officials.

• Under threat of indictment on child-engangerment charges, New Hampshire's diocese this week became the first in the nation to admit it may have violated criminal law. It agreed to a settlement with state prosecutors.

• In Phoenix, lawyers for Archbishop Thomas O'Brien have said their client will not testify before a grand jury unless he's given immunity from criminal prosecution - a sign of concern he might be charged with obstructing justice.

In Massachusetts and elsewhere, prosecutors "are under a great deal of pressure" to respond to the scandal, says Richard Bloom, a Boston College law professor. And because they're elected officials, "they are always responsive" to such pressure. Yet while there's growing evidence church leaders were involved in the scandal, he says, prosecutors have a long way to go to prove criminal intent.

Indeed, despite many civil lawsuits - and criminal charges against individual priests - no US Catholic leader has been charged with committing a crime related to the scandal.

One reason: The legal bar is very high.

Laws differ in the 50 states, but legal experts say the most logical charges might include: aiding and abetting a crime, conspiracy to commit a crime, reckless endangerment, child endangerment, or obstruction of justice.

Yet in most states, convicting a church official of conspiracy or aiding-and-abetting would require prosecutors to prove that "he had, as his purpose, that the crime would be repeated - that a child would be harmed," says Robert Blakey, a former prosecutor who is now a law professor at Notre Dame in Indiana.

As terrible as church leaders' actions may be, he says, "Indifference is not enough" to convict them. Nor is "indifference plus knowledge" enough. "Intent to harm" must be proven.

But others see legal openings - and think prosecutors are being too cautious.

If, for instance, a church official transferred a pedophile priest to a new parish and "realized that he was assisting in the criminal activity" of a priest preying on children, then "by common sense, under good-old-fashioned aiding-and-abetting," he could be convicted, says Victor Vieth, a former prosecutor in Minnesota who heads the National Center for the Prosecution of Child Abuse in Alexandria, Va.

Often, statutes of limitations curtail the ability to bring charges - although in many states, such laws are being loosened. In California, for instance, 400 new civil lawsuits are expected under a new, looser time-limit law. This could lead to more disclosures, more pressure on prosecutors, and more indictments.

But in Massachusetts, home to the biggest scandal, laws are tighter. There's no child-endangerment statute, for instance, which would be among the easiest laws under which to prosecute church officials.

Still, pressure for accountability is growing in Boston. This week, Voice of the Faithful, a lay-Catholic group, voted to call for Cardinal Law's resignation. And in Rome, Law was reportedly set to meet with Pope John Paul II to discuss the scandal.

Meanwhile, newly released archdiocese files suggest more complications for Law.

In 1996, he signed a document attesting he was "unaware of anything" in the background of a priest named Redmond Raux "that would render him unsuitable to work with minor children." This, despite the fact that the Reverend Raux had been accused, along with another priest, of molesting a teenager - and the archdiocese had paid the victim $200,000 in a settlement deal.

In Arizona and several other states, prosecutors have convened grand juries specifically to investigate officials' alleged wrongdoing. They may look to New Hampshire's deal this week as a template for forcing a diocese to open its files and work to protect children - without having to file charges.

With prosecutors, there are political and cultural issues, too. "It used to be that an Irish prosecutor would take a pass in cases like this because he was scared to death there'd be a sermon against him ... the next week," says Professor Blakey. That attitude has shifted, but some figure it lingers, especially in Boston.

So public pressure is key to making prosecutors hold church officials accountable, says Larry Drivon, a California attorney who regularly sues the church. "The rate of activity of any human endeavor," he says, "is directly related to how long their feet are held to the fire."