Florida State University College of Law Scholarship Repository Scholarly Publications Summer 2003 Criminal Law Sanctuaries Wayne A. Logan Florida State University College of Law Follow this and additional works at: https://ir.law.fsu.edu/articles Part of the Criminal Law Commons, and the Law and Society Commons Recommended Citation Wayne A. Logan, Criminal Law Sanctuaries, 38 HARV. C. R.-C.L. L. REV. 321 (2003), Available at: https://ir.law.fsu.edu/articles/189 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Scholarly Publications by an authorized administrator of Scholarship Repository. For more information, please contact [email protected]. Criminal Law Sanctuaries Wayne A. Logan* If anyone renders himself liable to the lash and ºees to the church, he shall be immune from scourging.1 [A husband can] use towards his wife such a degree of force as is necessary to control an unruly temper and make her behave her- self; and unless some permanent injury be inºicted . the law will not invade the domestic forum, or go behind the curtain.2 Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?3 I. Introduction During the winter months of 2002, Americans were shocked and dismayed to learn of boys having been sexually abused by Catholic priests. Soon, the reports proliferated, inspiring more victims to come forward, many of whom had suffered in silent anguish for years. That the priests had acted criminally and taken advantage of the intimate trust of their young- est and most vulnerable parishioners was bad enough. Worse still, it soon became apparent that the Catholic Church itself, rather than acting decisive- ly to end the victimizations and facilitate prosecutions, had engaged in a systematic effort to shield predator priests dating back several decades. The reasons and rationales underlying the Church’s behavior are com- plex and not yet fully understood. Some apparent explanations include the Church’s desire to recycle fallen priests due to personnel shortages and the obvious public relations concerns presented by pedophile priests. However, there is no mistaking another, more deeply institutional sensibility under- girding the Church’s response: the idea that criminal abuse by clergy should *Associate Professor of Law, William Mitchell College of Law. I thank Professors Darryl Brown, Stuart Green, Dan Kleinberger, David Logan, Deborah Schmedemann, and Ron Wright for their insights and suggestions on prior drafts; Meg Daniel for her editorial as- sistance; and the William Mitchell College of Law Faculty Research Fund for ªnancial support. 1 Charles H. Riggs, Jr., Criminal Asylum in Anglo-Saxon Law 6 (Univ. of Fla. Monographs, Social Sciences No. 18, 1963) (translating laws attributed to Ine, King of the West Saxons from 688 to 725). 2 State v. Black, 60 N.C. (Win.) 262, 267 (1864). 3 Mervyn A. King, Public Policy and the Corporation 1 (1977) (quoting Edward, First Baron Thurlow, who lived from 1731 to 1806). 322 Harvard Civil Rights-Civil Liberties Law Review [Vol. 38 be sanctioned by the Church internally—if at all—in accordance with can- oni-cal commands of contrition and forgiveness, and not by civil authorities. The Church’s institutional response, while surely troubling, seemed oddly out of place in a nation gripped by an ongoing “moral panic” over sex offenders,4 marked by draconian prison terms, registration and com- munity notiªcation laws,5 and even indeªnite, involuntary civil commit- ment.6 Viewed in historical context, however, the Church’s behavior was not so anomalous. For many centuries, churches have served as sanctu- aries from criminal liability, offering refuge to clergy and laity alike, as have other institutions over the years. As one late nineteenth-century scholar observed, the “institution of sanctuaries has its root in a sentiment com- mon to all humanity,”7 recognized through the centuries. Indeed, two contemporary examples of sanctuary, also the focus of recent media attention, involve institutions of equal centrality to Ameri- can society: families and corporations.8 This Article explores the manner in which Anglo-American law has, and has not, addressed criminal ac- tivity within churches, families, and corporations. Each institution has afforded a measure of immunity from prosecution, in effect establishing criminal law sanctuaries that, under ideal circumstances, self-regulate effectively without intrusion by government, but in less benign circum- stances serve as criminogenic refuges. As will be discussed, however, over time government has become less tolerant of the sanctuaries, eroding the exceptionalism they embody and implementing legal strategies intended to punish and deter the harms they have insulated. Such efforts have been motivated by a variety of inºu- ential catalysts, most notably feminism, victims’ rights, and populism. This trend, in turn, has been augmented by the historical governmental predisposition to increase its punitive reach, which in modern times has been galvanized by aggressive and increasingly omnipresent media reportage. The evolving willingness of government to invoke the criminal law to address wrongs committed within church, family, and corporation, in 4 See generally Philip Jenkins, Moral Panic: Changing Concepts of the Child Molester in Modern America (1998). 5 See generally Wayne A. Logan, Federal Habeas in the Information Age, 85 Minn. L. Rev. 147, 158–67 (2000) (describing registration and notiªcation initiatives). 6 See generally Samuel J. Brakel & James L. Cavanaugh, Jr., Of Psychopaths and Pen- dulums: Legal and Psychiatric Treatment of Offenders in the United States, 30 N.M. L. Rev. 69, 70–76 (2000) (chronicling the resurgence of sex offender commitment laws). 7 Thomas John De’ Mazzinghi, Sanctuaries 1 (Stafford, England, Halden & Son 1887). 8 The ªnancial abuses of Enron and WorldCom are only two of many recently reported instances of corporate wrongdoing. See, e.g., Verne Kopytoff, Annus Horribilis: Corporate Scandals, Lingering Recession Made 2002 Truly Horrible Year, S.F. Chron., Dec. 29, 2002, at G1, 2002 WL 403925812 (providing chronology of corporate scandal revelations in 2002). For a recent discussion of the persistent failure of the criminal law to punish and curtail intra-familial abuse, see Deborah Sontag, Fierce Entanglements, N.Y. Times, Nov. 17, 2002, § 6 (Magazine), at 52. 2003] Criminal Law Sanctuaries 323 the face of historic de facto and de jure shields from accountability, is a story rich in interconnections and parallels. Each institution has enjoyed preeminent social standing, allowing it to command governmental defer- ence and discourage efforts to intervene. In turn, insularity endemic to the institutions has made them reluctant to publicly acknowledge wrong- doing occurring within their privileged realms. Taken together, these shared institutional characteristics present strikingly similar challenges to the application of the criminal law. The Article begins with an overview of the historic criminal law sanctuaries of churches, families and corporations, exploring the social, political, and jurisprudential reasons for their existence, as well as the government’s eventual efforts to address the criminal wrongs they have shielded. The discussion then turns to governmental efforts to detect, punish, and deter criminal harms in the context of families and corporations, in particular. The Article concludes that the criminal law, despite its unique expressive function in condemning misconduct, has failed to achieve unequivocal success in its campaigns against criminal abuse in the domestic and corporate contexts. Drawing lessons from social science research, it offers some insights into how the law might best be employed to combat criminal sexual abuse within the Church, a similarly closed institution with analogous incentives and capacity for obscuring criminal activity. II. Sanctuaries A. The Church 1. Historic Role of Sanctuary Historically, churches afforded sanctuary to those seeking refuge from private vengeance for alleged wrongdoing. The Bible itself refers three times to the right of sanctuary for accidental homicides,9 and endorses its use to guard against the unconstrained reciprocal blood-lettings custom- ary at the time.10 Once the individual reached a physical site of sanctuary, such as an altar11 or a designated city,12 his contention that the death was 9 See Moshe Greenberg, The Biblical Conception of Asylum, 78 J. Biblical Litera- ture 125, 125 (1959). 10 See, e.g., Exodus 21:12–14 (New Oxford rev. standard version 1977): Whoever strikes a man so that he dies shall be put to death. But if he did not lie in wait for him, but God let him fall into his hand, then I will appoint for you a place to which he may ºee. But if a man willfully attacks another to kill him treacher- ously, you shall take him from my altar, that he may die. Id. 11 See Ignatius Bau, This Ground is Holy: Church Sanctuary and Central American Refugees 127–29 (1985). 12 See id. at 125; see also Numbers 35:6–34 (commanding Moses to establish six cities 324 Harvard Civil Rights-Civil Liberties Law Review [Vol. 38 accidental was evaluated. If conªrmed, the individual could avoid retri- bution so long as he remained at the site.13 If deemed guilty of intentional homicide, he was delivered to his avenger.14 Sanctuary played a similarly central role in Grecian society. In Ath- ens, “[a]lmost every temple afforded protection