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CRIMINAL LAW CONSIDERATIONS
Every civil jurisdiction (usually by states) has statutes which impose
civil and criminal penalties on persons who engage in illicit sexual
activities with children and/or adolescents. If a cleric is charged
with sexual misconduct civil law suits can be lodged against him and
his Ordinary for monetary damages to the victim and families resulting
from felonious conduct. The offender could also be charged with criminal
activity. If a sworn complaint is received by a police agency or a
prosecutor (DA) it is inevitable that criminal charges will be filed
causing the press to publish reports of the charges. This would lead
investigative reporters to delve into the details of the case.
What follows the pressing of criminal charges is this: upon completion
of the criminal investigation by the police authorities and the D.A.,
an indictment is obtained, the priest or cleric will be apprehended
and arrested, placed in custody i.e., jail pending
a bond hearing where it will be required that some individual or entity
(Ordinary or Diocese) assume substantial financial obligations which
will 8110w the priest offender to remain free (in treatment) pending
trial. A very expensive criminal defense will be required prior to
and through the course of the trial. At the conclusion of the trial
the priest will either be acquitted or convicted. Upon conviction
the priest will be sentenced to imprisonment at a state penitentiary.
A judge usually has no choice (depending on the jurisdiction and what
the priest is found guilty of) but to sentence a convicted offender
to prison.
1. In most or all jurisdictions there are statutes which require that
instances of child abuse be reported to the civil authorities. The
failure to do so can result in civil and/or criminal penalties.
2. Providing a Criminal Defense
Every instance of sexual molestation of a child is a criminal offense.
A judge must sentence a convicted offender to prison. Though this
is more properly the domain of the canon law, an Ordinary has some
degree of obligation to provide an offender with a competent trial
lawyer in order that he be adequately defended as is his right.
3. Conflict Presented by Civil Cases
The fifth amendment of the U.S. Constitution provides the right to
all who are accused of committing crimes to remain silent and say
nothing to anyone which might
later be used against the subject in a court of law. Therefore, should
or must the Ordinary provide a criminal lawyer to the priest prior
or in advance of having the initial conversation with the priest about
the complaint. Can the priest refuse to answer the questions posed
by the Ordinary based on his civil constitutional rights in anticipation
of criminal charges being filed against him? Can the Ordinary be forced
to reveal or convey any communication he receives from the priest
to police or prosecution authorities which information would either
be utilized to provide corroborating evidence of the priest s guilt
or provide the very basis for the prosecution. The basic conflict
that exists here is whether or not the priest should honestly communicate
with his Ordinary or not.
Though the accused priest is obviously the one in the best position
to provide all of the basic information about the alleged incidents.
This essential information is needed in order to determine how best
to proceed with such matters as treatment plans for the offender;
identifying all of the victims and their families so that adequate
intervention can be planned etc. Nevertheless if the priest, in all
good faith provides this information to his Ordinary it may derogate
from his fifth amendment privilege. This could, in some jurisdictions,
literally finish him in terms of a defense in criminal prosecution.
The choice of a criminal attorney at the earliest stage and the creation
of the mutually cooperative relationship between the criminal attorney
and counsel in the civil cases as well as insurance counsel is very
important.
4. Unavailability of Plea Bargaining Process
Plea bargaining is process whereby a district attorney and a criminal
defense lawyer reach a binding agreement providing that there shall
be no trial. The defendant, as a result of the plea bargain, admits
guilt to a crime, and receives a minimal sentence, much lighter than
the maximum which might well have been imposed following a trial.
Plea bargains are unavailable in criminal cases where there is the
commission of a heinous and odious crime against a young and defenseless
victim. These cases are very high profile, attracting wide spread
media attention and these cases enrage communities, all of which creates
obvious and subtle political pressure bearing down on the prosecutor
or D.A. This forces him to bring the cases to trial. District attorneys
in these cases want to make certain that there is no perception in
the public or opinion in the community that because the Church was
involved that the D.A. has treated the priest in a deferential or
preferential manner. To prove his political independence the tendency
of most D.A. s would be to prosecute fully.
5. Extreme Criminal Law Possibilities for Superiors
There have been situations wherein District Attorneys almost pressed
criminal charges against the priest s Ordinary which criminal charges
would have resulted in the indictment, arrest, incarceration, bonding,
trial or the Ordinary. Had this process occurred, upon conviction,
the ordinary would have been faced with the possibility of serving
a severe sentence in the penitentiary.
There are a lot of criminal laws which pertain to an Ordinary in instances
of sexual molestation of children by their subjects. Primarily there
are two broad areas under which this criminal responsibility falls.
First, the area of reporting. Failure to report information regarding
sexual molestation of a child by a priest when such information is
available or in the possession of the Ordinary, is considered a criminal
offense in some states. Secondly, to allow a priest to continue to
function, endangering the health of children, following the receipt
of private, confidential knowledge that this priest victimized a child
is considered to be "criminal neglect" (a crime in many states).
The proposal contained herein seeks to deal with this very serious
question.
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