Updated Jan 29, 2019; Posted Sep 04, 2018
The Catholic Church may be in the business of saving souls, but amid the spiraling clergy sex abuse crisis, one pioneering legal mind thinks of the church as an organized crime organization.
That’s the view held by David Hickton, a former U.S. attorney in the Western District of Pennsylvania.
Two years ago, shortly after the state Office of Attorney General 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 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 didn’t get far.
He left office, 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’s design 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 nascent papacy of Pope Francis.
“I was stunned when it was reported…I was a pioneer?” Hickton recalls. “How in hell can we be first to do this, I thought.”
In fact, 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, 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 RICO?
“I’ve been asking the same question,” Hickton said. “Everybody keeps talking about the need for legislation to open up the statute of limitations but I identify the civil RICO as a definite way to get redress for victims.”
In fact, the answer is as complex as it is multi-faceted.
“It’s not like it would have been easy,” Hickton said.
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.
“I simply believe that the sexual assault and obstruction of justice could establish racketeering,” Hickton said.
The Catholic Church, then, and generally now, 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 National Conference of Catholic Bishops established new policies to protect minors from predatory priests and to report those priests.
One of the most recent and high-profile cases involving federal anti-racketeering charges are the suits against Harvey Weinstein on behalf of multiple plaintiffs accusing him of sexual misconduct. RICO suits have also been filed against Miramax, and Bob Weinstein, Harvey’s brother, and other members of The Weinstein Company’s board of directors – all accused of complicity in facilitating and concealing a pattern of sexual misconduct and violence.
Beyond the burdensome requirements involved in a civil RICO, courts are generally cautious about turning state law claims into federal RICO cases. Most cases do not make it past the pleading stage.
Early in his career in the Western District, Hickton handled a RICO case involving a gang. The defense argued that that law was being applied so broadly to the point of misuse; defense attorneys argued that loosely associated drug dealers did not comprise an organized crime enterprise.
“I argued it was supposed to be used that way and no one defined it narrowly,” Hickton said. “If people were arguing it is a misuse of RICO to use it as a platform to charge drug dealer, you might imagine that for the Catholic Church that is one moat around your castle. The idea that it would be used expansively is not in vogue right now.”
Stewart Eisenberg, a Philadelphia attorney, knows first-hand the challenges of succeeding with a civil RICO.
After a 2005 investigation the Archdiocese of Philadelphia uncovered the now similar patterns of clergy sex abuse and cover-up across the sprawling archdiocese, Eisenberg filed a civil RICO suit on behalf of about 40 victims.
Eisenberg knew it was going to be a tough battle, and he was right.
The case was dismissed. The federal judge ruled that the case did not meet RICO criteria, but rather that it was a legislative problem and not an issue for federal courts. As with the current grand jury report, almost all the cases out of Philadelphia had expired statute of limitations.
“I’m never surprised at anything but I was disappointed,” Eisenberg said. “I think it qualified. If the judge wanted to find basis, he could’ve found basis for fraudulent concealment to get around the statute of limitations.”
Instead the court could find no basis for fraudulent concealment.
“People knew they were sexually abused at the time it happened,” Eisenberg said, explaining the court’s rationale. “Even though they were minors, and it was an event most put out of their minds for a long time. Some believed it never happened….because they were told that by the priest or their parents.”
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Beyond profound disappointment, his clients could not understand how the court could decide that that way.
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, Lynn 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.
So if a successful federal anti-racketeering lawsuit is far-fetched, how about international legal action?
Afterall, the clergy sex abuse scandal embroils the 1.2-billion strong church on a worldwide level. Prosecutors have unearthed near-identical patterns of clergy sex abuse of minors and concealment by church officials in nearly every continent in the world. Recent scandals out of Ireland and Australia have even prompted legal inquiries at the national level.
But if prevailing with a federal RICO case has proven to be extraordinarily difficult for prosecutors, prevailing with an international legal action against the Catholic Church is likely to prove impossible.
“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.”
Only nations can go before the International Criminal Court at The Hague in the Netherlands. Most of those crimes involve war crimes or crimes against humanity.
The complexities entailed in a potential suit against the Vatican are compounded by esoteric international law: The Vatican City State is a sovereign state. But its complex governance is overseen by the Holy See, which sends ambassadors, or “nuncios” to countries around the world.
Yet while the Holy See is recognized by international law and diplomatic relations, an individual could not bring a suit against it at an international tribunal.
What about a country? Say the United States?
It’s possible, but difficult, said Dellapenna. Explaining the complex and restrictive provisions regarding heads of states immunity and foreign immunities, is worthy of a law textbook.
Indeed, a senior member of the National Conference of Catholic Bishops in the late 1990s advised bishops dealing with allegations of clergy sex abuse in their dioceses to send damaging personnel files to the apostolic nuncio, the pope’s U.S. representative in Washington, because his office had immunity that protected it against potentially dangerous legal actions.
“I think it’s far fetched but it’s possible,” Dellapenna said. “You would have to persuade the judge that the Catholic Church was in it for the money. That’s not a very powerful argument.”
Yet another angle could be a TORT action that would show the church guilty of causing personal injury or death or loss of property.
“Again you run into the problem that you would have to show that the Vatican was directly involved and not just that it was a Catholic diocese involved,” Dellapenna said.
The recent 11-page letter by Archbishop Carlo Maria Vigano seemingly throws a wrinkle in the mix.
A former Vatican ambassador to the United States, Vigano has accused Pope Francis of knowing and ignoring allegations of sexual misconduct by the embattled Cardinal Theodore McCarrick, the former archbishop of Washington, D.C. McCarrick resigned as cardinal last month, and in his letter, Vigano calls on the pope to step down for complicity in covering up crimes.
“If you can persuade the court to believe those allegations, maybe, but that letter has lots of holes in it,” Dellapenna said. “If I were the lawyers I would want to get a lot more evidence than that letter.”
Suffice it to say that a U.S. court can not order the pope – as long as he is not in the U.S. – to disclose evidence. Therefore, he is not subject to the discovery process in court.
Could a lawyer get evidence in another way? Say depose Vigano or other archbishops or bishops and force them to turn over evidence?
“These are long shots. It’s not impossible,” Dellapenna said of the probability of a lawsuit against the Vatican or pope prevailing. “But it’s not very promising. It’s been tried once or twice and it didn’t go anywhere. They are at best long shots.”
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 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.”