NEW YORK – A specific aspect of the statute of limitations on criminal charges in Massachusetts allowed ex-Cardinal Theodore McCarrick’s accuser to pursue charges for an alleged sexual assault nearly 50 years ago.

The laicized cleric was charged with three counts of indecent assault and battery on a person over 14, according to a court filing by the Wellesley police in Dedham District Court last week. The charges stem from McCarrick allegedly sexually assaulting a minor during a wedding reception at Wellesley College on June 8, 1974.

The statute of limitations for criminal cases in Massachusetts is set up to “toll” (pause) when the offender is out of the state. McCarrick has never resided in Massachusetts, therefore the statute of limitations never expired on this allegation.

“The idea behind this is that somebody who leaves the state makes it more difficult to conduct a criminal investigation,” Michael Cassidy, a criminal law professor at Boston College, told Crux. “So, they shouldn’t be able to thwart a criminal investigation by leaving, and then just stay away long enough that the statute of limitations runs out.”

McCarrick was laicized – removed from the clerical state – by the Vatican in 2019 after allegations of sexual abuse against adults and minors were substantiated. To date, there have been a number of civil lawsuits filed against McCarrick, mostly in New Jersey and New York. However, none of the were filed criminally.

Last week’s criminal charges against McCarrick in Massachusetts mark the first time that someone to reach the rank of Catholic cardinal in the U.S. has been criminally charged with a sexual assault crime against a minor.

The statute of limitations for indecent assault and battery on a person over 14 in Massachusetts is six years, beginning when the child turns 16. McCarrick needed to be in the state for that amount of time for the allegation’s statute of limitations to expire.

Mary Leary, a former Massachusetts child abuse prosecutor, told Crux that the way the statute of limitations “toll” in Massachusetts is a useful tool for prosecutors, especially in child sexual abuse cases, because “sometimes it requires people to be older before they have the strength and courage” to come forward with an allegation.

She acknowledged, however, that that the 50-year gap between the criminal event and charge in this case could make things more complicated in the courtroom.

“People’s memories fade. People’s ability to corroborate what they remember disappears. Witnesses become unavailable,” said Leary, who is a professor of law at the Catholic University of America Columbus Law School. “Those things come into play and make it harder to prove a case if you’re in the government, and harder to defend the case if you’re the defendant.”

That being said, she further explained that the prosecutors wouldn’t move forward with the case if they didn’t feel that they were able to prove it beyond a reasonable doubt.

Regardless of the outcome, Leary also notes the significance of the criminal charges against McCarrick. She said it’s a sign of a culture shift that focuses first on the protection of the child when allegations are made, which leads to accountability.

“That’s not to say we believe every child without question. What it is to say, though is if a child has made an allegation or an adult has expressed concern of observation the first reaction should be investigated, not dismissed, and I hope we’re moving in that direction,” Leary said. “Erring on the side of investigation, rather than erring on the side of dismissing an allegation because someone has stature.”

McCarrick is scheduled to be arraigned in Massachusetts on Sept. 3. In an email to Crux, his attorney Barry Coburn, said “we will look forward to addressing this case in the courtroom.” If convicted, each of the charges against McCarrick carries a maximum penalty of five years imprisonment in Massachusetts.

It’s unclear at this point if the alleged victim, unnamed to this point, will give in-person testimony in the courtroom when things get underway. Leary said with serious allegations like these often a juror will want to hear from the victim-survivor.

Firsthand testimony from a victim in any case isn’t required by law. And in the case of child sexual abuse, Leary believes the cases should be approached by law enforcement as if the victim-survivor can’t testify because of how traumatic the courtroom experience can be.

“We need a victim centered framework where the needs of the victim are central and law enforcement is building a strong case as they can, but what that doesn’t mean is we have to put it on the shoulders of the child victim-survivors,” Leary said. “We just can’t do that to them and that is shifting and as a result I think we have a better system in place.”

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