Bishop Finn indictment is legally defective

By Michael Quinlan

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Bishop Robert Finn of Kansas City-St. Joseph

The indictment of Kansas City-St. Joseph Bishop Robert Finn has captured national and international attention, as he is the highest-ranking Church official in the United States to be criminally charged in connection with allegations of sexual misconduct by a priest under his authority.

As justified as outrage may be concerning admitted missteps of diocesan officials, careful review of the indictment, the applicable law and the facts found by the former U.S. Attorney Todd Graves, reveals that the law Bishop Finn is charged with breaking does not apply to the circumstances of this case.

The prosecutor’s overzealous misuse of that law in these circumstances violates constitutional due process protections and denies rights to fundamental fairness. The expedient denial of these rights to some is an assault on us all.

Background

After diocesan officials delayed five months in turning over to police “disturbing” photos obtained from his laptop, Father Shawn Ratigan was indicted on child pornography charges based on photos investigators found on Father Ratigan’s other computer devices they obtained later through search warrants.

Following these indictments, and the media outcry that followed, newly appointed Jackson County Circuit Attorney Jean Peters Baker obtained a grand jury indictment charging Bishop Finn and the diocese with violating Missouri’s mandatory child abuse reporting law.

That law requires specified professionals (including priests) to report immediately to the state Department of Family Services (DFS) suspected past or likely future child abuse. In addition to a fine, conviction for violating this law can lead to imprisonment for up to one year.

Media and victims advocate groups have likened the diocese’s delay in notifying authorities to the inexcusable conduct of bishops in the U.S. and Europe, who for years and sometimes decades covered up known sexual abuse of minors by priests under their control and even assigned and reassigned these men to stations where they could continue their predation.

The facts, however, as found by an independent investigation, do not support this comparison. Nor do they support the criminal charge against Bishop Finn.

Based upon what is currently known, Bishop Finn did not commit a crime. Fundamentally, the law under which Bishop Finn was indicted does not apply to the facts of this case. Whatever other consequences Bishop Finn must endure, he should not be threatened with imprisonment under this law.

Essential Facts

On Dec. 17, 2010, Bishop Finn learned from his vicar general, Msgr. Robert Murphy, that Father Ratigan was found to have “disturbing” photos of children on his personal laptop, but that the police captain on the diocese’s Independent Review Board (IRB) advised that they were not pornographic. This advice was confirmed within a day by the diocese’s attorney, a partner with one of Kansas City’s most prominent law firms, who reviewed the laptop pictures and advised that they did not constitute child pornography.

That day, Father Ratigan unsuccessfully attempted suicide. After some weeks, he recovered and was sent to Pennsylvania for psychiatric evaluation. This evaluation resulted in a report to Bishop Finn that concluded Father Ratigan was not a pedophile. From Dec. 17, 2010 until sometime shortly after Feb.10, 2011, Father Ratigan was hospitalized for treatment of depression.

After his release from the hospital, while diocesan officials considered how to deal with the situation, Bishop Finn isolated Father Ratigan with an assignment serving elderly nuns in a secluded location. In addition, among other restrictions, Bishop Finn explicitly ordered Father Ratigan to have no contact with children and not to use a computer.

On March 31, 2011, Bishop Finn first learned that Father Ratigan had violated his restrictions by attending a young girl’s birthday party earlier that month. Following consultations with his staff, on April 8, Bishop Finn met with and reprimanded Father Ratigan, repeating his directive to not contact children. However, Ratigan began disobeying these orders within days, although the Graves report seems to indicate diocesan officials were not aware of this at the time.

Around the beginning of May, Msgr. Murphy, recovering from knee surgery, received a report that Father Ratigan was accessing guest computers at the place he was staying. On May 11, returning from his convalescence, Msgr. Murphy met with the IRB police captain and made the determination to turn the laptop photos over to police. Bishop Finn was out of town at the time. The ensuing investigation led to the child pornography charges previously mentioned.

At no time during this process was any victim of sexual abuse ever identified. The children in the “disturbing” laptop photos could not be readily identified at the time because all but two of the subjects’ faces were obscured. All but one of the photos were of normally clothed children, although the pictures focused on the children’s abdomen and crotch areas.

Bishop Finn was told of only one nude photo of a diaper-removed toddler showing full frontal nudity. However, as noted, the diocese’s attorney had advised the bishop this photo was not pornographic because there was no depiction of sexual activity. This confirmed the previous advice from the IRB police captain. Bishop Finn did not personally review any of the photos.

The Graves Report indicates that, based on the information available to him, Bishop Finn did not believe Father Ratigan had sexually molested anyone. This belief seems so far to be validated by the continuing absence of any criminal charges of sexual molestation against Father Ratigan. The Graves Report acknowledged that diocesan officials were never aware of an “identifiable victim.”

It is precisely this absence of an “identifiable victim” that renders the indictment erroneous and exonerates Bishop Finn from the criminal charges.

The Law

Crimes are defined by statute. Guilt is found only when the state proves beyond a reasonable doubt the key factual elements specified in the statute. The criminal statute Bishop Finn is accused of violating, Mo. Rev. Stat. 110.115, provides that “When any … person with responsibility for the care of children … has reasonable cause to suspect that a child has been or may be subjected to abuse … that person shall immediately report or cause a report to be made” to DFS.

The indictment tracks the statutory language, alleging that Bishop Finn had “reasonable cause to suspect that a child may be subjected to abuse …” principally because of his knowledge of the “disturbing” contents of the laptop.

It is significant that the indictment refers only to possible future abuse, because it conveys the prosecutor’s recognition that there was no “cause to suspect” (i.e., evidence of) past reportable abuse. Also significant is the indictment’s failure to allege that Bishop Finn knew of an identifiable potential future victim.

In essence, Bishop Finn is accused of failing to alert DFS when he allegedly should have suspected Father Ratigan might abuse an as yet unidentified child at some unknown future time and place. This charge is a distortion and misuse of the mandatory reporting statute, because the plain language of the statute requires the identification of an identifiable victim who was or might be “subjected to abuse.”

The statute defines reportable “abuse” as “any physical injury, sexual abuse or emotional abuse inflicted on a child other than by accidental means by those responsible for the child’s care, custody and control.”

The statutory language plainly contemplates an identifiable child and a specific incident or threat of actual harm. This intention is obvious from the overall statutory scheme (Mo. Rev. Stat., 210.109-210.183), providing that a “report” puts in motion an investigative process aimed at the protection of the identified at-risk child.

There is no reported Missouri case in which someone has been charged with violation of the mandatory reporting law in the absence of an identified abuse victim. On the contrary, these prosecutions invariably arise when a mandated reporter (e.g. ER nurse, etc.), in the course of contact with a child, has observed evidence of abuse (bruises, etc.) and failed to report, and thereafter the child was abused again — always seriously, often fatally.

Additionally, the fact that reportable abuse under the statute refers to an identified at-risk child is demonstrated by the instructions on the DFS website, which require a caller to convey detailed information about the victim, the nature of the abuse/neglect, evidence relied on, etc.

When a call was placed to the Midtown Kansas City office of DFS, an official stated it was necessary to identify an endangered child. This is consistent with specific advice DFS had given to the diocese, as noted in the Graves Report, that clearly indicated that reportable abuse refers to an identifiable victim.

Furthermore, the call to DFS revealed that one could not report just a suspected abuser on the hotline. To report suspicions only a possible abuser, the DFS official said, one “would probably contact the police.” This, of course, is what Msgr. Murphy ultimately did. Note, however, that there is no law that required that report and, similarly, there is no law punishing anyone’s failure to have done so sooner.

Because there was no identifiable at-risk child, the bishop and the diocese had nothing to report to DFS and, the DFS website and DFS official indicate that such a report would not even have been accepted.


Conclusion

Catholics and non-Catholics alike are rightfully outraged at the laxity of bishops who for many years effectively sheltered child predators and thereby endangered children. Yet for all the errors in the handling of the Father Ratigan case, based on the facts found in the Graves Report, it cannot fairly be said that Bishop Finn deliberately sheltered a known predator or knowingly endangered children.

On the contrary, Bishop Finn isolated and restricted Father Ratigan, and the diocese turned him in to police when he defied those restrictions. The three months between his release from the hospital and when the diocese turned him in is not remotely comparable to the years and decades of cover up and enabling that came to light in 2002.

We may justifiably condemn the sluggish and inept handling of the Father Ratigan case by diocesan officials and lawyers. However, on the issue of whether Bishop Finn’s conduct was criminal, we must follow the dictates of the law. He simply did not violate the law.

Ours is a government of laws and not men. In criminal prosecutions especially, rank or stature cannot trump the law either for leniency or vengeance. For a prosecutor to twist the law in a case of even justifiable outrage undermines the integrity of our system and threatens us all.
With no known victim, neither Bishop Finn nor anyone else at the Diocese broke the law by failing to notify DFS, and, therefore, the indictment cannot stand.

Michael Quinlan, J.D., L.L.M., is a Missouri licensed attorney. He has practiced law in the St. Louis area for 25 years.

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