Hiding in the Thickets of the Law'
In the heat of a Dallas summer and the even more intense heat of national and international media scrutiny, the U.S. Conference of Catholic Bishops met on June 14 to address what they described as a crisis without precedent in our times, namely the crisis within the Catholic Church sparked by the sexual abuse of children and young people by some priests and bishops and the way in which we bishops addressed these crimes and sins (Preamble to the charter).
To address this crisis and to provide a modicum of deferred justice to victims, the bishops adopted, by an overwhelming vote, a Charter for the Protection of Children and Young People, which was accompanied by Essential Norms for Diocesan/Eparchial Policies Dealing With Allegations of Sexual Abuse of Minors by Priests, Deacons or Other Church Personnel. If granted the recognitio of the Apostolic See, this charter and its accompanying norms will become canon law for the United States and will bind every diocesan bishop to observe and implement them. In the meantime, the U.S. bishops have committed themselves to their immediate implementation.
Now that the dust from Dallas has settled, it may be worthwhile to examine what the bishops have wrought. Premature efforts to implement the Dallas norms have already provided indications of the shape of things to come. They are, at least to this canonist, profoundly disturbing.
A Definition of Sexual Abuse
Rejecting the opportunity to incorporate into canon law the definitions of sexual abuse found in secular criminal codes, the bishops have adopted a definition that is exceedingly broad and vague: Sexual abuse [includes] contacts or interactions between a child and an adult when the child is being used as an object of sexual gratification for the adult. A child is abused whether or not this activity involves explicit force, whether or not it involves genital or physical contact, whether or not it is initiated by the child and whether or not there is discernible harmful outcome (Art. 1, No.1).
This definition admits no gradation of offenses. Forcible rape, various forms of fondling, exhibitionistic behavior and displaying arguably indecent pictures, all fall under the rubric of sexual abuse if minors are involvedand all require the same punishment: permanent removal from ministry for even one offense (Norm 9, A).
By defining sexual abuse as any interaction involving the use of a minor as an object of sexual gratification for an adult, the charter makes the subjective disposition of the alleged perpetrator constitutive of the offense. In some cases, this internal disposition can easily be inferred from the abusive acts themselves; in others, however, the acts themselves are morally ambiguous and the internal motive can be divined only with great difficulty. In practice, this difficulty is overcome by treating the victim’s subjective feeling of having been abused as determinative of whether certain behavior should be punished as sexual abuse. Thus, when a priest disrobes in a locker room before exercising, whether the priest will be considered to have exposed himself or simply to have changed clothes will depend on whether a minor who was in the locker room felt abused.
Shifting the Burden of Proof
In both canonical and secular processes, the accused is presumed innocent until the contrary is proven (Canon 1608, 4). Defining sexual abuse by subjective disposition, however, subtly but effectively shifts the burden of proof in these cases from the accuser to the accused. Under the Essential Norms, once a diocesan bishop has received an accusation that he judges credible, he is required to relieve the accused cleric of any ecclesiastical ministry or function and commence an investigation in harmony with canon law (Norm 7). In the course of this investigation (if, indeed, any further investigation is deemed necessary after receipt of a credible accusation), it is incumbent on the accused priest to prove, usually with little cooperation from the diocese, that the alleged offense did not occur.
Altering the Standard of Proof
Canonical tradition requires that the decision maker reach moral certitude (akin to the secular courts’ proof beyond a reasonable doubt) before issuing a condemnatory decision in a penal case (Canon 1608, 1-3). Although the charter and the Essential Norms do not make explicit the standard of proof that must be met before disciplinary action is taken against a cleric accused of sexual abuse, it can be extremely difficult to rebut effectively an accusation already deemed credible. The difficulty stems at least in part from lack of clarity about what constitutes a credible accusation, who makes this determination (the diocesan bishop himself, the diocesan review board or some other diocesan official) and on what basis and according to what criteria this judgment is to be made.
To be credible in American law, evidence must not only proceed from a credible source but must, in addition, be credible’ in itself, by which is meant that it shall be so natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe it (Black’s Law Dictionary, s.v. credible).
Not a few recent accusations of sexual abuse against priests have been judged credible according to a much less exacting standard. On the one hand, inquiries into the character and background of complainants are, in the present climate, scored as inappropriate hardball tactics that revictimize the victims. On the other, few accusations are so natural, reasonable and probable in themselves that they can be judged credible without corroboration from other evidence, evidence that often is not vigorously sought. What seems to be happening is that the diocesan official charged with receiving complaints makes a subjective assessment that the complainant appeared to be sincere (e.g., was not obviously prompted by ulterior motives) and that his or her complaint is, therefore, credible. This finding is then sent up the chain of command to the diocesan bishop and review board, often with little independent assessment of the credibility of the accuser and his or her accusation.
After decades of dismissing or discounting complaints of sexual abuse against priests, authorities, both secular and ecclesiastical, are now inclined to give implicit credence to accusations against priests and to dismiss their denials rather summarily. Once a rather subjective finding that an accusation is credible has been made, it is incumbent on the accused priest to demonstrate beyond a reasonable doubt that the accusation is incredible.
The challenge of proving that a credible accusation is not credible after all can be rendered even more daunting by the reluctance of diocesan bishops to second-guess the determinations of their delegates or review boards that accusations are credible. The well-publicized history of American bishops not taking complaints of sexual abuse with sufficient seriousness has also generated a climate in which it can be politically difficult for a bishop to conclude that an accusation against a priest is unfounded. In one case I know, for example, when a woman’s accusation against a priest contained several empirically verifiable claims that were shown to be false, the bishop told me, John, you don’t understand. The facts don’t matter.
The Essential Norms mention that, in the absence of an admission by the accused priest, the truth of an accusation may be established after an appropriate investigation (Norm 9) and foresee that at least some accusations may prove to be unfounded (12). Moreover, the bishops insist that the processes provided for in canon law must be observed, and the provisions of canon law must be considered (italics added) when disposing of sexual abuse cases (9, B).
Nevertheless, it is not at all clear what these procedures are. Under current law, sexual abuse of minors is one of the more serious delicts reserved to the Congregation for the Doctrine of the Faith. These cases are to be referred to the congregation, which will either decide the cases according to its own unpublished procedures or remand them to the presenting dioceses for trials according to secret procedural norms to be supplied by the congregation on a need to know basis (C.D.F. letter De Delictis Gravioribus, May 8, 2001, Art. 4c and 6).
Whatever the strengths and weaknesses of these secret norms may be, it appears that the U.S. bishops are ignoring the norms of boththe C.D.F. letterand the code. Instead, they appear to be disposing of complaints of sexual abuse against priests according to jury-rigged administrative procedures of their own making.
The most a priest who is the subject of a credible accusation can expect before he is dismissed from the ministry under the policy adopted by the episcopal conference in Dallas is an opportunity to refute the accusation. Even this opportunity is sometimes rendered hollow by, for example, the diocese’s failure to carry out its own rigorous investigation of the complaint, its refusal to permit cross-examination of or posing of additional questions to the accuser, its refusal to admit evidence that casts doubts on the accuser’s credibility or its withholding of evidence.
At times, priests are not even afforded a truncated opportunity to defend themselves before penal sanctions are imposed. In some places, a finding that an accusation is credible, often with minimal or no participation by the accused priest, results in the imposition of an indefinite administrative leave, which prohibits the priest from performing any ministerial function, dressing in clerical garb or in any way presenting himself as a priest. Despite the benign sound of the phrase administrative leave (Canon 1722) and frequently repeated insistence that its imposition and continuation are not penalties and do not imply a permanent resolution of the case, such a leave has all the characteristics of a perpetual expiatory penalty except the name (Canon 1336, 1, 1o-3o). Once such a leave has been imposed after or without an opportunity for the priest to refute the accusation, he has only two equally unpalatable options: either to go gentle into that good night of open-ended administrative leave or to rage against the dying of the light by embarking on the arduous and time-consuming procedure of recourse to the Holy See.
Elimination of Statutes of Limitations
Although both canon law and American law generally limit the period of time available for prosecuting delicts, the Dallas charter and its Essential Norms effectively obliterate any statute of limitations for the punishment of sexual abusers of minors (Norm 9, A). It can be argued, of course, that sexual abuse of minors is such a heinous crime that a mere legal technicality should not stand in the way of prosecuting the offense and seeing that justice is done for victims. But prescription of penal actions or a statute of limitations exists because the law, in its wisdom, recognizes that the passage of time renders prosecution of and defense against complaints increasingly difficult. With the passage of time, potential witnesses disappear, memories dim, relevant documents are lost or inadvertently destroyed, alleged crime scenes are razed or renovated. Given the high burden of proof already imposed on priests who are subjects of credible accusations of sexual abuse, the elimination of any statute of limitations can raise a nearly insurmountable obstacle to an effective defense.
Conflicting Responsibilities of Review Boards
The Dallas charter and Essential Norms mandate the establishment of review boards composed primarily of lay people in each diocese as well as at the national level (Norm 4, Art. 8). The involvement of lay people in helping to evaluate complaints of sexual abuse and monitoring the handling of these complaints is certainly welcome. However, the multiple responsibilities assigned to these boards create at least the potential for conflict. On the one hand, review boards are responsible for ensuring that the church provides a safe environment for children. Thus, when there is a doubt whether a priest poses a danger to young people, the board must err on the side of the safety of children. On the other hand, review boards are charged to assess accusations and the evidence supporting them. As participants in the penal process, the board must err on the side of the priest about whose guilt there remains reasonable doubt. Preliminary evidence suggests that these boards have been more attentive to the former task than to the latter. The difficult and unenviable challenge to review boards and the bishops they serve is to strike a delicate balance between their two primary responsibilities.
These critical reflections on what the bishops have wrought in Dallas will, no doubt, seem to some to be canonical niggling, the sort of legalistic hairsplitting we neither need nor can afford in this moment of crisis in the history of the Catholic Church in the United States. The conventional wisdom seems to be that, to protect young people from abusive clerics and to provide justice to victims who have already suffered from their depredations, the church must cut down every evidentiary loophole and lacuna, every procedural dodge and maneuver, every legalism and technicality, every thicket of the law in which an abusive priest might try to hide.
Sometimes, as Mr. Bumble, the officious beadle in Dickens’s Oliver Twist, observed, the law is a ass. A law higher than our flawed canon law has sanctioned sexual abuse of minors as a despicable crime to be punished and that Law is not mocked. Yet, if all the thickets of the law have been cut down, who could stand upright in the winds that would blow then, and what would be left to protect the rest of us from the zeal of latter-day Javerts?
One of the traditional functions of law is to restrain the exercise of power by those who have it against those who do not. One can find irony, as the editors of Commonweal did (8/16/02), in the fact that, when the needs and interests of many Catholics have been treated summarily (or sometimes trampled upon) by the Vatican, a canonist would fall back on a rights’ argument to thwart the bishops’ efforts to deal with criminal behavior of priests.
Ironic though it may be, it is rather shortsighted to dismiss a rights argument so cavalierly simply because it comes from an unexpected source. Unless the church’s hierarchy learns to respect and vindicate the rights of ordinary priests, it will never move on to recognize and provide ways for vindicating the rights of the ordinary faithful; unless the church’s hierarchy is willing to honor so fundamental and uncontroversial a right as the right to what we Americans call due process of law, other and more contentious rights will continue to be treated summarily or even trampled on.
Throughout the 19th century, American lay people and lower clerics had common cause against the unchecked and unaccountable power of bishops and, ironically, both groups saw canon law and the Vatican as potential allies in their struggle. The laity wanted an effective voice in the governance of the local church; the lower clergy wanted protection from arbitrary transfer and removal by their bishops. In part because neither group recognized their common cause and because some members of both groups hijacked their movements in radical directions, both causes were lost in the 19th century. The resulting regime of unrestrained episcopal power became not the least of the contributors to the current crisis. It would be not only ironic but tragic if the opportunity for lay people and lower clergy to make common cause that was squandered in the 19th century and missed in the 20th is allowed to slip away again in the 21st.
The common cause of both laity and priests in the present crisis consists not only in fostering a safe environment for children by punishing malefactors, but in bringing accountability, transparency and measured restraint to ecclesial governance. The latter cause will not be achieved by cutting down the thickets of the law, but, to quote Thomas More in A Man for All Seasons, by planting the church thick with laws from coast to coastman’s laws, not God’sso that overweening power will find all God’s people, guilty and innocent, hiding in the thickets of the law. No matter how dense they may grow, the thickets of the law will not provide a safe haven for the truly guilty. They will, however, make finding the guilty more onerous by requiring that would-be punishers observe what Lawrence Tribe called those procedural formalities that are implicit in treating persons with respect as members of the community.