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Criminal sexual abuse or "agreeable sex": Leonard Swidler vs. Emmett Fitzpatrick

Editor's Comment: On October 9, ARCC President Leonard Swidler and former Philadelphia District Attorney Emmett Fitzpatrick were interviewed by Marc Howard on Newsmakers, CBS, Channel 3, Philadelphia, and asked their opinions concerning the Philadelphia Grand Jury Report on abusive Catholic priests. As I listened to the videotaped interview on my computer I began to wonder whether I had accidentally tumbled into the Twilight Zone or a Catholic version of Orwell's Oceania where history is rewritten to fit Big Brother's official party line. Where else might one find a devout Catholic layman, a former district attorney, a man who is supposed to uphold the law, dismiss the entire scandal as people having "agreeable sex with each other," and insist that no crimes could have taken place because if the priests' actions had been illegal the bishops would have reported them at the time. Here is a transcript of the discussions taken from them video link: http://kyw.com/video/?id=16968@kyw.dayport.com ihs


Howard: Good morning. Welcome to Newsmakers. I am Marc Howard. The social and religious aftershocks are still being felt in our area involving the Philadelphia Grand Jury report on sexual abuse by 63 Roman Catholic priests, The debate over the investigation and the report is still in high gear and our guests today are former Philadelphia DA Emmett Fitzpatrick and Leonard Swidler, Professor of Religion at Temple University.

Good morning. Welcome to you both. Emmett, you were DA before Ed Randell was DA.

Fitzpatrick: Yes I was.

Howard: And when you looked at what has been going on here for the last few weeks you indicated that you don't think the DA has business investigating the church's alleged crimes Why not?

Fitzpatrick: Well, I really don't think there is that much crime involved in what you are talking about here. You are talking about people having sex, and people who have sex together – almost everybody does it – aren't committing crimes. The crimes have to be defined as something you do to force somebody to do it who doesn't want to or that you do it to somebody who is a very young age. Now apparently what's come out of this grand jury investigation is that the grand jury has to determine that there were people who did have sex with younger children but the younger children never made any complaint about it at the time, never said it was a crime, never said it was anything. And now, in some instances they try to say that, after about twenty years when the statute of limitations has already run out, and that doesn't do anything for anybody. So all that they are really doing is making some sort of a bad, bad reputation for Catholic priests and I do not believe that is something the district attorney ought to do.

Howard: You are saying that she should be involved because in your opinion there was nobody she could prosecute, the statute has run out. Is that right?

Fitzpatrick: Well there were three years when they had this grand jury. There were people down there working in that grand jury to find out whether or not priests were doing something wrong for three years. And they came out only with this. Now, under those circumstances, with the amount of money that they spent on it, in my opinion, it was wasted.

Howard: Dr. Swidler, the report, in your opinion, was a good thing, regardless how it got out. Correct?

Swidler: Absolutely. I mean these were horrible, horrible things first of all that priests and sometimes lay people were doing all these years and I would say, and not I alone, even more horrible is the mismanagement on the part of the leadership that just shuffled them around from place to place. The fact that this wasn't uncovered until it was too late to do anything about it legally is shame on our laws, not shame on the district attorney. She has done in my judgment a real service to this community and unfortunately it turns out that this is a pattern that's repeating itself not only around the United States but around the world and not only in the twenty-first century or the twentieth century but for a long, long time. We need to know, so we can do something about it, and it's our responsibility, and I am speaking now as a Catholic theologian, it's our responsibility as Catholics to do something about it.

Howard: Emmett, the DA, you say, perhaps legally shouldn't have done this, but somebody, don't you think, should have looked into what was going on and there should be a report like this. How else would we have it if not by a grand jury?

Fitzpatrick: I don't know, I don't know what you are really looking for. You are looking for people that had sex twenty years ago. Now, why is it that you are looking for people that had sex twenty years ago, even with younger children, if the children agreed to it at those times, and apparently the children did not feel that they were being forced to it, they didn't say, wait a minute I have been abused by someone because if they had there would have been an arrest and everything would have been taken place at that time.

Howard: There do seem to be some cases, by the way, where they did tell their parents but their parents, for whatever reason decided not to bring any charges.

Fitzpatrick: That's right. The parents decided not to bring any charges so there wasn't any open bad, bad treatment on the part of anyone like that. And when you get a situation like that why is it that the district attorney is interested in the fact that well, somebody had sex and maybe they didn't want to or maybe they did and we don't know but we'll arrest the guy that did it. I mean, it's just a little bit ridiculous to start putting people in jail for having sex, unless they have gone out and really forced someone into something.

Howard: A big chunk of the report, or a chunk of it that got a lot of attentions, was the fact that apparently some of these priests who committed these crimes at the time, and they were crimes, they were moved to other places, and committed another crime, and then they were moved again, and so part of her focus was on a hierarchy that seemed to be willing to protect priests who had a serious problem to avoid prosecution. Do you think she had a right to look into that?

Fitzpatrick: You said they committed a crime. What they are talking about is they had sex ...

Howard: with children, underage ...

Fitzpatrick: Yes, underage. when you have someone seventeen, eighteen years of age, or just under eighteen, that wants to have sex with you, and you get an agreement with them, and you do it, and some of the people were young at that age too, I mean what's the big problem as far as anything. Two people have sex and away they go. It's not a crime.

Swidler: Frankly, I am amazed to hear this. I mean, I find this really stunning. These were young children and the priests were in a sort of demi-god kind of situation. This was the attitude that has been drilled into us, especially is this true not only in Catholicism in general but particularly in Philadelphia ever since the time of Cardinal Dougherty. I don't mean about the sex business, I mean about "don't ask questions if the Father, if Father says something you go with it." Everybody was drilled that way. The children, the parents, and everybody else. I think that the District Attorney did a great service to this community, and if this community, I mean Catholics in this community, don't do something about it now, shame on us.

Howard: But you are a member in good standing. Some people in the church have said they think the church deserves being brought to task as we hear Dr. Swidler say, but others are saying that, as you are saying [addressing Fitzpatrick] that it's unfair , that it's after the fact, that there are no trials, and therefore that the grand jury report is merely an indictment, but since there can't be a trial because it's after the statute it's not fair.

Fitzpatrick: They are making a bad reputation about Philadelphia priests.

Swidler: And they deserve that reputation. That's the point.

Fitzpatrick: Well, I disagree with that. I don't think they do ...

Swidler: Do you mean to suggest they did these horrible things and they shouldn't have a bad reputation because of that?

Fitzpatrick: I mean to suggest that they didn't do horrible things. If someone twenty-five years of age is a police officer, or pardon me, is a priest, and he gets connected with a lady who is seventeen or even a boy who is seventeen, and they have some sex that both of them like I do not regard that as some sort of a potential crime.

Howard: There were cases, though, were there not, of 11 or 12 year olds, I believe there were a few cases, and those are clearly out of bounds.

Fitzpatrick: Those are out of bounds.

Howard: Now, the question then becomes, 63 priests are mentioned in this report, out of how many in the city, thousand isn't it, thousands of priests, over that period of time?

Swidler: probably, if you want to count, go back to the fifties, a couple of thousand, probably.

Howard: Then the question becomes, I guess, is it fair to do a major report condemning the actions of 63 priests from such a screening?

Swidler: Yes, of course! I mean these are people; the real injustice was on the part of the leaders who simply shuffled them around and let them go on and on and on. There are thousands of people out there who have been abused by these priests and I don't know how many are going to come forward in Philadelphia but now because our laws don't allow it. I would suggest that what the Catholics in Philadelphia and elsewhere need do is begin to do something about it and. If they want to they can approach me. I am the President of the Association for the Rights of Catholics in the Church and we need to try to do something about it.

Howard: If the information is important, and I think you would agree it is important to know, that there are priests who are molesting young children and being promoted elsewhere, moved elsewhare, so they can do it again, if that information has to get out, and if the church isn't going to be forthcoming, wasn't the DA perhaps the only one in a position to say, let's get to the bottom of this. Who else could do it?

Fitzpatrick: Well, the DA is. That's what the DA is charged with, for doing something like this.

Howard: You are saying that because it was too late to bring a charge that she shouldn't have gotten involved?

Fitzpatrick: And it's a relatively minor charge as far as that's concerned. There are a great many other problems today with crimes that have not to do necessarily with agreeable sex with each other.

Howard: If we can resolve this one issue before we run out of time. We all agree, I think, that having sex with an eleven or twelve or thirteen year-old is wrong, regardless of consent. They are not old enough to consent. The sixteen or seventeen year old, which may be a percentage of those cases, would you agree that perhaps these are less criminal in the sense that these are young men and women who can make a decision.

Swidler: I would say it's less, clearly less morally reprehensible. Legally, of course, it's still a crime if the statute hasn't run out and if you want to talk about the priests they have a commitment, of course, to do the exact opposite, they are supposed to be moral leaders, not moral pied pipers going in the wrong direction. But again it's the bishop who should have put a stop to it immediately.

Howard: Do you agree that the bishops were wrong in moving people around when they knew they had this problem?

Fitzpatrick: No, I don't necessarily think that they were wrong. If they had known that it was some sort of a crime I think they certainly would have reported it to the police and that would have been the end of it. If they just reported a bad activity between some people that's something else that can't be a crime.

Howard: Even though it's a technical crime.

Fitzpatrick: Even though it's a technical crime. They are not charged with the position that they have to send people into jail or that to have them arrested or anything like that when they do something that disagrees with the particular letter of the law ...

Howard: [to Swidler] Yes sir.

Swidler: Archbishop Bevilacqua was and is a civil attorney as well as a canon lawyer. He knew what was wrong. He did nothing about it. Shame on him.

Howard: You got the last word, Leonard Swidler, Professor of Religion at Temple University and Emmett Fitzpatrick, a former district attorney, and presently, if you haven't already guessed, a very successful criminal lawyer in the City of Philadelphia. (Transcribed by Ingrid Shafer, 15 October 2005)

Other voices

Another Voice

Questions From a Ewe

Challenges Facing Catholicism
(Bishop Geoffrey Robinson in converation with Dr Ingrid Shafer)

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