When, and if, the jurors in the Philadelphia priest sex-abuse case receive the judge’s charge, prosecutors want them to hear an explanation of what it means to have a duty of care to not endanger the welfare of children, while the defense does not want any such explanation.
Alan J. Tauber of Lindy & Tauber told Philadelphia Court of Common Pleas Judge M. Teresa Sarmina that providing such an explanation runs the risk that the jury would consider the guilt or innocence of his client and his co-defendant in terms of tort or family law.
Providing such an explanation makes “greater the risk that the jury will convict one of these men on a concept of negligence,” Tauber said.
Prosecutor Mariana Sorensen said that the concept of duty of care must be explained to the jury because they do not know tort law.
In another development Thursday, it appears Sarmina has ruled in favor of a prosecution motion to take the deposition of cloistered sisters who lived at the same monastery with a priest who two witnesses have testified raped them for several years when they were young teenagers. Prosecutor Patrick Blessington told Sarmina the visit to the monastery would take place at 1:30 p.m. Tuesday.
Monsignor William J. Lynn, the late Cardinal Anthony J. Bevilacqua’s delegate for investigating priests accused of sexual abuse from 1992 to 2004, is accused of endangering the welfare of children supervised by co-defendant the Rev. James J. Brennan and defrocked priest Edward V. Avery.
“Our theory is you endanger by putting a dangerous person out there with children,” Sorensen said. Even if children besides the youth that Brennan is charged with sexually abusing and the youth whom Avery pled guilty to abusing were not actually endangered, they were endangered by being put in the company of alleged sexual predators, Sorensen said.
Tauber countered that it is a “leap of inference” to say that just because someone sexually abused a youth he or she is dangerous to every member of a protected class he or she comes in contact with.
Before defendants can be labeled sexual predators in sexual assault cases, there must be expert testimony that they are predators, Tauber said.
Tauber also argued that the duty of care can’t come from an employee-employer relationship because Pennsylvania’s endangering the welfare of a child statute wasn’t revised until 2007 to cover the supervisors or employers of people working with children. The Philadelphia District Attorney’s Office was one of the advocates for the change because of its first investigating grand jury into sexual abuse by priests. That grand jury did not result in criminal charges reaching into the church hierarchy.
“I suppose you’re going to quote Mariana Sorensen herself,” Sarmina said as Tauber made his argument. That drew laughs. Sorensen was one of those people who testified in favor of the changing the EWOC law.
Sarmina said earlier in the hearing that the amendment of the statute was to bring employers and people supervising children into the statute’s definition of persons supervising children, not necessarily to fill in a gap on who owed a duty to children.
Sarmina also said that just because the state Supreme Court denied Lynn’s King’s Bench petition to consider whether it was legal to charge him with endangering the welfare of children considering the statute was changed in 2007 to cover supervisors of people working with children does not mean that the high court approves of the prosecution’s legal theory. If there was a conviction, the court might still reverse, Sarmina said.
You can supervise the welfare of children by supervising the people actually in control of the children, Sorensen said, which was the case because Lynn was the personnel director for priests.
There also was an argument Thursday as to whether the charge of endangering the welfare of children should refer to child in the singular or children in the plural.
Brennan’s attorney, William J. Brennan, said that the “evidence [against his client] is unique … if you compare it to every other file in this case” because there is only one alleged victim.
A rule of statutory construction is that the plural is included in the singular and the singular is included in the plural, Sorensen said.