The National Catholic Review
Michael N. Kane

Helping professionals, like social workers, psychologists, marriage and family counselors, have discipline-specific codes of conduct that offer guidance about confidentiality, conflicts of interest and boundary violations (e.g., dual relationships, sexual misconduct with clients, and the like). Their codes of conduct identify guidelines for competent practice to meet standards of care, with attention to ensuring the safety of suicidal clients, managing homicidal threats, reporting of clients’ abuse of children (neglect, exploitation), as well as professional impairment. Broadly stated, codes of professional conduct ensure that clients receive appropriate services. Compliance with codes of conduct ensures that practitioners meet standards of care; it can also reduce the risk of malpractice or liability suits.

 

When the U.S. Conference of Catholic Bishops responded to mounting media, lay and legal pressure following the disclosures in 2002 of coverups of sexual abuse of minors by members of the clergy, they promulgated the Charter for the Protection of Children and Young People in June of that year. This document mandates that all Catholic dioceses and eparchies establish and promote codes of pastoral conduct for clergy, nonordained employees and volunteers. Bishops wished to demonstrate quickly compliance with the charter’s requirements prior to individual diocesan/eparchial audits. Since there existed few appropriate codes, most dioceses adopted all, or sizeable portions of the Virtus Model Code of Pastoral Conduct from the National Catholic Risk Retention Group, Inc. (2002), a code of conduct for pastoral counselors.

Prior to 2002, priests were guided primarily by canon law, diocesan regulations, theology, Scripture and pastoral practice. But codes of pastoral conduct place new demands on priests, very similar to those of mental health practitioners. In codes of conduct derived from the Virtus code, priests are mandated to report the abuse, neglect or exploitation of minors; to breach confidentiality (outside the sacrament of penance) if necessary to protect suicidal clients or intended victims of homicidal threat; to report self or peers in cases of ministerial impairment or substance dependence; to avoid dual relationships with parishioners; and to meet expected standards of care in their pastoral ministries.

No doubt there are benefits from the use of codes of pastoral conduct. But meeting the demands of these codes will have many implications for priests and bishops. Here are some of them.

Implications for Priests

Priests and deacons used to minister from a pastoral-theological perspective. They knew their pastoral role, responded to pastoral need and understood that they were accountable to God, their parish councils, diocesan commissions and boards, and ultimately their bishop. Unless accused of sexual misconduct with minors or other criminal behavior, priests rarely appeared in civil and criminal courts. If a cleric’s ministerial performance violated a pastoral or canonical norm that prompted a complaint, the bishop or someone designated by him investigated the complaint. Penalties were applied at the discretion of the bishop. If a cleric, for example, breached the confidential disclosure of a parishioner outside the sacrament of penance, the parishioner might complain to the bishop. In investigating the complaint, the bishop would consider the facts presented as well as the priest’s intention and his awareness of the implications of his actions. It was unlikely that civil litigation would be pursued, and even less likely that the priest would be found civilly culpable. When a code of pastoral conduct is used, however, a new layer of accountability is added. Parishioners and service-seekers may opt to avoid procedures seeking ecclesial remedies for perceived wrongdoing by priests and move directly to civil remedies.

With codes of conduct, the clergy will need to employ risk-management strategies in their ministries. They may need continuing education to understand that violating a confidence, not ensuring the safety of a suicidal person, not preventing a violent action from occurring when a person makes a credible threat and similar pastoral challenges may place them at risk for civil litigation, as they will not have met a standard of professional care. Local mental health associations and professional groups offer educational programs for practitioners and will be helpful sources of information for priests.

The greatest risk of liability to clergy will be related to dual relationships and other boundary violations. A dual relationship occurs when clergy maintain more than one type of relationship with the same person. For example, a priest engages in a dual relationship when he works with Mr. Jones on the parish finance committee after having provided marital counseling to him. Mental health professionals understand that there is a potential for manipulation or exploitation inherent in dual relationships. While many dual relationships begin harmlessly, there is always risk that they will develop in a manner that compromises the helping relationship. Clients, and by extension parishioners, may assert that they were exploited, manipulated or suffered in some manner when the professional engaged in more than the primary helping relationship.

Accusations of boundary violations, particularly dual relationships, are the most common complaints alleged against mental health professionals; and may become the common complaint alleged against priests. In parishes, dual relationships will be difficult to avoid in light of the shortage of priests. More and more priests serve a parish without assistance, acting as administrators, liturgical celebrants, counselors, educators and fundraisers. In many situations, priests also maintain social relationships with parishioners. From a risk-management perspective, priests would be encouraged to not socialize with the “flock” and to understand that parishioners cannot be their friends. The risk-exposure to priests in these situations increases exponentially as a result of the codes of pastoral conduct.

Beyond moral and religious considerations, priests who engage in any type of sexual activity with consenting adult parishioners or service-seekers violate their code of pastoral conduct. Even when the parishioner seeks and initiates a sexual encounter, the priest will be culpable of a serious boundary violation. He may be accused of inflicting harm on the parishioner, misusing his power in the helping relationship, engaging in a dual relationship and unprofessional behavior. The priest, as the professional, assumes responsibility for all aspects of the helping relationship.

While risk management strategies may reduce the likelihood of complaints and allegations, priests will need to understand that their relationship with their bishop has changed as well. In the past, the priest was expected to view the bishop as a father, to whom he might turn for counsel or assistance. Now, when any allegation is directed against a priest, the bishop or his representative will undoubtedly contact the priest. As a result of increasing litigation directed toward dioceses, the bishop’s primary responsibility will be the interests of the diocese. That may or, more likely, may not include the interests of the accused priest. Therefore, priests facing accusations would be best advised to seek counsel from civil and canon lawyers prior to an interview with chancery officials.

Like mental health professionals, each priest should consider obtaining liability/malpractice insurance. The diocese/eparchy will no doubt have such insurance. While the diocese’s policy may contain a provision to assist a priest should an accusation arise, it is important for the accused priest to be aware that the insurance company represents the interests of its primary client—the diocese. In these situations, the insurance company and its legal advisors may urge the diocese to settle with the complainant, often without consultation or agreement with the accused priest. While some agreements may include statements that admit no culpability on the part of the accused priest, settlements may significantly affect the future ministry of this priest.

Implications for Bishops

While it appears that bishops are not bound by codes of pastoral conduct as are priests, the implementation of these codes has many implications for bishops and their dioceses/eparchies. Some implications are of a pastoral nature, while others relate to the stewardship of diocesan/eparchial assets.

Bishops are aware that when priests violate civil and criminal law, dioceses are affected materially and spiritually. The revelations of 2002 deeply affected the ministry and mental health of priests as well as of lay people. Depression, anger, discouragement and disbelief were fairly common responses. Bishops, whether they had been personally involved in coverups of clergy misconduct with minors or not, worked to restore credibility. Concerns over the bishops’ accountability for the crisis, or lack of it, remain an unspoken issue for priests and a stridently discussed topic among the laity.

No doubt, bishops may believe the matter is settled, that accountability has been addressed through codes of pastoral conduct and the Charter for the Protection of Children and Young People and that credibility has been restored. It appears, however, that many people are unconvinced. Because of massive power differentials between priests and bishops, priests lack a voice to critique or comment on the performance of a bishop. This power inequity was highlighted in the inception of the codes of pastoral conduct. Input from priests regarding the wisdom of implementing codes of pastoral conduct was neither sought nor wanted. Perhaps the greater implication is that the relationship between priest and bishop has been transformed from a spiritual relationship to a potentially adversarial relationship, in which the priest is unable to share the greatest challenges of his ministerial career. Bishops should consider whether they wish to use pastoral language that encourages priests to disclose information to their bishops, when the bishop’s primary interest cannot be his priests. When parishioners bring litigation against both an individual priest and the diocese, the bishop will seek to protect the diocese from both the accuser and the priest. Because most priests have few assets, the principle of vicarious liability will come into play. This principle allows potential litigants to pursue the assets of the diocese because they are larger than the individual priest’s assets. This principle notes that ultimate responsibility for the priest lies with the bishop. This is evidenced in the litigation against dioceses as a result of sexual misconduct by clergy with minors. While guilty priests have been imprisoned in some cases, accusers have sought financial compensation for their trauma from the diocese rather than the abusive priest.

No Excuse

Priests must now abide by the specific code of pastoral conduct adopted by their diocese. Familiarity with that particular code of pastoral conduct is critical; culpability will not be lessened because of ignorance of a standard of care. Increasingly, priests will need to understand that their ministries are tied to standards of care similar to those of mental health professionals.

Bishops, too, will be affected by the use of codes of pastoral conduct. Just as litigation against mental health professionals has increased over the past decade, the amount of litigation directed against priests and dioceses/eparchies will probably also increase, including as grounds any infraction of the code of pastoral conduct.

Rev. Michael N. Kane, is a psychotherapist, associate professor of social work at Florida Atlantic University and pastor of Our Lady of the Sign Byzantine Catholic Church in Coconut Creek, Fla.

Comments

Barbara J. Pohl | 4/21/2006 - 8:36pm
While reading this article, I found myself becoming increasingly horrified by its implications. While I support protecting the vulnerable from exploitation of any kind, I wonder what man in his right mind would wish to sign on to a lifetime of service in an organization that would treat him in the manner this writer suggests he well could be treated in the event that he is accused of any impropriety of any kind. It appears to actually suggest that he would be well advised to purchase insurance to protect himself aginst the possiblity of lawsuits! He is further advised not to "socialize" with "the flock". Next he will be advised to live in a hermitage to protect himself from legal danger. PLease! What is a priest's life all about anyway? Where is Jesus in this scenario? The lawyers & insurance people appear to be fully in charge of bishops & dioceses. I give up!And I am 76 years old and a lifetime RC. PLease tell me this isn't true. Sincerely, Barbara J. Pohl

Carol Stanton | 3/31/2006 - 1:03pm
Codes are one thing; training is another. Somewhere one must learn and practice the skills that go along with specific codes of conduct. Health care professionals have intensive training, supervised practice and on-going educational opportunities for which they are accountable if they wish to remain certified.

Most parish priests are not psychotherapists or even trained pastoral counselors. Some learn, on the job, about the mine-fields in dual relationships; many are only beginning to accept the built-in power-inequality that comes with their pastoral role. But there is neither time nor inclination in seminaries to provide the kind of intensive training one actually needs to be engaged in some levels of pastoral care.

In addition to acknowledging and adhering to a Code of Conduct, the best skill a parish priest might want to develop is that of knowing when to refer a person on to another professional--be that a psychotherapist, a trained pastoral counselor or, even, a trained spiritual director. Many, many lay people in all of our parishes have this level of training to offer. What a great possibility for clergy/lay collaboration for the sake of creating a safer and higher quality of pastoral care throughout the church!

Donald J. Carek, M.D. | 2/23/2007 - 1:09pm
If what the Rev. Michael Kane writes about “New Standards for Pastoral Care” (4/10) is true, I wonder, as a psychiatrist, why any man would even venture to become a priest. The priestly role is already a lonely one in our day, but according to him things are likely to make it even lonelier—with his bishop becoming an advocate for the diocese, and not a support for the priest, and his parishioners so likely to jump on him because something goes amiss in his counseling role that he had better get himself some malpractice insurance.

Frankly, I think the author is being carried away, perhaps because he may really be overly identifying the priest’s role with that of a psychotherapist, whose professional role is so much more clearly defined, while the role of a priest is much broader and not to be guided by rigid “boundaries” (the buzz word these days for mental health workers).

As I read the Virtus Model Code of Pastoral Conduct, I really get no sense of the doom and gloom he implies to be there. Rather I get a good picture of very reasonable principles to guide a priest in his counseling role, some rather common-sense principles that I assume are easily followed by men with the level of education enjoyed by current priests. Nor do I sense a stage being set for bishops to abandon their supportive role to the clergy. Please, let’s not get too hysterical in the aftermath of the sexual abuse debacle.

(Deacon) Thomas E. Brandlin | 2/23/2007 - 1:08pm
Rev. Michael Kane gives an accurate analysis of the code of conduct situation in most dioceses and, to a lesser extent, the male religious communities in this country in “New Standards for Pastoral Care” (4/10). He describes the church view of the codes as from a “risk-management perspective.” He goes on to note the common practice of insurance companies to settle in the interests of the diocese, “without consultation or agreement with the accused priest.”

So what we have here is a situation in which male ministers and employees of the Catholic Church are to be considered risks to be managed, sort of along the lines of, “Isn’t it better that one man die,” etc. Then the bishops can ignore their responsibilities to the clergy, who have given their lives to the church, because it is expedient and the insurance company said so. They can also ignore Canon 220, stipulating the right to one’s good name.

If this enlightened episcopal self-interest existed 2,000 years ago, Jesus would have told Mary and Martha that he couldn’t raise Lazarus because he had a relationship with the family. No wonder we have a shortage of priests.

Steven J. Dzida, Esq. | 2/23/2007 - 10:21am
The Rev. Michael N. Kane (4/10) misunderstands the principle of vicarious liability as it pertains to the liability of a diocese for the actions of its priests. He suggests that (1) victims of clerical sexual abuse can sue the diocese in which the offense was committed just because the diocese has more assets than does the priest abuser, and (2) ultimate responsibility for the actions of a priest lies with his bishop. Neither of these suggestions is entirely true.

Every employer (including a diocese) is responsible for injuries caused by its employees in the course and scope of their employment. But criminal activity is never considered to be “in the course and scope of employment.” If a courier service driver, for example, hits a child in the street while making his deliveries, the employer would be responsible for the injuries caused. But if the driver robs a bank along the way and shoots a child in the process, the employer would not ordinarily be responsible for those injuries.

Similarly, a diocese would not ordinarily be responsible for the injuries caused by a priest child molester, because these are crimes not considered to be in the course and scope of employment. But if a bishop has reason to believe that a priest has abused a child or is a clear and present threat to do so yet takes no reasonable and prudent action to prevent the priest from committing the crime, the victim would be entitled to sue the diocese. This suit would not be based on the size of the diocese’s balance sheet compared to the priest’s or on making the diocese responsible for the actions of the priest (which, as a crime, would still be outside the course and scope of employment). Rather, the suit would be based on the negligence of the bishop himself (in not taking reasonable and prudent protective actions) as a direct cause of the injuries.

If a priest committed such a crime and the bishop (having no knowledge of earlier offenses or other warning signs) took reasonable and prudent steps to remove the priest from ministry or (at the very least) from circumstances that would in the course and scope of employment put other potential victims at risk, the diocese could not be held responsible for the injuries caused by the priest’s crime.

Father Kane explains that codes of conduct have been adopted for priests, but “bishops are not bound by codes of pastoral conduct.” The bishops seem to have paid a lot of attention to the sins of the abusers but precious little to putting their own houses in order. Given that it is the misconduct of the bishops that made diocesan assets vulnerable to claims of victims, it is small wonder that most lay people believe the scandal is far from over.

Barbara J. Pohl | 4/21/2006 - 8:36pm
While reading this article, I found myself becoming increasingly horrified by its implications. While I support protecting the vulnerable from exploitation of any kind, I wonder what man in his right mind would wish to sign on to a lifetime of service in an organization that would treat him in the manner this writer suggests he well could be treated in the event that he is accused of any impropriety of any kind. It appears to actually suggest that he would be well advised to purchase insurance to protect himself aginst the possiblity of lawsuits! He is further advised not to "socialize" with "the flock". Next he will be advised to live in a hermitage to protect himself from legal danger. PLease! What is a priest's life all about anyway? Where is Jesus in this scenario? The lawyers & insurance people appear to be fully in charge of bishops & dioceses. I give up!And I am 76 years old and a lifetime RC. PLease tell me this isn't true. Sincerely, Barbara J. Pohl

Carol Stanton | 3/31/2006 - 1:03pm
Codes are one thing; training is another. Somewhere one must learn and practice the skills that go along with specific codes of conduct. Health care professionals have intensive training, supervised practice and on-going educational opportunities for which they are accountable if they wish to remain certified.

Most parish priests are not psychotherapists or even trained pastoral counselors. Some learn, on the job, about the mine-fields in dual relationships; many are only beginning to accept the built-in power-inequality that comes with their pastoral role. But there is neither time nor inclination in seminaries to provide the kind of intensive training one actually needs to be engaged in some levels of pastoral care.

In addition to acknowledging and adhering to a Code of Conduct, the best skill a parish priest might want to develop is that of knowing when to refer a person on to another professional--be that a psychotherapist, a trained pastoral counselor or, even, a trained spiritual director. Many, many lay people in all of our parishes have this level of training to offer. What a great possibility for clergy/lay collaboration for the sake of creating a safer and higher quality of pastoral care throughout the church!