A tale of two states on clergy abuse prosecutions

By Peter Smith
Pittsburgh Post-Gazette
November 19, 2018

https://bit.ly/2KgjuwZ

When Michael Norris talks with fellow survivors of sexual abuse by clergy, he finds that they have a lot in common — the betrayal by a trusted priest and the long trail of damage to family relationships, schooling and a career path.

But Mr. Norris said many victims are astonished when he gets to the part of the story in which he sat in a rural Kentucky courtroom on a November day in 2016. There, he witnessed a group of jurors come out from their deliberations and convict his perpetrator.

“It was the ultimate release,” said Mr. Norris, 55, now of Houston. “To hear the jury come back with a guilty verdict, it just overwhelmed me. Most survivors don’t get that kind of justice.”

Abused by the Rev. Joseph Hemmerle in a summer-camp cabin in 1973, Mr. Norris first came forward to the church and police in 2001, but no charges were filed and the priest returned to ministry.

More than a decade later, after a second victim came forward, Hemmerle was charged and convicted in separate court cases. As long as the wait was, such an outcome wouldn’t have been an option at all if the abuse had happened at that time in Pennsylvania or many other states.

But Mr. Norris’ native Kentucky has no statute of limitations for prosecuting felonies, whereas the time limit was relatively short in Pennsylvania through the end of the 20th century.

Even though Pennsylvania lawmakers since have extended that to the 50th birthday of the victim, that doesn’t apply retroactively. The Pennsylvania grand jury that issued a blistering Aug. 14 report on abuse in six Catholic dioceses here has recommended eliminating the statute of limitations entirely for future cases.

“We heard from plenty of victims who are now in their 50s, 60s, 70s, and even one who was 83 years old,” the grand jury said in its report. “We want future victims to know they will always have the force of the criminal law behind them, no matter how long they live. And we want future child predators to know they should always be looking over their shoulder — no matter how long they live.”

That recommendation was attached to the same legislation that included a more controversial measure. It would have provide a temporary window in the the statute of limitations for civil lawsuits, enabling lawsuits for long-ago abuse. When the latter failed Oct. 17 in the Pennsylvania Senate, so did the former.

Between 2003 and 2017, six Catholic priests from the Archdiocese of Louisville, Kentucky’s largest diocese, were convicted of sexual offenses against minors, which took place as many as four decades earlier. Two former lay teachers from Catholic schools were similarly convicted. Some victims were in their 50s by the time their cases went to trial.

None of the perpetrators could have been charged if they had offended in Pennsylvania at that time, although some priests here were convicted closer to the times of their offenses.

That fact is “a very compelling reason why there shouldn’t be” a statute of limitations, Mr. Norris said.

While the constitutionality of windows for filing civil lawsuits over long-ago abuse has been upheld in various states, the U.S. Constitution prohibits ex post facto criminal cases — that is, charging someone under a law that wasn’t in effect until after the act in question.

For future cases of child sexual abuse, Pennsylvania lawmakers progressively have been allowing more time to prosecute those offenses. Effective in 2002, they extended that statute of limitations from the 23rd to the 30th birthday of the alleged victim in most felony sexual abuse cases. Effective in 2006, they further extended it to the 50th birthday in most sexual abuse cases overall.

Extending the criminal statutes has wide support — including from Catholic bishops who oppose the window for civil lawsuits — but not universal support.

Brad Winnick, president of the Pennsylvania Association of Criminal Defense Lawyers, cautioned against  “abandoning every principle the statute of limitations was based on.”

“It’s very difficult for people to defend themselves from things 40 or 50 years ago,” he said.

“The existing statute of limitations has already been greatly expanded to provide for these victims,” he said. “The further we go, I don’t know how many cases we’re actually solving.”

He cited the recent U.S. Senate confirmation hearings for now-Supreme Court Justice Brett Kavanaugh over an accusation of attempted rape decades ago when he was a teenager.

“That made it difficult for him to come up with witnesses and potential alibis — and that was for a job interview,” said Mr. Winnick, a public defender in Dauphin County.

Advocates for removing the statute of limitations note that there’s no such time limit for prosecuting cases of murder.

Mr. Winnick, however, said in such cases, “usually there was a body, we know someone is dead. What we’re talking about now is a situation where we’re asking for a gigantic leap of faith that a crime even occurred.”

Robert Lawson, a retired University of Kentucky law professor who oversaw a revision of that state’s criminal code in the 1970s, said the lack of a felony statute of limitations had long predated even that time. He doesn’t recall much if any debate over it.

He suspects there are few prosecutions of long-ago felonies “partly because it is undoubtedly hard to prove recent cases ‘beyond all reasonable doubt’ and much harder to prove very old cases ‘beyond all reasonable doubt,’” he said via email. “The burden of proof rests on the prosecution and it is a very heavy burden.”

Victims’ advocates say they just want the chance to prove their case.

“You’ve got to understand the trauma of what happens to you,” said Mr. Norris, who now directs the Houston chapter of the Survivors Network of those Abused by Priests. “A lot of times, what you do is not think about it. You're acting out on it. I went through some rough times as a child. I didn’t even understand why I was acting the way I was.”

Mr. Norris dropped out of high school but later served in the Navy and became a chemical engineer in Houston. But the impact on him and his family festered, and he still is angered by the church’s response.

In advocating for other victims, “I'm trying to put that anger into something positive,” he said.