The Southern Baptist Convention Cases and the Limited Options for Holding Religious Institutions Accountable for Clergy Sex Abuse
Carolyn M. Warner
In May of 2022, the news broke that the US Southern Baptist Convention (SBC) had released an independent report investigating the SBC’s handling of sexual harassment and assault by clergy and other employees of SBC-affiliated churches. The report described an institution that prioritized avoiding liability, was callous and offensive towards victims, resisted reforms, and that allowed perpetrators to have continued access to their victims. A few months later, the US Department of Justice announced it was investigating the SBC. The headlines sound all-too-familiar to those aware of the clergy child sex abuse scandals of the Catholic Church. Yet another major organized religion whose leadership was found to have a long history of protecting the institution, demeaning and shaming the victims. How, then, does the SBC’s handling of sexual abuse compare to that of the Catholic Church? And, will there be any legal consequences for the SBC as an institution, or for its leadership?
In this article I explore the recent history of legal efforts to call the Catholic Church in the US to account, and to make it and its leaders pay for the tens of thousands of sex abuse cases committed by hundreds of its clergy over decades, for some answers. If the Catholic case is instructive, the SBC will likely be taken to court in civil suits. However, due to its organizational structure, it may be hard to hold the SBC liable for harms in civil suits. In addition, criminal prosecutions in religious sex abuse cases are difficult to mount, and they rarely result in conviction.
While congregational and public outrage has been directed at the SBC leadership for not responding to victims and not preventing reappointment of pastors and others accused of sexual abuse of adults and children, federal and state attorneys may struggle to hold the institution accountable for not taking action. In the case of the Catholic Church, even though there are relatively clear lines of authority and responsibility within it, from priest to bishop and on to the pope, criminal prosecutions of those with responsibility to assign priests to their local parishes, schools, hospitals or orphanages have been rare.
The SBC has a more truncated structure than the Catholic Church: it does not ordain, hire or appoint pastors, but instead follows a model where SBC-affiliated congregations appoint their leaders directly. However, an individual church’s affiliation with the SBC is conditional. Interestingly, the SBC will terminate a church’s affiliation for for appointing gay pastors, but until 2019 it had no policy about ending affiliation with churches that contravene the SBC’s beliefs about sex abuse. As the SBC leadership recognized when repeatedly deflecting efforts from victims and families to have the SBC exercise authority and address abuse problems in the affiliated churches, not being directly responsible affiliated churches’ employees is a substantial protection against being held legally liable for harms committed by the employee.
Questions about jurisdiction also emerge in these cases – specifically with regard to “determining what is the federal crime”, to quote Peter G. Strasser, a former US attorney from Louisiana. Federal prosecutions of individual perpetrators may succeed through use of the federal Mann Act – the law that criminalizes taking anyone across state lines for illegal sex (recently used to prosecute and convict R. Kelly and Ghislaine Maxwell). Individual religious figures, including in the Catholic Church, who have sexually abused children have been prosecuted successfully by district attorneys. In those cases, priests were the direct instigators of the crimes. Hundreds of SBC-affiliated church pastors and other employees have been criminally prosecuted and convicted for sex crimes. That was part of the scandal leading to the public outcry: there was no SBC-level response to these cases, such as an open database of those who were convicted that would have allowed other SBC churches and congregants to avoid hiring them. The SBC leadership deliberately postponed and then kept secret the creation of such a list, in order to ensure they would not be held liable somehow for future malfeasance of those listed, nor sued by those listed for defamation of character.
The Catholic Church’s experience suggests that the SBC leadership likely won’t face significant criminal prosecutions. In the United States, there have been very few prosecutions of Catholic bishops for failure to report suspected child sex abuse to civil authorities, or for child endangerment, or obstruction of justice. The statute of limitations has often run out before public outrage convinces prosecutors it is politically safe to investigate religious institutions and their leaders. District attorneys do not want to appear to be going after religion.
The few prosecutions that have occurred typically resulted in mild penalties. Bishop Robert Finn of the diocese of Kansas City-St. Joseph, Missouri, for example, had a voluminous record of tolerating abusive priests and ignoring victims, yet he was only indicted and convicted of one misdemeanor count for failure to report a priest who had collected child pornography. Finn received a sentence of two years probation. Bishop Daniel Walsh of the diocese of Santa Rosa California was offered a counseling diversion program rather than a short time in prison. Walsh had delayed for four days reporting to police that a priest had told him he had sexually abused a child, during which time the priest fled to Mexico. Mandatory reporting laws do not carry stiff penalties for violations.
Child endangerment laws may have more substantial penalties. However, as the case of Monsignor William Lynn of the diocese of Philadelphia shows, getting a conviction can be a lengthy ordeal that may outlast the careers of some elected prosecutors. One immediate hurdle is convincing courts and juries that those in the hierarchy had a supervisory role over children. Because members of the church hierarchy often don’t directly interact with children as part of their usual work, prosecutors need courts to accept a broad interpretation of such laws. Monsignor Lynn, a former secretary for clergy of the diocese of Philadelphia (1992-2004), was arrested in 2011, convicted of child endangerment, and given a 3-6 year jail sentence. The case was appealed and the appeals court reversed, but the state supreme court reversed the appeals court and upheld the original conviction.
The Supreme Court of Pennsylvania held that Lynn’s conduct was within the purview of Pennsylvania’s child endangerment act, even though he did not have direct contact with children. The facts against him were typical of many officials in other dioceses. The state supreme court summarized that Lynn
…mollified victims of sexual abuse by falsely telling them their allegations were being seriously investigated and that the particular priest would never again be assigned around children, despite knowing that the priests under his supervision would merely be reassigned to another parish with no ministry restrictions on contact with children; he informed parishioners that the priests he transferred were moved for health reasons, leaving the welfare of children in jeopardy; he routinely disregarded treatment recommendations for priests; he failed to inform the relocated priest’s new supervisor about abuse allegations; he took no action to ensure that the abusive priest was kept away from children at his new assignment; he suppressed complaints and concerns by the colleagues of the priests; all with the knowledge that sexually abusive priests rarely had only one victim and that all of these actions would endanger the welfare of the diocese’s children, including D.G. [one of the victims]. Finally, and even more egregiously, when [Lynn] was contacted by law enforcement, he misrepresented facts to thwart their investigation of these priests, and their crimes.
Lynn’s case has gone through several appeals. At the time of writing, the outcome has not been determined. What is striking, beyond the appalling facts of the case, is that other Catholic officials in the US have not been similarly prosecuted and convicted. There have been a few cases of bishops criminally charged with committing child sex abuse themselves. However, while the Church in the US, through its dioceses and religious orders, has paid out billions in settlements and damages and millions in legal fees, its hierarchy has largely avoided accountability for crimes of child endangerment and failure to report. The judge in the Lynn retrial case has made it clear that she is narrowly construing the crime to one group of children, and one count of child endangerment due to one priest transfer in 1993, despite Lynn having been in charge of numerous re-assignments of priests that a 2003 grand jury report shows he’d known to be child sex abusers. Judge Gwendolyn Bright stated in March 2020, at a pretrial hearing, “We’re not bringing in the so-called or alleged ‘sins of the Catholic Church.'” She put a gag order on the proceedings, which were then postponed due to the Covid-19 pandemic. Notably, Monsignor Lynn was put on leave by his diocese but is regarded as a priest in good standing by the Vatican. For the Catholic church, his alleged crime is civil, not religious.
For criminal prosecutions, the Lynn case highlights the difficulties of finding scenarios that fit criminal statutes, as well as finding incidents that aren’t barred by the statute of limitations or undercut by the death of the victim or accused. It is also of note that the archbishops Lynn served under, who had full authority and responsibility in the Catholic church for priest assignments, were not able to be charged, largely due to constraints of the child endangerment statute. A 2003 Philadelphia grand jury report concluded that “Msgr. Lynn was handling the cases precisely as his boss wished” (33). The federal effort to prosecute also has run into what is typical in these cases: as the US Attorney for Pennsylvania summarized in 2020, the Department of Justice found “no apparent prosecutable federal offenses.” The diocese did settle with some victims in civil suits.
Another legal strategy that has appeared in some Catholic abuse cases is bringing charges or suit under federal or state RICO statutes. RICO, or the Racketeering Influenced and Corrupt Organizations Act, was passed by Congress in 1970, to provide more tools to fight and prosecute organized crime. As courts’ application of RICO in civil suits by private persons requires evidence of harm to victims’ material interests, not recognizing physical or emotional harm, attorneys may argue, as they did in a suit against the diocese of Camden, NJ, in 1994, that “The assault victims “were injured in their business or property in that they were deprived of the society, services, earning capacity, consortium, and other property rights,” and were damaged “by having to expend … money on medical care and treatment.” The effort to file RICO charges against the Catholic Church for clergy child sex abuse has not yielded results for prosecutors in criminal cases. As noted, some plaintiffs’ attorneys have filed RICO suits against various dioceses and their religious leadership, claiming a repeated, conspiratorial effort by the diocese to cover up abusive priests.
The federal RICO statute may require more proof of conspiratorial coordination than the SBC executive committee exhibited across churches. To date, there have been only a handful of state-level criminal and civil RICO suits filed (31 states have RICO statutes now). As with other issues in abuse cases, the state needs to have had the statute on the books when the alleged crimes were committed. None have fully succeeded, though several have resulted in out-of-court settlements, most have been dismissed due to legal insufficiencies. RICO claims require intentional, not negligent, conduct. For federal prosecution of the SBC, the SBC leadership would have to be found to have committed two or more of a set of serious federal crimes. Thus, RICO also has high bars to prosecution.
While victims, religious community members, and the general public call for accountability, this brief review indicates that criminal charges are difficult to file, even when district and US attorneys see that public opinion and the political environment will support such suits. For far too long, those in civilian positions of authority have deferred to the preferences of religious institutions like the Catholic Church to handle “their own affairs,” despite the serious harm to victims. Some smaller religious groups and institutions still escape scrutiny and accountability.1 Rachel Aviv, “The Outcast,” The New Yorker, Nov. 10, 2014, 44-55. Civil suits tend to have lower bars to showing some form of liability by a religious institution (e.g., a diocese) and an official (e.g., a bishop).
There are several items for further thought, but they are beyond the scope of this analysis. The First Amendment did not figure in this essay, because it no longer is interpreted by courts as a complete barrier to civil suits and criminal prosecutions. Second, for civil suits and prosecutions to succeed, they need courts and juries to no longer regard the religious institution as untouchable, as an entity apart that handles its own affairs and answers to a law of its own. Victims and their families have to believe they will be taken seriously. The role of media in investigating and making adherents and the public aware of systemic malfeasance in sex abuse cases cannot be overstated.2 The 2019 investigative report by the Houston Chronicle and San Antonio Express-News goaded the SBC into commissioning an independent report; the 2002 investigation by the Boston Globe’s Spotlight team lifted the lid off Catholic clergy child sex abuse in the US and showed the extent to which the hierarchy was involved in allowing it to happen. Respect for the sacred does not require deference to sex abuse and negligence in religious institutions.♦
Carolyn Warner is the Vail Pittman Professor and Department Chair of Political Science at the University of Nevada, Reno. Her research and teaching focus on religion, the military, and politics, with recent publications in the American Journal of Political Science, Law & Society Review, and the Journal of Church and State. She is working on a book on the politics of sex abuse in sacred institutions. Visit her personal website at: https://carolynmwarner.com/.
Warner, Carolyn. “The Southern Baptist Convention Cases and the Limited Option for Holding Religious Institutions Accountable for Clergy Sex Abuse.” Canopy Forum, November 7, 2022. https://canopyforum.org/2022/11/07/the-southern-baptist-convention-cases-and-the-limited-option-for-holding-religious-institutions-accountable-for-clergy-sex-abuse/