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Kevin E. McKennaJune 02, 2023
Priests’ vestments on hangers in a 2018 photo. (CNS photo/Tyler Orsburn)(CNS photo/Tyler Orsburn)  

The firestorm of accusations against priests of the sexual abuse of minors has created the suspicion, often fueled by the media, that any priest against whom allegations are made is guilty. The tremendous damage that has been perpetrated against the many victims in the sexual abuse crisis cannot be underestimated, nor can we underestimate what the church needs to do to make whole those who have been so horrendously hurt by members of the clergy. But it is important that safeguards for due process for those accused of abuse be honored, even as we work toward guaranteeing the safety of all members of the church.

A disturbing statistic from the recent National Study of Catholic Priests, undertaken by the Catholic Project of the Catholic University of America, shows the lack of trust in due process protections for priests accused of sexual abuse. In that survey, 82 percent of all priests said they regularly fear being falsely accused of sexual abuse, and only 36 percent of diocesan priests believed that they would be provided with sufficient resources by their dioceses to defend themselves in court should an allegation be made. (Researchers contacted 10,000 Catholic priests, of whom 3,516 responded, and conducted further interviews with more than 100.)

“Many diocesan priests in particular fear they will not be adequately supported by their dioceses and bishops in the case of a false accusation.”

“The fear of improper application of these [due process] policies in a circumstance of alleged abuse deeply worries the majority of priests,” write the study’s authors. “Many diocesan priests in particular fear they will not be adequately supported by their dioceses and bishops in the case of a false accusation.”

The authors also report that 67 percent of priests agree that a zero-tolerance policy toward sexual abuse “positively demonstrates the church’s values,” in particular “protecting the weak.” But creating a safe environment, healing and justice for the survivors of sexual abuse is not incompatible with due process for the accused. Priests want some assurance of the presumption of innocence as allegations are investigated, and due process is part of providing justice for the community injured by the sexual abuse of minors.

The rules following an accusation

To see how due process makes its way through the church, it is helpful to look at the church’s legal system and its governing documents. A defining contribution of the 1983 revision of the Code of Canon Law, the official body of laws systematically arranged for the governance of the church, is the inclusion of rights for all the Christian faithful (including the clergy). Canon 220 guarantees the right to a “good reputation.” Canon 221 lists the right to legitimately vindicate and defend rights in the competent ecclesiastical forum, the right to be judged according to the prescripts of law, and the right not to be punished with canonical penalties except according to the norm of law. And Canon 1321, added in 2021, legislates the presumption of innocence.

Arguably, the most serious challenge to such rights of clerics accused of sexual abuse is during the “preliminary investigation” mandated by the Code of Canon Law when an accusation of a possible crime surfaces. The pope, the Roman dicasteries and the U.S. Conference of Catholic Bishops have all issued norms that include the right of accused clerics to due process with the presumption of innocence. The U.S.C.C.B.’s “essential norms,” which legislate the procedures to be followed after an allegation has been made (issued with the “Dallas Charter” and updated several times since), say that a preliminary investigation must begin “promptly and objectively,” during which the “accused enjoys the presumption of innocence, and all appropriate steps will be taken to protect his reputation” (see Page 23). Also, the accused “will be encouraged to retain the assistance of civil and canonical counsel and will be promptly notified of the results of the investigation.”

In addition, in an effort to help bishops implement the correct procedures to be followed in cases involving sexual crimes against minors, on June 5, 2022, the Dicastery for the Doctrine of the Faith issued an updated vademecum (handbook) to be followed for a “standardized praxis.” This handbook makes clear that a preliminary investigation is not a trial but is meant to “gather data useful for a more detailed examination” and “to determine the plausibility of the report” (No. 33). It also states that care must be taken to “avoid any inappropriate or illicit diffusion to the public that could prejudice successive investigations or give the impression that the facts or the guilt of the cleric in question have already been determined with certainty” (No. 29).

It is troubling that in this important phase, in which the future ministry of the cleric is at stake, no legal counsel or protections are required at a questioning of the accused person: “since this is a preliminary phase prior to a possible process, it is not obligatory to name an official advocate for him. If he considers it helpful, however, he can be assisted by a patron of his choice” (No. 54, emphasis added). Lacking counsel, the accused could provide testimony that might make it harder for him to defend himself or be used against him in later judicial or administrative proceedings.

It is troubling that in this important phase, in which the future ministry of the cleric is at stake, no legal counsel or protections are required at a questioning of the accused person.

An accused priest is strongly encouraged to retain counsel during a preliminary investigation, since the bishop can take “precautionary measures” that can include exclusion from ministry and removal from a residence. The vademecum recommends that an explanation be provided that the measure is not penal in nature, “lest he [the accused] think that he has already been convicted and punished from the start” (No. 61). (The Association of United States Catholic Priests has prepared a helpful resource, The Rights of Priests, with guidance for how priests could respond when summoned to the chancery without knowledge of the purpose of the meeting, including: accompaniment with a trusted friend; requesting diocesan support in obtaining civil and canonical assistance if needed, and a waiting period before signing agreements.) But even before a formal trial or administrative process begins, it is possible that the accused cleric may be viewed by the public as most likely guilty of some sexual abuse of a minor.

The norms spelled out in the Code of Canon law and the Essential Norms and the guidance of the vademecum establish due process rights, but these rights may be jeopardized if the accused does not have the financial resources to mount a proper defense. Since legal costs, both canonical and civil, could be prohibitive and thereby jeopardize due process rights, a diocese or eparchy could establish a restricted fund to which priests might voluntarily contribute, one that could assist (with appropriate limitations) priests accused of sexual misconduct to defray legal expenses for a civil and canon lawyer.

In my own diocese of Rochester, N.Y., a Clergy Relief Society was created many years ago, to which priests voluntarily pay a fixed amount semi-annually. Created originally to help priests pay medical bills beyond insurance costs, it has recently been expanded to include legal fees up to a capped amount. Some dioceses reimburse a priest’s legal expenses if he is later exonerated.

How due process can restore trust at all levels

The Second Vatican Council’s “Decree on the Ministry and Life of Priestsasserts that “bishops are to regard their priests as brothers and friends and are to take the greatest interest they are capable of in their welfare both temporal and spiritual” (No. 7). When investigating accusations made against priests, it is important to begin with the presumption of innocence and to make available the assistance of legal advocates to those accused. These would be concrete steps that could help rebuild trust and confidence in bishop-priest relationships.

A balance must be maintained between prosecution and due process. Parishioners need to know that victims violated by priests will see justice done by both church and society. Not all victims will accept the results of the investigation of possible violations by clergy. But parishioners also need to know that accused priests, often men with whom parishioners have invested their spiritual journey, will be treated justly with due process rights observed.

[Related: “New study of priests shows a distrust of bishops, fears of false sex abuse allegations and widespread burnout”]

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