The Pillar [Washington DC]
September 13, 2023
By The Pillar
The bishops of Switzerland continue to wrestle with a crisis, triggered by the publication of a landmark independent report on clerical sexual abuse.
Six bishops – four in ministry and two retired – now face allegations of mishandling or covering up cases of abuse, while a Swiss newspaper alleged an unnamed member of the bishops’ conference had sexually harassed a young person.
In response, Bishop Joseph Bonnemain of Chur has been tasked by the Vatican with investigating the situation in Switzerland, and compiling his own report, to be sent to the Dicastery for Bishops, which will inform any subsequent canonical action against local bishops.
“The Church regulation to destroy files will be repealed,” the bishop announced, saying that all dioceses and Church organizations will be required to sign a “voluntary” undertaking not to purge files relating to abuse allegations.
The “Church regulation” Bonnemain referenced is a provision of the Code of Canon Law concerning the confidential archives of dioceses. It mandates the destruction of files related to penal cases on moral matters after a certain period of time.
But what does the Church’s law actually say, and why would canon law require dioceses to destroy records of abuse cases?
The Pillar explains.
Canon 489 of the Code of Canon Law states that “Every year documents of criminal cases in matters of morals, in which the accused parties have died or 10 years have elapsed from the condemnatory sentence, are to be destroyed.”
“A brief summary of what occurred along with the text of the definitive sentence is to be retained,” according to the canon.
The canon is sometimes assumed to be the Church’s institutional attempt to shield itself from civil legal liability or from the subpoenas of prosecutors or survivors filing litigation against the Church.
But while the current canon was promulgated in 1983, along with the entire current Code of Canon Law, the same norm has existed for much longer.
The Church’s requirement of shredding penal case files was present in the 1917 canonical code, well before clerical abuse scandals, states’ attorneys general investigations, and class-action lawsuits by victim-survivors had become a tragically ordinary part of diocesan life in many places.
At the time of its inclusion in the 1917 Code of Canon Law, the regulation was understood by canonical commentators to have two primary purposes: safeguarding reputations, especially of the dead, and avoiding the accumulation of reems of unnecessary paper.
The latter point, in the era before digitization, was a real concern.
A full judicial procedure can produce hundreds of pages of documents, statements, notes and evidence. Retaining all that paperwork for centuries worth of cases presented real challenges.
The problem of maintaining enormous case files extends beyond penal matters, too. The Church’s supreme canonical court, the Apostolic Signatura, also authorizes marriage nullity case files to be purged after a time period has passed.
The given time limit in penal cases, 10 years or after the death of the defendant, isn’t arbitrary. It reflects the point after which a penal sentence could no longer be appealed, or for the canonical statute of limitations to run, so there would be no legal reason (within the Church’s canonical system) to need the full case file in future.
Diocesan archives are required to preserve, and then purge, the notes, evidence, and conclusions of investigations into allegations against clerics which do not go forward or are found to be unproven. As part of wrongfully accused clerics’ right to a good name, the Church is not supposed to preserve in perpetuity all the details of a false accusation made against them.
But the regulation doesn’t mean that canonical crimes are simply thrown into the memory hole after a decade — in cases leading to a conviction, permanent records are kept in the archive, though only a summary of the full case file along with the final sentence, which includes the reasons for conviction, and the details of the crimes committed.
It’s also worth remembering, when talking about safeguarding reputations, that penal case files include information pertaining to many different people involved in the investigation and trial, not just those of the accused cleric. This includes witnesses who came forward during the process, and the identity and circumstances of victims, all of whom have a right to their good reputations.
After the clerical abuse scandals of previous decades, many state jurisdictions have opened windows in both the civil and criminal statutes of limitations, allowing survivors of abuse to file lawsuits and criminal charges against individuals and institutions for crimes dating back decades.
Those “lookback windows,” along with the publication of lists of “credibly accused” clerics in many dioceses, have highlighted the difficulty of obtaining evidence for cases from decades past.
That, in turn, has generated criticism of the Church’s record-keeping practices in some places for failing to keep full records of past accusations and investigations which could have been used to help survivors seek justice.
Some of that criticism is merited, though not always because of document retention policies set by canon law.
Canon law presumes that the confidential files referenced in canon 489 represent closed cases which have been dealt with in accord with the norm of law.
In many dioceses during the worst decades of the sexual abuse crisis, especially the 1970s and 1980s, accusations of sexual abuse were received, in some cases proven, and in many even admitted to by the abusive cleric.
But, instead of proceeding with a canonical penal process and imposing penalties as the law required, bishops often treated crimes of clerical abuse as moral lapses to be answered either with pastoral correction or psychological treatment before returning the priest to ministry, where they often reoffended.
Records of such cases were kept in diocesan confidential archives, and in some places destroyed after the death of the accused or the lapsing of 10 or more years. But those cases weren’t, as the law envisaged, records of credible judicial cases and outcomes. Rather, they were records of what today is widely recognized as episcopal negligence.
The destruction of those files, then, might be better seen as the destruction of the evidence of a crime — or even crimes — of abuse by a cleric and negligence by a bishop. That itself is a crime in canon law, the provisions of canon 489 notwithstanding.
Bishop Bonnemain’s announcement — to effectively suspend the requirements of canon 489 on destroying past records — might appear like a necessary but bold decision, to say that he and the other Swiss bishops will effectively ignore canon law in future, albeit for an important reason.
In fact, Bonnemain made it clear this policy would be adopted on a diocese-by-diocese basis in a kind of national collective action. And, the voluntary-compulsory nature of the plan to one side, diocesan bishops actually have the power to dispense from the legal requirement to destroy their old case files — and they always have.
Diocesan bishops have, as a general legal principle recognized in the Code of Canon law, the power to dispense from any universal norm not explicitly reserved to the Holy See and, since canon 489 isn’t a law specifically reserved, this includes the instruction to purge old case files.
Given that, you might wonder why dioceses everywhere haven’t made similar announcements already, ordering the preservation of historical case files.
Well, many dioceses in the United States have adopted in recent decades exacting records retention policies, which aim to draw both from canonical regulations and from best practices in corporate, nonprofit, and even government record-keeping, while at the same time keeping a clear schedule for the purging of old records.
Those policies serve two purposes: they help dioceses get a handle on the voluminous amount of paper that ends up in their files, and they leave dioceses prepared to explain to judges in litigation or bankruptcy cases that every piece of paper has been accounted for according to a consistent and predetermined policy, thus mitigating the prospect for cover-ups, or the arbitrary destruction of incriminating records.
In the immediate fallout of a scandal like that facing the Swiss bishops, or in the midst of litigation windows in the statute of limitations, it’s easy to see why many people — including and especially survivors of abuse — would welcome Bishop Bonnemain’s announcement to effectively repeal the canonical norm on destroying old case files.
On the other hand, Bonnemain’s policy of keeping all records pertaining to accusations of abuse will likely prove a temporary measure, at least in the long run. While it is important for justice to keep records of final sentences of criminals and to preserve a memory of what survivors have had to endure, preserving every file forever could prove unworkable, even with advances in technology.
Survivors and advocates might reasonably and compellingly call for records to be preserved until, for example, the death of the alleged victim, instead of the accused cleric, or even a much longer time period than a decade – 50 years or even a century. But preserving every page from every file forever is simply not practical for a Church that has lasted 2,000 years and could last at least as long again.
In the meantime, there will always be some kind of policy for which records should be kept and for how long.