Indictment of former Pa. priest signals aggressive new reach by federal prosecutors in clergy sex abuse investigation
By Ivey Dejesus
September 9, 2019
|In this Nov. 13, 2013, file photo, a photo of Rev. Robert Brennan, right, is displayed during a news conference in Philadelphia, where attorneys for the family of Sean McIlmail, an alleged priest-abuse victim, announced a wrongful death lawsuit against Roman Catholic church officials. McIlmail claimed Brennan abused him for years, beginning at age 11. Federal prosecutors in Philadelphia have charged Brennan, a former Roman Catholic priest with lying to the FBI about whether he knew the accuser and his family. Authorities say Brennan was arrested in Maryland.|
Photo by Matt Rourke
|An Australian appeals court in August rejected the appeal of disgraced Cardinal George Pell against his conviction for sexually assaulting two 13-year-old choirboys in the mid-1990s. Pell stands as the most senior Catholic Church officials to be convicted of child sex crimes.|
Photo by Andy Brownbill
Two priests have been convicted; one other awaits trial.
That’s about the sum total of legal action that has taken place in the wake of the Pennsylvania grand jury report on clergy sex abuse, which identified more than 300 predator priests statewide.
That narrative could be about to change.
Last week, federal prosecutors dealt the latest salvo in what is fast becoming a tide of aggressive new strategies to criminally prosecute child sex predators and their accomplices in the Catholic Church.
Federal prosecutors in Philadelphia last week filed charges against a former Archdiocese of Philadelphia priest, accusing him of lying to the FBI.
According to the indictment, Robert Brennan, 81, who was arrested in Maryland, in April told FBI agents that he did not know accuser Sean McIlmail from his years at a northeast Philadelphia parish from 1993 to 2004.
It was the first charge filed in a sweeping statewide federal investigation launched just a few months last year after the release of the 2018 grand jury report. Prosecutors in the bulk of the cases laid out by that report were hampered by state law - specifically the expired statute of limitations.
In October, a mere few months after state Attorney General Josh Shapiro released the findings of the statewide grand jury investigation, U.S. Attorney William McSwain sent broad subpoenas to dioceses across Pennsylvania.
Brennan in 2013 was indicted on related state sexual assault charges, but the case was dropped when McIlmail died of a drug overdose before trial.
Brennan’s federal indictment comes amid a growing number of aggressive prosecution strategies of Catholic Church clergy, who for decades have eluded state prosecution nationwide, largely because of state laws with limited times to pursue criminal or civil cases.
Among the cases:
In May, tired of being repeatedly stonewalled by church officials, Dallas police raided three separate locations as part of their investigation into allegations of sexual abuse made against Catholic of Diocese Dallas priests.
Prosecutors in West Virginia approached the prosecution against the former bishop of West Virginia’s Catholic diocese from the point of view of consumer protection. West Virginia Attorney General Patrick Morrisey accused the diocese and ex-Bishop Michael Bransfield of knowingly employing pedophiles and failing to conduct adequate background checks on camp and school workers.
And in April, federal prosecutors in Santa Fe, N.M., marked an unusual federal criminal prosecution of a former priest in a state where dozens of clergy abuse victims have won more than $50 million in settlements from the Archdiocese of Santa Fe.
“It is an amazing moment,” said Terry McKiernan, president of BishopAccountability.org, a Massachusetts-based group that maintains records of clergy abuse.
“I think more and more when you look at them collectively there’s a sense that there’s a critical mass beginning to build not only because of the criminal investigations but also the various kinds of action proceeding against the church and its various institutions.”
At the very least, McKiernan notes, it signals that prosecutors are cognizant of respective developments in prosecuting what is not only a national but a global child sex crime scandal within the Catholic Church.
“My sense is that prosecutors are talking with each other and there’s increasingly a received wisdom about how the church operates in managing these priests and how it operates in deflecting and defending itself when that time comes,” McKiernan said.
Indeed, when it comes to the 300-plus priests identified by Pennsylvania’s grand jury report of 2018, a substantial number of the priests have passed away. Those still alive, however, have been shielded from prosecution because the statute of limitations have expired.
That federal prosecutors have charged Brennan with lying to agents (a federal crime) is a signal to legal experts of the growing intolerance among prosecutors for what has up to now historically been a modus operandi by the Catholic Church to protect its priests and itself at all costs.
Richard Serbin, an attorney who has represented more than 400 victims of clergy sex abuse in Pennsylvania, sees it as a new aggressive approach.
He cited a parallel with his client, Renee Rice, who contends in a lawsuit the Diocese of Altoona-Johnstown was involved in a conspiracy when it failed to protect her over its interests.
“They are doing the same thing I did in the Rice case except in the criminal end,” said Serbin. “They are looking for ways to bring justice in this case to survivors and society because the laws protect child abusers and their protectors. This is good it’s thinking outside the box.”
Rice alleges she was sexually assaulted by a former priest, Charles F. Bodziak. Instead of focusing on the priest, Serbin argued that the Diocese of Altoona-Johnstown committed conspiracy and fraud against Rice. Serbin contends she can sue even though the statutes of limitation have expired because the diocese engaged in an ongoing conspiracy. In what some analysts have called a landmark ruling, the Superior Court ruled her suit can proceed.
In the wake of the Superior Court decision, a growing number of victims have filed similar suits.
Serbin said he’s certain federal prosecutors would have preferred to charge Brennan with child sex crime charges, but his indictment speaks powerfully.
“They found this was truly their only option from a legal aspect,” Serbin said. “I think it’s a notice for those that are going to give false testimony or lie to federal prosecutors that they stand the risk of being charged criminally.”
A 2005 Philadelphia grand jury report into clergy sex abuse found that Brennan was repeatedly named in complaints about inappropriate behavior around children. He was suspended by the church and moved to Perryville, Maryland, and was defrocked in 2017.
McIlmail‘s family has settled a lawsuit against the Archdiocese of Philadelphia for an undisclosed sum.
Charles Gallagher, a former Philadelphia prosecutor, said federal prosecutors are to be commended for their indictment of Brennan.
“I appreciate their motives,” said Gallagher, who was among the lead prosecutors in the 2005 grand jury investigation into clergy sex abuse in the Archdiocese of Philadelphia. “I applaud their motives. If they can convict this guy or something, it’s great.”
Back in 2005, Gallagher, then-Philadelphia District Attorney Lynne Abraham’s senior prosecutor, honed a list of 169 priests down to 63 cases that he felt confident could be prosecuted. From those 63, he identified 28 priests charged with the most egregious child sex crimes: Brennan was among them. As Gallagher noted in 2005 in the grand jury report, Brennan enjoyed the protection of Cardinals John Krol and Anthony Bevilacqua.
“Brennan knew this kid. He knew this family,” Gallagher said. He notes that investigators at the time identified 20 other boys who had leveled sex abuse allegations against the former priest. The victims were beyond the statute of limitations.
Gallagher bemoans the fact that the 2005 report showed substantiated instances of violations of federal crimes, including the transport of children across state lines for the purpose of sex abuse. He bemoans that no federal prosecutor in 2005 launched a criminal investigation. In the ensuing years only a handful of senior church officials have felt any consequence as a result of the global scandal.
“I hope it’s a new chapter,” said Gallagher, who most recently retired as a Lehigh County Chief Deputy District Attorney. “The reality is that other than losing his job - Cardinal Wuerl - and other than being disgraced - Cardinal McCarrick - they’ve been able to avoid real prosecution. I think initially it was because most prosecutors didn’t have the guts to take on the Catholic Church. Any federal prosecutor back in 2005 should have said there were violations of federal law.”
Former Cardinal Theodore McCarrick was defrocked in February. A former archbishop of Newark, McCarrick was found guilty by a Vatican trial of sexually harassing seminarians during his tenure as head of the archdiocese.
Wuerl, a former Pittsburgh Diocese bishop, last year resigned as Archbishop of Washington amid the mounting statewide clergy sex abuse scandal. The 2018 grand jury report mentioned Wuerl more than 200 times, rebuking a once sterling reputation.
After years of bucking obstacles with state law, victims attorney and advocate Marci Hamilton welcomes the latest federal priest indictment.
“It shows the U.S. attorneys are serious about going after individual priests,” she said. “We still are not seeing the federal government taking up the issue of system-wide abuse and going after bishops or dioceses, but this is a good development.”
Hamilton notes that Brennan’s arrest signals the inter-relationship between civil and criminal laws, specifically the statute of limitations. In Pennsylvania, those alleging child sexual abuse must pursue criminal cases by age 50 and civil suits by age 30.
“It cements the message about how we need both civil and criminal statute of limitations reform,” Hamilton said. “Civil and criminal statute of limitations both give us information we need to protect children and each opens doors to progress to justice in the other.”
Hamilton notes that Sean McIlmail, Brennan’s accuser, succumbed to heroin addiction as a result of dealing with the stress of being the only victim who could prosecute Brennan.
“He was the youngest,” she said. “He was not ready.”
Hamilton noted that there was a time when law enforcement agents would refrain from prosecuting priests and church officials. The growing list of cases against church officials and priests signals a change.
“The comfort level of going after dioceses in a system-based abuse is still not strong,” Hamilton said. “We simply are not seeing federal investigations into dioceses and bishops.....but I think we are in the process of a change in the arch of justice here. But the federal government continues to treat religious groups with kid gloves even when they are endangering children."
Brennan’s arrest comes at a time when prosecution of clergy sex abuse continues to evolve not only at the national level, but the global stage.
In August, an Australian appeals court rejected the appeal of disgraced Cardinal George Pell against his conviction for sexually assaulting two 13-year-old choirboys in the mid-1990s.
Pell, once finance minister to Pope Francis, stands as the most senior Catholic official to be convicted of child sexual assault.
Meanwhile, in Chile prosecutors are tirelessly investigating hundreds of abuse allegations involving more than 200 victims. The Catholic Church in the Latin American country continues to be buffeted by a series of clergy sex abuse scandals, the latest allegation leveled against a high-profile former archbishop.
It remains to be seen if federal law enforcement authorities will apply to the Catholic Church powerful laws designed to combat organized crime.
Prosecutors could invoke the Racketeer Influenced and Corrupt Organizations Act against the church. The federal law - better known as RICO - has been used to prosecute mobsters, the Hells Angels and other criminal enterprises but the statute features a slew of onerous and difficult requirements, most narrowly defined.
The federal government would have to prove the Catholic Church was an enterprise and one that was engaged in two or more instances of racketeering activity, including: illegal gambling, bribery, kidnapping, murder, money laundering, counterfeiting, embezzlement, drug trafficking, slavery, among other crimes.
Prosecutors would have to prove that the church directly invested in, maintained an interest in, or participated in the criminal behavior affecting interstate, even foreign commerce. In other words, that it covered the crimes up.
Gallagher said that in 2005 his investigation substantiated sufficient evidence of some of these violations - including the transport of children across state lines for the purpose of sexual abuse.
“Any federal prosecutor back in 2005 should have said there are violations of federal law,” he said. “They took kids across state lines...and priests were sent across state lines. They could have started an investigation On Sep. 22, 2005 one day after we released our report but they didn’t have the political backing...They are afraid of the power of the church.”