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D.A.'s clever tactic in child sex abuse wars

Bringing, then dismissing indictment against bishop

By Marci Hamilton, FindLawexternal link Columnist
Special to CNN.com


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(FindLaw) -- Last week, a Hampden County, Massachusetts prosecutor indicted Bishop Thomas L. Dupre for child rape with two boys .Dupre was the first Roman Catholic Church bishop to be charged with the crime.

As soon as the charges had been made public, Dupre resigned and checked himself into St. Luke's, an institution that specializes in treating substance abuse and sexual perversions. The indictment was laudable - finally, and rarely, a victim of clergy abuse seemed likely to get some justice.

However, within hours, District Attorney William M. Bennett withdrew the indictment .Why? Apparently, because Dupre's attorneys filed papers arguing that the statute of limitations had run.

These events left many observers scratching their heads .Wouldn't the prosecutor have looked into the statute of limitations issue before he indicted?

Interestingly, it's possible that the prosecutor indicted even knowing the statute of limitations issue, and knowing the indictment had to be withdrawn. Indeed, this tactic - if it was used - in light of existing law was praiseworthy.

It was right to indict

An indictment's main function is to initiate a criminal case. But this indictment served other worthy functions, too. It expressed the prosecutors' view - and hence the people's view -- that Dupre indeed committed these loathsome crimes. And it set forth the evidence supporting that view.

The facts, as set out in the indictment, were horrifying. According to the indictment, Dupre showed two boys pornography, gave them alcohol, and sexually penetrated them. Each boy was victimized over a five-year period, with a two-year overlap.

Beyond Dupre, the issuance of the indictment warned other abusers that the fact that they belong to a religious institution will not insulate them from the criminal law. It was a long-overdue warning shot.

Dismissal taught a key legal lesson

What about the dismissal of the indictment? Did it also send a message? Yes, but it was hardly an exculpation of child rapists .The issuance and dismissal of the indictment, together, said that prosecution would have been appropriate but for a technicality. They sent a message of condemnation - and a promise to indict if similar facts arise in the future.

Prosecutors were also wise to issue the indictment - even if they subsequently had to dismiss it - because the press coverage of the dismissal taught the public a key legal lesson. It also forced the defendant to raise the statute of limitation defense, starkly showing the impact they have on substantive results. The spotlight has been directed to the crucial issue and the right individual to educate us all on a fault in the legal system.

Here's the problem:The statutes of limitations on childhood sexual abuse operate as a haven for scoundrels of every stripe. As long as we continue to have them, wrongdoers will continue to invoke them, religious or not. When the crime is heinous, and the victim a child, the injustice is especially stark.

Editorials advocating the abolition of child sexual abuse statutes of limitations appeared not long after the Dupre indictment was brought and dismissed.

Murder is one crime for which there is no statute of limitations - and rightly so. We don't want to allow a murderer to rest easy, content with the knowledge that he is forever free of prosecution merely because time has passed.

Nor should we let a child sex abuser rest easy due to the mere passage of time. He has committed the worst kind of abuse - killing the child's innocence and disabling his soul. So why in the world should we offer him what the law deems the "repose" offered by the statute of limitations?

Abolishing the child sexual abuse statute of limitations is necessary to give victims' justice .It's also necessary to send the strongest possible message to abusers:If you commit this heinous crime, you will never rest easy; it will always haunt you and someday, you will be jailed for it.

Why statute of limitations doesn't make sense

It's important to stress that not only the heinousness of the crime of child rape, but also the youth of the victim, counsel in favor of abolishing the statute of limitations.

Here is what typically happens in such a case: A child's moral and spiritual world views are still developing. The childhood sex abuser's predations radically deform these world views - and often permanently alter the child's view of love and sexuality. For the child abused by a trusted adult, the incident is so cataclysmic, the child's response is typically to repress or deny the abuse. Often, the molester encourages the repression or denial with threats - warning the child that if he tells, his life (or afterlife) will be in severe jeopardy.

The abuse then takes its toll. Perhaps the child cannot tell his family - and there is a wedge of silence between them. Perhaps he does tell his family - and is not believed. There are no witnesses, and the abusing priest denies it; it is the child's word against the priests, and the parents too often believe the priest. Or perhaps the child's parents believe him, but do not report the incident, for fear of being exiled from their religious community. Now the child has learned that he not only cannot trust his priest, he also cannot trust his family.

Later in life, the child - now grown-up - may pay the cost in failed relationships and dreams, compounded by alcohol or drug abuse. Finally, he may come to terms with both the fact that he was abused, and the need to go to the police.

In the end, the measure of the statute of limitations for childhood sexual abuse must be the ability of the victim to come forward. That takes decades.

Arguments against abolition of time bars

Just as the argument for abolishing the child sexual abuse statute of limitations is strong, the contrary arguments are weak. Two defenses were laid out in a Christian Science Monitor story following the Dupre dismissal.

Massachusetts Attorney General Thomas F. Reilly, who earlier disappointed victims with his lukewarm, no-action report on the clergy scandal, is now arguing in favor of keeping the statute of limitations. He has trotted out the typical defense of the statute of limitations: It must be retained because evidence becomes stale -- memories fade, or witnesses disappear. But that is only an argument for wise prosecutorial discretion, not for giving every pedophile the ability to sleep easy.

There are plenty of cases where the evidence is there. A formerly disbelieving parent may come to understand that the child's injuries were the result of sex abuse. Other victims may have come forward, or may come forward when the investigation or indictment is announced. Perhaps a sibling knew, but did not understand. Perhaps a teacher noticed a child's dramatic change in demeanor, and suspected. Maybe a mother suspected, but feared confronting her abusing husband. There is a tremendous amount of untapped evidence out there, because the issue has been so taboo that obvious evidence that could not be fruitful was studiously ignored in the past.

With respect to clergy abuse, doubtless, fellow priests and rectory housekeepers must sometimes have known. No one lives in a rectory with another man, and fails to notice that he is taking children into his bedroom and closing the door. Even more know that a priest frequently took children to the beach or a vacation home without their parents.

Rather than abolishing the statue of limitations, Reilly proposes increasing the fines for failure to report child abuse from $1,000 to $25,000. The problem with this argument is that there's no reason not to opt for both proposals .Let's increase the fine, and abolish the time-bar.

And if we did have to choose only one remedy - which we do not -- certainly the stronger medicine of criminal prosecution is the best: There is no better deterrent to crime than the prospect of jail time. And as we have learned in recent decades, sometimes jail is the only way to stop the pedophile's persistent search for the next child victim.

Argument that sexual abuse is on the downswing is absurd

The Christian Science Monitor's story also focused on the theory that there is no need to abolish the statute of limitations now, because child sexual abuse is on the downswing, and reached its height in the permissive 1970s .This argument is absurd.

(The newspaper's contention that abolition would be unconstitutional is equally absurd: Prospective - as opposed to retroactive - abolition of statutes of limitations is plainly constitutional. The Supreme Court in Stogner v. California held that the Ex Post Facto Clause is a limitation on reviving statutes of limitations--not on abolishing them for future crimes.)

Child sexual abuse is not diminishing:It is an ugly, permanent reality. Even the claim that childhood sexual abuse is diminishing in the Catholic Church, in particular, is premature at best. Many known pedophiles were removed from ministry only within the last two years, after the Boston Globe blew the Church's cover. A six-year-old boy and his family pressed charges against a priest just last week in Long Island. In the Pennsylvania church I attended with my family, the priest there pled to having sexually abused an 11-year-old as recently as the 1990s.

The truth is that the Church has struggled with pedophilia within its ranks ever since its first century. That means it has known about the problem for centuries .Canon law directly addresses the issue. If one knows the history, it is laughable to claim that such abuse was confined to a particular decade in the twentieth century - and will never again be repeated .Would that it were true, but it is not.

In addition, we now know that child sexual abuse is hardly limited to the Catholic Church - or, of course, to religious contexts. And if the claim is that childhood sexual abuse in general is on the downswing, reality says otherwise. The vast majority of such abuse is perpetrated by family members, and they continue to garner the trust of children and to have the opportunity to abuse. The abolition of the statute of limitations would help them every bit as much as the victims of clergy abuse.

The prevalence of abuse in all kinds of contexts makes it all the more appalling when religious entities mount the bully pulpit (or skulk in the legislative hallways) to ensure that statutes of limitations for childhood sexual abuse remain limited. The lobbyists who argue against abolishing the statute must know - or must learn -- that it's not all about them, or their churches: The fates of countless children abused in secular contexts are at issue, too.

In an attempt to protect their own, will religious entities simply leave these children to their fates? The question is the abolition of the statute of limitations for child sexual abuse, in general - not for clergy child sexual abuse in particular .One wonders, as I suggested in an earlier column, why religious institutions are not at the forefront of helping children avoid devastating harm.

Any religious institution's knee-jerk reaction to discovered internal child abuse by defending legal limits on the prosecution of criminals - merely because some of these criminals happen to be religious -- is unseemly, to say the least. The issue is children, and children alone.

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Marci Hamilton is a Visiting Scholar at the Princeton Theological Seminary during fall 2004. She is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University .An archive of her columns on church/state issues can be found on this site. Her email is hamilton02@aol.com.


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