How a priest got cleared of sexual abuse allegations

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Fr. Roy Herberger last year was accused of sexually abusing a child in 1985. But the diocese returned him to ministry. Why?

The Rev. Roy Herberger may have been cleared by the Diocese of Buffalo of sexual abuse allegations, but he’s still scarred by the bishop’s decision to publish his name before anyone looked into the veracity of the claims.

Herberger is a priest at University at Buffalo’s Newman Center, where he returned to active ministry in December after a six-month investigation of allegations that he sexually abused a child beginning in 1985.

News 4 Investigates obtained the secret investigative report that the diocese used to clear Herberger, who described the time off waiting for a decision as “hell.”

Although Herberger was eventually reinstated, he said he is disappointed with Bishop Richard Malone, who he said should resign, and the Diocese of Buffalo for running an “unfair” process to vet sexual abuse allegations.

Similar to the sentiments of his fellow priest The Rev. Samuel Venne, who remains suspended from the diocese pending a decision from Rome on sexual abuse allegations against him, Herberger said the process the Diocese of Buffalo follows makes priests feel guilty before any fact-finding begins.

For starters, Herberger takes offense to the diocese releasing the name of accused priests, alive or dead, prior to any investigation.

“Unless there’s some actual proof that something has happened, that a priest, a teacher, or a coach, their name, their picture should not be made public just on an accusation,” Herberger said.

“And like me, there was a simple accusation, no proof, nothing.”

Herberger said he may file a civil suit of his own, a defamation case against the accuser, whom News 4 is not identifying.

The accuser, who in August filed a Child Victim’s Act case against Herberger, said in an email that he regrets that he came forward with the complaint because “this priest look[s] like he is the victim, he is far from it.”

How did Bishop Malone and his advisory Review Board end up clearing Herberger?

The investigative report filed by Scott Riordan, a former sex crimes prosecutor contracted by the diocese to investigate allegations, played a huge role in the decision.

Riordan told News 4 that he had concerns about the allegation from the get go.

For example, Riordan said the accuser’s reported time frame of when the abuse happened places Herberger at a different church than the one mentioned in the complaint.

“It wasn’t adding up, the way he told the story,” Riordan said about the accuser.

The complaint

The accuser, who is now a 42-year-old male in Erie County, filed a complaint with the Diocese of Buffalo in June 2018, two months after the diocese announced that it had created a compensation program for childhood sexual abuse victims.

The accuser’s complaint alleged that Herberger performed both oral and anal sex with him on multiple occasions.

Riordan said the complaint was “horrific” and included allegations that Herberger was joined by a second priest who recorded the sex acts while the victim’s hands were bound and his mouth covered.

The accuser said the abuse took place while he was a student and parishioner at St. Ann’s Church in Buffalo from 1985 to 1987.

Herberger immediately denied that he sexually abused anyone.

The accuser told Riordan, according to the investigative report, that he met Herberger at age 8, through his step-father, who was getting help from the priest for alcoholism.

He said the first incident happened sometime between Halloween and Christmas in 1985, at what he described as Herberger’s light-brown ranch house with a white picket fence in Lackawanna. He said the priest, who was drinking alcohol, took him to a blue bedroom filled with porcelain dolls. He said there was a second priest there, but he never knew his name.

The accuser said Herberger bound his hands behind his back and placed something over his mouth before being sexually abused. The accuser said the priest told him not to worry, and that if he were to talk about what happened, he’d get punished.

In addition, the accuser said the priest abused him at St. Ann’s church at the rectory.

The accuser said the abuse happened once a week for the first few months and that he was abused at least 10 times at St. Ann’s.

Riordan said the accuser’s story had flaws right from the start.

Investigator questions complaint

The first discrepancies that Riordan said he homed in on was the time frame and location the accuser said some of the abuse took place.

First, Riordan said he determined that the accuser was never a student at St. Ann’s, which was operated by the Jesuits, not the diocese. In fact, the time frame the accuser said the abuse occurred places Herberger at a different church than St. Ann’s.

When he confronted the accuser about this, the accuser’s attorney asked that Riordan leave the room.

“And I thought that was odd,” Riordan said.

“When I came back in and I asked him again about St. Ann’s, he said it was a mistake and that his attorney misunderstood.”

Not only that, but Riordan said the accuser could not remember the elementary school that he had attended.

Secondly, Riordan said a predatory priest often grooms their victims. But the accuser reported no grooming by Herberger at all, which seemed unusual.

Another issue Riordan had with the accuser’s complaint was that some of the abuse happened in a home in Lackawanna.

Herberger never owned a home in Lackawanna, so initially Riordan discounted the claim.

But Riordan eventually learned that Herberger was named as power of attorney for a family friend’s home in Lackawanna. The description the accuser gave of the house matched.

“My jaw dropped and I thought I got this one wrong,” Riordan said.

Riordan interviewed Herberger again to question him about this home in Lackawanna.

Herberger said he never had access to the house.

To prove this, he obtained affidavits from the son and daughter of the prior homeowner, who said that Herberger never had a key.

In addition, they said all the rooms in the house were painted white. In other words, there was no blue bedroom.

The daughter also states that there wasn’t any white picket fence until the late 1990s and that her mother never had any porcelain dolls in the house.

Herberger said he did collect nativity sets from around the world, and that there have been news stories about his collection. He wondered if the accuser had seen one of those stories and used that information to substantiate his complaint.

All these statements conflict with the accuser’s complaint.

“So, it appeared to me at that point that the complainant in this case simply took pictures off of the Internet from Google and used them to substantiate his story,” Riordan said.

Herberger’s attorney also provided Riordan with records that showed the accuser had a criminal background, including a charge of falsifying documents, according to the investigative report. When Riordan asked about the charges, he said the accuser became evasive.

In the end, Riordan found that there were too many facts that discredited the accuser’s story.

“There’s just no way this could happen the way this person said it happened,” Riordan said.

“And in Father Herberger’s case, it was exactly that: It was impossible for it to have happened.”

Reputation damaged

Bishop Richard Malone returned Herberger to ministry in December 2018.

Almost a year later, Herberger said he still feels harmed by the allegations and the way in which the diocese handled his case.

Not everyone has accepted him back.

For example, he said he used to do mass on holy days at a local high school, but when parents found out and complained, the high school wouldn’t let him do services there anymore.

“I can see why they would do what they did, but it’s that whole fact about even when you’re cleared and exonerated people still don’t believe it,” Herberger said.

As a result, Herberger said he is strongly considering filing a defamation case against his accuser.

“I’m sure the guy, the accuser, has no money,” Herberger said.

“So, I’m not suing for money. I’m suing on the principle to tell other people down the line if you decide to accuse somebody, whether it’s a parent, a coach, a teacher, a clergyman, of something that you know is a lie, watch out. Because you can be sued.”

Although it is unusual for a priest to sue their accuser, it has happened.

In 2004, at least a dozen lawsuits were filed by priests nationally when the clergy sexual abuse scandal first erupted.

But it would be the first one filed in Buffalo in connection with the current clergy sexual abuse scandal, which has rocked the Diocese of Buffalo for the past year. Two whistleblowers left the church and released damning evidence against the bishop to a reporter.

As for the current state of the diocese, Herberger said he signed a petition passed around to priests that calls for the resignation of Malone, who has so far refused to step down.

Herberger said “it’s a sin” that other priests have not signed on for the bishop’s resignation.

“I think he should have resigned awhile ago,” Herberger said about Malone.

“If you’re a person who now is causing all this division in the diocese, endangering people’s faith, why wouldn’t you resign?”

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