Even faced with clergy sexual abuse, the church must still focus on saving souls

By Jane Adolphe 

Legal Times 

For weeks now, the media have been reporting variations of the same theme: sex, lies and Roman collars. Talk of "stonewalling chanceries" and "church cover-ups" illustrates the rather simplistic view that Americans are getting of the issue -- and of the Roman Catholic Church. Before condemning the church for its "mishandling" of a disease that is eating away at the body of the faithful (priests and victims alike), we should understand that the church has always preferred holistic medicine to the radical intervention of chemotherapy and radiation. In other words, the church does not impose penalties until instructions, suggestions, exhortations, and other less interventionist means have been exhausted. On June 13 to 15, the U.S. bishops of the Roman Catholic Church will gather in Dallas to address the problem of clergy sexual abuse. Whatever decisions the bishops make, we must recognize that they are not making them for just another institution, one that is governed by the norms of the secular world. The church, as it understands itself, was founded by Jesus Christ and is a complex, invisible, and visible reality, a spiritual union of the faithful around the world, a supernatural organism extending across territorial boundaries and political communities. It is also a human institution with an external structure and a formal legal system for the governance of public life. The ultimate goal of the church is the salvation of souls. Salvation of souls, states Canon 175, "must always be the supreme law." For thisreason, bishops -- the shepherds of the church -- must earnestly attempt to settle disputes peacefully, for the good of the wrongdoer, the victim, and the entire flock. Not only must justice be respected, but also equity must be observed. The spirit of the Gospel must permeate the resolution of particular problems. That means that all pastoral efforts must be exhausted before there is any resort to judicial or administrative procedures. Trials are to be avoided in favor of discussion, conciliation, mediation, negotiation, and arbitration. This is not to say that the church has no juridical measures for dealing with priestly offenses. In fact, justice requires that it not ignore accusations of misbehavior, and thus the church has an elaborate system of canon law. Canon Law The governing scheme of the church is called canon law (ius canonicum), a fundamental legislative system of rules and norms that describe the basic hierarchical and organizational structure, including offices, sacraments, rights, duties, offenses, judicial and administrative procedures, and penalties. This is separate and distinct from doctrine and dogma, which are found in various documents that set forth official church teachings, e.g., Ecumenical Council decrees, encyclical and apostolic letters, and so forth. The canon law of the church is founded on sacred scripture, teachings of the Ecumenical Councils, writings of the church fathers, natural law, custom, papal letters and decrees, pastoral judgments, rules of bishops and religious orders, accepted principles of civil law, and concordats (agreements between the Holy See and nation states). Collected together in the 12th century, codified in 1917, and revised in 1983, canon law is no Johnny-come-lately. It was preceded by the Justinian Code, but in many important aspects provided the basis for European civil and common law, including marriage, trusts, and -- yes -- criminal law. Canon law provides judicial and administrative procedures to resolve disputes and questions. Trials are employed to pursue or vindicate rights, declare juridical facts, or impose penalties. Before any action is taken, a preliminary investigation ascertains the facts, such as juridical Imputability and mitigating and aggravating circumstances. The bishop then decides whether to take punitive action and, if so, whether to proceed by way of judicial or administrative procedures. The accused has the right to be heard, to be represented by canonical counsel, and to challenge the judgment. A number of offenses committed by priests can lead to penalties, including offenses against chastity with a minor. There are four major types of penalties: penal remedies imposed to prevent an offense by those in proximate occasion of committing one (i.e., admonition, rebuke); penances that substitute for, or come in addition to, any other penalties (i.e., retreat, fasting, act of charity); expiatory penalties to atone for an offense (i.e., deprivation of offices, prohibition from living in a certain place); and censures aimed at the conversion of the guilty person (i.e., suspension, excommunication). Penalties are usually imposed after a judgment or decree, but some occur automatically by the very fact of an offense having been committed or by the fact of direct cooperation with a certain offense (i.e., heresy, apostasy, schism, procured abortion). In addition, there are canons that provide for an injured party to bring an action for damages. Several fundamental principles guide the entire system of canon law. First, the alleged offender is presumed innocent until proven guilty, and any information gathered during the investigation that proves to be irrelevant to the matter is not made public. This derives from Canon 220: "No one may unlawfully harm the good reputation which a person enjoys." Second, the principles that certain procedures must be followed and that there should be no crime or punishment that is not stated in the law flow from Canon 221 §3: "The Christian faithful have the right not to be punished with canonical penalties except in accordance with the norm of law." Third, only in cases of last resort are judicial or administrative procedures to be commenced and only where the bishop "perceives that neither [by] fraternal correction or reproof, nor any methods of pastoral care, can the scandal be sufficiently repaired, justice restored and the offender reformed" (Canon 1341). Again, we must remember that the church is not just another secular institution; priests are not just employees; parishioners are not just customers. The church is a family of believers, and the bishop cultivates a relationship with his priests much like that of a father with his sons. Thus, the pastoral treatment of a sexual offender in the church is not unlike that of a father who learns of a crime committed by one of his children against another of his children. He would naturally and rightly attempt to handle the matter privately and confidentially by ensuring that both the offending child and the harmed child receive appropriate care and counseling, in addition to any financial compensation between them. Bear in mind that under U.S. law, no person or corporation is prohibited from settling the civil implications of any crime. It happens every day. Ensuring that a civil settlement is confidential is not the same as making an agreement that prohibits the victim from pursuing criminal prosecution, which is clearly against the law. In addition, barring a specific statute that legally obliges a clergyman to report a crime, a bishop would be committing no offense (at common law) in keeping quiet since, in most jurisdictions, misprision (the failure to report or disclose) has traditionally applied only to the offense of treason. And prior to the rash of recent abuse cases, statutes that legally oblige persons to report child neglect or abuse generally applied to doctors, teachers, and social workers, but not private individuals or clergymen. When pastoral efforts fail, the church has penal procedures available to try an accused for sexual abuse of minors, find him culpable, punish him (i.e., dismiss him), and award compensation to the victims. It is the bishop who must decide when pastoral efforts have failed. In the extraordinary meeting of the cardinals held in Rome this April, the Holy Father asked that special procedures be developed that would, in effect, assist the bishops by limiting their discretion. However, as in the aftermath of Sept. 11, one should expect such measures to raise concerns about due process and the rights of the accused. While pastoral efforts may have been employed to an extreme with certain priests, one can only hope that anger at the acts of some will not swing the pendulum too far in the other direction. 

Jane Adolphe is an assistant professor of law at Ave Maria School of Law in Ann Arbor, Mich. Adolphe holds a doctorate in canon law from the Pontificia Università della Santa Croce in Rome.