The Liability of Knowing but Not Acting

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

The Pennsylvania Supreme Court affirmed the felony conviction of a priest who worked in an administrative position with an archdiocese for "endangering the welfare of a child" for failing to take steps to protect children from a priest who had molested children. In 1992, a Catholic priest (the "defendant") was appointed Secretary for Clergy for the Archdiocese of Philadelphia, where he served for 12 years, until 2004. As Secretary for Clergy, he was responsible for ensuring that parishes were filled with enough priests, resolving disputes among priests, and handling clergy sexual abuse issues. It was his responsibility to collect and assess information concerning allegations of sexual abuse against priests in the Archdiocese, discuss the allegations with the accused priests, participate in deciding how to address the allegations, and make recommendations to the Cardinal about the priests against whom allegations were made.

By his own account, the defendant was the sole "funnel" of information concerning instances of clergy sex abuse, and it was his office alone that was responsible for not only receiving the allegations and exploring them, but also for passing vital information about abusive priests and their young victims up the chain of command in the Archdiocese.

Although he could only independently remove a priest from a parish if that priest admitted that he had abused someone, it was the defendant's responsibility to make recommendations about assignments to the Cardinal, who had the ultimate decision-making authority. For example, the defendant could make recommendations to place a priest on administrative leave or restrict a priest's ministry by, for instance, prohibiting contact with the public or with children. In this respect, the defendant characterized protecting children as the most important part of his job, and explained that he worked "for" the children of the Archdiocese.

When the defendant first assumed the office of Secretary for Clergy in 1992, he collected information. In addition, his position authorized him to be one of the few officials within the Archdiocese of Philadelphia with access to the "Secret Archives." The Secret Archives were located on the 12th floor of the Office of Clergy and maintained under lock and key; they contained information about "any kind of major infractions a priest would have," and which only a "very, very limited number of people within the Archdiocese had access to or a key to." The Secret Archives were largely in the defendant's control as Secretary for Clergy, and he routinely consulted them to determine if there was already information relevant to a priest about whom he had received complaints.

In early 1994, after receiving accusations of inappropriate conduct by a priest in active ministry, the defendant consulted the Secret Archives and discovered documentation that this particular priest had engaged in serious sexual misconduct in the past. This discovery caused the defendant to become concerned that there were other priests in active service against whom allegations of abuse had been asserted, and this prompted him to conduct a comprehensive review of the Secret Archives to check for incidents of child sexual abuse among all priests in active ministry within the Archdiocese of Philadelphia.

This review encompassed 323 priests and resulted in a report created by the defendant that identified 35 priests in active service with previous complaints of sexual abuse of minors. The defendant placed each of these 35 priests on one of three lists: three priests were identified as "pedophiles;" 12 priests as "Guilty of Sexual Misconduct with Minors;" and 20 were included on a list titled "Allegations of Sexual Misconduct with Minors with No Conclusive Evidence." Regarding the 12 priests that the defendant determined were guilty of sexual misconduct with minors, he considered it his job "to do something about them."

The first name on the defendant's list of priests whom he considered to be guilty of sexual misconduct with minors was Father Jones. The defendant was personally familiar with Jones due to previous investigations into allegations of alcoholism and the molestation of an 11-year-old boy. Jones had built a trusting relationship with this minor in his church, groomed him with attention outside of the church, and, on several occasions supplied him with alcohol and engaged in inappropriate sexual conduct. Jones often invited several boys to spend the night in his home, where he provided them with alcohol and wrestled with them. According to the victim, Jones continued this pattern of inviting him to participate in seemingly innocuous activities, and then groping him when vulnerable.

After the victim revealed the details of his sexual abuse to the defendant, Jones was sent to a mental health facility for six months for evaluation and treatment. His first post-discharge assignment was as a hospital chaplain. Despite his treating therapist's concerns about the existence of other victims, and his recommendation that Jones be kept away from minors, Jones was allowed to reside in a nearby rectory owned by a church that operated a grade school. The defendant never shared with anyone his concern that Jones was guilty of sexual misconduct with minors, while housing him where he had access to grade school children.

Soon after moving into the rectory, Jones met a 10-year-old altar boy who assisted with religious services at the church. Following one service, and after everyone had left, Jones made the boy strip naked to music while telling him that "this is what God wants." He then engaged in multiple sex acts with the boy. The effect of this abuse was devastating. The boy became withdrawn and began using drugs, which developed into a heroin addiction by age 17.

Ultimately, due to these and other wrongful acts, the Archdiocese of Philadelphia removed Jones from active ministry and rectory living, "or any other living situation in which he would have unrestrained access to children now or in the future."

A district attorney in Philadelphia began to investigate the Archdiocese for clergy sex abuse. In 2002, a grand jury was empanelled at the request of the district attorney to investigate the Archdiocese's treatment of allegations of such abuse. The grand jury subpoenaed documents from the defendant pertaining to priests accused of sexual abuse, and the defendant was summoned to testify repeatedly. In 2011, the district attorney charged the defendant with two counts of "endangering the welfare of a child" (EWOC), under a state law that provided, in part: "A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support."

The defendant sought to quash the charges of EWOC on the ground that he had "no connection whatsoever" to the children whose welfare he was accused of having endangered. The court rejected the defendant's position, and the criminal prosecution against him proceeded to trial. The state introduced extensive evidence that the defendant's handling of Father Jones' case was not an anomaly, but was in accord with his established practice for dealing with sexually abusive priests. The evidence demonstrated that "he violated his duty to prevent priests from sexually molesting children in order to protect their reputations in furtherance of his objective to conceal the misconduct and to protect instead the reputation of the Archdiocese," and that "evidence in the files of other priests revealed that the defendant routinely failed to act in his supervisory capacity to protect the welfare of children when faced with reports of priests who were raping, molesting, and acting immorally with these children, repeatedly [making] transfers to facilities where clergy could continue abusing children when trouble arose, and permitting abusing priests to continue in the ministry while keeping parents and law enforcement ignorant of the peril."

After several months of testimony, the jury found the defendant guilty of EWOC on the ground that his frequent failure to remove pedophile priests constituted "knowing endangerment of the welfare of children" in violation of the statute. The conviction and sentence were reversed by a state appeals court, but were reinstated by the Pennsylvania Supreme Court in a ruling in 2015. The court concluded that one can commit the crime of EWOC without any direct supervisory responsibility over a child if his conduct knowingly endangers the welfare of children. The court concluded:

The Commonwealth's evidence established that despite being responsible for responding to sexual abuse allegations against priests for the purpose of protecting the welfare of children, the defendant mollified victims of sexual abuse by falsely telling them their allegations were being seriously investigated and that the particular priest would never again be assigned around children, despite knowing that the priests under his supervision would merely be reassigned to another parish with no ministry restrictions on contact with children; he informed parishioners that the priests he transferred were moved for health reasons, leaving the welfare of children in jeopardy; he routinely disregarded treatment recommendations for priests; he failed to inform the relocated priest's new supervisor about abuse allegations; he took no action to ensure that the abusive priest was kept away from children at his new assignment; he suppressed complaints and concerns by the colleagues of the priests; all with the knowledge that sexually abusive priests rarely had only one victim and that all of these actions would endanger the welfare of the diocese's children. Finally, and even more egregiously, when the defendant was contacted by law enforcement, he misrepresented facts to thwart their investigation of these priests, and their crimes.

The plain reading and common sense of the phrase "supervising the welfare of a child" leaves little doubt that the defendant's actions constituted endangerment of children. Further, the broad protective purpose of the statute, the common sense of the community, and the sense of decency, propriety, and morality which most people entertain, coalesce and are actualized in our conclusion that the defendant's particular conduct is rendered criminal in accord with the EWOC statute … . The Commonwealth proved beyond a reasonable doubt that as Secretary for Clergy the defendant's day-to-day responsibilities involved receiving allegations of clergy sexual abuse and reacting to them for the protection of the children of the Archdiocese from harm by sexually abusive priests over whose assignments he exercised significant influence. He endangered the welfare of [children] whose well-being he supervised, when he placed Father Jones in a position to have access to them.

What This Means For Churches:

This case is significant for one reason: it demonstrates the potential criminal liability that may befall a minister or denominational leader who fails to (1) take steps to protect minors from ministers who are known or reasonably suspected of having molested children, and (2) report such individuals to civil authorities pursuant to the state child abuse reporting law. Commonwealth v. Lynn, 2015 WL 1888582 (Pa. 2015).