Could Archbishop Nienstedt face charges or lose his job?
By Beth Hawkins | 10/14/13
Archdiocese of St. Paul and Minneapolis/David Hrbacek
Once unheard of, criminal prosecutions of individual priests have become more common over the last decade as U.S. church officials have struggled with an avalanche of sex abuse scandals.
As controversy deepens over what top officials of the Archdiocese of St. Paul and Minneapolis knew about allegations of priest sex abuse and child pornography, some observers of the Catholic Church here have begun questioning how far the scandal could go.
The Survivors Network of those Abused by Priests (SNAP) has called for a grand jury to investigate what it is calling a cover-up by top church officials, including Archbishop John Nienstedt.
“Law enforcement is trained to investigate crime,” said Bob Schwiderski, SNAP’s Minnesota director. “That’s what we need here.”
Could repercussions really be that far-reaching? Could a sitting prelate face charges? And if not, at what point do church leaders lose too much credibility to remain in their posts?
Criminal prosecutions more common
Once unheard of, criminal prosecutions of individual priests have become more common over the last decade as U.S. church officials have struggled with an avalanche of sex abuse scandals. But until recently, their superiors haven’t been taken to court for shielding them from public view.
At least one high-ranking church official lost his post. Cardinal Bernard Law resigned as archbishop of Boston in 2002, days after being subpoenaed to appear before a grand jury investigating “possible criminal violations by church officials who supervised priests accused of sexually abusing children.” After Massachusetts authorities declined to prosecute, Law was transferred to a Vatican post.
In June 2012, Msgr. William J. Lynn, a cardinal’s aide in the Archdiocese of Philadelphia, was convicted of child endangerment at trial and sentenced to three to six years in prison. Essentially the archdiocese’s personnel director, Lynn covered up abuse allegations by transferring predatory priests to unsuspecting parishes.
Last September, the bishop of Kansas City, Missouri, Robert Finn, was convicted of a misdemeanor for failing to report a priest who took hundreds of pornographic pictures of young girls. He was sentenced to two years of supervised probation.
The difference between the era of the Law case and the recent convictions is the existence of clear ground rules, said Charles Reid Jr., a professor at the University of St. Thomas Law School. “There’s an important distinction between our situation and Law’s,” he said. “Law was not operating in a time when we had clear standards.”
Law’s transfer to the Vatican — where he has since essentially been retired — is “very rare,” Reid hastened to add. “This is so touchy,” he said. “Cardinal Law did not break any laws, but when his witness testimony became public, his credibility was so damaged he had to be moved.”
2002 child-protection charter
In 2002, as the Law case was brewing, the U. S. Conference of Catholic Bishops approved a Charter for the Protection of Children and Young People, better known as the Dallas norms. In fact, former St. Paul-Minneapolis Archbishop Harry Flynn chaired the bishops’ Ad Hoc Committee on Sexual Abuse, which drafted the policies.
“There is still a long road ahead of us,” Flynn was quoted by the New York Times in 2003. “Our commitment has not wavered. We have made a pledge to our people and to the people of this nation and especially to the vulnerable ones, and we will keep that pledge.”
Under them, “You have an obligation to conform to civil law, the law on the books, American law,” said Reid. “Bishops have the same obligation to report. The Dallas norms state a very clear obligation to cooperate with police and prosecutors.”
The rules also oblige church leaders to disclose anything in the history of a priest or deacon being transferred “to indicate that he would be a danger to children or young people.”
Concerns about such reporting requirements are at the heart of recent controversies here.
The archdiocese’s former top canon lawyer, who resigned in April, says she made multiple efforts to bring troubling evidence involving problem priests to the attention of her superiors. In the wake of her revelations, St. Paul Police and the Ramsey County attorney are reviewing the claims.
In one of the cases, Jennifer Haselberger went to police herself after waiting a year for archdiocesan officials to report the discovery of sexually explicit images on a priest’s computer that appeared to contain underage boys.
In the other, the archdiocese fielded complaints about a priest’s sexual indiscretions and inappropriate contact with youth for a decade but kept him in ministry. Curtis Wehmeyer pleaded guilty last summer to sexual abuse of two boys and possession of child pornography.
A new case surfaces
Over the weekend, a new case involving alleged priest misconduct has surfaced.
Lawyer Jeff Anderson plans to file a complaint Monday morning in Ramsey County District Court accusing the Rev. Michael J. Keating, a University of St. Thomas professor, of allegedly sexually abusing a Twin Cities-area girl more than a decade ago. Keating has taken a voluntary leave of absence from his duties. Anderson said his client reported Keating’s actions to the archdiocese in 2006.
Since 2005, the church here has required all archdiocesan, parish and school employees, as well as all volunteers who have contact with minors, to attend safe environment training. Operated by the National Catholic Risk Retention Group, the VIRTUS trainings cover the requirement to report suspected abuse to civil authorities.
“They’re committed publicly to following this,” said Reid. “The important thing is the archdiocese has bound itself for the last eight to 10 years.”
Norms notwithstanding, Flynn did not turn over the images found on the computer of Rev. Jonathan Shelley in 2004, choosing instead to conduct an internal investigation and then to place the evidence in an archive in the basement of the chancery.
Worries about legal ‘exposure’
A year and a half ago, according to a series of exhaustive, explosive interviews with Minnesota Public Radio, Haselberger discovered the file and began pressing for action. After a number of months, Nienstedt drafted a letter to the Vatican noting that the images were found during Flynn’s tenure and expressing apprehension that turning them over to civil authorities “could expose the Archdiocese, as well as myself, to criminal prosecution.”
He did not send the letter, however. And in January, he accepted the recommendation of the vicar in charge of the church’s child-safety program to return Shelley to ministry. Haselberger went to police, who first closed the case but reopened it last week when new evidence appeared available.
Prosecutors in both Ramsey and Washington counties have said they want to look into the cases. Shelley and his lawyer have both maintained his innocence.
Clergy are among those required to report abuse or sexual abuse of minors by Minnesota law, said Ted Sampsell-Jones, a professor at William Mitchell College of Law. They are compelled to report abuse they learn of that is either ongoing or occurred within the last three years.
The statute, 626.556, has a provision that allows the criminal prosecution of mandated reporters who fail to act. Failure to report is a misdemeanor, unless the person has knowledge that the same perpetrator has abused two or more children, when it then becomes a gross misdemeanor.
Whether the statute would apply if Shelley were found to possess child porn is unclear, said Sampsell-Jones. In the law, sex abuse is defined as subjection of a child to any act constituting rape, prostitution or use in child pornography.
Church officials could also have potential liability under rarely used obstruction-of-justice laws or for “harboring, concealing, aiding or assisting” an offender — a felony charge that is also rarely pursued.
Insofar as the possibility of a grand-jury investigation — as was done in Kansas City — a prosecutor’s decision to empanel one to consider the claims would likely be strategic. Prosecutors charge suspects directly, of course, but must be able to convince the judge at a preliminary hearing that there is enough probable cause to move forward.
A grand jury, by contrast, can subpoena evidence and call witnesses in secret, effectively allowing prosecutors to assemble a case behind closed doors.
Although archdiocesan officials say recent personnel changes are unrelated, the barrage of headlines has been followed by staffing changes and by several conciliatory statements from the archbishop.
On Thursday, Nienstedt appointed Reginald Whitt, a Dominican priest and professor at St. Thomas’ law school, as episcopal vicar, giving him authority to “assume full responsibility for all issues related to clergy sexual misconduct” and asking him to name a lay task force to make recommendations for specific actions.
Half of the six task force members have specific expertise in investigating and responding to sex abuse, including computer forensics. They can ask Whitt to attend meetings but are empowered to operate independently of him.
Calling Whitt a close friend, Reid said he was encouraged by his appointment: “He is very good, and a very strong-willed individual, and I trust him a lot.”