Attorney General Thomas F. Reilly yesterday said his investigation of the Boston Archdiocese had found clear evidence of a coverup of priests’ criminal behavior, and his deputy said the state is considering prosecution of the church under a doctrine of liability often used to charge companies that fail to stop wrongdoing by employees.
”This could have been stopped a long time ago but it wasn’t,” Reilly said at an afternoon press conference. ”There was a coverup, an elaborate scheme to keep it away from law enforcement, to keep it quiet. The church and the leadership of the church felt it was more important to protect the church than any children, and, as a result of that, needless numbers, countless numbers of children were harmed.”
Reilly spoke publicly about the state of his investigation on the day the Globe reported that his office has subpoenaed Cardinal Bernard F. Law and six other bishops to testify before a grand jury that began gathering evidence on the scandal in late February.
The subpoenas were issued last Friday. Law’s attorney, J. Owen Todd, said the cardinal will be the last of seven past and present officials of the archdiocese to testify.
Todd said he had not spoken with Law about the subpoena, but said he is confident the cardinal would return from Rome and agree to testify, even if he has resigned as archbishop.
”I’m not sure what more there is for him to say after being deposed for so many days, but he’ll be there,” Todd said.
Reilly said that the grand jury testimony by Law and the bishops who served as his close advisers should give investigators a better understanding of why church leaders for decades failed to turn over to authorities those priests who had been accused of sexual abuse of children.
He said a review of archdiocesan records in abuse cases left him convinced that the system of handling the cases ”should have been dealt with years ago, decades ago,” Reilly said.
He emphasized that Massachusetts lacked until this year the two criminal statutes that have been used in other states to investigate how dioceses and archdioceses handled abuse cases: a law making mandatory the reporting of allegations of sexual abuse of children to authorities, and another that prohibits placing the welfare or safety of children in danger.
Despite the lack of such statutes, Reilly may yet be able to proceed.
Assistant Attorney General Kurt N. Schwartz, head of the criminal division, said after the press conference that investigators are studying other accepted legal doctrines that might be used to hold the archdiocese responsible for the crimes of the priests. The church could perhaps be prosecuted as an accessory to a crime or for being the supervisor of an agent who committed a crime. But in both cases, prosecutors need to show intent to make the case, Schwartz said. In other words, they would need evidence that the archdiocese intended for further abuse to take place when officials transferred a priest known to have molested children in the past to a new assignment.
But there is still another option, ”vicarious liability,” in which proof of intent is not essential, Schwartz said. Instead, he said, an organization can be indicted for the crimes of its agents if it is found to have failed to act reasonably to prevent the crimes.
”It’s the `blind eye’ theory, and I think it’s the best one available for prosecuting the archdiocese,” said Wendy Murphy, a former prosecutor who now represents victims of sexual crimes.
The doctrine was first articulated by the state Supreme Judicial Court in 1971 when it held a finance company responsible for the fraud of its agents. Corporations can be indicted for the crimes if prosecutors find ”a repeated pattern of criminal conduct tending to indicate corporate toleration or ratification of its agents,” the court wrote.
The doctrine has been used to charge corporations for the financial crimes of its employees. It has been also been employed to charge restaurants and bars with manslaughter in cases of drunken driving fatalities where the driver was repeatedly served liquor by bartenders, even though he was under the legal drinking age.
Murphy, however, stressed that the corporation’s owners can only be fined under that doctrine.
Reilly, who has come under increasing criticism from victims of clergy abuse demanding criminal prosecution of the church, said he is not yet convinced that the doctrine applies in his investigation of the archdiocese. ”It is very difficult under the criminal laws of this state to hold a superior accountable for the acts of another,” he said at the press conference.
A national victims’ advocacy group applauded Reilly’s decision to subpoena Law and the six other church officials.
The subpoenas show ”there is still much to be learned in the clergy sexual abuse scandal,” said Mark Serrano, a member of the Survivors Network of Those Abused by Priests. ”Prosecutors must stop the excessive deference that has been shown to church leaders.”