Friday, March 30, 2012

Monsignor Lynn And The Duty To Prevent Child Abuse

This post by Max Kennerly is cross-posted on his Litigation and Trial blog.

From the war on drugs to criminal copyright infringement, a number of commentators, legal scholars, politicians and even sitting judges have criticized the breadth of American criminal law, like the prevalence of non-violent or “victimless” crimes that don’t have a direct victim, and the Draconian mandatory penalties that are meted out, even where the judge and jury applying those laws think that less severe penalties would be appropriate. As a consequence of this “overcriminalization,” the United States has by far the highest incarceration rate in the world, so that, with only five percent of the world’s population, we nonetheless have twenty-five percent of its prisoners, most of them imprisoned for non-violent offenses, typically drug offenses.

Historically, and continuing to the present, there have been two glaring exceptions to this expansion of criminality: abuse within the family (whether spousal abuse or child abuse) and criminal conduct by large institutions (like corporations, universities, or churches), both of which have generally gone unpunished, without prosecution, and without even investigation. Child abuse was not considered a crime until the 1870s, when Mary Connolly was prosecuted for “attacking her foster child with a pair of scissors and repeatedly beating her with a rawhide whip and cane.” (Quote from the Logan article discussed below.) She was convicted, and after that various “children’s guardian” boards were created. The prosecution of child abuse, however, remained rare until the 1960s, when new mandatory reporting laws were enacted that required healthcare professionals to report suspicions of child abuse to government authorities.  Similarly, in the 1980s, public awareness of the sexual abuse of children increased dramatically, so that today child abuse prosecutions are no longer the rare, newsworthy events that they once were.

Prosecutions of crimes that occur within the context of a large institution are even less common than prosecutions for spousal abuse or child abuse, and they even more rarely result in a conviction. Outside of a handful of prominent examples — like Bernie Madoff and Jeffrey Skilling — financial institution fraud prosecutions have fallen over the past 20 years, down to under 1,400 a year across the entire country. Many prosecutions of alleged crimes that occurred inside a corporation with the knowledge of other employees, like the prosecution of GlaxoSmithKline associate counsel Lauren Stevens, ended in failure, dismissed prior to a jury ruling.

Clergy abuse implicates both tendencies in American law — the reluctance to prosecute child abuse by people close to the family and the preference for letting institutions resolve problems “internally” — by virtue of the church’s role in society, in communities, and in families. In a law review article published in 2003 in the Harvard Civil Rights and Civil Liberties Law Review, Professor Wayne A. Logan of Florida State University’s College of Law tied these issues together under the framework of “criminal law sanctuaries,” going all the way back to the role of the church in the middle ages in serving as a “sanctuary” that would shield accused criminals from prosecution.

As advocates for abuse survivors rightly point out, criminal prosecutions for abuse represent just the tip of the iceberg, because they require both the reporting of the alleged abuse to the authorities — which only happens in a small fraction of abuse cases — and the decision by the prosecutor to move forward with the case, which also only happens in a fraction of the cases that come to them, given the high “beyond a reasonable doubt” burden of proof required for criminal convictions in the United States. The “sanctuary” factor of churches may make it even less likely that victims of sexual abuse will report the crimes or that the crimes will be prosecuted.

Here in Pennsylvania, the indictment of former Penn State Assistant Coach Jerry Sandusky for nearly a dozen allegations of repeatedly abusing children under the care of his “Second Mile” charity brought many of these issues relating to “internal” handling of crimes back into the public spotlight.  Of particular relevance to the Lynn prosecution, Sandusky was not indicted alone, but was indicted alongside two PSU Football Team administrators who allegedly knew about, but failed to report, the abuse. Although the two PSU administrators, Tim Curley and Gary Schultz, were indicted under the specific mandatory reporting law (which some lawyers have argued doesn’t apply to them), while Monsignor Lynn was indicted under the more general endangering the welfare of a child law, the two cases bear more than a passing similarity.

Pennsylvania’s “endangering the welfare of children” law, 18 Pa.C.S. § 4304 said that:
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.
(As a result of the Catholic church abuse scandals, a 2006 amendment added at * the phrase, "or a person that employs or supervises such a person", but that can’t be used against Lynn for allegations before 2006.)

There is little doubt that the priests directly supervising children at the church fall within that definition, but Monsignor Lynn is in a different position from them, raising questions as to whether or not he has “a duty of care, protection or support” to the abused children. As the Pennsylvania Superior Court said years ago, “The Crimes Code nowhere defines this duty,” Commonwealth v. Barnhart, 497 A. 2d 616 (Pa. Super. Ct. 1985), and it has never before been applied against a supervisor of an abuser. In Commonwealth v. Halye, 719 A. 2d 763 (Pa. Super. Ct. 1998), the Superior Court overturned the child endangerment conviction of a victim’s uncle who had sexually abused his nephew because “No testimony was presented to indicate that Appellant was asked to supervise the children or that such a role was expected of him.” Then again, the Superior Court has also said “the common sense of the community should be considered when interpreting the language of the statute." Commonwealth v. Brown, 721 A.2d 1105, 1106-07 (Pa.Super.1998). Do you think the “common sense of the community” implies a duty on supervising clergy to prevent child abuse?

The Philadelphia District Attorney’s Office obviously believes Lynn did have “a duty of care, protection or support” by virtue of his position as those priests’ supervisor and the person charged by the Archdiocese with investigating these allegations. They also believe they’ll be able to prove, as required by the case law interpreting the child endangerment act, that Lynn had the mens rea, or the “guilty mindset,” to warrant criminal punishment:
1) the accused must be aware of ... her duty to protect the child; 2) the accused must be aware that the child is in circumstances that could threaten the child's physical or psychological welfare; and 3) the accused either must have failed to act or must have taken action so lame or meager that such actions cannot reasonably be expected to protect the child's welfare.
The mens rea required for [Section 4304] is a knowing violation of the accused's duty of care to the minor-victim. Often, intent cannot be proven directly but must be inferred from examination of the facts and circumstances of the case. Therefore, the Commonwealth is not required to provide direct proof of Appellee's frame of mind. Instead, the Commonwealth can demonstrate its case through circumstantial evidence. We can look at the totality of the circumstances to determine if Appellant's actions gave rise to a reasonable inference of the requisite mens rea.
Commonwealth v. Winger, 957 A. 2d 325 (Pa. Super. Ct. 2008)(quotations and citations omitted). Nonetheless, the question is up for factual and legal debate, and Monsignor Lynn has already tried to dismiss the charges on the basis that he did not have a duty to report the abuse.

For now, the issue is just that: an issue. The prosecutors and Lynn’s lawyers will continue to vigorously debate this issue, including the specific wording the jury will hear when they are instructed on the elements of endangering the welfare of a child.  If Lynn is convicted, there is no doubt that one of his first issues on appeal will be whether he owed any duty at all to the children later abused by the priests he protected.
All of which raises a more general issue outside of this particular prosecution.  As the Catholic law blog Mirror of Justice describes:
How the respective courts and juries respond to these charges will likely influence the future decisions of prosecutors. These decisions will also, no doubt, be influenced by how well dioceses are doing in actually fulfilling their obligation to protect the children of their parishes. The role of the ‘institution’ in abuse and its cover up is one critical to explore as we grapple with the reality of child sexual abuse in our culture.
On the most basic level, we as a society should be asking ourselves if we should continue to have these debates about whether a duty exists, or if we should alter the reporting or child endangerment statutes to explicitly cover people in situations similar to Lynn’s. Few would dispute that, if the allegations against Monsignor Lynn are true, then he had moral and ethical duties to report the abuse to the police so that it could be stopped.  The question is why we wouldn’t impose a legal duty upon him as well.


  1. The following statement from the Northeast Times in Philadelphia shortly after the release of the first GJR in September 2005 may be helpful in understanding certain issues in the trial:

    According to an attorney for the archdiocese, C. Clark Hodgson of Stradley Ronon Stevens & Young, church officials were not obligated by state law to report sex-abuse cases to civil authorities unless the actual child victim notified the church personally. If the child’s parent filed the complaint with the archdiocese, however, church officials did not have to notify police.

    I do not know what if anything has changed in the law that would affect the archdiocese's responsibility as described by Mr. Hodgson in 2005. One thing is for certain, though: the goals and mission of an organization (Archdiocese of Philadelphia) are separate and distinct from the goals of the individuals (the Philadelphia-area Catholic laity) they profess to serve and minister to.

  2. Thanks for the comment.

    Frankly, I think either Hodgson was confused or his remarks were misreported. Legally, a parent 'speaks' for a child. For example, a parent can file a lawsuit on their child's behalf, but a child can't file a lawsuit on their own behalf. If they had to report when a child made an accusation, then they would have to report when the parent made the same accusation.

    To the extent there's an argument there, then it relates to the mandatory reporter law (which is separate from the child endangerment law), which is quoted in one of the Sandusky articles I reference above. It includes the requirement that the person charged "has reasonable cause to suspect ... that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse ..." Hodgson was probably thinking that vague or unfounded allegations by parents failed to show "reasonable cause." That is not, in my opinion, a very strong argument — at best it leaves them explaining to a jury why they didn't believe a parent making an accusation.

    It is interesting that both of these laws, the mandatory reporter law and the child endangerment law, are at issue in two high profile cases. We may yet see changes in one or both of them.

  3. Many thanks for the analysis in this piece, and the link to the Logan article.

    In light of Logan and matters at hand here, I would add a few thoughts.

    First, Logan’s triad of Church-Family-Corporation neglects, I would say, the fact that while the Corporation is entirely the creature of a government’s sovereign authority, the Church and the Family pre-exist that authority chronologically and ontologically. So the government’s tendency – under goading of whatever well-intentioned (or otherwise) pressures – to expand its criminal-authority reach should somehow reflect that reality.

    Second, there is another aspect of the Church’s historical wariness of government’s criminal-authority power: in the almost inevitable struggle prompted by nascent and expanding governments’ unease with a rival ‘sovereignty’ on their national turf, the Church (perhaps the West’s first truly international institution) found its agents liable to be made pawns in assorted power-struggles, usually through a particular government’s bringing criminal charges against Church agents (clergy) within that government’s jurisdiction.

    This was especially so if the Church’s efforts to mitigate harshness or stand up for first principles interfered with the burgeoning ‘reasons of state’ by which governments were cutting themselves loose from any responsibility to any Higher Law.

    Most obviously, perhaps, was the Third Reich’s attempt to quash early Catholic opposition to the regime in Catholic Bavaria by indicting an entire monastery for what we would now call homosexual sex-abuse among themselves and with children (public outcry forced the Nazis to back off). Or you could go back as far as 1307 when Philip IV of France made a grab for the holdings of the Knights Templar by accusing them of – among other things – unnatural (homosexual) and child-abusive acts.

    This is a dynamic evident today in the US government’s refusal to sign the International Criminal Court accords and to carefully tailor military Status of Forces Agreements with foreign governments, precisely in order to protect its troops/agents from this perennial and hardly improbable possibility: that on the basis of changed governmental 'interests', its criminal authority would be deployed against convenient targets, and usually with a hefty dollop of pressure - above or under the table - exerted to ensure successful prosecution.

    Logan wrote his valuable article back in 2003 and since then it has become increasingly clear that the ‘concerns’ of advocates and victim-groups – and their subsequent demands and agendas and the claims about the extent of the problem made in support of them – have generated a ‘moral panic’ or – my term –Mania, functionally equivalent to the type of ‘emergency’ (often government-abetted and induced) which leads inevitably to the noxious jurispraxis and legislation characteristic of ‘emergency laws’ (one thinks of Germany in the 1930s) or the equally noxious ‘revolutionary law’ (think of Lenin) where the law was to be conceived of as ‘the law at war’ in the service of ‘the revolution’; thus the assertion that Soviet law enforcement does not investigate – it strikes (at the designated enemies of the revolutionary agenda).

  4. Some of the assumptions Logan made in 2003 as to the reliability and accuracy of assorted statistics proferred as indicating the high recidivism rate of sex offenders and other extrapolations of ‘survey’ results have now been demonstrated to be greatly in error and methodologically questionable (however well-intentioned their deployment by advocates and their acceptance as ‘Findings’ by eager legislators).

    Additionally, evidentiary ‘reforms’ introduced on the basis of this Mania have proven to be greatly dubious if not also regressive. Such terms as ‘abuse’ and ‘molestation’ are now defined in a manner that is hugely broad, vague, and elastic (even in the past few months the reporting definition of ‘rape’ is now federally mandated to include almost any unwanted sexual contact whatsoever). This change has been effected in great part on the justification that the victim of any such contact ‘feels like s/he was raped’, which is a lethal if not fatal undermining of legitimate criminal law and procedure.

    The John Jay Reports of 2004 and 2011 give voluminous evidence that ‘rape’ (classically defined) constitutes only a small percentage of the allegations made against priests, currently or historically (the allegations going back many decades, often against now-deceased accused).

    (None of the foregoing should be construed as my attempting to minimize genuine victimization or crimes actually committed – I hold no brief for the unwanted imposition of sexual experience or even suggestive discussion by one person upon another person at any time in any way.)

    To attempt to make the law more ‘victim-friendly’ or ‘victim-sensitive’ by insisting that the victim’s mere credibility – rather than the credibility of the complaint at bar – is sufficient to convict brings American law back to the ‘spectral evidence’ jurisprudence that so deranged the 1692 Witchcraft trials (and prosecutions and executions) in Massachusetts. Which is grossly and lethally regressive (and which was already being abandoned in England in the late 17th century; a fact which helped quash the Trials when the colony’s governor prudently (although belatedly) requested guidance from London).

    Thus the Vatican’s hesitation in acceding to such ‘reforms’, which fly in the face of the Western legal tradition; I will go so far as to say that in some ways Rome was being more faithful to the Western legal tradition than the Mania-driven American legislative and jurisprudential authorities.

    None of my comments (or other comments I have made on other articles on the instant Philadelphia case in this series on this site) are to be construed as my attempting to ‘trump’ any clear criminal violations perpetrated.

    I would, lastly, suggest that Logan does not reach what I consider a vital Question: to what extent can the unsleeping government tendency to expand its criminal writ be compatible with any government shaped by the American Framing Vision? What sort of government will it take to effect the agendas demanded by some advocacies? Will such a government not cross the line into the type of Leviathan most pithily described by Mussolini: nothing outside the state, nothing against the state, nothing above the state … ?

    Precedent has been set – legislatively and jurisprudentially – for an almost un-boundaried expansion here.

  5. There have been several profound changes in public sensibility over the past few decades.

    Logan rightly notes that feminism, victimism and populism are three of the major forces that have pressured for such changes.

    He does not get into the Question as to whether government is merely ‘responding’ to these pressures or whether – willy or nilly – it is aiding and abetting them by its too-easy acceptance of such pressures, thus contributing to a situation that has proceeded from ‘advocacy’ to ‘Mania’ (using my term for it).

    The Family – long and loudly proclaimed as a seedbed of ‘patriarchal oppression’ and of a predisposition to ‘authoritarianism’ (emigrant psychologist Alice Miller, conflating her personal experiences of Hitler’s Germany with American culture) – has been ‘re-framed’ from being the vital human institution necessary to the shaping and formation of the character and life of the long-dependent human young by their parents into what must be construed as the world’s largest and longest crime scene.

    This may not have been the direct intention of those advocacies, but it is inherent in their demands and agendas. (And in the matter of radical feminism, it most surely was a deliberately and consciously embraced objective of that agenda.)

    In that regard the Church’s insistence on the primacy of the Family as a vital cultural and moral institution, which any legitimate human government is bound to respect, has surely brought it under the hostile scrutiny of assorted agendas currently enjoying political ascendancy.

    In that regard, too, I note that the dynamics necessary to effect such agendas has now migrated to US foreign policy, where the Responsibility To Protect theory is held to justify US military intervention against any sovereignty which is deemed – by the US – to be in any way oppressing or endangering its citizens or any subset of that citizenry.

    To what extent Bishops – or any Party Defendant – can be judged according to standards not held in a now superseded era … is a valid Question here. In that era there were over 50,000 deaths a year in motor vehicle accidents, which was at that time considered as simply a regrettable side-effect of the nation’s reliance on the automobile. This does not excuse any clearly criminal violations in effect at the time, but beyond clear statutory proscriptions, there is a broad and deep area of cultural sensitivity that has changed significantly (to which any ‘advocates’ cheeribly attest nowadays as a demonstration of their successful efforts at changing those sensitivities).

    None of this is meant to ‘minimize’, as it is said nowadays, but rather it is meant to introduce legitimate complexity in matters far too easily presumed to be ‘simple’ (as all stampedes are ‘simple’).

    Lastly, in regard to the estimable Logan’s mention of the “tide of history”, I would point out that we have a Constitution precisely in order to maintain the integrity of the Framing Vision as the nation and The People pursue their pilgrim way through Time. Just as the Church does with the Gospel, the Constitution – relying on the Branches and the ultimate judgment and governance of The People – must simultaneously maintain the integrity of that Vision while adapting to the changing circumstances of this or that era.

    To do so requires profound seriousness and deliberation … qualities that, alas, are the first to go in ‘moral panics’ or Manias or public (and official) stampedes.


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