Accountability Gap

Why Aren’t Bishops Following Sexual-abuse Reforms?

Last month the U.S. Conference of Catholic Bishops published its report on the latest round of diocesan audits conducted by the National Review Board for the Protection of Children and Young People. The results are encouraging.

Accusations of sexual abuse by clergy have fallen dramatically over the past decade. While it goes without saying that a single instance of child sexual abuse is one too many, just thirty-four minors made allegations of abuse in 2012. Of those thirty-four allegations, six were considered credible, twelve not, and the rest are still being investigated. These are the fewest allegations we’ve seen since the audits began in 2004—audits made possible by reforms the bishops conference adopted in Dallas in 2002. While it’s true that most dioceses self-report their data, and that many refuse to allow auditors into parishes and schools, no one can deny that the Catholic Church made significant progress on this issue. Yet some bishops still act as if the sexual-abuse scandal never happened. 

I was at the National Press Club in February 2004, when Archbishop Wilton Gregory, then president of the USCCB, announced that the sexual-abuse crisis was “history.” He was roundly criticized for that comment, but I’m sure he was being sincere. At that point, two years after the bishops adopted the Dallas Charter and Essential Norms governing their response to abuse accusations, the new rules seemed to be working. Predominantly lay review boards in every diocese were assessing abuse allegations in order to advise bishops whether accused priests should be removed from ministry. And, according to the new rules, no priest with a credible allegation of child sexual abuse against him would be allowed to remain in ministry.

When the spotlight of the national press was on them, it appeared that the bishops had acted responsibly. But, as an inaugural member of the bishops’ National Review Board for the Protection of Children and Youth, I had a different perspective. When the board went looking for national data about the phenomenon of sexual abuse by clergy, the California bishops, led by Cardinal Roger Mahony of Los Angeles (now retired), strongly resisted the audits.

First Mahony objected to the institution we chose to conduct the investigation, the highly regarded John Jay College of Criminal Justice. He had never heard of it. Why couldn’t a Catholic school handle it? Apparently it didn’t occur to him that avoiding the appearance of bias would be essential in establishing the credibility of the study. But Mahony went further, suggesting that John Jay’s audit instrument was “designed, on purpose, by people who have a vested interest in confusing the many intricate issues and maximizing the statistical number of perpetrators, as well as attaching the greatest possible numbers of perpetrators to diocesan reports.”

As a lawyer, I understood the cardinal’s fears. Any information they turned over to us could be subpoenaed by plaintiff’s lawyers. Whether they’d actually get their hands on it—or understand what they were seeing—was another matter: John Jay coded the data to make it extremely difficult to match accusation to accused. But what was there to fear from the truth? Civil-law discovery could have uncovered the same reports whether or not the National Review Board had asked for them. As it turns out, Mahony’s attempts to head off the investigation failed. Eventually the Archdiocese of Los Angeles would pay nearly three-quarters of a billion dollars in legal settlements. Perhaps it’s not surprising that Mahony was so committed to blocking the audits. Last year we learned that during the late 1980s, he elected to keep accused priests out of state in order to shield them from law enforcement.

But Mahony was not alone in his skepticism. Cardinal Francis George of Chicago said that even though he thought the archdiocese’s process—which had allowed some abusive priests to return to ministry after treatment—was working well, he would follow the national policy and remove them. He obviously had second thoughts about that, because in 2005, against the advice of his own review board, he kept an accused priest in ministry who went on to molest more young children. Daniel McCormack ended up going to prison. George apologized. In 2007, his fellow bishops elected him president of the USCCB, knowing he had flouted their own rules on keeping abusive priests in ministry.

Six years later, a Philadelphia grand jury found that thirty-seven accused priests were still in ministry. Why were those men still in ministry? What happened to the archdiocesan review board, which was supposed to examine allegations of child sexual abuse by priests and make recommendations to the archbishop? As the chair of the Philadelphia review board explained in Commonweal two years ago, “The review board did not see two-thirds of those cases because, according to the archdiocese, allegations against most of those priests involved only inappropriate behaviors that were not related to the sexual abuse of minors. And, citing privacy laws, the archdiocese had not provided the priests' psychological evaluations and other health records in cases the board reviewed. Board members don’t know for sure whether the archdiocese gave us all relevant information.”

The USCCB’s 2002 reforms called for the creation of archdiocesan review boards whose function would be to evaluate charges of sexual abuse against priests and advise the bishop on how to proceed. A review board can’t do its job unless it’s receiving all allegations against priests.

When bishops ignore their review boards they put children at risk. That’s partly why Bishop Robert W. Finn, of Kansas City-St. Joseph, Missouri, was found guilty of child endangerment last year. In December 2010, Finn learned that one of his priests, Fr. Shawn Ratigan, had hundreds of pornographic photos of children on his computer. The bishop did not notify the police, in accordance with civil and canon law. Nor did he inform the diocesan review board. Instead, Finn reassigned him as chaplain to the Franciscan Sisters of the Holy Eucharist in Independence, Missouri. The sisters later said they had not been informed of the real reason Ratigan was there. Finn placed minimal restrictions on Ratigan—for example, he was allowed to say Mass for youth groups. So for the next five months, apparently without local supervision, Ratigan concelebrated a confirmation, interacted with children on Facebook, hosted an Easter egg hunt—and even attended a sixth-grader’s birthday party. After he was invited by parishioners to dine at their home, he was caught taking photos up their daughter’s skirt, according to a federal indictment. Eventually Ratigan admitted to charges of possessing and creating child pornography. He’s in jail.

How can Finn face his people, priests, and fellow bishops? He has let them all down. How can he attend national bishops conference meetings and hold his head up? Perhaps it’s easier when the USCCB fails to schedule a discussion of the problem of bishops who break their own rules.

And now the archbishop of Newark, John Myers, has been criticized for failing to suspend a priest who admitted to two incidents of sexually groping a thirteen-year-old boy. You can read Fr. Michael Fugee’s confession here. It seems straightforward, not the words of a man who was forced by police to confess to acts he didn’t commit. Yet Fugee recanted his confession and denied the charges at trial, claiming he lied to police because he wanted to go home. The judge ruled the confession “totally voluntary.” Members of the jury were not convinced, and they convicted him of aggravated criminal sexual contact. The judge sentenced him to probation for five years and to five hundred hours of community service. Fugee also had to register as a sex offender and undergo psychological counseling.

But Fugee’s conviction was overturned on appeal because of a technicality. The trial judge’s instructions to the jury did not give adequate guidance “on the issue of defendant’s supervisory authority.” Rather than retry Fugee, the Newark prosecutor entered into a legally binding “memorandum of understanding” with the priest and the archdiocese that permanently restricted Fugee from any ministry involving children. Fugee also agreed to “undergo sex-offender specific counseling/therapy.”

Imagine the surprise of the Catholic parents in Newark when they discovered that, despite the archdiocese’s agreement with the prosecutor, Fugee had been involved in youth activities, including retreats and weekend trips. He was even hearing young people’s confessions—in private, as all confessions must be heard.

Archbishop Myers’s response was less than forthcoming. In a letter to Newark priests, Myers claimed that Fugee had been acquitted. That was false. Fugee had been convicted, the conviction was overturned, and rather than face retrial, he and the archdiocese agreed to a plea bargain that restricted his future ministry, specifically excluding any contact with minors. The agreement is essentially—if not legally—an admission of guilt.

The archbishop also claimed that his review board had concluded that Fugee had not committed an act of sexual abuse. The review board evidently accepted Fugee’s disavowal of his prior confession, finding that, while he had engaged in ill-advised activity with a minor, it did not rise to the level of abuse. Apparently the review board was strongly influenced by the prosecutor’s acceptance of Fugee’s return to limited ministry—a ministry that could not involve children in any way. In fact, the memorandum of understanding says that the archdiocese will not allow Fugee “to supervise or minister to any child/minor under the age of eighteen or work in any position in which children are involved. This includes, but is not limited to presiding over a parish, involvement with a youth group, religious education/parochial school, CCD, confessions of children, youth choir, youth retreats and day care.” If limited ministry was good enough for the prosecutor, it was good enough for the review board, and that was their recommendation to Archbishop Myers.

Serving on a diocesan review board, with the fate of the children of your diocese at stake and the ministry of the accused in your hands is not an easy task. I know because I’ve been there. I don’t know what the Newark review board’s thinking was. But reading Fugee’s original confession disturbs me. Even discounting for the stress of being interviewed at a police station, Fugee does not come off as well balanced. If the Newark review board was going to rely so heavily on the part of the agreement that allowed Fugee to return to limited ministry, what about the part calling for him to undergo sex-offender therapy? That seems a rather clear declaration that he has a sexual problem with children. If you are going to pass the buck to the prosecutor, you have to look at everything that the agreement required.

The idea of “limited ministry” does not appear in the Dallas Norms. It is a half-measure that has been deployed in several dioceses when a review board cannot confirm an instance of true sexual abuse but has enough information to recommend a priest’s ministry be restricted. The trouble with this is that a priest in limited ministry still gets to wear his Roman collar, still gets to present himself as a priest in good standing. That collar is a badge of trust signifying authority. It can allow priests to spend time alone with children—Fugee is proof of this. Limited assignments may be considered safer than nothing, but for priests who are sexually attracted to children, no assignment is without significant risk.

Evidently the archbishop of Newark has his own questions about how Fugee was handled. He recently announced that the archdiocese had “uncovered certain operational vulnerabilities in our own systems. We found that the strong protocols presently in place were not always observed.” He also sacked his vicar general, Msgr. John E. Doran, whose job it had been to make sure Fugee had been keeping the terms of the memorandum of understanding. Doran’s signature is on that document. Myers has yet to take any personal responsibility for the failures of his own archdiocese, but according canon law, vicars general are supposed to “report to the diocesan bishop concerning the more important affairs which are to be handled or have been handled, and they are never to act contrary to the intention and mind of the diocesan bishop.” Myers is a canon lawyer. Are we supposed to believe he never asked Doran for a report on Fugee? If Myers failed to ask for such updates, he is grossly negligent. If he did and knew about Fugee’s violations of the agreement, then he is complicit. Neither is of any comfort to Newark parents.

When review boards were established in Dallas in 2002, what happened in Chicago, Philadelphia, Kansas City, and Newark was not exactly what we had in mind. They were meant to reinforce the idea of episcopal accountability. In many dioceses, perhaps most, they are fulfilling that function. But not everywhere. My own experience with diocesan review boards is that their performance varies. Some bishops have appointed board members who will not challenge their decisions. Others permit (or even require) chancery officials to sit in on a board’s deliberations, allowing the “What does Father think?” mentality to influence the board’s judgment. Perhaps the biggest problem is that there are no national standards for review boards, which means their effectiveness varies from diocese to diocese. Without a certain uniformity in how these boards function, there will always remain the possibility that they will be ignored, deceived, or manipulated. If we can’t rely on review boards, then we have no assurance that abusive priests will not remain in ministry—beyond our bishops’ words. Of course, we had those words before Dallas, and now we know they weren’t true.

The bishops relied on majority-lay review boards to recover their own credibility. They were our safeguard against bishops who tried to revert to their old ways and move predator-priests around. The bishops’ promise to let the laity have a say in evaluating charges against priests was the central point of the Dallas reforms. Most bishops are keeping that promise. Some obviously, disastrously, are not. Every time a bishop flouts the Dallas reforms by placing his own judgment above the collective wisdom of the bishops conference and the advice of laypeople, he undermines the church. The only way out of this continuing crisis is by holding such men accountable. As the original National Review Board put it in our February 2004 report, “The exercise of authority without accountability is not servant-leadership; it is tyranny.”

Nicholas P. Cafardi is a civil and canon lawyer. He is Dean Emeritus and Professor of Law at Duquesne University School of Law. Cafardi was one of the original members of the USCCB’s National Review Board for the Protection of Children and Youth. His book Before Dallas (Paulist Press) is a history of the clergy child sexual-abuse crisis in the United States.

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