Self-policing of criminal behavior will never work
Only 2 percent of church sex abusers jailed
By Marci A. Hamilton
FindLaw columnist
Special to CNN.com
(FindLaw) -- There were some disturbing statistics in the John Jay College Report, released last month, on sexual abuse by the Catholic Church's clergy over the last 50 years. By far the most shocking and telling one revealed the percentage of abusers who were ever incarcerated is only 2 percent.
What does this statistic tell us? It tells us the Church dramatically failed in its obligations to the public good. And it also tells us that one current "remedy" for abuse that the Church is still putting forward -- more self-policing -- will never work.
Thousands of victims and abusers
The number of victims was 10,667. The number of abusers? A minimum of 4,392.
And those familiar with these issues knew there were many more abusers than had yet been revealed. There are very probably many more -- even ten times more -- victims and abusers than the report indicated, as the report itself acknowledges.
The sociologist and Catholic priest Andrew Greeley predicted long ago that the number of victims was probably on the order of 100,000. Decades ago, psychologist Richard Sipe, an expert on the issue predicted that as many as 6 to 8 percent of priests sexually abused minors. And psychologists estimate that only a fraction of childhood sexual abuse victims ever come forward, anywhere from 5 to 35 percent.
Tiny percentage of abusers incarcerated
If only 2 percent of the abusers ever saw jail time, then thousands -- probably tens of thousands -- of victims never got justice. And 98 percent of offenders were left at large -- able to come into contact with more child victims, and not added to any sex offender list.
By operating in a private sphere untouched by concerns with the public good, the church has increased the number of crimes, pushed the numbers of victims to stratospheric heights, and destroyed its own credibility on social and faith issues.
Remember when alleged abuse at a small daycare center was a huge scandal? Now multiply that abuse by literally thousands -- or tens of thousands.
Society has a fundamental right to seek justice for crimes committed. The church did not just let its own down, it let society down.
Self-policing cannot work
This era in the Catholic Church -- if it is just an era, and not the church's demise -- will doubtless be the subject of study for psychologists, political scientists, lawmakers, sociologists, and children's advocates for centuries to come.
What this law scholar finds most interesting in light of the report, however, is the clarity of the lesson in the church's mistakes: self-policing criminal conduct simply does not work.
And why would anyone in this country ever think it could? The Constitution is built on the core belief that humans are always tempted to abuse power, so checks must be built into the system to deter those abuses of power.
Many are advocating more lay involvement in the church to increase accountability. That move makes tremendous sense. But lay involvement will never be enough.
Instead, there will have to be a wholesale rejection, within the church, of the church's apparent belief that it operates above and beyond the sphere of the criminal and civil laws that prohibit harming fellow citizens. And that, I'm afraid, will take far more than reports controlled by the bishops, as these were, or sincere self-reflection, which the bishops claimed they have done. It will take a soul-baring that has yet to be seen in the church.
To redress the public harm done by the church, it would be nice if there were a sea change in the church's view of its relationship to the law. But, even more important in the face of this public crisis, the press and prosecutors must finally and completely forego being co-dependents of the church's addiction to its own power. It will take no less than the most dedicated and combined efforts of prosecutors, judges, and reporters to right this wrong.
The 2 percent incarceration rate did not come solely from the failures of the church, but also law enforcement and the media. They permitted the church to operate undercover. Now that the enormity of the harm is dawning on the public, giving the church a pass to handle its own criminal affairs is simply impossible.
Bishop Dupre case
The colossal failure of self-policing is illustrated by the notorious example in Springfield, Massachusetts, where the story is unfolding on a day-to-day basis.
Last month, two men publicly charged Bishop Thomas Dupre with abusing them for years. He abruptly resigned, and left for a clinic known to treat sexual abusers. Dupre is now under investigation for the abuse, and for his administration's cover-up of the crimes of other abusers.
When even the Bishop is alleged to be an abuser, it is plain that internal self-policing by the clergy itself will be utterly ineffective. But what about lay review? In that case, that too has failed.
In 1992, Springfield initiated a lay review board -- but it was controlled by the bishop. The catalysts were a guilty plea by Richard Lavigne, a notorious pedophile in the archdiocese, and the diocese's payment of $1.4 million in settlements to 17 men.
Despite the lay review board, it took years to defrock Lavigne; it also took many years before prosecutors returned to a "cold case" involving an altar boy who died. Lavigne is now under investigation in that case.
Those who suggest that lay review is the answer should consider that Springfield's lay review board operated for twelve years before it learned that its own bishop was a serial abuser of boys.
In Springfield, in the wake of the Dupre scandal, local prosecutors have been forced to investigate and seriously consider charges from childhood sexual abuse to obstruction of justice. Even the federal prosecutor has offered assistance.
Prosecutorial actions like these pave the way for other prosecutors to take what they would have viewed in the past as a political risk, and turn it into a righteous cause. Virtually no one believes the church ought to be left alone this much.
Lay review boards are not enough
Perhaps lay review boards could be more effective if they were completely independent of the church, and if their monetary support came from other sources. But in the end, no lay review board will ever be capable by itself of serving as prosecutor and judge. Why? Because lay review boards simply do not have the built-in accountability to the public good that is inherent in a democratic government.
When board members are among the devoted, there will always be hesitation to accuse the clergy, who are supposed to be the servants of God. One could call this divided sympathies; in the law, however, it's a conflict of interest, and a classic reason for poor decision-making, and thus for disqualification of a decision-maker.
Instead of being exclusively subject to lay review, allegations of abuse need to be vetted by law enforcement professionals who have no conflict of interest. But that will not be done until the bishops realize that they can no longer serve as gatekeepers between victims and law enforcement.
Despite their advertised "no-tolerance" policy, which includes removal and reporting of abuse to authorities, bishops are only reporting claims to authorities that they believe are "credible." (And, as Dupre's example shows, they are hardly wont to find accusations against themselves credible!) So long as the bishops are a bottleneck through which only certain claims pass, they will hold singular responsibility for every victim.
Policy makes church uninsurable
In a number of dioceses, the church is now finding it increasingly difficult to get insurance coverage for the misdeeds of its clergy. If coverage is procured, it is extremely expensive. And insurers are rightly reluctant to cover instances of abuse that are also the fault of the church itself, not only the fault of the abuser.
Churches cannot operate without some coverage. They are rightly subject to the same general criminal and tort laws we all must obey. So they are going to have to dance to the insurance companies' tune in order to obtain the coverage.
The church may not be able to bring itself to report every allegation of abuse to authorities. But there is little reason for insurance adjustors to give the church coverage if it is going to continue to take the same risks that led to the enormity of the problem in the first place.
In contrast, if the church were to report all abuse allegations to authorities, it would ameliorate the harm it is still doing; reduce its policing role to one of a team of investigators, not that of a sole overseer; and in the process, make itself far more attractive to insurers. Only full cooperation with law enforcement will allow the church to be fully and affordably insurable.
And that is only right. Insurance companies are supposed to cover accidents and unknown, unpreventable, and unforeseeable situations -- not, as here, an intentional pattern of conduct of which the institution that is insured is well aware.
Church needs to cooperate
To win confidence from the devoted, from society, and from insurance companies, the church has no choice but to fully cooperate with police and prosecutors, reporting to them every allegation of clergy abuse.
Tragically, however, the church continues, instead, to fight tooth and nail in state legislatures to prevent laws that would mandate that the church and its clergy report clergy sexual abuse to the proper authorities and prevent extension of statutes of limitations for childhood sexual abuse.
In court, church lawyers are arguing, among other theories, that imposing a theory of "negligent hiring" on the church violates the First Amendment. But that is a ridiculous argument. Surely, the government cannot vet the theological credentials of clergy candidates. But just as surely, the law can insist that the church does not hire known abusers.
Courts need not determine whether the church is acting as a reasonable church, but rather as a reasonable citizen. Theology is sacrosanct; prior criminal behavior certainly is not. Merely telling a church not to hire criminals is a far cry from telling it whom to hire, or what to preach.
In any event, the church will find itself uninsurable -- and untrustworthy -- if it keeps hiring and harboring known abusers. Background checks on all seminarians surely will be required by the insurance companies even if they are not required by law. The era of self-policing is over.
Marci Hamilton, a FindLaw
columnist, is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University. Her email address is hamilton02@aol.com.
