Reader Response to Report on U.S. Bishops' Norms for Sexual Abuse
By John L. Allen Jr.
National Catholic Reporter [Rome]
Downloaded April 3, 2004
NOTE: Throughout 2004, the American bishops will be making their every-five-year ad limina vists to Rome. Pope John Paul II will speak to each group, and collectively these talks should reveal a great deal about the thinking of the pope and the Vatican with respect to the American Catholic church. The pope's first address, to the bishops of the provinces of Atlanta and Miami, took place this morning. Here is the full text in English: http://www.vatican.va/news_services/.
Last week I reported on a conference on canon law at Rome's Santa Croce University, where the U.S. bishops' norms for sexual abuse, and especially their 'zero tolerance' policy, came in for criticism.
As I noted, the norms aren't popular among canonists who believe they undercut procedural guarantees in the Code of Canon Law. Example: I ran into a prominent Italian church observer this week who called the American norms 'the Guantanamo Bay of the Catholic church.' He sees them as an ecclesiastical analogue to what the Bush administration is doing with Taliban and al-Qaeda prisoners in Cuba ' in his view, flouting due process standards.
On the other hand, the norms have their defenders, and I heard from several. One American close to the work on the charter and the norms, in fact, sent me a point-by-point response to the criticisms that surfaced at Santa Croce. Below I offer some excerpts, because they help set the terms of debate that no doubt will unfold between the Holy See and the U.S. bishops' conference between now and March 5, 2005, when the two-year approval for the norms expires.
- Some canonists at Santa Croce objected that by seeking to remove priests from ministry using administrative authority rather than a canonical trial, the American bishops are neglecting the due process rights of priests, something these canonists see as a matter of 'natural justice.' The commentator made two arguments: First, a full-blown trial may not be necessary if the priest is obviously guilty, in which case an abbreviated administrative process could do the trick; second, the demand for trials at all costs risks exalting the rights of priests over everybody else.
'Due process seems to be defined solely as the juridical procedures of canon law. ' While the church may currently demand a judicial forum in every instance, that doesn't mean another method cannot be just. ' Is a church trial really necessary for someone whose guilt has been amply demonstrated in a civil trial'
'I find it difficult to accept the rhetoric of natural justice applied to situations in which the natural rights of life and liberty are not in jeopardy, but only continuation in ministry, to which there is no natural right. ' When we apply conceptions of natural justice in this way, we seem to be protecting not the rights of all, but the rights of some.'
- Another complaint is that the American 'one-strike' policy does not make allowance for the rehabilitation of the offending priest. The expert said: 'The church wants to help the offender not to offend again. But does returning him to ministry actually do this' We wouldn't ask a recovering kleptomaniac to count the collection.'
- One of the most oft-heard complaints among canon lawyers is that the American bishops could have brought abuser priests to trial in the 1980s and '90s but didn't, in part because they didn't want to play the heavy, in part because it was just too much work. This expert, however, said that's not so.
'Most of the cases were not canonically prosecutable,' he said, 'either because the canonical five-year statute of limitations had passed or because of lack of imputability due to mental illness.' (That means the defendant lacked competence to stand trial.)
Moreover, the expert said, the American bishops had a legitimate fear of undertaking a costly procedure that might run afoul of Roman review. 'A trial could be a real crap-shoot,' he said. 'It's a lengthy process, and then [it might be] shot down in Rome on account of procedural errors.'
- One canon lawyer at Santa Croce charged that the Vatican's new rules on sex abuse trials do not give the defendant the right to confront his accusers, something that the American expert says is hardly a novelty: 'The world might be a better place if that were a 'cornerstone of judicial procedure,' but it has never been an absolute principle in church practice, as far as I can see,' he said.
- Another canonist complained that under new Vatican rules 'prescription,' or the statue of limitations in canon law, can be waived on a case-by-case basis for priests charged with sexual abuse. The canonist said this too violates the natural rights of the priest, an argument our expert wasn't buying.
'How is prescription an element of natural justice' It may be a wise and prudent measure, but it is a procedural norm that varies widely. For some crimes, in both civil and canon law, there is no prescription. ' Canon law is not an adversarial system, and its goal is to determine the truth. If truth and justice are not being done due to a procedural rule, then why shouldn't the rule yield''
- Finally, some canonists argued that church law envisions a fitting proportion between one's crime and the penalty. An automatic penalty such as permanent removal from ministry, they argued, is foreign to canonical tradition.
Not so, our expert said. 'What about automatic excommunications for various crimes' Isn't that 'zero tolerance' of certain behaviors'
'Let's be real here. Canon law doesn't deal in a wide variety of punishments, as does civil law with its numerous lengths of sentences, suspended sentences, community service and all the rest. ' Canon law often calls for 'a just penalty,' whatever that is. In this case, fundamentally it comes down to suspension or dismissal. One way to judge what is appropriate might be to ask whether such behavior would disqualify a candidate for the priesthood. If so (as I believe it would), why shouldn't it be disqualifying for continuation in ministry'?
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