Temporary Accountability

The conviction of Bishop Robert W. Finn of a misdemeanor for failure to report suspected child abuse would normally be an encouraging sign that civil law will no longer blink at clerical crimes. As the Times notes, after all, Finn has become "the first American bishop in the decades-long sexual abuse scandal to be convicted of shielding a pedophile priest." However, the circumstances, and especially the disposition, raise some concern:

In a hastily announced bench trial that lasted a little over an hour, a judge found the bishop, Robert W. Finn, guilty on one misdemeanor charge and not guilty on a second charge, for failing to report a priest who had taken hundreds of pornographic pictures of young girls. The counts each carried a maximum penalty of one year in jail and a $1,000 fine, but Bishop Finn was sentenced to two years of court-supervised probation.

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It was an abrupt ending to a case that has consumed the church in Kansas City and threatened to turn into a sensational, first-ever trial of a sitting prelate. The case had been scheduled for a jury trial later this month, but on Wednesday the prosecution said it would be decided in one afternoon by Judge John M. Torrence in Jackson County Circuit Court.

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The bishop is required as part of his sentence to start a training program for diocesan employees in detecting early signs of child abuse, and in what constitutes child pornography and obscenity. He must also create a fund of $10,000 to pay for victims’ counseling.

Although the Times reports that the Survivors Network of Those Abused by Priests ("SNAP") "said in a statement that the sentence was too lenient. 'Only jail time would have made a real difference here,'” the sting in the tail is revealed in the fact that the bishop's probation is itself suspended, which "means that if Finn finishes the probation without incident and completes nine steps as part of his sentence, the bishop’s criminal record will be expunged."

As Herbert Packer explained over 40 years ago, there are two different sets of values served by the criminal law: (1) the utilitarian--those values geared toward preventing further crimes by the same offender or by others (incapacitation and isolation, deterrence, whether offender-specific or general); and (2) the moral (retribution). Packer notes that each of these values provides a part of "an integrated theory of punishment," one which allows for individualized treatment of offenders, "within limits, limits having to do both with the need for deterrence and with judgments about comparative morality, as well with the relative difficulties of predicting future behavior."

The Limits of the Criminal Sanction (1969) at 140 (emphasis added).

The point applicable here is, to my thinking, that the expungement of Bishop Finn's crime renders his conviction ultimately an effective nullity and thus renders the judgment of the morality of his behavior equivocal at best.

Moreover, as the stipulated facts as reported by the Times in a follow up piece published today makes clear, Bishop Finn's behavior was willful and quite deliberate:

Bishop Finn and Monsignor Murphy learned about some of Father Ratigan’s violations of his restrictions. “I will have to tell him,” Bishop Finn wrote in an e-mail to the psychiatrist, “that he must not attend these children’s gatherings, even if there are parents present. I had been very clear about this with him already.”

The testimony filed in court on Thursday says that because the bishop trusted Father Ratigan to respect the restrictions, he was never monitored and the community was never informed.

On May 11, 2011, while Bishop Finn was out of town, Monsignor Murphy again contacted Captain Smith at the Police Department and told him that the diocese had indeed found not one, but hundreds of photographs of little girls. A week later, Father Ratigan was arrested for possession of child pornography. He was convicted in August and is awaiting sentencing.

Bishop Finn and the diocese were indicted by a grand jury in October 2011. Monsignor Murphy was given immunity for cooperating with the prosecution. He testified that he turned Father Ratigan in because he had grown concerned that he was truly a pedophile. The monsignor said that when the bishop learned he had turned in Father Ratigan, “It seemed he was angry.”

After Father Ratigan was arrested, Bishop Finn met with his priests. Asked why Father Ratigan was not removed earlier, the bishop replied, according to the testimony, that he had wanted “to save Father Ratigan’s priesthood” and that he had understood that Father Ratigan’s problem was “only pornography.”

The fact that repeated violations on the part of Father Ratigan did not trigger any inquiry, but that the bishop continued to rely on him to self-police, and the remarkable underplaying of the conduct at issue by the bishop himself is remarkable for its complete lack of awareness of the crisis that has repeatedly roiled the Roman Catholic Church, in the 80s, the 90s, and which had flared into prominence again in the very time period (2010-2011) in which Bishop Finn was so uninterested in protecting children against Father Ratigan. Bishop Finn's emphasis on "savi[ing] Father Ratigans priesthood" is all too reminiscent of Cardinal Castrillón Hoyos, as Prefect of the Congregation of the Clergy, praising French Bishop Pierre Pican, after the latter's conviction for shielding a pedophile priest, writing ""I congratulate you on not having spoken out to civil authorities against a priest. . . . You have done well and I am delighted to have an associate in the episcopate who... preferred prison to speaking out against a son-priest." Indeed, as the date of the link (April 16, 2010) shows, Bishop Finn's statement to his clergy came over a year after the reportage of the Cardinal's statement. While Bishop Finn's offense is a misdemeanor, it was part and parcel of the closed ranks that has all too often typified clerical reaction to the crisis.

Despite this, I have no serious qualm with Bishop Finn not being incarcerated--he is, I am sure extremely unlikely to offend again, or to pose a danger to the community, (although SNAP has a reasonable argument that a custodial sentence would have served the purpose of general deterrence better). But the moral significance of his lapse makes, in my opinion, expungement inappropriate. The moral nature and the real life consequences of Bishop Finn's act is too severe to allow the judgment of the community on his behavior be so evanescent that it evaporates after a five year period.