I. INTRODUCTION

This is a review by the Victims’ Rights Committee (hereafter “Committee”) of an investigation of sexual abuse allegations lodged against Msgr. Michael Smith Foster by Paul Edwards (hereafter “Foster investigation”). The Foster investigation¹ was conducted by the Roman Catholic Archdiocese of Boston (hereafter “RCAB” ) between August 15, 2002 and October 30, 2002. The RCAB concluded at the end of its investigation that Edwards’ allegations were “unsubstantiated.” On October 15, 2003 Edwards formally contacted this Committee to request a review of the Foster investigation. (R.1)

On January 22, 2004 this Committee sent written notification of this review process to the head of the RCAB, Archbishop Sean O’Malley. This notification identified relevant documents in the Committee’s possession. (R. 2) This Committee invited the RCAB to respond and/or provide it with additional documents. The RCAB was advised that if no response was received by a certain date, it would be assumed that all documents known to the RCAB and deemed relevant and necessary to a full and objective review of this matter were in the Committee’s possession.

On February 6, 2004 this Committee received a letter from Reverend John Connelly, Jr., Secretary to Archbishop O’Malley, stating that “the Archdiocese will not participate in the review. . .and therefore will not submit documents as you requested.” (R. 3)

1. Standard of Review

This Committee has undertaken to determine whether the RCAB adhered to its own applicable policies and procedures in the handling of the Foster investigation.

2. Materials Reviewed

This Committee based its review on applicable Church policies and procedures. In addition, Edwards submitted to this Committee pertinent documents generated in connection with the Foster investigation that could personally be acquired by him or his legal representatives. Public documents were also obtained. The Committee based its review solely on these written records and did not interview witnesses. Full copies of identified records are on file with the Committee. (See Appendix A for a listing of records.)

A. Sources of Applicable RCAB Policies and Procedures

This Committee identified the following sources of policies and procedures under which the RCAB was operating at the time of the Foster investigation:

¹ Although this report refers to “the Foster investigation” in the singular, there were, in fact, two distinct investigation periods. Thus, this report will use the terms “first investigation” and “second investigation.”

• Pastoral Policy for Handling Allegations of Sexual Misconduct ² with Minors by Clergy of the Archdiocese (hereafter “1993 Pastoral Policy”) adopted by the RCAB in 1993 ³ (R. 4)
• Charter for the Protection of Children and Young People (hereafter “the Charter”) US Conference of Catholic Bishops (USCCB), June 2002 (R. 5)
• 1983 Code of Canon Law (hereafter “Canon Law”) (R.6)
• Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons (hereafter “Essential Norms”) USCCB, 2002 (R. 7)
• Policies and Procedures for the Protection of Children (hereafter the “May 2003 Policies”) decreed by the RCAB on May 30, 2003 ⁴ (R. 8)

II. FACTS IN THE FOSTER INVESTIGATION

1. First Investigation

On August 14, 2002, a civil lawsuit was filed by Edwards against the RCAB in Suffolk County Superior Court (hereafter “Edwards’ civil complaint.”) This arose out of alleged

2

“Sexual misconduct” and “sexual abuse” are used interchangeably by the RCAB. The Preamble of Essential Norms provides in relevant part the following definition: (R.7)

Sexual abuse of a minor includes sexual molestation or sexual exploitation of a minor and other behavior by which an adult uses a minor as an object of sexual gratification. Sexual abuse has been defined by different civil authorities in various ways, and these norms do not adopt any particular definition provided in civil law. Rather, the transgressions in question relate to obligations arising from divine commands regarding human sexual interaction as conveyed to us by the sixth commandment of the Decalogue …Thus, the norm to be considered in assessing an allegation of sexual abuse of a minor is whether conduct or interaction with a minor qualifies as an external, objectively grave violation of the sixth commandment. A canonical offense against the sixth commandment of the Decalogue …need not be a complete act of intercourse. Nor, to be objectively grave, does an act need to involve force, physical contact, or a discernible harmful outcome.

Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons, 2002 - CIC, c. 1395 §2, CCEO, c. 1453 §1; Canonical Delicts Involving Sexual Misconduct and Dismissal from the Clerical State, USCCB, 1995, p. 6; CIC, c. 1395 §2; CCEO, c. 1453 §1.

3

Notes of the RCAB’s interview of Foster on August 18, 2002 confirm that the investigation was conducted according to the 1993 Pastoral Policy. (R.4)

⁴ While the May 2003 Policies were not formally in place at the time of the Foster investigation, they are relevant to Edwards’ formal request in 2003 for information and files generated in connection with the RCAB’s investigation.

sexual misconduct by Foster between 1980 and 1985. (R.9) Specifically, Edwards’ civil complaint stated:

1. Foster invited the plaintiff to his personal living quarters located in the rectory of Sacred Heart Parish.
2. While the plaintiff was in the private bedroom of Foster, Foster requested that the plaintiff remove his “street clothes” when entering into Foster’s personal living quarters, particularly if and when the plaintiff sat on Foster’s bed.
3. While the plaintiff was in the private bedroom of Foster, the plaintiff did in fact remove his ‘street clothes’ at the request of Foster and sat upon Foster’s bed located in the rectory of Sacred Heart Church in Newton, MA.
4. On numerous occasions, Foster would also remove his clothes, and the two would sleep together in Foster’s bed at the rectory of the Sacred Heart Church.
5. While sleeping together in Foster’s bedroom in the rectory of Sacred Heart Church, Foster illegally and inappropriately touched and/or fondled the plaintiff in a sexual manner while in bed with the plaintiff.

A copy of Edwards’ civil complaint was submitted to the RCAB on behalf of Edwards for the purpose of initiating an internal canonical investigation of Foster. Interview notes from RCAB files indicate the RCAB received a copy of Edwards’ civil complaint sometime between August 14, 2002 when it was officially filed and August 18, 2002 when RCAB officials interviewed Foster. (R.10)

In a letter dated August 24, 2002 Rev. Sean Connor, the RCAB Delegate of Investigations, advised Foster that an investigation of Edwards' allegations had been initiated in conjunction with Foster’s “acceptance of being placed on voluntary administrative leave.”(R.11)

The August 24th letter stated that on August 22, the RCAB received a telephone call from Joseph Doherty, Foster’s civil counsel, requesting that Connor “not interview potential witnesses in this investigation. . .” Connor wrote, “I am uncertain as to the meaning of his (Doherty’s) request, and it is necessary for me to point out that this request will delay and possibly hinder our canonical investigation.” In this letter, Connor asked Foster: “Please send me your proofs so that I may include them in this investigation . . .”

On August 22^nd and August 23^rd, newspaper stories published information accusing Edwards of making various false statements unrelated to the Foster matter. (R. 37, 38)

A Mutual Release dated September 3, 2002 between Edwards and Foster ended Edwards’ civil complaint against the RCAB and Foster. (R.12)

Shortly after the Mutual Release was announced, Foster announced his “exoneration” at a press conference held in the offices of Bischoff-Solomon, a public relations firm he had hired. (R.41)

In an email dated September 3, 2002 Foster asked Amy Strickland, his canonical advocate, to post a statement to a canon law list serve. The statement by Foster included the following: “The suit was baseless and the allegations were false.” (R.13)

In a letter dated September 3, 2002 to Connor from Foster, Foster stated: “I will provide you by the end of the week, with information in my possession obtained as a result of my investigation . . .” (R.14)

A letter dated September 4, 2002 to Connor from Foster stated that documents from Foster’s “investigation” are included. (R.15) These are referred to as: an affidavit from Foster himself, ⁵ an affidavit from his lawyer, Joseph Doherty, Jr. (R.16), a letter from former Catholic Youth Organization members (R.17), a letter from a Foster supporter (R.18), and an affidavit dated August 29, 2002 from Ned Cassem MD, a Jesuit priest, psychiatrist, and consultant to the RCAB. (R.19) According to Cardinal Law in his January 22, 2003 Deposition (R.20), Cassem was “brought in on the Michael Foster case.”

On September 5, 2002 Edwards took and passed a polygraph exam. (R. 21)

On September 12, 2002 the first investigation was closed. (R. 22)

2. Second Investigation

On September 12, 2002 Edwards met with RCAB officials at the offices of his lawyer, Eric Parker. (R.23) According to an RCAB statement: “. . . the complainant contacted the Archdiocese of Boston to make a formal complaint and offer new information regarding the allegation previously investigated.” (R.22)(

RCAB records indicate that on September 13, 2002 a meeting of seven RCAB officials was held to discuss the Foster matter “in light of the new evidence.” (R.24) A Decree issued the same day by Rev. Walter Edyvean, Vicar General/Moderator of the Curia, instructed the Delegate of the Archbishop to conduct a preliminary canonical investigation “due to the seriousness of this allegation.” (R.25)

During Edwards’ interview with RCAB officials on September 12, he provided details of alleged “inappropriate behavior” that took place in Foster’s bedroom on many occasions. He described “pillow fights” that developed into “wrestling matches” where Edwards was “being forced down and pinned” while both were in their underwear. Edwards described that Foster “would spread myself on him.” They were in their underwear

⁵ The RCAB declined to provide the Committee with a copy of Foster’s Affidavit referred to in this letter.

because according to Edwards, Foster “had a rule” that “you couldn’t wear street clothes in the bed.” (R.23)

Edwards stated that they would lie together “ridiculously close touching each other skin wise.” There were several occasions of this sexualized wrestling. The final incident involved Foster “having an erection in the bed.” Edwards stated: “I felt it up against my bottom – then I was done – that was it.” (R.23)

Edwards told RCAB officials that sometimes he was “afraid” of Foster and “uncomfortable,” that he felt “mixed messages” because “he was my friend and confidant

– I knew that he knew my parents were strict – that made me comfortable – he understood me as an older person.” (R.23)

When RCAB officials asked Edwards how he felt about Foster today, Edwards stated “I find it an unbelievable betrayal - huge betrayal.” Edwards added: “I heard he said publicly it was a lie. . . I was angry. I was betrayed twenty years ago because I think – the knowledge of an inappropriate behavior with a child goes beyond disgust.” Edwards also talked about his “struggle with his faith” and how he “can’t trust a priest” and that his “greatest challenge is not putting a bullet in my head.” (R.23) ⁶

In a September 14, 2002 email sent by Connor to Amy Strickland, Foster’s canonical advocate, Connor expressed concern that “statements from the investigation are being given to the media and possible witnesses in the case.” (R.26)

In a September 14, 2002 email from Cassem to RCAB Deacon Anthony Rizzuto, Cassem communicated confidential information about his evaluation and opinions of Edwards.

(R.27)

A document dated September 19, 2002, stated that the RCAB met on that day with Rev. Rodney Copp, and that the priest had known Paul Edwards “for about 10 – 12 years.” Notes from this meeting reflect that before Copp was interviewed by the RCAB, he spoke on more than one occasion with Foster and his attorneys. (R.28)((

A document dated September 23, 2002 from Connor to Rev. John Beal, another appointed Advocate for Foster, stated: “The evidence in this case is being kept in the Chancery. Should Msgr. Foster wish to review appropriate material which he may be entitled to, with or without you present as his advocate, he may do so.” (R.29)(

On October 7, 2002, Connor sent to Cassem a handwritten note in which he asked him to review a summary of their telephone conversation of September 25th. In this note, Connor attempted to clarify how Cassem had arrived at the opinion in his signed affidavit without having reviewed any medical records or interviewed Edwards. (R.30)

⁶ These are excerpts from Edwards’ interview. A full description can be found in the September 3, 2003 interview notes.

In a memo dated October 10, 2002 from Connor to Foster, Connor stated that Ellen Martin, co-counsel for Foster, “communicated suggestions for the affidavit” to Cassem and that Cassem believed his affidavit was completed by Foster’s lawyers before being sent to him for his signature. Connor stated that: “Father Cassem did not interview the complainant, Paul Edwards. Father Cassem based his affidavit and medical reviews on ^nd and 3^rd hand reports and conversations with Ellen Martin, Esq. (co-counsel for Msgr. Foster) and Rev. Msgr. Michael Smith Foster, J.C.D. (alleged perpetrator.)” (R.31)

In an October 17th handwritten letter from Cassem to Connor, Cassem wrote: “Your implication that the affidavit is fraudulent angers me. . . angers me that your steadfast focus is on the wording and not on the message. You are stuck on the wrong issue here – What are the FACTS, not what is the down and dirty truth. You sounded like an enemy of Msgr. Foster. . .” (R.32)

On October 31, 2002, the second investigation was closed. On that date, in a public statement (hereafter the “October 31^st Statement”) RCAB Spokeswoman Donna Morrissey announced: “In accord with our policy, the Delegate represented the case to the Review Board. The recommendation of both the Delegate and the Review Board were forwarded to His Eminence, Cardinal Law. The Delegate and the Review Board both recommended that the case be closed and that the priest be returned to active ministry with no restrictions. Cardinal Law has reviewed the recommendations. He has determined that the complaint is unsubstantiated; therefore, in accord with canon 1718, this investigation has now been closed.” (R.22)

No further information has ever been provided by the RCAB to explain the decision to close the Foster investigation.

III. SPECIFIC REQUIREMENTS OF APPLICABLE RCAB POLICIES AND PROCEDURES

1. Objective Investigation and Careful Interview of Complainant

Article 5 of the Charter (R.5) provides:

When an allegation of sexual abuse of a minor by a priest or a deacon is

received, a preliminary investigation, in harmony with canon law (CIC, cc.

1717-1719; CCEO, cc. 1468-1470), will be initiated and conducted promptly

and objectively.⁷

Section A, 1 of the 1993 Pastoral Policy (R.4) states:

⁷ Article 7, 3.1 of the May 2003 Policies s (R.8) expands on this “objectivity” standard: “Competent and unbiased persons will uphold due process by a fair, objective and thorough examination of the complaint.”

The Delegate or Deputy Delegate, or individuals who are appointed by them because of their expertise, will carefully interview the complainant and/or other persons making the allegation in order to gain as clear and specific an understanding of the alleged misconduct as possible.

The Archdiocese is committed to a careful listening and a respectful response to any complaint made by any person who believes he or she, or any other person, has been harmed by sexual misconduct of a cleric.

2. Protection of Complainant’s Reputation

Canon Law (R.6) provides:

Due care will be taken so that the good reputation of any person is not endangered by the communication of information during an investigation or canonical process related to a complaint of child abuse. The Archdiocese will strive to balance its doctrinal and canonical responsibilities to protect the good reputation, rights, and privacy of all persons involved and the common good of the Church. (canons 220; 223; 1717 §2) No one is permitted to harm illegitimately the good reputation, which a person possesses, or to injure the right of any person to protect his or her privacy. (canon 220)

The Charter (R.5) indicates:

Within the confines of respect for the privacy and the reputation of the individuals involved, dioceses/eparchies will deal as openly as possible with members of the community. (Article 7, p. 34)

3. Appropriate and Timely Disclosure of Information

Article 4, section 2.1 of the May 2003 Policies (R.8) states:

The Archdiocese will ensure that the complainant … receive appropriate and timely information pertaining to any relevant actions taken by the Archdiocese.

4. Written Decree on Findings

Essential Norms §13 (R.7) provides:

When the Archbishop determines that the evidence gathered during the preliminary investigation indicates that the complaint is false, or that the evidence is not sufficient to establish the probability of a delict, he will issue a written decree giving reasons for the finding. . . (10.3)

The Charter (R.5) provides:

Each diocese/eparchy will develop a communications policy that

reflects a commitment to transparency and openness. (Article 7)

5. Complainant’s Access To Information

Access of a complainant to records generated in connection with an investigation of alleged sexual misconduct was provided in the RCAB’s May 2003 Policies decreed by Apostolic Administrator Rev. Richard Lennon. These were to go into effect on July 1, 2003. (R.8) Subsection 2.6 of the May 2003 Policies states:

Information generated in connection with an investigation of alleged child

abuse will be maintained in a confidential manner. The following persons will

have access to the information:

§ the complainant and his/her lawful representative; § the accused person and his/her lawful representative; § the Delegate for Investigations, members of the investigative team, members

of the Review Board, tribunal officials, and canonical assessors; § the Bishop of a non-incardinated cleric or the competent superior of a member

of an institute of consecrated life, society of apostolic life, or personal

prelature.

Article VII, subsection 3.1 of the May 2003 Policies provides:

…the complainant and the person whose conduct is being investigated will receive due notice of investigations and proceedings, an opportunity to examine written records that will be used in making decisions, and protection of the right to hierarchic recourse and appeal, in accord with the norms of church law ⁸

6. Collaboration in the Review and Revision of RCAB Policies

Article 1, Section 4.3 of the May 2003 Policies (R.8) states:

The Implementation and Oversight Advisory Committee will assist the

Secretary of the Office for Child Advocacy, Implementation and Oversight

in his/her responsibilities, including: collaborating with the Review Board

to review and revise these Policies and Procedures.

⁸ The May 2003 Policies were subsequently changed such that the right of complainants, accused persons, and their legal representatives to receive information generated in connection with an investigation were removed. The revisions also eliminated the right of complainants to examine written records used in making decisions.

Article 1, Section 3 of the May 2003 Policies (R.8) provides:

Any violation of these Policies and Procedures is to be reported directly to the Archbishop. (p. 3)

IV. ANALYSIS OF RCAB ADHERENCE TO APPLICABLE POLICIES AND PROCEDURES

1. Did the RCAB Conduct An Objective Investigation and Carefully Interview Edwards?

A. Interview of Relevant Witnesses

Connor reported to Foster in his August 24, 2002 letter that on August 22, 2002 (only days after the first Foster investigation began), Foster’s lawyer, John Doherty, made a direct request to Connor by telephone that the RCAB “not interview potential witnesses in this investigation.” Connor indicated to Foster: “I am uncertain as to the meaning of his request, and it is necessary for me to point out that this request will delay and possibly hinder our canonical investigation.” (R.11)

There is no evidence the RCAB ever objected to or otherwise challenged the inappropriate nature of Doherty’s request.

Evidence before this Committee indicates that the RCAB interviewed only three witnesses, in total, during both investigations; Foster during the first, Edwards and Copp during the second. There is no evidence the RCAB attempted to interview other witnesses, many of whom submitted statements to the RCAB that were accepted as evidence in the investigation.

B. Consideration of Relevant Evidence

During Edwards’ interview with the RCAB, he described certain details of the physical surroundings of Foster’s private residence. (R.23) This information bears significantly on Edwards’ credibility because parishioners were not authorized to enter the private residence. Thus, if Edwards’ correctly described these details, this would have corroborated and lent credibility to his allegations of abuse.

In a September 9th email to Connor, Bruce Cushna, one of Foster’s supporters, wrote: “Msgr. Granville and Father Connelly. . . both ran a ‘tight ship,’ and children would never have been tolerated to visit a curate’s bedroom!” (R.18) However, during the August 18 interview of Foster by the RCAB, when asked “Was Paul Edwards ever in your private quarters in the rectory of Sacred Heart Parish, Newton?, Foster replied: “Yes, it would not have been unusual in the rectory at that time.” When asked “Was Paul Edwards ever in the room where your bed was?” Foster replied, “Yes.” (R.23)

There is no evidence the RCAB took into account Foster’s concession that Edwards had been in his private residence, an apparent violation of the policy and practice of the parish at the time. (R.18) This clearly supports Edwards’ credibility.

Likewise, there is no evidence the RCAB ever sought to determine whether Edwards’ description of the physical surroundings of Foster’s private residence was correct. The RCAB could have spoken with people who would have been authorized to be in the private residence at the time of the alleged inappropriate behavior, such as rectory cleaning staff. That the RCAB failed to assess Edwards’ knowledge of collateral details about Foster, such as the description of his bed, contents of his bathroom, type of underwear Foster wore, etc., prevented the RCAB from assessing objectively Edwards’ credibility.

C. Evaluation of Witness Credibility

1. Edwards

a. Interview Process

The RCAB closed its first investigation without ever having interviewed Edwards. While Edwards did meet with the RCAB the day after Foster was reinstated the first time, this meeting was initiated by Edwards, not the RCAB. During this meeting, Edwards provided significant details of the alleged sexual misconduct. (R.23) The availability of details is an important factor in assessing a witness’ credibility.

Credibility is also affected by a person’s demeanor and presentation. This Committee could not assess these factors as Committee members were not present during Edwards’ interview and no videotape or other recording exists of the meeting.

In assessing credibility, the opinions of others with regard to Edwards’ character can be particularly important. On this issue it is significant that Foster himself wrote a letter of recommendation for Edwards lauding his character and stating: (R.34)

I believe him to be an exceptional young man who exhibits many talents. He has been very active in his church community. He has served as an altar boy, and at present is a master of ceremonies at liturgical functions. He has the ability to exhibit a decorum that is unique among adolescents. He has exhibited leadership qualities…and his exuberance in regard to whatever he is involved in is contagious. He is well respected by his peers and a fine role model for younger adolescents and children. . . Paul exhibits a sensitivity and concern for others. These are two of his finest attributes. ⁹

⁹ Although undated, the letter makes clear that Foster had a basis of knowledge to support his opinions of Edwards. Foster noted at the time he wrote the letter that he had known Edwards for “over five years.”

This information deserves significant weight as it was written years before Foster was under investigation, and at a point in time when he was without an incentive to lie or undermine the credibility of his accuser.

While it is unclear whether the RCAB had a copy of this letter in its investigative file, there can be no doubt that a copy could have been obtained.

b. Impact and Assessment of Allegations Involving Cummings

Notes from the meeting between the RCAB and Edwards indicate Edwards told the RCAB Foster had once warned him “to watch out for Fr. Cummings.” Edwards also stated at this meeting that he told Foster that Cummings had raped him. According to the meeting notes, Edwards believed this conversation occurred after Foster called him upon Foster’s return from studying in Washington. According to Edwards, Foster responded that he “didn’t want to hear any of this. Priests are people, too.” Edwards stated that Foster told him he should “put the incident behind him and move on with his life.” In his interview with the RCAB, Edwards stated: “It was not the reaction I was expecting. I was looking for guidance. . .” (R.23)

Notes from the meeting between the RCAB and Foster indicate that when Foster was asked: “Did Paul Edwards discuss Father William Cummings with you?” he replied, “No.” He then added that he had “no clear recollection” of discussing William Cummings. (R.10)

According to notes from the Edwards’ interview, Edwards told the RCAB that Copp would corroborate some of his statements about Cummings. Edwards said he told Copp around 1992 about having been raped by Cummings and also told him he had shared the information with Foster. (R.23)

Copp told the RCAB he did not recall Edwards telling him that Edwards had informed Foster about the Cummings rape. Copp did confirm, however, that Edwards had told him (Copp) about the Cummings rape. Thus, Copp corroborated Edwards on the collateral issue involving Cummings, which supports Edwards’ credibility. (R.28)

There is no evidence the RCAB took this into account favorably in assessing Edwards’ credibility.

c. Edwards’ Polygraph Exam

While reasonable disagreement exists regarding the reliability and weight of polygraph evidence, it is noteworthy that on September 5, 2002 Edwards took a polygraph test administered by an expert with 28 years of experience. According to the report issued by Richard Johnson, Esq., the examiner who conducted the test, “. . . the results relating to each issue [sexual abuse by Cummings and by Foster] support the truthfulness of Paul Edwards.” (R.21) Edwards’ lawyers informed the RCAB about the results.

There is no evidence the RCAB took this into account in assessing Edwards’ credibility.

d. Affidavits From Witnesses Regarding Edwards’ Veracity

Statements and/or materials from individuals who declared their opinions about Edwards’ character, reputation, and truthfulness were sent to the RCAB from Foster or on behalf of Foster. (R.15) There is no evidence these individuals were interviewed by the RCAB to determine their credibility, bias, motivation to lie or relationship to persons involved. Moreover, there is no evidence Edwards was confronted with these affidavits or given a chance to respond.

e. Investigation of the Truthfulness of Various Collateral Claims

1. Did Edwards Lie About the Cummings Rape?

Edwards’ civil complaint included an allegation that he had been raped by Father William Cummings during a trip to New York City with a Catholic youth group. (R.9) (Cummings died of AIDS in 1994.) In Edwards’ interview with the RCAB, Edwards stated that when he arrived at the hotel he was informed he had been assigned to share a room with Cummings. He stated that in the middle of the night he awoke to find Cummings on top of him. (R.23)

In an August 22, 2002 Boston Globe article, Foster’s s