Are Ohio AG's hands tied to do Catholic Church sex abuse probe? Maybe not, experts say

After advocates for survivors called on Ohio Attorney General Dave Yost last month to join around two-dozen other states' attorneys general who have launched investigations into abuse at Catholic dioceses, Yost responded that his hands are tied.

His office cited state law that requires local or federal authorities to invite the Ohio Attorney General to launch investigations.

Legal experts told The Dispatch that the Ohio Attorney General's power to launch investigations is constrained compared to other states like Pennsylvania, whose then-Attorney General Josh Shapiro released a bombshell report on six dioceses in 2018. But they noted that with an invitation from local authorities, the Ohio Attorney General could choose to investigate dioceses criminally.

When asked whether an invitation from a district attorney or police chief would trigger Yost to launch an investigation into the Catholic dioceses, Bethany McCorkle, Yost's spokesperson, declined to comment.

In arguing that a broad investigation is necessary, the Survivors Network of those Abused by Priests (SNAP) and two Ohio groups noted last month that at least five Ohio Catholic priests — in Steubenville, Strongsville, Toledo and Cincinnati — have been convicted for sex abuse in the past five years. They also released a list of 49 Catholic priests who had ties to Ohio and were named in investigations by Maryland, Illinois, and Pennsylvania's attorneys general.

In response, Yost said in a statement that while he encourages victims to report individual cases of abuse to local authorities, he is unable to open up a statewide investigation into the dioceses.

"Unlike some other states, Ohio does not grant the attorney general’s office the legal authority to investigate matters like this. The General Assembly has the power to change the law, but at present, SNAP’s concerns should be addressed to local prosecutors," Yost said at the time.

However, Claudia Vercellotti, an abuse survivor and victim advocate with SNAP in Toledo, is not satisfied.

"We have been asking for more than 20 years for justice on behalf of Ohio kids who were sexually assaulted by clergy, how many more years is it going to take?" Vercellotti said. "It’s 2023 — it’s time AG Yost come up with a fresh answer."

Other states' investigations into Catholic Church

The Boston Globe broke national news in 2002 with an investigation detailing child sexual abuse in the Archdiocese of Boston, but the trend of state-led investigations began after Pennsylvania released its report in 2018. Shapiro's grand jury investigation identified 301 priests who victimized at least 1,000 children, and it documented an organized cover-up that included bishops, monsignors and others.

The Pennsylvania investigation resulted in some high-profile resignations — including of a cardinal — as well as two new indictments. Soon after the report's release, the state eliminated the criminal statute of limitations on child sexual assault, since most victims come forward only later in life. (A similar bill was introduced in the Ohio Statehouse in 2021 but never made it out of committee.)

Since 2018, at least 23 other states' attorneys general have launched investigations into dioceses, according to Child USA, a Philadelphia-based national nonprofit that works to empower victims of child abuse while advocating for legal reform. The investigating authorities have included Democrats and Republicans. Josh Hawley launched an investigation as Missouri's attorney general before gaining nationwide prominence as a Republican U.S. senator; in Pennsylvania, Shapiro went on to become the state's Democratic governor.

Some of the states where investigations took place have laws giving their attorneys general robust powers — but others do not, according to a database kept by the State Council of Governments.

For example, despite not having the power to call a state-wide grand jury, Iowa's then-Attorney General Tom Miller facilitated an independent third-party report on clergy abuse in 2018 after gaining voluntary participation from several dioceses. However, the investigation lacked subpoena power and uncovered only 17 new allegations of sex abuse.

Attorney general powers in Ohio

In Ohio, criminal investigations and prosecutions begin with local authorities. However, the attorney general can launch a probe by the Bureau of Criminal Investigation if invited to do so by local prosecutors or local law enforcement, according to experts.

"(But) it's an invitation, right? The AG doesn't have to accept the invitation," said Jonathan Entin, a professor emeritus at Case Western University School of Law. Entin noted that the state's top lawyer makes their own choices about how best to use their department's time and resources.

In the past, Ohio attorneys general have accepted some invitations to investigate child sex abuse. For example, in 2013 then-Attorney General Mike DeWine investigated cases of rape that victimized teenagers in Steubenville, which resulted in a grand jury bringing six indictments.

Marci Hamilton, a political science professor at the University of Pennsylvania who is an expert on clergy sex abuse statutes and the founder of Child USA, said she thinks the logical next step in Ohio is for a local prosecutor to invite the attorney general to investigate the dioceses.

"Given the reality of the ongoing sex abuse in the Catholic Church and the fact victims on average don’t come forward for decades after the abuse, a local prosecutor asking for a statewide report on clergy sex abuse is reasonable and should happen," said Hamilton. "Where are the local prosecutors who for sure have received numerous reports of Catholic sex abuse over the years?"

Even without an invitation from local authorities, Vercellotti of SNAP said that Yost could investigate dioceses civilly, focusing on their property, since the attorney general has the authority to make sure that charitable trusts are complying with state requirements.

Dave Ebersole, a tax lawyer who served as an assistant attorney general from 2011 to 2016, told The Dispatch he thinks that the Ohio Attorney General's investigatory powers go beyond the commonly understood limits.

In an article published last year in the Ohio State Business Law Journal, Ebersole argued that the position holds "common law civil and criminal prosecutorial powers," which include the power to initiate investigations.

But Entin said there can be good reasons for limiting an attorney general's criminal prosecutorial powers.

“My sense from having been in a number of states is that people are sometimes concerned about giving the attorney general too much power. ... It’s a bigger problem if you have a rogue attorney general ... than if you have an overly aggressive county prosecutor, because the damage that a county prosecutor can do is less,” he said.

Why investigate?

The Diocese of Columbus told The Dispatch that "we have been and will continue to be vigilant to maintain a safe environment for all children, youth, and adults."

"We routinely self-evaluate safety protocols as well as utilize and cooperate with outside entities. The United States Conference of Bishops audits every diocese annually, which includes on-site visits every three years. Further, not only does the Diocese of Columbus mandate background checks and ongoing training for employees but also all volunteers," diocese spokesperson Jason Mays said after SNAP called on Yost to investigate.

However, Hamilton said that dioceses across the country have yet to adopt strong child protective systems.

In a 2021 peer-reviewed journal article, she and her colleagues examined written policies on preventing child sexual abuse at 32 archdioceses, and found none scored above 50% on their evaluation scale.

Teresa Dinwiddie-Herrmann, co-chair of Ohioans for Child Protection, one of the groups calling on Yost to investigate, said in a news conference last month that she is aware of credible cases of abuse in Ohio that have not been investigated.

Dinwiddie-Herrmann added there is also inherent value in bringing public scrutiny to the issue.

"There is certainly a culture of silence around these issues," she said. "And as each investigation comes forward, we can no longer run from the truth."

Peter Gill covers immigration, new American communities and religion for The Dispatch in partnership with Report for America. You can support work like his with a tax-deductible donation to Report for America at: bit.ly/3fNsGaZ.

pgill@dispatch.com

@pitaarji

This article originally appeared on The Columbus Dispatch: Experts say AG has options to initiate Catholic Church sex abuse probe