Kevin E. McKenna
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Before banks of cameras, intense lights and the gaze of victims of sexual abuse, the bishops of the United States recently debated in Dallas a new policy to “repair the breach” with those damaged at the hands of church ministers. They approved overwhelmingly a Charter for the Protection of Children and Young People. Many bishops have already begun to implement the charter in their own dioceses.

 

The document itself is comprehensive in scope, providing a variety of strategies to deal with what the bishops call a “crisis without precedent in our times.” Included in the provisions is the requirement that dioceses reach out to victims/survivors and their families with a sincere commitment to their spiritual and emotional well-being. Mechanisms are to be put in place that provide for immediate response to allegations; and review boards, composed primarily of laypersons, are to be set up to assess allegations. Programs that ensure a “safe environment” for children are mandated, as are background checks for church personnel working with children. And adequate screening must be provided for candidates for ordination.

The bishops have been called to take decisive steps to address the most critical issue in the life of the church in the United States. As the document makes clear, there are many tragic consequences to sexual abuse of minors, including the loss of trust in the church and possibly loss of faith.

Articles 4 through 7 of the charter are provided to “guarantee an effective response to allegations of sexual abuse of minors.” The first step of the process will be to report any allegation of sexual abuse of a person who is a minor to the public authorities and to cooperate with public authorities about reporting in cases where the person is no longer a minor. The diocese will cooperate in the civil investigation in accordance with the laws of the local jurisdiction. An ecclesiastical procedure is then outlined that includes the permanent removal from ministry of priests and deacons for “even a single act of sexual abuse of a minor—past, present, or future.” The priest or deacon may request laicization and the loss of the clerical state. The bishop may request dismissal from the clerical state without the consent of the priest or deacon. If the penalty of dismissal from the clerical state is not applied, provision is made for the offender to lead a life of prayer and penance and not to present himself as a priest.

The charter, as well as the companion document, Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse by Priests, Deacons, or Other Church Personnel, needs some clarification, which may be provided by the Holy See or a commentary by the bishops’ conference. Such clarifications will be helpful to the bishops and their advisors who must implement these policies. Here I will point to five areas of concern in the charter and norms that need clarification. They deal with the procedure for assessing and following up on allegations of sexual abuse by a cleric or church employee.

Allegations and Removal From Ministry

Norm 7 states that when a “credible allegation of sexual abuse of a minor by priests, deacons or other church personnel is made, the alleged offender will be relieved of any ecclesiastical ministry or function.” Some clarity must be given to the phrase “credible allegation” for the sake of the investigators and review board members. Care must be taken to protect against frivolous accusations’ launching immediate removal from ministry. The required removal from ministry is to take place before any investigation is conducted, an investigation that would presumably seek to discover the validity of the accusation and the culpability of the alleged offender.

Unfortunately, immediate removal would appear to indicate guilt and would jeopardize the reputation of the cleric in the minds of the parishioners and public. In the present climate, he will be judged to have perpetrated some type of sexual abuse even before an investigation has determined guilt or innocence. Anyone who gets angry with a priest and falsely accuses him could have him suspended for doing nothing. The immediate referral of any allegation, even if frivolous or unfounded, to civil authorities raises questions about the right of any accused person to a good reputation. It is doubtful that the assurances of the charter and norms—to “take every step to restore the good name of the priest or deacon” when an accusation is proven to be unfounded—can ever be effective.

Canonical sanctions are to be initiated for any single act of sexual abuse of a minor, defined in the charter by reference to canon 1395 §2 and the definition provided by the Canadian Conference of Bishops’ document, From Pain to Hope (which describes various scenarios that may or may not be present, but still constitute abuse). The canon referenced speaks to an “objectively grave violation of the Sixth Commandment.” It will be helpful to clarify the definition of sexual abuse, since it is envisioned in the charter that the penalty is the same—permanent removal from ministry—for all possible offenses.

Medical and Psychological Evaluation

According to Norm 8, if the credible allegation involves a priest or deacon, the alleged offender will be asked to “undergo appropriate medical and psychological evaluation and intervention, if possible.” The meaning of the qualifier “if possible” is not clear. Does this mean if time permits, if medical resources are available or if the alleged perpetrator gives consent? Jurisprudence that has emerged from the Holy See regarding psychological testing indicates that no one can be obliged to engage in invasive psychological testing without the person’s free consent.

Removal for Past-Present-Future Offenses

Normally laws are made for the future, not the past. It has also been a longstanding canonical tradition that the proper law to be applied is the law that was in effect at the time of the crime. According to Norm 9, when one or more acts of sexual abuse by a priest or deacon have been admitted or established, past, present or future, the person will be removed from ministry. Some clerics who committed an act or acts of abuse in the past have gone through treatment, have followed the protocols established for them and have later been appointed to an ecclesiastical office. Appointment to an office gives rise to certain rights under church law, including the right to exercise the office and not to be removed from it except according to the norm of law.

Administrative Laicization

Both the charter and norms mention the possibility of a bishop requesting that the Holy See dismiss an offending cleric from the clerical state. The present norms for laicization have as a premise that a petition is submitted by the cleric who wishes to be released from the obligations of ministerial service and the requirements of celibacy. The church has provided in recent years for the administrative dismissal of priests for grave matters, when no other means seemed possible. When a laicization is forced, there should be some assurance that the rights of the cleric have been properly protected.

Provisions for Elderly or Infirm Offenders

Norm 9(c) makes provisions for an offender who is ill or of advanced years. It apparently applies to cases where a penal trial has been conducted and the cleric has been found guilty. Instead of imposing the most serious penalty, dismissal from the clerical state, the bishop in these cases may decide to impose a life of prayer and penance. The offender may not celebrate Mass publicly, wear clerical garb or present himself as a priest. With the possible exception of the continuation of salary and benefits, the effect is the same as dismissal.

Concern for alleged victims is appropriately highlighted in the charter. But there must also be concern for the alleged perpetrator, who is presumed innocent until guilt is proven or admitted. Our canonical tradition insists on the right of self-defense and processes for the determination of guilt or innocence. Our procedural law is based on the ability of the person to know of an allegation and to be able to respond specifically to the charge.

The procedures in the document provide for an appropriate investigation in accord with canon law and indicate that “all processes provided for in canon law must be followed.” The new document on essential norms suggests substantial changes in the current penal law of the church. It is difficult to see how under current church law—including the Code of Canon Law, the procedures approved for the United States in 1995 (Canonical Delicts Involving Sexual Misconduct and Dismissal from the Clerical State) and the norms recently issued by the Congregation for the Doctrine of the Faith—a cleric who has offended a number of years ago, beyond the statute of limitations, can be permanently removed from ministry. In addition, there is no mention in the norms of the need to assess imputability for a crime (that is, whether the crime was a free and deliberate act), an important part of our canonical tradition. This is a serious issue if the accused suffers from addictions or compulsions. Although it would not necessarily impede the bishop from taking appropriate actions to limit the ministry of an offending cleric, it could affect the ability of the bishop to impose the most serious penalty, dismissal from the clerical state.

The bishops are to be commended for developing in such a short amount of time a multifaceted strategy to deal with a serious crisis. No one can question the fact that great damage has been perpetrated on innocent parties at the hands of clerics. Nonetheless, many canonists would have appreciated more emphasis on due process in the charter, beyond encouraging the accused cleric to retain canonical and civil counsel. If necessary, according to the charter, the diocese will supply canonical counsel—apparently leaving it up to the cleric to fund any civil counsel needed. It might be preferable that canonical counsel be subsidized rather than provided by the diocese, since the latter could involve a conflict of interest.

The procedures envisioned by the charter and norms are in some ways a natural development of discussions that have taken place between the bishops and the Holy See over the last several years. It is known that representatives of the National Conference of Catholic Bishops (predecessor to the current United States Catholic Conference of Bishops) discussed with Rome the possibility of developing more streamlined procedures to deal with cases of sexual abuse of minors by clerics. Serious consideration was given to a non-penal approach that would have been modeled on the administrative removal of a pastor and would have taken into consideration safeguards for the canonical rights of a cleric. Instead, a revision and adaptation of the elements of the penal process were approved for the United States that specifically addressed the issue of the statute of limitations and the age of minors in these offenses (Canonical Delicts Involving Sexual Misconduct and Dismissal from the Clerical State). The processes for removal from ministry, including penal procedures, can be cumbersome and call for some thoughtful review and adaptations. They do, however, provide some needed protections for both accuser and accused and provide for the possibility of appeal. Some would suggest that the present crisis in the church was created by the transfer to other parishes of known offenders instead of prosecution using the current law after allegations were made.

In an editorial titled “Due Process in the Church” (4/9/01), commenting on the judicial methods used by the Congregation for the Doctrine of the Faith in dealing with theologians, America’s editors raised several questions about how well the congregation’s procedures respected human rights and modern notions of due process. The concerns focused on the need for precisely defined legal violations, the hearing of the accused before judgment is passed, care for a person’s reputation, checks and balances in investigations and the provision for appeal. It is to be hoped that these same concerns about due process will also be addressed as the new norms from Dallas are put into effect.

Some have feared that the church’s ability effectively to address moral issues and questions of human rights has been compromised by the failures and lapses of church authorities in dealing with the sexual misconduct problems of the past. But it is likewise to be hoped that the remedies themselves will not violate basic human rights. As the America editorial pointed out (with some applicability to the new norms), the “church’s defense of human rights will not be credible unless it practices what it preaches.”

The Rev. Kevin E. McKenna is president of the Canon Law Society of America and author of Concise Guide to Catholic Social Teaching

Comments

Dawn M. Nothwehr, O.S.F. | 1/29/2007 - 11:03am
I congratulate the Rev. Kevin E. McKenna and the Canon Law Society of America for raising the “five areas of concern” about the U.S. Catholic Bishop’s Charter for the Protection of Children and Young People, which was hastily crafted and approved at Dallas in June (9/16). As a social worker/moralist who spent my early career working in a private psychiatric hospital in collaboration with Mayo Clinic psychiatrists, with some of the nation’s most severely abused and neglected children, I am well aware of the need to care for victims and work toward healing of their horrific wounds. But my experience working with abused children also taught me the need for those who claim to be healers and administrators of justice to deal with both the perpetrators and the victims with impeccable integrity and fairness. There is nothing more damaging than to continue perpetrating injustice in the name of restoring justice.

Certainly, the wounded ones have a need to punish those who perpetrated abuse, and they understand this as the measure of justice that is due. Yet as Thomas Aquinas pointed out in his Commentary on the Gospel of Matthew 5:2, “Justice without mercy is cruelty.” Punishment in the Catholic moral tradition bears out this wisdom, in that redress is not the only concern. The effectiveness of the remedy toward the conversion and healing of the sinner is equally important. The just punishment thus must fit the particular needs and capacities of the sinner involved in the sin. The obvious starting point of this process is first to be clear that the person is, indeed, guilty of sin. As Father McKenna points out, the facts concerning the guilt or innocence of the alleged abuser in some cases are at best questionable, and justice requires that the church be perfectly clear about this.

Perhaps most important for the church, as a public actor today, is the need to model both compassion and social responsibility. Simply to defrock psychiatrically ill priests and turn them out onto the streets is, in my view, potentially the greater sin. At best it lacks compassion, and at worst it begs the question of whether the church believes child abuse is really so bad after all. Within the church community, those who have been found guilty can be provided with the support and supervision needed to ensure they will never harm children again. On their own, having their painful condition compounded by absolute rejection of the church, they are likely to strike out again. Further, if we really believe that all persons are created in God’s image and likeness, then our fundamental sense of respect and a pro-life stance demand that we allow the accused the means necessary for effective protection of their rights, and proven perpetrators the dignity of providing them with the limits that they themselves are unable, because of their illness, to supply.

It is my deepest hope and prayer that the U.S. bishops will exercise their authority as teachers of faith and morals in an exemplary manner by giving due consideration to the concerns Father McKenna and the Canon Law Society of America raise. Then when they take action, the Gospel will truly be proclaimed.