3 years later, few signs of life in state’s child sex abuse probe

Times Union [Albany NY]

April 3, 2022

By Brendan J. Lyons

More than three years ago, the state attorney general’s office announced it was launching an investigation into the handling of child sexual abuse by New York’s Catholic dioceses. Since then, no cases have been pursued by the district attorneys who were encouraged at that time to pursue any related criminal allegations that were uncovered and fell within applicable statutes of limitations.

The lack of any apparent grand jury investigations — which could also produce reports detailing the dioceses’ handling of child sex abuse even if criminal charges were not possible — has occurred despite increasing evidence that church leaders routinely covered up the allegations to protect those priests and their institutions. That practice also led to the additional abuse of children when accused priests were later allowed to return to ministry without bishops or others notifying congregations of their histories, according to court records.

“I am not aware of any (criminal investigations), and I would imagine it would capture the attention of the media if that, in fact, had happened,” said Washington County District Attorney Tony Jordan, president of the District Attorneys Association of New York. 

Still, many of the details of the Catholic church’s handling of abuse committed by priests or other employees have been laid bare as a result of pretrial proceedings in thousands of civil lawsuits filed under New York’s Child Victims Act — legislation that was passed after then-Attorney General Barbara Underwood announced her office’s investigation in the summer of 2018.

The recent disclosure of former Albany Bishop Howard J. Hubbard’s testimony — in a pre-trial deposition taken last year as part of multiple lawsuits filed against him and the 14-county diocese — confirmed that he had concealed incidents of child sexual abuse to avoid “scandal” and to preserve “respect for the priesthood.”

The admissions by Hubbard, who acknowledge he did not contact police when he learned of child sexual abuse allegations, raise questions about whether his actions have exposed him or the diocese to any potential criminal fallout. Most of the sexual abuse in the Albany diocese took place decades ago, outside the reach of New York’s criminal statutes, but Hubbard did not retire until 2014 and only recently acknowledged that he systematically hid the abuse from the public and the congregations that he served.

Michael Costello, right, is a longtime attorney for the Roman Catholic Diocese of Albany and has led its legal battles with hundreds of alleged victims of sexual abuse. Mark Haight, left, is a priest accused of sexually abusing multiple children over the course of years beginning in the 1970s. Lori Van Buren / Times Union
Michael Costello, right, is a longtime attorney for the Roman Catholic Diocese of Albany and has led its legal battles with hundreds of alleged victims of sexual abuse. Mark Haight, left, is a priest accused of sexually abusing multiple children over the course of years beginning in the 1970s. Lori Van Buren / Times Union

Jordan, who was appointed president of the district attorneys association in June, said state law is complicated on when the statute of limitations would begin for certain criminal conduct, including allegations involving concealment of wrongdoing. New York’s statute of limitations generally requires that charges for felony offenses be filed within five years from the end of the alleged criminal conduct.

“The statute of limitations, and when does it start, is always a challenging legal issue to resolve,” Jordan said.

Although no criminal cases have been pursued, the state attorney general’s investigation resulted in that office filing a civil complaint in November 2020 against the Buffalo diocese and former Bishop Richard J. Malone, as well as Edward M. Grosz, who was an auxiliary bishop for the western New York diocese.

In the complaint, which is pending in U.S. District Court in Manhattan, the Buffalo diocese’s former leaders are accused of systematically covering up child abuse and violating state nonprofit laws in doing so. Malone also is alleged to have destroyed records documenting sexual abuse and of listing priests accused of sexually abusing children as “unassignable,” which allowed those priests to remain in holy orders without any supervision or monitoring. Others were allowed to retire.

The attorney general’s civil complaint seeks an independent review of the Buffalo diocese’s response to alleged sexual abuse; mandatory reporting on its operations to the attorney general for five years; and a remedial and compliance plan with external oversight. It’s unclear whether the attorney general’s office is considering filing a similar civil complaint against the Albany diocese or other dioceses in New York.

A spokeswoman for the state attorney general’s office said they are reviewing Hubbard’s testimony as part of their now 3-year-old investigation of New York’s Catholic dioceses, which has produced no action other than the complaint filed against the Buffalo diocese.

“The office of the attorney general is continuing to actively investigate the Albany diocese and others around the state for how they responded to credible claims of sexual misconduct by their priests,” said Morgan Rubin, a spokeswoman for Attorney General Letitia James.

The attorney general’s office has referred complaints and other information they have received in their investigation to various district attorneys across the state.

Kevin A. Keenan, a spokesman for the Roman Catholic Diocese of Albany, declined to say whether Hubbard or any other current or former officials or employees of the diocese have been contacted or interviewed by the attorney general’s office.

“The Diocese of Albany is complying and cooperating with the request issued by the office of the New York state attorney general as part of its Sept. 6, 2018, subpoena,” Keenan said. “It is our policy not to comment further regarding an ongoing investigation.”

Jeffrey R. Anderson, whose law firm represents hundreds of alleged child sexual abuse victims in New York, said the conduct admitted to by Hubbard in his sworn deposition outlines conduct similar to Malone’s in Buffalo, and leaves the Albany diocese “heavily exposed.”

“There (are) now two bishops exposed in a way there’s never been before in New York — and Hubbard even more fulsomely so because we put him under oath,” Anderson said. “I think that the Catholic bishops and Bishop Hubbard in the Albany diocese should face the full weight of the law, and all aspects of it, because they have escaped consequences under the law for so long and they have hidden behind the statute of limitations and conducted themselves in secrecy.”

Attorneys for hundreds of alleged victims of child sexual abuse in New York said they have not seen any indication that the attorney general’s office is actively investigating other dioceses outside of the case filed against the Buffalo diocese. 

“We have been making available to the attorney general all of the information we have been excavating across the state,” Anderson said. “About four months ago, I turned over to the attorney general box after box of files that we have excavated, and complaints that we have filed statewide, not just in Buffalo, not just in Albany. … I got no response to that and … I can’t tell you precisely what they have been doing.”

Keenan, the spokesman for the Albany diocese, said that Bishop Edward B. Scharfenberger’s recent trip to Rome and the Vatican was a “regularly scheduled visit to meet with priests of the diocese who are pursuing further studies while on diocesan assignment. He also consulted with various Vatican congregations and attended Pope Francis’ consecration of Russia and Ukraine at St. Peter’s Basilica on March 25.”

Keenan declined to say whether Scharfenberger discussed the details of Hubbard’s recently disclosed deposition with anyone at the Vatican.

Scharfenberger, a Brooklyn native, was appointed as the 10th bishop of the Albany Diocese in 2014 following the retirement of Hubbard, who was later accused of both sexually abusing children and covering up similar misconduct by other priests. Hubbard, who became bishop of the Albany diocese in 1977, has denied the sexual abuse claims against him.

Three days after Hubbard’s deposition was made public on March 25, Scharfenberger issued a statement addressing the testimony, which he described as “hard to bear.”

“We have a profound responsibility to survivors of abuse in the church — and to their families and friends who suffer with them,” Scharfenberger wrote in The Evangelist. “We must not hesitate to recognize that their pain is multiplied by this news, even as we acknowledge the real and historical failures coming to light.”

Dozens of priests from the Albany diocese have been accused of sexually abusing children, and those who are still alive have faced little virtually no criminal fallout for their alleged conduct.

One of the exceptions was former priest Gary Mercure, who is serving up to 25 years in a Massachusetts prison for raping two altar boys from Warren County that he drove across state lines on ski trips. Massachusetts’ 15-year statute of limitations for sex crimes enabled prosecutors to indict him there.

Mercure’s case exposed criminal conduct that mirrored that of many other priests with the Albany diocese, including when he was sent away for “therapy” by Hubbard after he was accused of having a sexual affair with a young man in the early 1990s.

Mercure’s sexual abuse of young boys while working as a priest in Albany, Queensbury and Glens Falls was outlined in the diocese’s internal records that showed he preyed on young boys as early as the late 1970s, not long after being ordained as a priest.

The records portrayed Mercure as a rogue priest who eluded criminal prosecution and was returned to ministry with no restrictions regarding his contact with children. His alleged abuse of young boys began at St. Teresa of Avila in Albany, where a former church receptionist told the diocese that when she worked there, as a teenager, Mercure escorted a “constant procession” of young boys to his second-floor bedroom and kept them behind closed doors for hours. The abused included her younger brother.

Brendan J. Lyons is a managing editor for the Times Union overseeing the Capitol Bureau and investigations. Lyons joined the Times Union in 1998 as a crime reporter before being assigned to the investigations team. He became editor of the investigations team in 2013 and began overseeing the Capitol Bureau in 2017. You can reach him at blyons@timesunion.com or 518-454-5547.