It’s devastating to be accused of physically or sexually abusing a child. Sometimes, though, a person who has not actually committed the abuse can be criminally accused and convicted for not protecting the child’s welfare.
An individual usually does not have a duty to prevent Person A from harming Person B. There are exceptions to the rules, but they hinge on complex, fact-specific questions like what, if any, relationship existed between the parties before the incident and the circumstances of the assault.
The Pennsylvanian legislature cut through this problem by enacting 18 Pa.C.S. §4304, Endangering the Welfare of a Child, which states:
A parent, guardian or other person supervising the welfare of a child under 18 years of age commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.
In 2007 this section was amended to say:
A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support. (emphasis added)
The Supreme Court of Pennsylvania is considering a case on the meaning of these sections. Any person whose role has brought them into contact with or responsibility for children in recent years should be aware of it.
What the Monsignor Knew
Monsignor William Lynn was an official of the Philadelphia Archdiocese from 1992 to 2004. In 1992, he learned of a recent complaint of sexual abuse perpetrated in the 1970s by Father Edward Avery. After confronting Avery with the allegations, Lynn arranged for him to be assessed by a mental health facility. The facility discharged Avery in 1993. Lynn arranged for Avery to live at the rectory of St. Jerome’s church and to serve as a hospital chaplain. By 1998, Lynn had enough concerns about Avery to be unwilling to recommend him for a position in another diocese. Later that year Avery came into contact with an altar-boy whom he abused sexually in 1999. This later sexual abuse was reported to the archdiocese in 2009.
In 2002 further allegations of abuse (taking place in about the 1980s) were made against Avery. An investigation into Avery’s conduct resulted in him being removed from active ministry in 2003 and laicised in 2006.
Charges and Trial at First Instance
Msgr Lynn was charged with two counts of endangering the welfare of a child and one of conspiring to endanger the welfare of a child in relation to his supervision of Avery and another priest. He was tried by a jury in Philadelphia’s Court of Common Pleas. Evidence was presented that he had not acted strong enough to isolate offenders from children, nor involve the police. Questions of the nature of criminal intent and conspiracy were raised as his culpability was based on a failure to act where criminal law is almost always based on specific, affirmative intentional acts.
On June 22, 2012, the jury convicted Lynn on one count of endangering the welfare of children under 18 Pa.C.S. §4304. He was acquitted of the other charges. Judge Sarmina imposed a term of imprisonment.
Msgr Lynn appealed to the Superior Court of Pennsylvania. Justices Bender, Donohue and Musmanno issued the opinion for the court and overturned Avery’s conviction on December 26, 2013.
The Superior Court considered two questions and answered them this way:
(a) Did the pre-2007 version of 18 Pa.C.S. §4304 apply to Lynn, who was not a parent, guardian or other person supervising the welfare of a child and who had no direct involvement with, and never met nor never knew the child?
Everyone agreed that Avery was supervising the victim of the 1999 crimes when Avery abused him, and that Lynn lacked a direct supervisory role over the boy. The Superior Court said the plain language of §4304, before the amendment, required the accused to be the “supervisor of an endangered child victim when the conduct … giving rise to the offense occurred”. This meant Lynn could not be convicted of endangering the welfare of a child.
(b) Should Judge Sarmina have allowed the jury to consider whether Lynn could be guilty as Avery’s accomplice?
Pennsylvania accomplice law (18 Pa.C.S. §306) makes Person A guilty of an offense committed “by the conduct of another person[Person B] for which he is legally accountable”. This is the case when Person A is an accomplice of Person B in committing the crime. To be an accomplice, Person A must have intended to aid or promote the crime and that he solicited, aided, or agreed to aid Person B. The Superior Court concluded that the evidence did not show that Lynn intended to promote the endangerment of children.
On November 18, 2014, the Supreme Court of Pennsylvania heard the District Attorney’s appeal. The DA argued that Lynn did not need to know for certain that Avery would abuse a particular victim and that Lynn had protected priests when he should have been protecting children.
Lynn’s attorney countered that the legislative intent in amending the law in 2007 was to widen the law beyond parents, guardians and others with direct supervision of children, and so the earlier law could not possibly cover Lynn. He also argued that Lynn did not directly supervise Avery as is required under the law. Chief Justice Castille, Justice Todd and four other justices spent a considerable part of the hearing considering precisely these issues.
What it Means for You
Are you, or have you been, an officer of an organization, like a sporting club, Scout troop, school or church? If one of your subordinates is facing an allegation of child abuse, you may also face charges of endangering the welfare of children under 18 Pa.C.S. §4304 simply based on your supervisory role. If you have been contacted by police, or just want to be clear as to your rights, you should seek legal counsel. Do not speak to police without first consulting with an attorney. When preparing to meet with your attorney, take the time to consider and make a few notes on the following points:
* What allegations have been made, and against whom?
* Roughly when did the offenses allegedly occur, and what was your role in the organization at the time?
* What was the nature of your working and personal relationship with the alleged offender?
* Do you recall if you spoke with the offender, or with any superior you had, and what action was taken?
If you think such a matter may draw you to the attention of police, contact Philadelphia criminal defense attorney Brian M. Fishman of The Fishman Firm for a free consultation concerning your constitutional rights.