Read more about our Pennsylvania clergy abuse lawyers. This post is cross-posted on our Philadelphia Priest Abuse Trial Blog, where investigative reporter Ralph Cipriano is covering the criminal trial of Monsignor Lynn.

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.