As Pennsylvania investigates dioceses, N.Y. prosecutors stay bystanders

By Jay Tokasz
Buffalo News
July 01, 2018

https://buffalonews.com/2018/07/01/as-pennsylvania-investigates-catholic-dioceses-ny-prosecutors-remain-bystanders/

The state Attorney General's Office needs to launch a probe "similar to the one in Pennsylvania, of every single diocese in the state of New York," said Robert Hoatson, a former priest who assists victims of clergy sex abuse. "Because Buffalo is not the exception, it is the norm." Photo by Mark Mulville

[Note: This article references two NY grand jury reports - Westchester County (released on June 19, 2002), and Suffolk County (released on February 10, 2003).]

Special agents with the Pennsylvania Attorney General's Office used search warrants and subpoenas last year to seize evidence of a massive cover-up of clergy sex abuse in six Catholic dioceses in the state.

But despite growing revelations of sex abuse by priests in the Diocese of Buffalo, law enforcement authorities in New York aren't investigating whether crimes were committed in keeping the abuses hidden for so long.

Erie County District Attorney John J. Flynn and a spokeswoman for the state attorney general both said that their offices don't have the authority to investigate a diocese for criminal matters, although district attorneys in Westchester and Suffolk counties used grand juries to do that 16 years ago.

"My only jurisdiction is against individual people," said Flynn. "I have no authority to bring a case against an organization. That would be something the attorney general would need to look into."

Amy Spitalnick, spokeswoman for Attorney General Barbara D. Underwood, said investigation of sex abuse crimes falls outside the scope of what the AG's office does and should be handled by district attorneys.

"Our office does not have criminal jurisdiction in cases like these," she said. "Therefore, a criminal investigation would be in the DA’s jurisdiction."

The New York Attorney General would have criminal jurisdiction "only in cases where there has been a specific referral," she said.  She cited as an example Gov. Andrew Cuomo's 2015 executive order that led to the creation of a Special Investigations and Prosecutions Unit to investigate deaths of unarmed civilians caused by police officers.

But according to a University at Buffalo law professor, both the District Attorney's Office and the state Attorney General's Office could have jurisdiction to investigate a diocese or dioceses for alleged criminal conduct.

The "most obvious" prosecutor in such a case would be a district attorney, said Rick Su, an expert on local government law. Su said district attorneys can be reluctant to use limited resources and manpower on a probe of a large-scale organization.

But it's already been done twice in New York, in 2002. The Westchester County District Attorney's Office impaneled a special grand jury to investigate the Archdiocese of New York. The grand jury found that the archdiocese had engaged in a "concerted effort . . . to mislead the community: defending the abuser while simultaneously attempting to humiliate victims and their families – even in the face of mounting credible evidence against a particular abuser."

The Suffolk County special grand jury investigated the Diocese of Rockville Centre and issued a 181-page report concluding that diocesan officials "agreed to engage in conduct that resulted in the prevention, hindrance and delay in the discovery of criminal conduct by priests" and used "deception and intimidation to prevent victims from seeking legal solutions to their problems."

Neither report identified priests who molested kids by name, nor did the investigations result in charges.

Flynn said his office cannot prosecute priests over child molestation allegations that have recently become public because the alleged crimes occurred beyond New York's strict statute of limitations.

The state Attorney General's Office needs to launch a probe "similar to the one in Pennsylvania, of every single diocese in the state of New York," said Robert Hoatson, a former priest who assists victims of clergy sex abuse. "Because Buffalo is not the exception, it is the norm."

The state Attorney General's Office does have the ability to pursue a criminal investigation into dioceses under at least four statutes, said Su.

"It's in a gray area. They could do it if they want to," said Su. "And certainly attorney generals in the past have broadly read these things in order to pursue certain actions, but it's also understandable when they say, 'OK, this falls out.' "

Sex abuse victims and their advocates said abuses in the Buffalo Diocese and other dioceses across New York were hidden from the public for years. They urged prosecutors to take a tougher stand in uncovering the abuses and holding accountable child abusers and the administrators who protected them.

"They're going to get the information that's been secreted for decades. That's the key. The secret files are what people need to see, because that's unearthing just a horrific scenario of sexual abuse," said Hoatson.

The Catholic Church requires every diocese in the world to keep confidential files on its priests locked away, for the bishop's eyes only. They're called the secret archives.

Bishop Richard J. Malone said the possibility of a grand jury investigation occurring in New York State was "not a dominant concern" for him at the moment. But, he added, "knowing that it's happening down across our southern border is something I'm very aware of."

Malone said the dioceses in New York are trying to help clergy sex abuse victims heal by offering them voluntary compensation.

"I would hope that people would look at what we and the other dioceses are doing and doing in good will and see that we're really trying to reach out. Yes, we have to own the fact there have been crimes and sins in the past perpetrated by some of our people, some of our clergy. And that should never have happened," he said.

In March, Malone publicly identified for the first time the names of 42 Buffalo Diocese priests credibly accused of sexual misconduct.

Despite that history, priests have rarely have been prosecuted for sex crimes.

In New York, in most cases, authorities cannot charge an accused child molester after the victim turns 23 because of the statute of limitations.

In Pennsylvania, the rules are less restrictive. Charges can be brought until the victim turns 50.

In 2016, Pennsylvania impaneled a special statewide investigating grand jury to examine clergy sexual abuse in six of the state's eight dioceses, including the Diocese of Erie, directly south of the Buffalo Diocese. The Erie Diocese was led for more than two decades by Bishop Donald W. Trautman, a priest and former administrator of the Buffalo Diocese who retired as Erie bishop in 2012.

The grand jury probe followed earlier investigations of the Diocese of Altoona-Johnstown and the Archdiocese of Philadelphia, both of which revealed cover-ups of abuses.

In 2014, special agents with the Pennsylvania Attorney General 's Office found more than 115,000 files inside the administrative offices of the Altoona-Johnstown Diocese. The paperwork, stuffed inside boxes and filing cabinets, included correspondence from bishops, internal diocesan memos and letters to priests who had sexually abused children.

An investigating grand jury concluded from those documents and witness testimony that hundreds of children in the Altoona-Johnstown Diocese had "fallen victim to child predators wrapped in the authority and integrity of an honorable faith" and that two bishops "placed their desire to avoid public scandal over the well-being of innocent children."

"Priests were returned to ministry with full knowledge they were child predators," the report said.

The latest Pennsylvania grand jury probe covers the dioceses of Erie, Allentown, Pittsburgh, Scranton, Harrisburg and Greensburg. A resulting report has yet to be made public, but it's already controversial. Some people named in the report asked the state's highest court to block its release, according to Pennsylvania newspaper accounts. The court last week ordered the attorney general and the head of the grand jury panel to keep the findings under wraps, while the court further considers the matter.

From Boston to Los Angeles, civil lawyers and law enforcement officials have been able to use the power of the legal system in forcing several dioceses to surrender internal church records. Subpoenas, search warrants and court orders have helped uncover secrets about abusive priests that dioceses have held for years in their archives.

"Any time a priest has a canonical investigation or a canonical penalty assigned to them by the Catholic Church, the record of that proceeding goes immediately into the diocesan secret archive. By canon law, the only person who has a key to that secret archive is the bishop," said James Faluszak, a former priest of the Erie Diocese who testified last year under oath to the investigating grand jury.

Faluszak accused an Erie priest of sexually abusing him when he was a boy. Since his testimony, he has frequently advocated on behalf of other victims for Bishop Richard J. Malone to reveal more about the extent of clergy sexual abuse in the Buffalo Diocese. But Faluszak said Malone and other bishops won't willingly divulge those details, which is why a grand jury investigation is necessary in New York.

"He has a pretty high level of motivation to not share his files with the public," said Faluszak. "So we need government, we need law enforcement to step in and unlock that key."

Lawyers representing abuse victims have unlocked the key to the secret archives through lawsuits in some states.  The Diocese of San Diego and Archdiocese of Los Angeles, for example, were forced to reveal as part of settlement proceedings confidential memos detailing what top church officials knew about abusive priests.

Those lawsuits progressed to at least a discovery phase, where lawyers could use subpoenas to get confidential diocesan documents, because the states in which they were filed either had less restrictive statutes of limitations for bringing child sex abuse in civil courts or enacted legislation allowing statutes of limitations to be waived temporarily in sex abuses.

New York has among the most restrictive statutes of limitations in the nation for civil child sex abuse lawsuits, despite a strong push to adopt legislation that would open a one-year window for victims to file claims that currently are time-barred.

Victim advocate Judith Burns-Quinn of Hamburg said bishops manipulated victims into keeping abuses secret by concealing previous reports of abuse. Many victims would have come forward earlier if they had known they weren't the only victim, said Burns-Quinn, who has counseled dozens of clergy sex abuse victims.

"As I see it, bishops obstructed justice through secrecy so the statute of limitations would protect the assets of the church," she said.

Bishops should be held accountable for that manipulation and obstruction of justice, she added.

The Altoona-Johnstown investigation led to the prosecution of two Franciscan friars who pleaded no contest in May to endangering the welfare of children, in connection with covering up sexual abuse of children by other clergy.  Three grand juries in Philadelphia in 2003, 2005 and 2011 also led to the prosecution of two priests who were administrators in the Archdiocese of Philadelphia over their handling of sex abuse allegations.

It's unclear if and when the latest grand jury report about the six other Pennsylvania dioceses will be released.

Jim Van Sickle of Bradford, Pa., expects "huge bombshells" to be included in the report. Van Sickle, 55, testified in 2016 that the Rev. David L. Poulson in the early 1980s groped him and tried to groom him for a possible sexual relationship. Poulson resigned as a priest of the Erie Diocese in February and currently is facing a trial on charges related to the sexual abuse of two boys between 2002 and 2010.

"The voice of the victims coming out of Pennsylvania is strong and I don't think we're going anywhere," said Van Sickle. "We see the cracks in the Catholic Church's wall and we're trying to bust through that wall."

The grand jury report will help victims because "there's some closure, some healing that takes place when you can see it in print that somebody heard you," said Sickle. "Most victims I meet really want to be heard ultimately."

At the same time, he added, rooting out the cover-up of so much abuse over so many years won't end with a report.

"People want to see indictments," he said.