I have for years been arguing that the sexual abuse scandal in the Catholic Church should have been — and in the future should be — adjudicated by Church tribunals according to the provisions of canon law, rather than “handled” ad hoc by bishops and mid-level clerics in various chancery positions. For a good analysis, I recommend reading Fr. John J. Coughlin’s 2003 article “The Clergy Sexual Abuse Crisis and the Spirit of Canon Law” or the chapter titled “Canon Law and the Sexual Abuse Crisis” in his book Canon Law: A Comparative Study with Anglo-American Legal Theory (Oxford University Press, 2010).
“Canonical action could have been taken against guilty priests,” says Fr. Coughlin, a specialist in canon law, “especially those who were serial child abusers.” But the reality is that, from Vatican II until the 2002 sexual abuse crisis, contentious penal processes, as specified in canon law, for priests accused of sexual abuse of a minor were “nonexistent” in the United States. “Until the church’s response to the 2002 scandal,” writes Fr. Coughlin, “I am not aware of any case in the United Sates in which a priest was dismissed from the clerical state as a result of the diocesan penal process stipulated in canon law.”
This lack of a serious threat of penal sanction had disastrous consequences, as we now know. As Fr. Coughlin points out, “The highest level of incidents in which priests abused minors commenced after Vatican II and abated shortly after the promulgation of the 1983 Code of Canon Law.” To put this into perspective, “75 percent of all the alleged events [of abuse] occurred between 1960 and 1984.”
Two secular paradigms
What clearly seems to have happened in many dioceses in the 1960s and 70s is that a psychological paradigm replaced the Church’s traditional moral, ascetical, and canonical traditions. It was, to use a phrase from Philip Reiff’s famous book, “the triumph of the therapeutic.” After Vatican II, says Fr. Coughlin, “any hint at a coercive element in canon law was viewed as contrary to the spirit of renewal.”
So, why not simply turn things over to the secular court system, as has now been done, and as seems popular with so many, in the spirit of “let the secular courts clean the rot out of the church”? First, because the secular authorities will use that power to strangle the church, as is already happening. There are good reasons Thomas Beckett defended with his life the principle that clerics should be tried in ecclesiastical courts. People who love the great martyr forget why he was martyred. He understood—and it is something we too often forget—that secular authorities have their own agendas, and they too often use their power to crush, control, or merely silence those who oppose them. Does anyone imagine, in light of the debacle of Cardinal Pell’s trial in Australia or the repeated fleecing of the Catholic Church in America or given the increasing animus against Catholics, that the civil courts can be trusted to judge these matters fairly?
But there is another problem, more damaging to the Church’s internal character and functioning, why it is a bad idea to replace the misbegotten psychological paradigm experts convinced the bishops to use in the 1970s with the misbegotten legalistic paradigm experts have convinced the bishops to employ today. With the “zero-tolerance policy” that the bishops enunciated in Dallas in 2002, writes Fr. Coughlin, the bishops “elected to correct the decades-long absence of a canonical response to the problem with a rule of strict criminal liability.”
“Zero-tolerance” and “strict criminal liability” may sound like good things, but they are rarely as salutary or innocent in practice. What was missing from the Dallas policy, writes Fr. Coughlin, were a host of elements basic to any legal code that purports to express fundamental fairness and justice: notice of the precise nature of an allegation; a transparent and commonly-shared definition of the offense of sexual abuse and what is meant by a “credible allegation”; an opportunity to be heard and offer defense; and proportionality in penalties applied if guilt is established. A priest’s right to be heard and offer defense is also often compromised by his bishop’s demand he remain silent in obedience to his bishop. Fr. Coughlin writes:
In the months following Dallas, it was not uncommon for a priest with a single allegation against him, which was placed in his diocesan personnel file twenty or more years ago, to be summarily dismissed from an active and fruitful ministry. Following years of faithful service, the priest suddenly found himself deprived of his life’s work and with his reputation irreparably damaged. Placed on indefinite administrative leave without adequate notice or opportunity to be heard, he received the same penalty as a serial child abuser.
I am acquainted with the case of a priest who fits this description. Although the local attorney general found no evidence to prosecute him for any wrong-doing, his case was bundled with a large number of others in a civil suit that his archdiocese eventually settled for a large cash pay-out, making no distinction between serious cases of serial abuse and dubious cases in which prosecutors had determined no abuse could be proven. His accuser was thus able to proclaim “victory” even though she had never proven her case in any court.
As a result, this priest sits alone in a basement apartment, reading, praying, and hoping that some day his case might be adjudicated by some official tribunal rather than merely being pronounced guilty by the media lynch mob. Parishes go without priests, hospitals go without chaplains, the sick die without the comfort of the last rites, but this man cannot serve because he has become tainted with an accusation he can never rebut.
Regional circuit court canon law tribunals
I suggest the bishops, since they obviously don’t consider their own local tribunals qualified to deal with claims of abuse, should establish several regional tribunals or “circuit courts,” staffed by specially trained canonical judges to examine and adjudicate charges of sexual abuse in accord with the basic provisions of canon law. I have described them as “circuit courts” because they would occasionally be required, as early “circuit court” judges in the United States were, to travel to specific locations to adjudicate cases. It would be easier for a smaller group of judges to share common definitions of sexual abuse and what constitutes a “credible allegation” and to make these definitions clear to the public.
These tribunals should be independent of the influence of any individual bishop. But in forming such independent tribunals, the bishops would not merely be turning over judgment to the civil authorities, for these would be ecclesiastically-established tribunals operating according to the provisions of the Church’s canon law. Thus, when a bishop receives a complaint of abuse, trained members of the “circuit court” tribunal staff of his region would gather all the testimony and evidence necessary. Having done so within a timely manner, they would then turn this information and all accompanying evidence over to the tribunal judges for judgment.
Everything would then be a matter of public record. If after due consideration according to the principles of due process, a priest is found guilty or innocent, the public could have a much greater sense of confidence that this judgment had been reached after due consideration by an independent panel of canon law judges, not by ecclesiastical bureaucrats trying to avoid scandal either by burying a case or by throwing a cleric who has become a public liability under the bus. It would an application of the rule of law, not of bishops.
A rule of law, not of bishops
But this, I have been told repeatedly, will never happen. Bishops, I am told, will never give up that control over the process.
“Why not?” I ask. “It would get a terrible annoyance off their backs and help protect them and the diocese from civil liability.” “No,” those more-in-the know-than-I insist, “bishops will not give up the control this system gives them over their priests.”
“Canon law functions to set the conditions for a just ecclesial order,” writes Fr Coughlin, “protect individual rights while respecting the common good, facilitate the mission of the church in preaching the gospel and administering the sacraments, encourage acts of charity and promote peace and security in the here and now even as it points to the ultimate justice of the life hereafter and the consummation of time.” These objectives of the rule of law in the life of the church are diminished, however, he argues, by the all-too-common antinomian and authoritarian approaches taken by U.S. bishops throughout much of the nation’s history.
“Antinomianism undervalues the significance of canon law in the life of the church,” writes Fr. Coughlin, “and it is often accompanied by an authoritarian legalism on the part of hierarchical superiors. In the antinomian absence of the proper appreciation of canon law, superiors may feel free to use their lawful power in an authoritarian manner.” And too often, it seems, they do.
There is a crisis of morale among many of America’s priests, not only because they are unfairly labeled by the general culture and the media as pedophiles when it is still the case that the incidence of pedophilia among Catholic priests is lower than in the general population, but also because many fear that their bishop would throw them to the lions at the first hint of trouble. Many priests see themselves, therefore, as one complaint away from ignominy and disgrace, especially because often, priests are not allowed to speak on their own behalf, having been commanded to be silent by their bishops.
So too, there is unlikely to be a proper respect for due process that would allow them to defend themselves. Insisting that a priest keep silent in the hopes that things will eventually blow over or that the media will lose interest is not a satisfactory way for a man to defend his good name. And a man has nothing of value if he has lost his good name and reputation. To be constantly suspected of something one did not do is not justice. Enforced silence to avoid “scandal” is not justice; it does not clear the air of suspicion that Church authorities are hiding something. Because, in fact, they are.
It is a sad reality that the general cultural climate within which priests and laity interact has in many cases become toxic. As a consequence, nearly everything a priest does these days can be interpreted badly as possibly meaning something untoward and inappropriate. It would be a rare priest without some complaint against him in his file — not necessarily sexual or predatory, but a complaint about behavior that some aggrieved party finds “offensive.” What priests fear can happen is that they might have some complaint in their file, no matter how unsubstantiated, and in a crunch, the bishop will pull it out and hold it over their head as a threat.
Why not establish independent canon law tribunals to adjudicate complaints of abuse? Because, I am told, if bishops were forced to ship cases off to an independent tribunal, they could no longer hold this cudgel over the heads of their priests, and this is a power they are not willing to give up.
(Those who find this explanation less than convincing should read Kevin McKenna’s book Defending Rights in the Church or the section on “Antinomianism and Legalism during the Nineteenth Century” in Fr. Coughlin’s article, both of which document how various U.S. bishops steadfastly resisted their decisions about priests and parishes being governed by the rules of canon law. As it turns out, it is not only Catholic universities in the U.S. that have resisted “interference from Rome.” Perhaps one reason U.S. bishops have been so resistant to implementing the demands of Ex Corde Ecclesiae on American universities is that they so sympathize with the desire not to be “bothered” by the rules from Rome.)
The secular legalistic paradigm that has replaced the secular psychological paradigm has no greater respect for the Church’s history and traditions. It corrupts the Church’s internal dynamics, threatens the Church’s standing in society, and fails to address something secular courts can never address, which should be the Church’s ultimate concern: namely, the salvation of souls.
So perhaps Pope Francis is right. Perhaps at the heart of the abuse scandal is “clericalism”: the claim of a right to power or privilege that comes simply from being a cleric — or in this case, a bishop — a right not constrained by those pesky church rules.
Courts can be imperfect vehicles for uncovering the truth. But I have more confidence in a duly-appointed and well-run judicial court to come to a wise discernment in such matters than I do in nearly any individual bishop and his chancery officials. A good and wise bishop would want to send his cases to an independent canon law court. Judicial courts, like democracy, seems like an unsuitable system, until you compare them with all the others.
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