Unrestrained Authority: Secrecy’s Toxic Companion
By Charles M. Wilson
Downloaded January 4, 2004
The distinguished Italian canonist, Count Capponi, once said that our Lord entrusted the care of his most precious possession on this earth, his Church, to the care of us sinners and for two thousand years she has had to suffer the effects of human malice and human error. Count Capponi’s observation is especially relevant in view of the present difficulties confronting the Church. I might add that whenever men act foolishly or maliciously, they naturally seek to hide their follies and misdeeds from others and they do not hesitate to use whatever means are available to accomplish this end.
As we have seen in a special way over the last six months, the obsession with secrecy in the governance of the Church acts like a narcotic upon those who use it. It dulls the senses and, over time, it takes more and more of the substance to produce the same effect. A natural companion to this narcotic is the exercise of power — unrestrained by the objections of those who are governed by that power and unchecked by the intervention of external forces.
Most CHRISTIFIDELIS readers live in countries where the political structures generally respect the civil rights of their citizens and their legal systems provide some means of redress when these rights are violated. Even though our legal systems are by no means perfect, it is arguable that in general our civil rights are better protected by the state than our ecclesial rights are recognized and protected by the Church. At times this leads us to entertain the notion that the Church might be much better off if she would only incorporate within her own system of governance more elements of our secular political structures and legal systems. Whether this would really help the Church and assist her carrying out the mission given her by Christ is another question.
But we should remember that “Christ did not bequeath to the Church a mission in the political, economic or social order: the purpose he assigned to it was a religious one” (Second Vatican Council, Gaudium et spes, No. 42). History shows that the Church has often taken worthwhile customs and ways of thinking from the secular order and incorporated them into her own life. Nonetheless, this conciliar teaching reminds us that the Church need not always look to the institutions of the secular order as models of her own structure and mission.
In the midst of the pandemonium arising from the sexual abuse crisis, we hear voices urging reforms of one kind or another. Often based upon secular models, they include the direct election of the bishops by the faithful, a written “constitution” for the Church and the increased exercise of the power of governance by the laity. Whatever the merits of these demands might be, I would say that the present difficulties did not arise because the Church did not look enough like city hall or a discount store chain. We are in the mess we are in precisely because too many leaders of the Church acted too much like politicians or corporate executives, and not very good ones at that! It seems that certain fads and movements in the secular order rather than Divine Revelation, the constant teaching of the Church, Catholic custom and the examples of her saints guided their decisions.
THE SEX ABUSE CRISIS — JUST THE LATEST SYMPTOM
The thought of the sexual exploitation of just one child by anyone is appalling. That a Catholic priest who has received the power to celebrate the Eucharistic sacrifice and forgive sins in the name of Christ could perpetrate such an abomination is beyond words. Equally if not more blameworthy is the irresponsibility of the bishops, who time and again failed to intervene when they heard reports that their priests had dishonored their offices, betrayed the trust placed in them and violated the laws of God and man.
This is hardly surprising in view of past behavior. Over the last three decades, the U.S. and Canadian bishops have failed to act in many other areas. A host of schools, colleges, universities and health care facilities have lost their Catholic identity. The liturgy is in a state of anarchy. Catechetics are woefully inadequate. Dissident theology, homosexualism, feminism and moral relativism dominate many chanceries and seminaries. Parish churches look more like mere sheep sheds or Pizza Huts than places of worship; and the list goes on and on.
Granted, these are tough times for the Church, as well as for organized religion in general. Our bishops face challenges that are caused by worldly forces over which they have no control. Yet the Church in North America has faced difficulties like those mentioned above that our bishops could have done something about and, as far as I can see, they have not managed to deal meaningfully with any of them. With the exception of a few orthodox and courageous shepherds, the typical approach of diocesan bishops seems to be to look to the national episcopal conferences. This they do in spite of the fact that diocesan bishops have the power and resources that they need to deal with sexual abuse or with any problems such as those mentioned above. By contrast, national episcopal conferences have only limited legislative authority and have no executive power at all.
CAN. 381 §1. A diocesan bishop in the diocese entrusted to him has all ordinary, proper, and immediate power which is required for the exercise of his pastoral function except for cases which the law or a decree of the Supreme Pontiff reserves to the supreme authority or to another ecclesiastical authority.
The means of choosing bishops have varied over the past two thousand years. Still, the source of their power remains constant. For example, the College of Cardinals elects the Pope; but he does not receive his power from the members who voted for him. He receives his power from God so as to guide the faithful in the way of salvation and is accountable to no earthly authority. As we see from the writings of St. Ignatius of Antioch in the first century through the teaching of the Second Vatican Council in the twentieth, the same is true of diocesan bishops, subject to the reservation stated above in canon 381 and other provisions of law. In some matters the law may require the diocesan bishop to hear from or receive the consent of others before acting. Nonetheless, he exercises power personally, not simply as a vicar of the Pope.
Recent developments arising out of the Second Vatican Council have not changed the notion of the source of episcopal power. Indeed, the Council is noted for placing new emphasis on the status of dioceses and their bishops. At the same time, the Council introduced — or, more accurately, reintroduced — an ecclesiology that placed some restraints on the manner in which power was exercised. Duane Galles explained this in a brief he wrote in 1989.
It is true that in the past in the Roman Catholic Church public ecclesiastical authorities were not restrained in the exercise of discretion. In his own diocese a bishop was very much a "little pope,” and he could act as arbitrarily as Providence and nature permitted him. But Vatican II changed all that, and changed it fundamentally by replacing the old “power pyramid” ecclesiology which bore the heavy impress of the sociology of the feudal and baroque ages. Instead, Vatican II used an ecclesiology based on service. The Church is now no longer a power pyramid but a hierarchy of service.[Cf. Cormac Burke, Authority and Freedom in the Church (San Francisco, 1988), p. 25.]
If we translate this new Vatican II ecclesiology into juridical terms following the example of Sacrae disciplinae leges, the Apostolic Constitution of Pope John Paul II, we must see placed on public ecclesiastical authorities the duty to act in good faith. Since they are now required to act in good faith, the capricious exercise of raw power by them is no longer possible.
We see this “new way of thinking” of Vatican II enshrined in the law in several ways. In 1967 Pope Paul VI in his apostolic constitution, Regimini Ecclesiae Universae, created the second section of the Apostolic Signatura to enforce the rights of Christ’s faithful even against public ecclesiastical authorities. The new Code of Canon Law, in striking contrast to the 1917 Code, codifies the rights and duties of Christ’s faithful. But perhaps most important of all is c. 128 of the 1983 Code, which states: “Whoever illegitimately inflicts damage upon someone by a juridic act or by any other act placed with malice or negligence is obliged to repair the damage inflicted.”
In the sense that it renders efficacious the rights and remedies heretofore created in the post-Vatican II era, it is the capstone and palladium of the rights of the faithful. It requires that those who unlawfully harm another by a juridical act repair the loss. Canon 57 §3, moreover, provides that those who make a decree denying a favor prayed for are not relieved of damages created under canon 128. In short, the upshot is that arbitrary and capricious use of discretionary power is no longer acceptable under the 1983 Code. (SJF Case 89-1039.1)
Since 1989 we have found that, while it may not be acceptable, the arbitrary and capricious use of power remains common.
ABUSE OF POWER
CAN. 1389 §1. A person who abuses an ecclesiastical power or function is to be punished according to the gravity of the act or omission, not excluding privation of office, unless a law or precept has already established the penalty for this abuse.
§2. A person who through culpable negligence illegitimately places or omits an act of ecclesiastical power, ministry, or function with harm to another is to be punished with a just penalty.
History has recorded the deeds of saintly bishops and Popes who exercised their power with wisdom and justice for the salvation of souls. There were many others who did not achieve sanctity but were nonetheless exemplary in the conduct of their offices. There was also a number whose performance of office has ranged from satisfactory to mediocre. Regrettably, there were some, including even a few Popes, whose lives were far from edifying and who used their power unwisely or maliciously. This and the events of the last six months show once again that elevation to the episcopacy does not necessarily overcome human malice and human error.
It seems to me that the contemporary sexual abuse crisis is an illustration par excellence of offenses against c. 1389, §2, but the story of the abuse of power does not end there. In the nearly eighteen years since its incorporation, the Saint Joseph Foundation has handled approximately 2,000 cases. 1872 are in our database, which was set up in 1987 and provides an easy way of getting some idea of the types of abuses we have encountered.
Now just about every case involves abuse of one kind or another, but here we are interested in cases in which the abuse of episcopal power was the primary issue. I identified 799, or about 40 percent of all cases, where the allegation of abuse of episcopal power was the dominant issue. Of these, 415 were acts of commission and 384 were acts of omission. If one tiny organization can document this many examples of the abuse of episcopal power, the actual number must be staggering.
It would take volumes to document the extent of the problems. It makes little sense to try to convince CHRISTIFIDELIS readers that abuses exist. If you weren’t concerned about them, you wouldn’t be reading this article and I don’t mean to tell you what you already know. The question is what can we do about it?
FIRST THE SPIRITUAL, THEN THE PRACTICAL
Before looking at some steps that we have taken and plan to take, I hope you won’t mind if I put things in perspective by repeating the obvious. As Count Capponi said, our Lord entrusted the Church Militant to the care of men rather than angels. Therefore, we can no more hope to eliminate abuses within her than we can hope to eradicate sin. We are indeed obligated to strive for holiness and we must use the spiritual resources of the Church and the graces that flow therefrom to avoid sin and embrace virtue. We must pray and sacrifice that others do likewise. Nevertheless, we know that merely tinkering with procedures or with the Code of Canon Law will not produce lasting results. What will help is a growth in the fidelity of all Catholics, which will require an increase in courage, orthodoxy and goodness among the bishops. In other words, if we do not address the present crisis with spiritual means, then anything else we do is bound to be futile.
After putting spiritual things first, what can we do from a more earthly point of view? One suggestion comes from Fr. Benedict Groeschel, C.F.R. in his new book, From Scandal to Hope: “Talk, write, suggest, implore and if necessary withhold your donations” Now, in principle, I do not have any problem at all with this. It is simply following the law.
CAN. 212, §2. The Christian faithful are free to make known to the pastors of the Church their needs, especially spiritual ones, and their desires
What matters is how we do it.
All of us have done our share of suggesting and imploring, using both the spoken and written word. What is often forgotten is how the person to whom it is directed will perceive our speech or writing. Making our needs known to someone in authority in the Church is like a job interview. That is, the first impression is critical. A good one might not make sure that you will get the job, but a poor one will make sure that you don’t. The staff of the Saint Joseph Foundation has seen many reasonable requests and well-grounded petitions denied simple because the covering letter was too combative and self-righteous or too obsequious and defensive. In nearly all cases that we have seen, they are too long.
The same principles that we recommend in speaking and writing apply as well to withholding contributions. This can be a very effective way of getting a point across. On the other hand, it can backfire by encouraging the target to assume a “martyr” role and encourage “sympathy” contributions. Besides, it is difficult to avoid being cast as extortionists. The Foundation is now working with other organization to develop ways in which faithful Catholics can use their contributions effectively and positively.
THE FOUNDATION’S RESPONSE TO THE ABUSIVE EXERCISE OF POWER
The Saint Joseph Foundation exists to provide professional advice and assistance to any Catholic who believes his rights in the Church are threatened or have been violated. As I said earlier in this article, any violation of rights usually but not always involves some abuse of power. Even when a bishop is acting within his own rights, he may be doing so abusively. In the same brief quoted above, Duane Galles argued this way.
The language of canon 128 is very similar to the well-known 1382 of the French Civil Code. This article has given rise to the very well known doctrine of “abuse of rights,” which is known throughout the civil-law world. The great French jurist, M. Plainol, in Civil Law Treatise, held that an abusive act is an illicit act. Thus those who act abusively act unlawfully. If they harm another by such a juridical act, they are bound to repair the damage.(ibid.)
The current crisis over the sexual abuse of minors has had little direct impact on the Foundation’s work, other than some requests for assistance from priests who believe they are wrongly accused. The one indirect has been to call into question the obsession with secrecy. At the same time, I wonder if anyone seriously believes that all the talk about “transparency” and “openness” by bishops would exist if Judge Constance Sweeny had not ordered the release of documents by the archdiocese of Boston. Unfortunately, public scrutiny has since been focused only on the issue of sexual abuse. At the moment, there is no indication that this trend toward public disclosure will spread to other areas of the life of the Church.
Meanwhile, the work of the Foundation continues. We employ a number of approaches in assisting Catholics who experience actual or potential instances of the arbitrary or abusive exercise of ecclesiastical power. Among them are the following.
• Persuasion and argumentation — Even though it may seem futile, we usually counsel clients to make every effort to use informal means to try to persuade the authority in question to alter his course. This is for two reasons. First, as we have found in several cases over the past few months, it just might work. Second, if we have to resort to more formal processes, it is essential that we can prove that less formal means have been tried without success. We provide “hands-on” assistance in these cases and share what we have learned from years of practical experience and formal education. In some successful cases this required the preparation of very complex legal arguments.
• Appeal to higher authority in the Church — Intervention by higher authority is sometimes necessary to repair damage or prevent injury. The usual canonical process is called Administrative Recourse. Disputes arising from administrative acts cannot be brought before tribunals. Instead they must be appealed to the competent hierarchic superior. If the appeal involves allegations of a violation of law, then it is called a denunciation. In some exceptional instances it is possible to bring abuses before an ecclesiastical tribunal, usually the Roman Rota. The Foundation and its consulting canon lawyers can provide assistance in the preparation of any kind of appeal to higher authority.
• Appeal to external authority — In some cases, the law of the Church not only allows but encourages the resort to secular courts. These usually, involve such matters as property issues or enforcement of contracts. Since the mid 1980’s, though, we have seen a rash of appeals to civil courts to obtain remedies for alleged sexual misbehavior of Church employees and clergy, not excluding bishops. Lately, even grand juries are looking into possible criminal behavior by Church officials and indictments may follow.
The Foundation rarely recommends a resort to civil remedies, although there have been occasions when we have done so, sometimes with good results. Two members of our staff, Duane Galles and Mike Dunnigan, are also lawyers and they have provided some excellent advice. However, the Foundation does not provide representation in civil cases.
It goes without saying that the American bishops have just suffered a massive loss of credibility. Catholics across the theological spectrum agree that they have acted irresponsibly. If they had acted responsibly, we would not be living through this nightmare. If they started to act responsibly tomorrow, then we could start repairing the damage. The point that I have attempted to make here is that the same attitudes that have created the problems that the Foundation has been trying for years to resolve have contributed to the sexual abuse crisis. We hope and pray that in some way this crisis will prompt our bishops to reexamine their consciences in dealing with other matters. If this happens, at least some good may come out of it.
Saint Joseph, Patron of the Universal Church, pray for us.
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