Answering the Unspeakable

The Clergy Sex Abuse Crisis and the Legal Responsesby James T. O'Reilly

Oxford University Press. 472p $95

James T. O’Reilly is an attorney and a much published author of legal handbooks. He was president of the Cincinnati archdiocesan pastoral council when Joseph Bernardin was archbishop. Margaret S. P. Chalmers is a canon lawyer who is chancellor of the personal ordinariate of the Chair of St. Peter, the special arrangement put in place by Pope Benedict XVI for Episcopalians wanting to come across to Rome. They describe themselves as two explorers who entered the same large old attic by opposite stairs, armed only with a flashlight each. The attic includes those dark corners of the Catholic Church in the United States where clergy sex abuse has been perpetrated, hidden, litigated, ultimately admitted and exposed to the light of day. The first 18 chapters of The Clergy Sex Abuse Crisis and the Legal Responses are the findings from the O’Reilly civil law torchlight. The last 11 chapters are from the Chalmers canon law light.

The increasing revelations of abuse in the church in other countries motivated them to assemble a readable yet authoritative text. Dealing with child sexual abuse in the church is tragically still a work in progress. “There is much to be learned from the many mistakes made by the US bishops.” Rightly espousing zero tolerance, they take no satisfaction in the John Jay College Report, which found “that only 4 percent of priests had been accused of sexual misconduct. But this is not a matter of pride, but instead like a fire department whose members include 4 percent arsonists.” They highlight the damage done by the 1997 letter from the Congregation for the Clergy to the Irish bishops urging that they not report abuse to police but rather channel complaints through church channels. When the Congregation for the Doctrine of the Faith (C.D.F.) took over, this advice was reversed, but not before great damage was done to the church’s credibility.

The Clergy Sex Abuse Crisis is a comprehensive handbook for anyone contemplating action against the church or for those wanting to understand the complexities of the civil and canon law. The steps in criminal prosecution and civil litigation are carefully spelled out. The lay reader is given an accessible understanding of legal concepts like respondeat superior, vicarious liability, the statute of limitations and bankruptcy. Ten of the 195 dioceses in the United States have now filed for bankruptcy and are requiring an accounting of all assets and contingent liabilities, being “called upon to ‘give ‘til it hurts’” in the disposal of available land or other assets.” Since 1987, insurance companies have become increasingly restrictive, refusing to offer coverage for abuse and for failure to adequately screen, train or monitor clergy. This has resulted in “over 60 dioceses and church entities that have entered the Catholic Mutual risk pool program.”

There is still no legal certainty about the extent of any Vatican liability for failure by bishops to adequately supervise their priests nor about the extent, if any, to which parish assets can be accessed to satisfy diocesan debts. If the C.D.F. were to order the reinstatement of a priest who later abused a child, the plaintiff might succeed in reaching the deep pockets of the Vatican despite the provisions of the Foreign Sovereign Immunities Act.

The authors think that the false and later recanted accusation of abuse made against Cardinal Bernardin in 1993 “gave the erroneous impression that many of the accusations being made were actually false. This gave bishops a false sense of security that came back to haunt them in 2002.” Meanwhile in Rome, curial officials were slow to respond because the sex abuse scandal was seen as “a crisis brought on by greedy American lawyers looking to tarnish the good name of the Church.” The 2004 norms promulgated by the United States Conference of Catholic Bishops were not replicated in Rome until 2011, when the C.D.F. published a “circular letter to assist episcopal conferences in developing guidelines for dealing with cases of sexual abuses of minors perpetrated by clerics.”

The authors rightly credit Joseph Ratzinger with having “got it” once he saw the abuse files coming across his desk at the C.D.F. when they were redirected there from the Congregation for Clergy in 2001. O’Reilly and Chalmers state that “[i]t was his perseverance that forced the international church to come to terms with this issue within their individual contexts, and to realize that that was and is not simply an American problem.” All churches are still on a learning curve. The authors are right to suggest, “It is likely that the challenge facing Pope Francis on the issue of the sexual abuse of minors may not stem from the Western world at all, but will be the result of a growing awareness of this problem in other parts of the world.”

The authors explain that in the 1960s “bishops’ handling of the sexual abuse of minors moved from a punitive process to almost exclusively a ‘pastoral approach’—at least in dealing with accused priests.” The Holy Office (the C.D.F.’s predecessor) had issued a revised protocol for dealing with abuse from the 1920s, but it was not promulgated and published in the usual way, and copies were sent to bishops only on request. Then with the publication of the 1983 Code of Canon Law, the C.D.F. “removed the administrative option for a bishop to laicize a priest without the priest’s participation.” This occurred at the very time that bishops were starting to be deluged with abuse claims; their need “to have an efficient way to laicize priests became acute.” An abusing priest could be dismissed involuntarily only after a canonical penal trial, which prior to 2002 required three priests with doctorates in canon law and preferably from an outside diocese. The process was “clunky, vague and inefficient.” The authors tell us that “it was not an exaggeration to say that no one had used” these processes.

Chapters 25 to 27 provide a very thorough outline of the processes for a canonical trial under the norms now put in place since the 2002 Dallas meeting of the U.S.C.C.B. and the C.D.F.’s 2010 update of its 2001 document “Sacramentorum Sanctitatis Tutela.” The authors think this new canonical regime “has the potential to be viable and functional, and to produce just results” but subject to five enormous caveats. The regime needs to be reconciled with the civil legal system. Citizens, not just Catholics, need to understand the church system. Bishops need to know how it works. Bishops need competent canon lawyers with the time and resources to run canonical trials with judges properly trained in canon law. The community needs good grounds for setting aside its suspicion that the church is not committed to justice and transparency.

This is all a very big task. At the outset the authors acknowledge that, like Thomas Doyle and his colleagues, they might be accused of “a catalogue of sins—from arrogance, misunderstanding and disloyalty, to heresy.” Any such charges would be misplaced. They have done a painstaking, thorough job. Revolted by child sexual abuse by errant clergy, these faithful Catholic authors have compassionately held in focus “the tragic figures” in this appalling saga—the child victims and those priests who are innocent of any abuse.