John J. Coughlin
At the height of the sexual abuse crisis in Boston, Cardinal Bernard Law claimed that canon law had prevented him from taking action to protect victims. Victims responded: Canon law was irrelevant to us. Children were being abused. Sexual predators were being protected (The Boston Globe, July 7, 2002). A recent comment in America (11/26/07) suggested that the canonical processes intended to prevent hasty judgments may fail both the victims and religious superiors when they try to act responsibly. One might surmise from his monograph, The Battle for Rights in the United States Catholic Church, that Kevin E. McKenna would contend that the cardinal, the victims and the editors of America are all mistaken about canon law.

Having served as president of the Canon Law Society of America at the time of the adoption of the 2002 Dallas norms for the protection of children from sexual abuse by church personnel, McKenna begins his book by noting that Rome rejected the first version of the hastily framed 2002 Dallas norms. Although he leads with a critical tone about the norms, McKenna focuses upon neither the bishops action at the start of the 21st century nor the sad events of the sexual abuse crisis, most of which occurred at least several decades earlier during the 20th century. Rather, he tells a story about the battle for canonical rights in the United States Catholic Church during the 19th century. The heroes of McKennas narrative are James McMaster, Eugene OCallaghan, Richard Burstell, Peter A. Baart and Patrick Corrigan.

For 40 years during the second half of the 19th century, McMaster, a layman influenced by the Oxford movement, published The Freemans Journal and The Catholic Register, which was the most widely read Catholic newspaper in the country. McMaster used this national forum to lament the inapplicability of canon law in the United States due to the countrys missionary status. Eugene OCallaghan, a parish priest in Ohio, employed a nom de plume in The Freemans Journal and The Catholic Register. He complained that certain bishops were exploiting the missionary status of the United States to avoid establishing proper parishes with permanent pastors, who pursuant to canon law would have enjoyed certain rights and responsibilities. McMaster, OCallaghan and others sought to bring their concerns to the First Vatican Council. According to McKenna, some American bishops at the council blocked the endeavor.

Burstell, a priest and expert in canon law in New York City during the post-Civil War period, joined fellow priests like Edward McGlynn in advocating an Americanism that called for the adoption of democratic principles by the church. When New Yorks Archbishop Michael A. Corrigan disciplined McGlynn by removing him from his parish and imposing the penalty of excommunication for his strong support of a socialist candidate, Burstell rose to his defense. In response to Burstells advocacy, Corrigan deprived him of his offices as Defender of the Bond and founding pastor of Epiphany Parish on the East side of Manhattan and transferred him to a rural parish upstate.

In the Midwest, Baart defended Dominic Kolasinski, a Polish-born priest ministering in Detroit who was at the center of an intra-parish conflict with tragic consequences. Spanning the years from 1885 to 1897, the conflict included the issue of trusteeism, allegations of sexual impropriety by Kolasinski with adult women, questions over financial accountability, intractable disagreement between rival Polish factions of the parish community and a parish riot that resulted in the death of one of the rioting parishioners. Baart appealed the bishops sanctions against Kolasinski on the grounds that the sanctions were imposed without a hearing and that the charges had never been proven.

The final figure of McKennas parade of 19th-century personages, Patrick Corrigan, a priest of the Diocese of Newark, N.J., criticized the lack of accountability in the handling of diocesan property and the methods for the selection of bishops in the United States. In a series of books and pamphlets, Corrigan favored the application of more democratic principles to ecclesiastical government and also advocated the appointment of an apostolic delegate to the United States. In 1893, Pope Leo XIII appointed Archbishop Francesco Satolli as the first apostolic delegate. Satolli not only facilitated the reconciliation of Kolasinski, but he also lifted the excommunication imposed on McGlynn.

The Battle for Rights also includes an early chapter that traces the history of clerical crimes and punishments from the ancient church to the Council of Trent in the 16th century. The book is well organized and an easy read. I mentioned at the outset that one might surmise McKenna labored to produce this work in order to demonstrate the importance of canon law in protecting the rights of all persons involved in cases of clergy sexual abuse of minors. Approaching the conclusion of the book, I anticipated a final chapter that applied the lessons of 19th-century history to the national crisis over the handling of sexual abuse cases by ecclesiastical authorities during the second half of the 20th century.

The historical evidence culled by McKenna remains open to at least several different interpretations. From a positive perspective, the 19th century affirms the vital function that canon law plays in the life of the church. In other words, a balanced application of the relevant substantive and procedural provisions in canon law to cases of sexual abuse by clergy would have offered some justice to victims while protecting the rights of the accused. Such a balanced application would also have served the interest of the church both ad intraby maintaining a just ecclesiastical orderand ad extraby conveying confidence in the juridical structure of the institutional church.

A less positive alternative interpretation of this historical evidence might be that the more recent disregard of canon law and parties fundamental rights is consistent with the 19th centurys episcopal antinomianism. Whatever interpretation one might attribute to the historical evidence, McKenna does not fulfill the readers expectation for an integration of the historical material with the contemporary situation.

Still, Kevin McKenna has contributed to the understanding of the contemporary crisis in the church by offering an important historical context from which the crisis might be considered.

John J. Coughlin, O.F.M., is a professor of law at the University of Notre Dame Law School, Ind.