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REPORT OF THE GRAND JURY INTO SEXUAL ABUSE OF MINORS BY CLERGY IN THE PHILADELPHIA ARCHDIOCESE |
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After making this show of concern in order to fend off legal action, Cardinal Bevilacqua allowed Msgr. Walls to remain unmonitored in a parish residence in Bryn Mawr -- with no formal assignment, few obligations, and limitless unsupervised time in which to procure new victims. For 14 years after learning of the priest's admitted sexual offenses against minors, Cardinal Bevilacqua permitted him to live in the parish rectory, to celebrate Mass with altar boys, to hear confessions, and to counsel parishioners and others through Catholic Human Services. 8. Archdiocese officials used investigation and intimidation to fend off lawsuits and silence victims and witnesses. The treatment of victims who reported abuse to the Archdiocese offered yet more evidence of the Cardinals' preoccupations and priorities. Secretary for Clergy Lynn, often taking direction from the Archdiocese's attorneys, treated victims as potential plaintiffs. Not only did they not receive apologies acknowledging their abuse, but many were bullied, intimidated, lied to, even investigated themselves. The victim of Fr. Gana's, who was barred from Saint Charles Borromeo Seminary and forced to seek ordination outside the diocese after accusing his abuser, is one example of a victim subjected to investigation and intimidation. Proving that their "investigations" of accused priests were purposefully incompetent, Archdiocese leaders conducted an extremely thorough probe of Fr. Gana's victim. They aggressively scrutinized second - and third-hand reports (the kind Cardinal Bcvilacqua found unworthy of further investigation when leveled against priests accused of serious sexual abuse of children) of homosexual contact (possibly hugging and kissing) between the victim and a fellow seminarian. Monsignors Lynn and Molloy spent several weeks interviewing students, teachers, and administrators at the seminary. Despite this investigation, they could not substantiate the rumors. They succeeded, however, in humiliating and silencing the victim. Cardinal Bevilacqua, who had complete power over the seminarian's future in the priesthood, punished the victim by refusing to allow him to become a priest in the Archdiocese. In another case, an investigator hired by the Archdiocese's law firm accused a victim of Fr. Funnanski's of being motivated by money. He suggested to the victim's wife that if her husband persisted with his allegation, the wife's employer would find out about a criminal conviction in the victim's past. The investigator told her it could affect her employment. Monsignor Lynn's questioning of victims often seemed more like cross- examination than a compassionate, or even dispassionate, interview. With coaching from the Archdiocese's legal counsel (recorded in a memo of a conversation between Msgr. Lynn and the attorney), the Secretary for Clergy questioned and re-questioned one of Fr. Schmeer's victims in accordance with the lawyer's instructions to "get details -- even unimportant." (The investigator hired by the Archdiocese's law firm also investigated this victim, collecting records of taxes, relatives, and two divorces.) Monsignor Lynn asked a victim of Fr. Gausch's whether it was possible he had "misinterpreted" the priest's actions of putting his hands on the then-12-year-old boy's penis. The Secretary for Clergy asked this, knowing that Fr. Gausch had a thick Secret Archives file of prior allegations of abuse dating back to 1948, which included letters he had written about boys whom he was sexually abusing or desired. When Msgr. Lynn met with Fr. Gausch in 1994, he assured the priest that "the Archdiocese supported him and that he would investigate a little more the background of [the victim]." Probing victims and their families was a common practice. Records show Msgr. Lynn, as late as the summer of 2004, suggesting that some of Fr. Schmeer's victims be investigated. The Secretary for Clergy also suggested possible defenses -- even to admitted child molesters -- that might embarrass or discourage a victim from pressing an allegation. Interviewing Fr. Thomas Shea, who had previously confessed to sexually abusing at least two boys, Msgr. Lynn suggested that perhaps the priest "was seduced into it" by his 5th- or 6th-grade altar boy victim. Victims were not the only ones bullied by Archdiocese leaders intent on suppressing the truth. Witnesses were, too. A nun in Saint Gabriel, Sister Joan Scary, expressed concerns about the safety of children in her parish who were exposed to a priest convicted of possessing child pornography. After she tried to pressure the Archdiocese officials to act and began talking to parents, she was fired as director of religious education. 9. The Cardinals shielded themselves from direct contact with victims. We are aware of no case in which Cardinal Krol met with an abuse victim or his or her family. Cardinal Bevilacqua also shielded himself from contact with victims. He was the head of the Philadelphia Archdiocese 14 years before he would meet with a victim, and even then it was a non-Archdiocesan victim (who could not, therefore, sue him), whom he met during a meeting of the United States Conference of Catholic Bishops in 2002. One of Fr. Gana's victims asked to meet with Cardinal Bevilacqua in 1995. He requested the meeting because he found it inconceivable that the man who anally and orally sodomized him when he was 14 years old would still be a priest if the Cardinal had been informed. Monsignor Lynn's suggestion that such a meeting might be possible was flatly rejected by the Cardinal, who had another aide inform the Secretary for Clergy that it "would be setting a precedent, i.e. for the Cardinal to meet with such individuals. His Eminence [the Cardinal] cautioned about such a recommendation and noted that there must be other means of letting [ the victim] know that his Eminence was informed, other than for his Eminence to meet with him personally." 10. Even in 2002, Cardinal Bevilacqua continued to mislead the public and give false assurances. Cardinal Bevilacqua continued to try to hide all he knew about sexual abuse committed by his priests even in 2002, after the scandal in Boston drew attention to the problem nationally. He had his spokeswoman tell the Philadelphia media in February 2002 that there have been only 35 priests in the Archdiocese credibly accused of abuse over the last 50 years -when in fact the Archdiocese knew there were many more. (We were able to substantiate allegations against at least 63 abusers, and reviewed many more reports that on their face seemed credible, but could not be fully verified after so many years). The Cardinal misled the public when he announced in April 2002 that no Philadelphia priest with accusations against him was still active in ministry -when in fact several still were. He certainly was not credible when he claimed before this Grand Jury that protecting children was his highest priority -when in fact his only priority was to cover up sexual abuse against children. Before the Grand Jury, Cardinal Bevilacqua continued to mislead about his knowledge of and participation in the cover-up. In his testimony before the Grand Jury , Cardinal Bevilacqua was still attempting to evade responsibility for placing known sexual offenders in parishes where they had easy access to hundreds of children brought up to honor, trust, and obey priests. He often suggested that he might not have known all the facts and that he delegated the handling of these matters to his Secretary for Clergy. He repeatedly claimed to have no memory of incidents and priests that we will never forget. He repeatedly was not forthright with the Grand Jury. For example, in the cases of Fr. Connor and Msgr. Walls, documents clearly established that Cardinal Bevilacqua knew that the priests had admitted abusing minors. They also established that he alone was responsible for subsequently placing or leaving the priests in parishes where they would present a severe danger to children. In both cases, when there was no plausible deniability, Cardinal Bevilacqua took the unsatisfying position that he did not know that the victims of the priests were minors. He declined to reconsider this claim even when confronted with a memo he had written about his concern that the parents of Msgr . Walls' victims might sue the Archdiocese -thus obviously indicating knowledge that the victims themselves were not adults. C. The Archdiocese's strategies for handling abuse cases multiplied the number of victims and increased the harm done to them. In concealing the crimes of sexually abusive priests while keeping them in ministry , the Cardinal and his aides did not merely fail to protect children from terrible danger. They greatly increased the danger and the harm to Archdiocese children. When Cardinals Krol and Bevilacqua promoted and celebrated known abusers -- rapists and molesters of children -- and left them in positions as pastors, parish priests, and teachers, they in effect vouched for their holiness and trustworthiness and encouraged parents to entrust their children to them. When Church leaders hid allegations against priest child molesters and deliberately placed them in parishes where unsuspecting families were kept in the dark, they minimized parents' ability to protect their children. When they transferred the priests to new parishes to avoid scandal, they greatly increased the numbers of potential victims. When they withheld from parents knowledge of their child's abuse, they sentenced that child to years of lonely suffering. By not reporting the crimes to law enforcement, they frustrated safeguards designed to protect children in society at large. What makes these actions all the worse, the Grand Jurors believe, is that the abuses that Cardinal Bevilacqua and his aides allowed children to suffer -the molestations, the rapes, the lifelong shame and despair -did not result from failures or lapses, except of the moral variety. They were made possible by purposeful decisions, carefully implemented policies, and calculated indifference. D. Dioceses throughout the United States employed the same strategies to conceal their priests' crimes and keep abusers in ministry. As further evidence that Church leaders' practices reflected deliberate policies, the Grand Jury learned that the methods used to keep known child molesters in parishes, schools, and other assignments were not unique to the Archdiocese of Philadelphia. We reviewed newspaper articles from dioceses around the country describing procedures so identical to those employed in Philadelphia that the similarities could not be coincidental. The actions that endangered and harmed innumerable children in the Philadelphia Archdiocese were not solely the result of morally bankrupt local Church officials. They were part of a national phenomenon. Church leaders in many different dioceses somehow reached the same conclusion -- that it was in their interest to leaving priests in positions where they could continue to sexually assault the Church' s young rather than take steps necessary to stop the abuses. News articles from across the nation reproduced in Appendix F describe the same non- investigations of abuse reports coupled with claims that the allegations were not substantiated, the same refusal to report to police even admitted rapes and other molestations, the same misuse of Church-related treatment facilities to launder sexual offenders and place them back in parishes, the same practice of transferring abusive priests to new parishes where parents would be unaware of the danger, the same policy of not informing families about known child molesters in their parishes, the same false claims that the ministries of admitted abusers were "restricted," and the same lack of effort to enforce those supposed restrictions. We read about Church leaders who transferred accused child molesters out of state, or even allowed them to leave the country , after victims reported their crimes to police and arrests were imminent. We read about retaliation by the Church hierarchy against employees who reported priests' sexual crimes. We learned that it was common for dioceses to ignore treatment facilities' warnings and recommendations, even as bishops used psychological evaluations to justify returning abusers to parishes. We learned of other bishops who falsely assured their dioceses that priests were not ministering -- when in fact they were. A 2002 survey by The Dallas Morning News found that 111 American bishops, including all eight cardinals who led U .S. dioceses, had kept "priests on the job after admissions of wrongdoing, diagnoses of sexual disorders, legal settlements, even criminal convictions." It surely was not a coincidence either that, in the first four months of 2002, when these common strategies were first exposed in Boston, more than 170 priests -- implicated in sexual abuse and knowingly retained in active ministries -- were finally removed from their assignments around the country. Among the news reports included in Appendix F:
The news articles sampled in Appendix F show that Church leaders have employed well- orchestrated strategies for decades and in all parts of the country to keep sexual offenders in ministry while minimizing the risk of scandal or legal liability. The laws of our states apparently have fostered a climate in which the Church has found it more advantageous to allow the perpetuation of priests' crimes than to end them. Only because some states have now permitted lawsuits to proceed in cases where crimes had been successfully concealed for years has the Church begun removing sexual abusers it had known about for years. Legal Analysis and Recommendations A. Legal Analysis 1. Prosecution of Individual Priests But for the windfall provided by Pennsylvania's statutes of limitation for serious sexual offenses, the priests who sexually and psychologically abused Archdiocesan children could be prosecuted for the following serious crimes: rape, statutory sexual assault, involuntary deviate sexual intercourse, indecent assault, endangering welfare of children, corruption of minors. Unfortunately, the law currently stands in the way of justice for the victims of childhood sexual abuse. Although we have a wealth of evidence against many of the abusers -- including their own admissions (and, in many cases, the Archdiocesan Review Board's own determination that the charges against the priest are "credible") -- we cannot indict any priest who abused a child for any of the crimes of which we are currently aware, because the relevant statutes of limitation have expired for every single act of abuse known to us. [1] Offending priests are, therefore, immune from prosecution for all the crimes detailed in this report -- all the anal, oral and vaginal rapes, all the fondlings, all the caressings, and all the unwanted and inappropriate touchings and undressings they perpetrated upon Archdiocesan children. Nothing changes this result -not the severity of the sexual assault, the degree of force or psychological coercion, or the age of the victim at the time of the abuse. Under present Pennsylvania law, the single, dispositive fact is the date of the final act of abuse, and we do not know of any act of priest child sexual abuse recent enough to permit prosecution in the Commonwealth under the current statutes of limitation. Pennsylvania's statutes of limitation for sexual crimes have been revised numerous times since 1982. The most recent amendment, as of 2002, requires child sexual abuse cases to be initiated by the date of the child victim's 30th birthday. The experts have told us that this statute is still too short. We ourselves have seen that many victims do not come forward until deep into their thirties, forties and even later " Moreover, even the 2002 amendment cannot be applied to the cases we have seen, because changes that lengthen a limitations period cannot be used to revive criminal prosecutions that were already barred under the original deadline -- as the United States Supreme Court has recently made clear. See Stogner v. California, 539 U.S. 607 (2003). Thus, in order to determine whether prosecutable cases existed, it was necessary to begin by examining the law as it stood when particular incidents of abuse were occurring. This turned out to be a complicated process. Our review showed that, until July 11, 1982, the statute of limitations barred any prosecution not commenced within two years of the date of the crime for all sexual crimes other than involuntary deviate sexual intercourse, which had a five-year statute of limitations. Beginning on July 12, 1982, rape and incest became five-year statute of limitations crimes. Then, from September 8, 1985, through February 17, 1991, an amendment to the statute provided the statute was tolled (did not run) prior to the child's eighteenth birthday for crimes involving injury to the child caused by a "person responsible for the child's welfare." From February 18, 1991, through May 29, 1995, the statute of limitations barred any prosecution not commenced within five years of the child victim's eighteenth birthday for involuntary deviate sexual intercourse, incest, and rape, and within two years for statutory rape, aggravated indecent assault, indecent assault, indecent exposure, endangering welfare of children, corruption of minors, and sexual abuse of children. From May 30, 1995, through August 26, 2002, the statute of limitations became five years for the crimes of statutory rape, sexual assault, and aggravated indecent assault. From August 27, 2002, through the present, the statute of limitations bars any prosecution not commenced within twelve years after the child victim's eighteenth birthday for involuntary deviate sexual intercourse, rape, statutory sexual assault, sexual assault, aggravated indecent assault, incest, and sexual abuse of children. For all other sexual crimes, the limitations period is two years after the child victim's eighteenth birthday. As mentioned, none of these numerous extensions of the statute of limitations can be applied retroactively to crimes that were already immunized from prosecution; we are stuck with the statutes of limitations that were in effect at the time of the abuse. As a result: 1) No priest can be prosecuted for sexually abusing a child prior to July 12, 1982. Assuming a July 11, 1982 act of involuntary deviate sexual intercourse (the offense with the longest statute of limitation at the time ), prosecution would have had to commence by July 10, 1987. Because no reports had been made to law enforcement by that date, the statute of limitation operates as an absolute bar to prosecution for any such offense. 2) No priest can be prosecuted for sexually abusing a child prior to September 7, 1985. As reflected elsewhere in this Report, we have heard evidence of numerous instances of abuse before that date. Assuming a September 6, 1985 crime with a five- year statute of limitations, prosecution would have had to be commenced by September 5, 1990. Because the abuse was still successfully hidden at that point, the statute of limitation operates as an absolute bar to prosecution. 3) No priest can currently be prosecuted for sexually abusing a child prior to February 17, 1991, based on the evidence now before us, although such a prosecution is not impossible. The amended version of the statute of limitations that became effective on September 8, 1985 tolls (stops the running of) the statute at all times prior to the child victim's eighteenth birthday where the abuse involves injury to the child and is inflicted by "a person responsible for the child's welfare." Therefore, if, for example, a seven-year-old had been the victim of rape by a priest before February 17, 1991, the statute of limitations would not bar that prosecution, provided that the court found that the priest was a "person responsible for the child's welfare" under the statute and that the crime "involved injury to the person of the child." The seven-year-old would not have turned 18 until 2002 and so the five-year statute of limitations would allow the commencement of prosecution until 2007. By contrast, if a priest had subjected a thirteen-year-old victim to the same crime in 1991, prosecution would be barred by the statute of limitations. Even assuming the priest were found to be responsible for child's welfare and the crime were found to have caused injury to the person of the child, the statute of limitations would have begun to run in 1996 when the child turned 18 and the five-year statute would have run fully in 2001. 4) Similarly, no priest can currently be prosecuted for sexually abusing a child prior to May 29, 1995, based on the evidence now before us, although such a prosecution is not impossible. The amended version of the statute of limitations that became effective on February 18, 1991 tolls the statute at all times prior to the child victim's eighteenth birthday regardless of the abuser. It is quite likely, in our view, that children were sexually abused during tJ1at time period. The tolling provision in effect at that point would have prevented the statute of limitations from running at any time prior to the child victim' s eighteenth birthday, and could therefore permit a timely prosecution. For example, if someone who is twenty-three years old today was abused in May 1995, the perpetrator could be prosecuted. However, we currently know of no victim who fits those criteria. Ironically, the more recent the abuse, the less likely it is that the child victim would be ready to report the crime. 5) The same rules apply to the prosecution of priests who sexually abused children prior to August 26, 2002. 6) Finally, prosecution of a priest who abused a child after August 27, 2002 could also go forward. But we have no evidence from any such recent victim at this time. Undoubtedly, this analysis must seem capricious and hypertechnical to the average citizen; that is exactly how it seemed to us. And that is why we have concluded that the prosecution of clergy sexual abuse is being stymied by arbitrary and mechanical procedural rules, not by any overriding principle of justice or fairness. Recent efforts by our legislature to extend the statute of limitations are commendable. But in the end, as we formally recommend later in this section, there should be no statute of limitations for childhood sexual abuse. The law must be changed. 2. Prosecution of Archdiocesan Officials Existing law in Pennsylvania is equally inadequate to permit us to charge the leaders of the Archdiocese. We have already reviewed the extensive evidence that Archdiocese officials behaved disgracefully in response to the crisis of priest sexual abuse of children. Cardinal Bevilacqua, Cardinal Krol, and their top aides all abdicated their duty to protect children. They concealed priests' sexual abuses instead of exposing them. We considered three categories of possible crimes arising from these actions. Unfortunately, none provide prosecutable offenses against the Archdiocese officials. Conspiracy/Accomplice Liability for Sexual Abuse of Children There is no doubt that the Cardinals and their top aides knew that Philadelphia priests were sexually abusing children. There is no doubt that these officials engaged in a continuous, concerted campaign of cover-up over the priests' sexual offenses. To establish conspiracy or accomplice liability for those crimes, however, the law requires more than knowledge or concealment. A conspirator or accomplice must have the specific intent required for the underlying offense. That is, a conspirator or accomplice to a crime like rape, for example, must share the goal that a rape occur, even if he does not participate in the physical act. While the actions of the Archdiocese leaders clearly facilitated rapes and other sexual offenses, and ensured that more would occur, the evidence before us did not demonstrate that the leaders acted with the specific goal of causing additional sexual violations. Instead their goal was to protect against "scandal" at ally cost, without the slightest concern for the consequences to children. Let us caution: we do not mean to imply here that the motives of the Archdiocese officials were less blameworthy than those of abusive priests. Indeed, judged on a moral scale, the opposite conclusion might be reached; and we trust that someday there will be such judgment. Under Pennsylvania law, however, the actions of the Cardinals and their aides do not expose them to conspiracy or accomplice liability for the sexual assaults committed by individual priests. Direct Liability for Endangering Welfare of Children Even if the Archdiocese leaders did not display a specific intent to cause sexual assaults, they clearly knew that their actions were endangering children. That conduct in itself potentially gave rise to criminal liability for a number of offenses. Ultimately, however, we concluded that weaknesses in the law -- especially the statute of limitations -preclude prosecution on this basis. In the common sense of the term, the actions of the church hierarchy clearly constituted endangerment of the welfare of children. The Archdiocese officials permitted abusive priests to maintain their special access to young victims, and even arranged new venues for the abusers when the heat became too much in their old parishes. As defined under the law, however, the offense of endangering welfare of children is too narrow to support a successful prosecution of the decision-makers who were running the Archdiocese. The statute confines its coverage to parents, guardians, or other persons "supervising the welfare of a child." High-level Archdiocese officials, however, were far removed from any direct contact with children. Perhaps that remove made it easier for the officials to remain so apathetic about the sexual assaults that resulted from their actions. But it should not insulate them from criminal liability. We make appropriate recommendations to close this legal ambiguity in Part B. of this section. We also looked at related charges. Recklessly endangering another person makes it a crime to engage in reckless conduct that places the victim in danger of death or "serious bodily injury." Plainly, the Archdiocese officials recklessly placed children in danger of sexual abuse. As defined by statute, however, the "serious bodily injury" required for this offense is legally distinct from sexual abuse. The crime of corruption of minors punishes those who by any act corrupt or tend to corrupt the morals of a minor. This offense, however, presents the same attenuation problem arising with endangering welfare of children. The Cardinals and high aides in their quiet corridors of power were quite distant from the boys and girls affected by the cover-up. The offense of corruption of minors does not readily reach such indirect conduct, however foreseeable its impact. In any case, there is a more immediate impediment to charges based on crimes in this category: the statute of limitations. The available statute for these offenses is even shorter than that for the sex crimes addressed earlier. Because of the success of the cover-up, and because of the reluctance of more recent victims to come forward yet, the conduct we know about is too old to support a prosecution for endangering/corrupting offenses. Crimes Against the Administration of Justice The handling of priest sexual abuse by Archdiocese officials was designed to do more than hide the abuse from parishioners: the hope was to hide it from police as well. The sexual assaults clearly constituted crimes; at least one priest employed by the diocese had been prosecuted; and surely the Church did not want law enforcement officers carting dozens more away. Accordingly, we considered the class of offenses involving obstruction of justice. Unfortunately, we again found that legal definitions and statute of limitations problems would prevent prosecution. The crime of obstructing administration of law requires that the obstruction constitute force, violence, physical interference, breach of official duty, or other unlawful act. Here we did not have evidence of actual force or violence or similar unlawful acts, and the "breach of official duty" provision applies only to public officials, not private parties such as the church leaders. We also considered the crime of hindering apprehension or prosecution. This offense, however, primarily applies to harboring or concealing a fugitive for whom the police are looking. Because sexual assaults by priests almost never came to the attention of law enforcement, there was no occasion for such hindering. The story is similar for the crime of tampering with or fabricating physical evidence. Tampering requires the belief that an official proceeding or investigation is pending or about to be instituted. Archdiocese officials knew, however, that reports of priest sexual abuse had been contained, and that there were no official proceedings to tamper with. Another related offense is intimidation of witnesses or victims. Certainly Archdiocese leaders did not want witnesses or victims to complain to law enforcement authorities. Generally, however, church officials were able to employ more indirect means of achieving this goal. Even without actual intimidation, abusive priests were almost never reported to police -- because they were spirited away when suspicions arose, because they enjoyed a special status as emissaries of God, and because their victims in any case were young and scared. Thus Archdiocese officials typically did not have to commit obstruction offenses in order to effect a cover-up -- but even if they had, they would have been protected, as with other possible crimes, by the passage of time. The statute of limitations for these offenses during the 1990's and before was only two years. By the time the true scope of the scandal came to light, the church leaders were already immune. There is one final offense in this category that calls for special comment -- the failure to make a mandatory child abuse report under the Child Protective Services Law. The law requires reporting from anyone who, in the course of employment, comes into contact with children who have been abused. Archdiocese officials took the position that they were not bound by this requirement, even when they heard about abuse, because they themselves were not "in contact" with the children. The law should not allow such a troubling evasion of the reporting requirement. Nor is the current statute of limitations adequate for this important provision. We propose fixes below. 3. Prosecution of the Archdiocese -- an "Unincorporated Association" Even though individual officials escape prosecution, we also considered whether the Archdiocese itself could be prosecuted. After all, the policy of protecting abusive priests over abused children transcended the tenure of any particular official. While a committed leader could certainly have changed that culture, we felt that the Archdiocese as a whole should be held responsible for the decades of sexual abuse. Unfortunately, that too proved impossible under the law. The Philadelphia Archdiocese has organized itself as a legal entity in a way that leaves Pennsylvania law incapable of holding the Archdiocese criminally accountable. Although the Archdiocese of Philadelphia functions in a corporate fashion, it is technically an "unincorporated association," and therefore is treated more favorably under Pennsylvania criminal law than a corporation. Corporations can be prosecuted if a crime was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high manager. Unincorporated associations, on the other hand, can be prosecuted only in very limited circumstances not applicable here -for instance, where a specific criminal offense expressly provides for the association's liability. The Archdiocese would be subject to prosecution under the corporate standard, because it clearly tolerated sexual assaults and consciously disregarded a substantial, unjustifiable and unreasonable risk that additional abuse would occur. But it avoids prosecution under the unincorporated standard, because none of the relevant offenses expressly addresses liability for mere associations. Under the vagaries of current Pennsylvania law, therefore, this final theory of prosecution is also unavailable. B. Recommendations of the Grand Jury 1. Abolish the Statute of Limitations for Sexual Offenses Against Children. We recommend that the statute of limitations be eliminated for the following crimes committed against children: 1) Rape, 18 Pa. C.S.A. § 3121; 2) Statutory Sexual Assault, 18 Pa. C.S.A. § 3122; 3) Involuntary Deviate Sexual Intercourse, 18 Pa. C.S.A. § 3123; 4) Sexual Assault, 18 Pa. C.S.A. § 3124.1; 5) Aggravated Indecent Assault, 18 Pa. C.S.A. § 3125; 6) Indecent Assault, 18 Pa. C.S.A. § 3126 (where the offense constitutes a course of conduct); 7) Sexual Exploitation of Children, 18 Pa. C.S.A. § 6320; 8) Endangering Welfare of Children, 18 Pa. C.S.A. § 4304; and 9) Corruption of Minors, 18 Pa. C.S.A. § 6301. Endangering Welfare of Children and Corruption of Minors also punish non-sexual conduct. We would eliminate the statute of limitations for these crimes only as they relate to the sexual abuse of children or exposure of children to potential sexual abuse. Powerful psychological forces often prevent child sexual abuse victims from reporting the abuse until well into adulthood, if at all. Many victims feel that their abuse is their fault; many feel that they should not get their abusers into trouble; many are ashamed of their abuse; and many simply repress for decades any memories of the abuse. The harm that sexual abusers inflict on their child victims distinguishes crimes of sexual abuse of children from other crimes for which it is fair to impose a statute of limitations. To maintain a statute of limitations for crimes involving the sexual abuse of children would be to reward abusers who choose children, the most defenseless victims. Because the harm inflicted by child sexual abuse is so deep and child victims are so vulnerable, the existence of any statute of limitations, however long, virtually ensures that some crimes will not be timely reported and too many abusers will never have to pay for their crimes. It is time to stop giving a pass to child abusers who count on the statute of limitations and the fears and immaturity of their victims to avoid criminal liability. No constitutional provision or other law would prevent Pennsylvania from eliminating the statute of limitations for sexual crimes committed against children. Pennsylvania has no statute of limitations for other serious crimes: murder, voluntary manslaughter, conspiracy to commit murder or solicitation to commit murder if a murder results from the conspiracy or solicitation, any felony perpetrated in connection with a murder of the first or second degree, and fatal vehicular accidents where the accused is the driver. There is no reason the Legislature could not determine that any or all crimes of child sexual abuse are serious enough to merit the elimination of the statute of limitations. Moreover, several other states have statutes of limitations that allow child sexual abuse prosecutions regardless of when the abuse occurred. Some states, such as South Carolina and Wyoming, do not have criminal statutes of limitations at all. Some states, such as Kentucky and West Virginia, have no statute of limitations for felony offenses. Some states have specifically enacted legislation abolishing statutes of limitations for some or all sexual crimes committed against children. Thus, Alabama has no statute of limitation for any sex offense involving a victim younger than sixteen; Maine has no statute of limitations for incest, unlawful sexual contact, sexual abuse of a minor, rape or gross sexual assault committed against children younger than sixteen; Alaska has no statute of limitations for felony sexual abuse of a minor; and Rhode Island has no statute of limitations for rape, first degree sexual assault, or first or second degree child molestation sexual assault. Even a former official of the Archdiocese has recognized the need for this proposal. Edward Cullen, who was Cardinal Bevilacqua's Vicar of Administration, and who has since himself been elevated to bishop, was asked about the issue during his grand jury testimony. "I think it would be good for society if they had no statute of limitations," acknowledged Bishop Cullen. "I really do. Yes, I do." It is distressing that a technical, procedural, and somewhat arbitrary rule, a statute of limitations, is the primary barrier precluding the prosecution of priests who sexually abused minors and those who covered up the crimes and allowed them to occur. Whatever justifications exist for statutes of limitation, those justifications are clearly of child sexual abuse are serious enough to merit the elimination of the statute of limitations. Moreover, several other states have statutes of limitations that allow child sexual abuse prosecutions regardless of when the abuse occurred. Some states, such as South Carolina and Wyoming, do not have criminal statutes of limitations at all. Some states, such as Kentucky and West Virginia, have no statute of limitations for felony offenses. Some states have specifically enacted legislation abolishing statutes of limitations for some or all sexual crimes committed against children. Thus, Alabama has no statute of limitation for any sex offense involving a victim younger than sixteen; Maine has no statute of limitations for incest, unlawful sexual contact, sexual abuse of a minor, rape or gross sexual assault committed against children younger than sixteen; Alaska has no statute of limitations for felony sexual abuse of a minor; and Rhode Island has no statute of limitations for rape, first degree sexual assault, or first or second degree child molestation sexual assault. Even a former official of the Archdiocese has recognized the need for this proposal. Edward Cullen, who was Cardinal Bevilacqua's Vicar of Administration, and who has since himself been elevated to bishop, was asked about the issue during his grand jury testimony. "I think it would be good for society if they had no statute of limitations," acknowledged Bishop Cullen. "I really do. Yes, I do." It is distressing that a technical, procedural, and somewhat arbitrary rule, a statute of limitations, is the primary barrier precluding the prosecution of priests who sexually abused minors and those who covered up the crimes and allowed them to occur. Whatever justifications exist for statutes of limitation, those justifications are clearly outweighed where the sexual abuse of children is concerned. Society's interest and responsibility in protecting its children is paramount. 2. Expand the offense of endangering welfare of children. In 1996, the Legislature amended the crime of endangering welfare of children to provide that those who commit endangering as a course of conduct are guilty of a felony of the third degree. We recommend, if the statute is unclear, that a clause be added providing that a person commits endangering as a course of conduct where he endangers at least two children once or one child twice. We further recommend that a person "supervising the welfare of a child" be defined to include: 1) a person who has direct contact with a child or children, and 2) a person who employs or otherwise supervises a person who has direct contact with a child or children. The proposed amendments are designed to address two potential problems with the existing statute. First, we believe that, where a supervisor places a child in continuing contact with a person known to represent a risk to children, that placement constitutes multiple acts and, therefore, endangerment as a course of conduct. Second, we believe it will be helpful to clarify that even a person who does not directly come into contact with a child may nevertheless be supervising the welfare of the child in a very real sense. An Archdiocesan leader, daycare supervisor or Boy Scout official can endanger the welfare of a child without having direct day-to-day contact with children. We also recommend one further expansion of the offense of endangering welfare of children. Currently, the statute limits liability to those who "knowingly" place a child in danger. As our investigation demonstrates, however, it isn't hard for the people at the top -- the people with real power, who should have real responsibility -to close their eyes to danger, enabling them to claim that they lacked "knowledge." We believe that, given the vulnerability of children, reckless disregard should be sufficient to create exposure to criminal liability. 3. Increase the penalty for indecent assault. We recommend amendment of the indecent assault statute, 18 Pa. C.S.A. § 3126, to provide that, if the indecent contact with the victim is a course of conduct, it will be graded as a felony of the second degree where the victim is less than 13 years of age, and a felony of the third degree where the victim is older than 13. A spur-of-the-moment grab is obviously a very different crime than a long-term effort to exploit a relationship for unwelcome physical contact. The grading of the offense should reflect this significant difference. 4. Tighten the Child Protective Services Law reporting requirement. We found that Archdiocesan officials used loopholes in the law to avoid reporting abuse to law enforcement authorities, and we want those loopholes closed. The Pennsylvania Child Protective Services Law currently requires professionals, including clergy, to report abuse when, in the course of their employment, occupation or practice of their profession, they come into contact with children whom they have reasonable cause to suspect are abused. The law arguably applies, however, only where the child personally comes before the reporter. The statute should be amended to clarify that a mandatory reporter must report an allegation of abuse to authorities regardless of whether the source of the report is the child himself or herself or anyone else. As we have learned from this investigation, although the Archdiocese and its employees have been mandatory reporters since at least 1996, Archdiocese officials read the law as narrowly as they could, so that if they did not have personal contact with an abused child, they felt no obligation to report the abuse -no matter how accurate the source of the information. Our proposed revision would answer this effort to enfeeble the statute: the employer must report the abuse whether he learns about it from the child or someone else having knowledge. We also recommend another change affecting the reporting requirement: extend the applicable statute of limitation. Currently, only a two-year window applies, whether the failure to report is a one-time oversight or, as it was here, an ongoing policy. The reporting statute already appropriately raises the grading of the of tense where there is a pattern of failing to report. We believe that, where such a pattern exists, the statute of limitations should be increased from two years to five years. An institution that steadfastly fails to report child abuse should not be immune from prosecution if it successfully manages to hide its conduct for 24 months. 5. Amend the Child Protective Services Law to require background checks in non- school organizations. A separate provision of the Child Protective Services law currently requires background checks for applicants for employment in schools. 23 Pa. C.S.A. § 6355. Non-school employers are not obligated to perform such checks, even if their employees and volunteers have extensive contact with children. We would amend the statute to require all employers and organizations to perform background checks on all of their employees or volunteers who have regular contact with children. This proposed amendment derives from our discovery that no law requires the Archdiocese to conduct background checks of church employees who have contact with children outside of an official school setting. Clergy are entrusted with children in many roles -- for example, as supervisors of altar servers, as employers of children in rectory jobs, as confessors, as CYO supervisors, and as children's coaches. We believe that an employer who places a person in substantial contact with children, whether as a teacher or in any other activity, should have to perform a background check of that employee or volunteer. 6. Hold Unincorporated Associations to the Same Standard as Corporations for Crimes Concerning the Sexual Abuse of Children. Currently, legal corporations can be criminally culpable if a statute so provides or if "the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment." 18 Pa. C.S.A. § 307. Certainly the decades-long cover-up of priest sexual abuse was authorized and performed by high managerial agents acting on behalf of the Philadelphia Archdiocese within the scope of their employment. But the Archdiocese is not technically a corporation; it is instead considered to be an "unincorporated association." Unincorporated associations like the Archdiocese can be held criminally culpable only if a statute expressly provides for the association's culpability. We do not believe that an entity's decision to select one corporate form instead of another should determine whether it can be criminally prosecuted for its actions or inactions resulting in the sexual abuse of children. Other jurisdictions do not maintain such a distinction based on corporate status. We would amend 18 Pa. C.S.A. § 307 to provide that, where a corporation would be guilty of an offense relating to the sexual abuse of children, an unincorporated association committing the same act would also be criminally culpable. 7. Enlarge or eliminate statutes of limitation on civil suits. As a grand jury , our function is of course limited to examination and application of criminal offenses. We recognize the reality, however, that civil liability may also provide a disincentive to the kind of systemic sexual abuse that occurred here. Indeed, Archdiocese officials never seemed to believe that clergymen could ever go to jail for abusing, or allowing the abuse of, children; but they did display an obvious fear that they would be sued for such conduct. For many victims of sexual abuse by priests, civil liability may be the only available means to seek recognition of their injuries and a measure of repose. Moreover, unlike statutes of limitation for criminal offenses, the time for bringing a civil suit can be lawfully extended or revived even after the original limitations period has expired. Accordingly, we ask the legislature to consider lengthening or suspending civil statutes of limitation in cases of child sex abuse. _______________ Notes: 1 The sole exception is Fr. James Behan, who, by leaving Philadelphia shortly after molesting his victim and residing elsewhere ever since, triggered a tolling provision of the statute of limitations that permitted his prosecution. |