IN THE MIDST of last week’s civil settlements and a likely barrage of new civil suits and criminal prosecutions against sexually predatory priests, there is much loose talk about whether the Catholic Church, or even its local leader, Bernard Cardinal Law, should be indicted and criminally tried. The crime? Aiding and abetting child sexual abuse, or some variation of this offense. My answer is, no they should not — but on legal grounds that differ quite markedly from each other.
The roar of the news media and lecture circuit may be deafening, but that should not obscure the fact that while Law and even the Church itself may be perfectly appropriate targets for civil-damage lawsuits (likely to cost the Church more than $100 million), they are not, by any reasonable stretch of the legal imagination, appropriate targets for criminal prosecution.
There’s no question that Law exercised incredibly poor judgment in suppressing information about sexually predatory priests and moving suspected clerical offenders from parish to parish, where they could strike again. But he cannot be shown to have intended to aid such priests in committing further depredations. Law may have been naive in believing the priests’ denials, or their promises to undergo therapy and their vows not to re-offend. His consequent actions may in fact have aided and abetted further abuse. But none of that makes him criminally liable.
In our system, criminal liability for aiding and abetting another’s crime is personal. It grows out of acts that an individual knew or should have known — and in this sense intended — would facilitate another’s criminal conduct. Few of the cardinal’s harshest critics on this side of the sanity line would go that far. Surely no responsible prosecutor would bring such a case, if for no other reason than that he or she could not reasonably expect all 12 jurors to convict on such a legal theory, given the known facts. Courthouse wags say that a prosecutor "can indict a ham sandwich," but if you cannot convict, you should not indict.
THE MORE INTRIGUING question of whether the Church itself should face indictment, however, is more complex and subject to reasonable debate. Of course, no Massachusetts state or county prosecutor is likely to take a run at an institution still revered, or at least respected, by millions of citizens and potential jurors, Catholic and non-Catholic alike. Still, the question is worthy of discussion, since our society, without much hesitation, daily indicts corporations, associations, partnerships, and various organizations on the basis of actions carried out, often in secret, by one or more of their leaders or, in some cases, mere employees or members. The auditing firm Arthur Andersen was indicted last week for obstruction of justice because several of its employees shredded papers relating to the financial transactions of its client Enron. And Enron almost certainly will not escape corporate indictment. Here at home, Boston has witnessed a number of cases over the years in which entire legal partnerships have been threatened with indictment for the criminal acts of a couple of lawyers, on the theory that the firm’s leadership knew or should have known about the crimes perpetrated in its name. If only one lawyer engaged in fraud or theft of clients’ funds, the firm most likely would not be held criminally responsible for the wayward lawyer’s misdeeds. However, if a small group were involved, particularly if they included a member of the firm’s leadership structure, the firm would have a hard time escaping indictment along with the individuals.