A RICO PROSECUTION OF THE CHURCH REVISITED

Last month, on August 16th to be exact, I posted an article on this blogsite.

Entitled A RICO Prosecution of the Church?, the article contained my thoughts and concerns that the time may have arrived in this whole sordid mess involving the sexual abuse of minors by Catholic Clergy ( the crimes themselves, the complicity and the cover up of the Bishops) when the Church in the United States might be vulnerable and subject to Federal investigation and prosecution for violation of the Racket Influenced and Criminal Organizations Act (RICO).

I received a number of emails about the article.  A mixed-bag of positive and negative criticism.

One person (whom I suspect may be a Bishop) took me to task suggesting that I was “engaging in hyperbole and doing a disservice to the Catholic community by suggesting such a ludicrous idea".

Several others were of the same mindset in their belief that I was “completely out of line” for equating the Church with elements of massive criminal enterprise.

Rather than immediately responding by way of a follow-up article, I chose to wait to see if my suggestion “had any legs” as they say.

Now comes word from David Hickton, a former U.S. Attorney in the Western District of Pennsylvania.

Two years ago, shortly after the state Office of Attorney General for Pennsylvania released a scathing report on widespread clergy sex abuse in the Diocese of Altoona-Johnstown,  Hickton sought to prove that the Church was criminally responsible for the egregious crimes committed by Priests on minors.

Hickton invoked a seldom-used but powerful federal law designed to combat organized crime.

He initiated a civil lawsuit against the Diocese 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.

Then-Attorney General Kathleen Kane had just unveiled the findings of a State probe that found a pattern of cover-up of sexual abuse of hundreds of minors by more than 50 Priests and others associated with the Church.

Hickton had recently prosecuted an Altoona-Johnstown Priest, sentencing him to 17 years in Federal prison for sexually abusing boys at a Honduras orphanage between 2004 and 2009. He was confident that a civil Federal anti-racketeering lawsuit against the Diocese would prevail in court and secure financial compensation for the victims.

Hickton's time for retirement arrived, and the Diocese of Altoona-Johnstown, under pressure to stave off a looming legal battle, agreed to a settlement with Federal prosecutors to put in place policies to more aggressively detect and prevent the sexual assault of minors by Priests.

Had Hickton prevailed, it would have been one of the few times prosecutors broadly applied the Federal law to the Catholic Church, which was then, as it is now, embroiled in a spiraling Clergy sex abuse crisis involving thousands of victims and threatening to dismantle the Pontificate of Pope Francis.

But Hickton was not the first.

In 1993, Steve Rubino, a New Jersey attorney invoked RICO in a suit against the Archdiocese of Camden and the National Conference of Catholic Bishops (NCCB), for their part in the coverup of the abuse of minors. Rubino's clients accused the Defendants of obstruction of justice.

The case settled out of court.

Now a Professor of law at University of Pittsburgh Law School, Hickton ponders the same question.

In the wake of yet another blistering report on widespread Clergy sex abuse across six dioceses in Pennsylvania, why have prosecutors  - even victims - made little efforts to tap into RICO legislation?

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.

Hickton argues that Catholic dioceses easily meet RICO criteria, including being defined as an enterprise. 

What's more, victims of clergy sex abuse could argue that the cover-up of the crimes and the protection of predatory Priests (at times across state borders) on the part of Church officials amounts to obstruction of justice and a violation of civil conspiracy laws.

Thus far, the Church has mounted a stiff campaign to object to potential RICO actions, including arguing that it is not a criminal enterprise.

"They would quarrel that the pattern had changed in 2002 and they quarreled with being described as a racketeering enterprise," Hickton said. "But I advanced it. I thought I could prove it. I believe civil RICO is the vehicle that can be used to bring justice to these victims."

In 2002, the United States Conference of Catholic Bishops (USCCB) established new policies to protect minors from predatory Priests and to report those Priests.

No civil RICO cases were ever successfully litigated out of the Archdiocese of Philadelphia abuse crisis.

One senior church official - Monsignor William Lynn - was convicted, but under criminal statutes. The former Vicar of Clergy was the first senior U.S. Church official to be prosecuted for child endangerment. He appealed with the argument that he didn't endanger children because he wasn't responsible for caring for specific children. 

He awaits a retrial.

"Courts treat each diocese as a free-standing corporation, independent of other dioceses and the Vatican," said Joseph Dellapenna, a retired Villanova University law Professor who specializes in suing foreign governments.

"As long as they continue to do that it's going to be difficult. And if you wanted to sue the Pope, you would have to show the personal involvement of officials in the Vatican in the wrongdoing and not just that they are a part of the Catholic Church and responsible for them."

Has Archbishop Vigano's recent letter breached that hurdle?

Since 2002, when the Clergy sex abuse crisis first made national headlines in the Archdiocese of Boston, diocese after diocese has fended off lawsuits seeking steep compensations for victims. Many have established compensatory funds for victims; others have gone bankrupt settling suits.

Financial settlements in Federal anti-racketeering cases are tripled in value and generous in covering expenses.  

To date, some Catholic dioceses have signaled a willingness to create victims compensatory funds. The Dioceses of Harrisburg, Erie and Allentown say they are open to the possibility of a reparations fund. Some advocates for victims have said a reparations fund would be an appropriate step to assist victims who were sexually assaulted by Priests. 

In the wake of the grand jury report released by Attorney General Josh Shapiro, the Survivors Network of those Abused by Priests (SNAP) and the Center for Constitutional Rights are urging federal authorities to launch a Federal case against the Church.

Signed in part by Tim Lennon, President of SNAP, the letter reads:  “It is long past time for the U.S. Department of Justice to initiate a full-scale, nationwide investigation into the systemic rape and sexual violence, and cover-ups in the Catholic Church, and, where appropriate, bring criminal and/or civil proceedings against the hierarchy that enabled the violations."

So, have I changed my mind?

Not yet.  

The anger and disgust of Catholics and ordinary American citizens over the repeated scandals involving the sexual abuse of minors by Catholic clergy is palpable and growing with each news account which details the horrific nature of the assaults youngster experienced.

I still think it is quite likely that political pressure will be made to bear upon Congress and the US Department of Justice to initiate legislation and provide the pathway for a Federal investigation of the Church on the basis of RICO laws.

Have we arrived at that moment?

Given the furor raised by the Pennsylvania Grand Jury Report, the recent letter from Archbishop Vigano and the Pope’s flippant response to it suggesting that he “will utter not a word”, I believe that moment is fast approaching.

And, I believe that most would agree that, should a RICO prosecution or civil suit proceed and prove successful, the Church in America would be crippled morally and financially for decades to come.

I merely suggest to those who have been so vehement in their negative reaction to my suggestion that the die has not yet been cast.  

Let us wait and see what happens, but let no one feign surprise should such a Federal suit or prosecution be initiated.