Federal Prosecutors Could Tap Several Powerful Laws to Investigate Clergy Sex Abuse in Pa.
By Ivey DeJesus
October 18, 2018
Coming one day after the General Assembly failed to advance a statute of limitations reform bill, news that the federal government had launched an investigation into clergy sex abuse in Pennsylvania served to advocates a reminder that their fight is not over.
"I'm not surprised. What was in this latest grand jury report was horrific," said Rep. Mark Rozzi, the Berks County Democrat who led the effort to enact a retroactive window into reform legislation. "We've said all along that the crimes committed by perpetrators are bad but the crimes committed by the church are egregious. It's not surprising that the U.S. Department of Justice is investigating at all."
The Associated Press on Thursday first reported that the federal government had opened an investigation into the sexual abuse of minors by priests inside the Roman Catholic Church in Pennsylvania.
Dioceses have already received subpoenas demanding confidential files and testimony from church leaders, AP reported.
The dioceses of Harrisburg, Erie, Greensburg and Allentown have confirmed they received subpoenas from federal investigators.
The Diocese of Harrisburg confirmed it is cooperating fully with the inquiry. The dioceses of Erie, Greensburg and Allentown released similar statements.
"This subpoena is no surprise considering the horrific misconduct detailed in the statewide Grand Jury Report," Greensburg Diocese spokesman Jerome Zufelt said in a written statement. "Survivors, parishioners and the public want to see proof that every diocese has taken sweeping, decisive and impactful action to make children safer. We see this as another opportunity for the Diocese of Greensburg to be transparent."
The investigation comes two months after the Office of Attorney General released the findings of an 18-month long grand jury investigation into six dioceses in Pennsylvania. The findings, released in August in a 900-plus page report, detailed horrific crimes of rape and molestation of thousands of children by more than 300 priests; and the concealment of the crimes by church officials.
U.S. Attorney William McSwain of the Eastern District of Pennsylvania Philadelphia, who issued the subpoenas, is looking into whether priests, bishops, seminarians or others committed any federal crimes.
Few prosecutors have ever invoked - much less succeeded with - a seldom-used but powerful federal law designed to combat organized crime.
Only a few federal prosecutors have ever initiated civil lawsuits against the church under the Racketeer Influenced and Corrupt Organizations Act, a federal law better known as RICO that has been used to prosecute mobsters, the Hells Angels and other criminal enterprises.
It is not clear whether federal prosecutors in this case are invoking RICO.
Marci Hamilton, an attorney and prominent advocate of reform to statutes of limitations, says that more to the point, federal prosecutors should be applying a relatively unknown 1910 statute known as the Mann Act, which officially is named the White Slave Traffic Act after its author, Rep. James R. Mann.
The law was originally intended to fight forced prostitution and "debauchery" but more recently has been broaden to combat the interstate trafficking of children for sex.
"This is something they could have been prosecuting with for years," said Hamilton, a University of Pennsylvania law professor and CEO of ChildUSA. "The federal government has been silent on sex abuse in the church ....Congress, the presidents, the FBI and the U.S. attorneys, but it just became impossible to ignore anymore."
In 2008, federal prosecutors invoked the Mann Act to prosecute New York's Democratic governor, Eliot Spitzer. The statute has also been used to prosecute polygamous Mormon fundamentalists.
"It's about time that the federal government noticed that children are been taken across the New Jersey-Pennsylvania border for sex and that priests were transporting children from here to the shore repeatedly," Hamilton said.
In the latest grand jury report out of Pennsylvania, investigators found that priests had at times transported children across state lines for the purpose of sexually molesting them. Church officials for decades concealed the crimes from law enforcement.
The RICO statute features a slew of onerous and difficult requirements, most narrowly defined.
For instance, the government must prove the defendant is an enterprise and one that is 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.
Moreover, complex and esoteric international law virtually renders the Vatican, and the head of the Catholic Church, Pope Francis, impervious to lawsuits involving clergy sex abuse. Attempts to do so have proven nearly impossible.
For starters, courts treat dioceses as a free-standing corporations, independent of other dioceses and the Vatican. A prosecutor looking to go after the pope would have to show the personal involvement of officials in the Vatican in the wrongdoing. Additionally, only nations can go before the International Criminal Court at The Hague in the Netherlands. Most of those crimes involve war crimes or crimes against humanity.
To date, Attorney General Josh Shapiro has convicted two priests as a result of the grand jury investigation: David Poulson and John Sweeney, both priests, have pleaded guilty to sexually molesting minors.
Mike Barley, a spokesman for the Diocese of Harrisburg, reaffirmed that the diocese was cooperating fully with the investigation.
He acknowledged that since the diocese was thoroughly investigated by state agents of the attorney general's office, the diocese has all records that might be needed for the federal investigation in order.
"It's very similar," Barley said. "We have produced a lot of those records before so the collection process won't take as much time."
The General Assembly on Wednesday failed to advance Senate Bill 261, which as amended would have eliminated criminal statute of limitations going forward, and most notably, open a retroactive window that would have allowed victims time-barred from the courts to file civil lawsuits against predators.
The bill met its demise after a substantial cohort of lawmakers - particularly in the House - vowed to reject the plan, which included restrictions as to who could be sued. The bill would have allowed victims to sue only abusers - and would have exempted institutions like the church from suits.
Barley said the diocese remained committed to establishing a victims compensation fund.
"I think the Diocese of Harrisburg has been clear with our position moving forward with the fund," he said. "Certainly we were monitoring what was going on and we will continue to monitor. I know our position is to move forward with the survivors' fund."
Barley could not provide additional information as to how the fund would be financed and whether it would be a joint venture with other dioceses.
"We are committed to a fund," he said. "I don't know how it will be constructed but I know we are committed to doing it."
For now, victims and advocates may not have secured all the recommendations handed down by the grand jury, but knowledge that federal prosecutors are conducting their own probe into possible federal crimes served as some comfort.
Rozzi said he is confident that prosecutors will find that children had been trafficked across state lines for the purpose of sex.
"We understand that more stuff is going to continue to come down the road with the New York and New Jersey grand juries," he said. "We are going to see trafficking back and forth. That won't be surprising at all.
"It was a punch in the gut for victims last night but to wake up and see this is coming says the fight is not over."