Will AG’s settlement change how Buffalo Diocese handles allegations? Some are skeptical.

Buffalo News [Buffalo NY]

December 4, 2022

By Jay Tokasz

A negotiated settlement to end the state attorney general’s 2020 lawsuit against the Buffalo Diocese yielded a 30-page court order and additional embarrassing news coverage of the diocese’s handling of child sex abuse allegations.

What the settlement didn’t do, according to some advocates for child sex abuse victims and child abuse prevention experts, was require the diocese to substantially change the way it operates.

Aside from a new monitoring program for offending priests, most of the policies and procedures outlined in the settlement already were being used in the diocese prior to the lawsuit.

“Essentially what was produced was weak tea,” said Marci Hamilton, chief executive officer of Child USA, a national child abuse prevention organization.

Hamilton characterized the agreement as a “deep disappointment,” as well as a missed opportunity for New York to set a new bar in holding accountable large youth-serving organizations like the Catholic Church.

“The arrangement essentially codifies the system that caused the problems in the first place,” she said. “This is what happens when you have a major Wall Street law firm come in and negotiate your deal. And clearly the negotiations were not centered around what’s the best thing for children. The negotiations on the diocese side were basically, ‘How do we make sure the status quo continues?’ And they won on that.”

The diocese paid multinational law firm Jones Day more than $1.4 million to negotiate the deal filed Oct. 25 in U.S. District Court Southern District of New York.

Bishop Michael W. Fisher, in remarks after the filing, said the agreement “validates our rigorous policies and protocols that the diocese has put in place over the past 20 years.”

He also wrote in a letter to parishioners that the diocese’s essential policies “remain largely unchanged” and that the diocese hired a child protection policy coordinator and will contract with an outside auditor to help meet the AG’s requirements.

The AG’s Office hailed it as a “landmark settlement,” saying the level of independent external oversight of a Catholic diocese outlined in the agreement hasn’t happened before in New York.

In particular, the deal forced the diocese to implement a monitoring program for priests with substantiated allegations of abuse against them. Prior to the AG’s lawsuit, the diocese had no procedures for keeping tabs on accused priests. The settlement includes provisions for one-to-one monitoring of priests done by individuals with law enforcement experience. It also mandates that the diocese report abuse allegations to local law enforcement – echoing deals that the diocese has had in place for years with district attorneys in Western New York.

A spokeswoman for the AG’s Office said the settlement included all of the injunctive relief the office had sought in its 2020 lawsuit.

The settlement allows the diocese to continue investigating old abuse allegations in house with a review board composed of members appointed by the bishop, with the bishop holding the final say as to whether an accused priest is removed from ministry.

Of the 29 diocese priests who since 2018 were put on administrative leave due to sex abuse allegations involving a minor, 17 were later allowed to resume priestly activities. Those complaints, in most cases, alleged abuse from decades earlier. But critics said the diocese’s internal process exonerated some accused priests and put them back into contact with children without a thorough and impartial investigation into abuse claims.

The New York Attorney General’s lawsuit is among criminal or civil inquiries brought by attorneys general or district attorneys against at least 22 dioceses and archdioceses across the country since 2002, according to bishopaccountability.org, which has been documenting the Catholic Church’s abuse scandal for two decades.

“The general trend is there will be short-term change in the diocese, but when civil authorities relax their vigilance, the diocese sometimes reverts to bad practices, and even when the prosecutor stays alert, the diocese can put up a lot of resistance,” said Anne Barrett Doyle, a bishopaccountability.org board member.

In one of the first cases brought against a diocese, the New Hampshire Attorney General’s Office dropped its pursuit of child endangerment charges in 2003, in exchange for the Manchester Diocese’s cooperation on reporting abuse allegations and other enhanced child protection measures.

The agreement included five years of oversight by the AG’s office. But by 2007, the diocese had “critical gaps” in its compliance, according to a report by KPMG that also criticized a high-ranking church official for a lack of candor during an audit.

The AG’s office also discovered that the diocese was withholding anonymous or vague allegations, in apparent violation of the agreement, said Barrett Doyle.

“Even with the threat of a criminal charge and the threat of being hauled into court for contempt of court if they didn’t comply, the diocese still withheld allegations. They still put up all sorts of legal fights,” she said.

A spokeswoman for the New York Attorney General’s Office said the office could “take further action” against the diocese in the five-year oversight period if “problems were persisting.”

The New York attorney general doesn’t have the power to convene grand juries without an executive order from the governor, unlike in Pennsylvania, where a sweeping 2018 grand jury report revealed that nearly 300 priests had abused more than 1,000 children in six dioceses across the state.

The Buffalo Diocese in its settlement with the State Attorney General’s Office made no admissions about covering up for priests who had molested children, but agreed to implement enhanced measures to prevent future sex abuse in parishes and schools.

Instead, the New York AG’s Office relied on state laws relating to charitable organizations in its lawsuit against the diocese and former Bishop Richard J. Malone and former Auxiliary Bishop Edward M. Grosz. The lawsuit, based on internal Buffalo Diocese documents subpoenaed by the AG’s office, accused diocese leaders of misleading beneficiaries about their response to sex abuse allegations in the wake of the 2002 adoption of national standards by the U.S. Conference of Catholic Bishops aimed at addressing and preventing sexual abuse of minors.

The unusual approach basically accused the diocese of defrauding parishioner donors by misrepresenting and mishandling abuse complaints.

David Clohessy, former national director of the Survivors Network of those Abused by Priests, or S.N.A.P., said it was a laudable strategy on the part of the New York Attorney General’s Office.

Ultimately, though, the agreement isn’t likely to lead to any dramatic improvement in the Buffalo Diocese, he said.

“Public officials, both AGs and local prosecutors, over the past 20 years have said, ‘Wow, we’ve now got this groundbreaking new deal.’ In practice, over time, well, it turns out that it’s not that groundbreaking,” said Clohessy. “I would encourage Buffalo citizens and Catholics and law enforcement to be highly skeptical, and to at least withhold judgment on the settlement until we see how it actually pans out.”

Malone and Grosz, accused in the lawsuit of misusing charitable assets by supporting priests who they knew had likely sexually abused minors, are prohibited from serving on the boards of any nonprofit organizations in New York, a penalty Clohessy termed “pretty meaningless.”

U.S. bishops rarely face prosecution or penalty from civil authorities over their handling of offending priests.

“Given the uniform finding by grand jury investigations across the country that bishops deliberately have covered up and enabled the sexual abuse of children, it is remarkable that not one bishop has spent a night in prison,” said Barrett Doyle.

Clohessy and Hamilton said they were concerned that the AG agreed to allow the Buffalo Diocese to hire Kathleen McChesney and her firm, Kinsale Management Consulting, for annual compliance audits.

A federal bankruptcy court judge on Friday approved the hire, allowing the firm to get a $10,000 retainer fee and bill the diocese at a blended rate of $400 per hour, along with a $5,000 retainer for travel expenses, according to court papers.

McChesney is a former FBI executive assistant director who led the U.S. Conference of Catholic Bishops’ Office of Child Protection and helped dioceses implement the Charter for the Protection of Children and Young People.

Clohessy and Hamilton said McChesney’s former roles within the church and her current consulting work for many bishops amounted to a lack of independence necessary when doing a proper audit, but the settlement includes language requiring that the auditor comply with independence standards laid out in the U.S. Government Accountability Office’s Yellow Book, an audit guidance text.

Previous annual audits of the diocese’s child protection efforts since the mid-2000s relied on self-reported data, whereas Kinsale will be allowed access to all diocese records, including abuse complaints lodged against priests.

The Rochester Diocese’s strategy to exit Chapter 11 bankruptcy by paying childhood sex abuse survivors $55 million and allowing them to sue the diocese’s insurers for additional damages may provide a template for other bankrupt dioceses.

McChesney did not respond to emails seeking comment about how Kinsale will conduct the audits.

Even more concerning for Hamilton was the lack of rigor in the Buffalo Diocese’s child protection policy and procedures.

“The problem here is the auditor is auditing essentially the system they already had, but I don’t see the introduction of new, higher-value child protection systems,” she said.

Ultimately, it may fall upon the insurance industry to insist on youth-serving organizations adding the best research-based child protection measures or risk losing coverage, said Hamilton.

As it stands now, it’s hard to know exactly what’s being done in the Buffalo Diocese when it comes to handling abuse allegations or implementing measures aimed at preventing abuse, she added.

“The key is how do we give parents the security that sending their children to these schools and churches is safe,” she said. “Since none of this is transparent in a meaningful way and the standards don’t have scientific rigor, parents really should be complaining instead of accepting the public relations assurances they’re getting.”