Bishop Accountability

The Latest Revisions to the "Charter and Norms"

By Thomas Doyle, O.P., J.C.D.
November 5, 2002

1. The results of the special mixed committee of U.S. and Vatican bishops have been released to the public. These revised norms will now be placed before the Body of Bishops at their November meeting for debate and vote. This stage is the latest in the process initiated in June at the bishops’ Dallas meeting.

2. The document released is written in ecclesiastical language which will be difficult if not impossible for most people to totally comprehend. It uses canonical terms which are unfamiliar to most people in and outside the church. This is not unusual since most Vatican documents arrive written in such language and are passed through the U.S. Bishops conference on to the public. The churchmen whose lives are caught up in the ecclesiastical administrative world often forget that the vast majority on the outside do not understand the language much less the politics behind it.

3. The revisions are a response to voiced concerns for the due process of law which is a right guaranteed to all by the canonical system. In this case it is noteworthy that lay people and priests expressed serious concern for the lack of due process. However none of these same groups, including (for instance) the National Federation of Priests Councils, the Canon Law Society of America, various diocesan presbyteral senates, the Knights of Columbus and others ever made any public statements either in support of the victims/survivors of Catholic clergy sexual abuse nor did any speak out against the consistent lack of due process in relation to complaints filed by victims over the past several decades.

4. These norms, if approved by the Bishops at their November meeting, will become particular law for the Catholic dioceses in the United States. Particular legislation for the U.S. to combat this extremely serious problem, could have been taken 17 years ago when it was first recommended. At that time the Bishops’ Conference publicly stated that each diocese was independent and that the conference had no power to legislate for individual dioceses. It has been obviously disastrous to the church but especially to thousands of victims that the Bishops of this country waited so long to take the action they knew they could have resorted to when they were first clearly warned of the impending disaster many years ago. This being said, the fact that sexual abuse of such proportions had to be disclosed to the public before that degree of pressure prompted the bishops to begin to act, may well be indicative of the mediocre level of commitment to seeing that these norms are consistently fulfilled to the benefit of victims and survivors.

5. What the Norms Say

The norms are an amplification of the canons of the Code which are to be applied in cases of alleged commission of canonical crimes. The Code lays out the steps for a preliminary investigation of a report followed by the possibility of either administrative or judicial procedures if it appears that there is substance to the accusation. This means the following:

a. The bishop is mandated to see that a documented investigation is carried out into any report made to him from any source whether it is anonymous or not

b. The investigation is to be sensitive that reputations are not damaged but it is not a secret investigation.

c. If the bishop believes that the report has the semblance of credibility he then proceeds to the next step which is determining the innocence or guilt of the accused.

d. The bishop may choose to follow an administrative procedure which basically means that he can impose a limited penalty, with the accused having rights to an appeal process. This is a short procedure and does not involve any trial steps.

e. If the case is serious the bishop can hand it over the a tribunal of judges who will hear the case according to canonical procedures.

f. The only way that the penalty of permanent suspension or laicization can be imposed is by way of a judicial trial. The bishop cannot use an administrative procedure to impose such permanent penalties.

g. Either way, administrative or judicial (trial), the accused has a right of appeal that can extend to the Vatican.

The norms also amplify somewhat certain aspects of the regular procedural norms or canons found in the Code.

6. The norms contain several positive improvements:

a. The Preamble states that the penalties can include laicization. It also attempts to give a more detailed explanation or definition of sexual abuse. The problem is that in trying to define sex abuse the document uses a particular ecclesiastical term that is only confusing and open to further subjective interpretation: “Thus, the norm to be considered in assessing an allegation of sexual abuse of a minor is whether conduct or interaction with a minor qualifies as an external, objectively grave violation of the sixth Commandment A canonical offence against the sixth commandment of the Decalogue (c. 1395, §2) need not be a complete act of intercourse. Nor, to be objectively grave, does an act need to involve force, physical contact, or a discernible harmful outcome.” This is a bit clearer than before but the reference to the sixth commandment is too vague.

b. Full compliance is mandated.

c. Each diocese must have a person to coordinate pastoral care for victims and each diocese must have a review board. These measures are minimal but at least they are mentioned in the norms. Much more attention should have been given to the pastoral care of the victims. This is a glaring weakness in the overall charter and norms. The attention is drawn to the rights of the accused and the care of victims seems to be almost a passing concern. The Vatican could have signaled a return to some minimal measure of episcopal integrity by mandating that individual bishops extend personal and individual pastoral care to victims.

d. The eighth norm repeats the assurance that clerics who are proven to be offenders, even single offenders, will be removed from ministry.

e. The norms state that a cleric proven to have been an abuser will not be transferred from place to place or country to country. This norms almost seems superfluous but nevertheless is included as a stark reminder of the very actions that have been at the root of the overall problem.

7. Problem Areas

The norms contain several serious problem areas that will cause continued difficulties. These areas have been the subject of public criticism by SNAP, other victims and the press, and rightly so.

a. An overall serious problem is that the process remains totally controlled by the bishops. There is no room for any decisive participation by lay people. The bishops proved themselves incapable of dealing with the problem of sexual abuse for centuries. These norms return total control to them along with glaring loopholes that can possibly allow proven sexual offenders to either return to or continue in ministry. The loopholes allow for the continuation of the pathological secrecy that was so instrumental in destroying the bishops’ and credibility. In short, clericalism has prevailed and has the potential of being as destructive through these norms as it was in the previous state.

b. The Review Boards. The Vatican was fearful that the lay review boards would have even an appearance of power. Their (Vatican officials) primary concern was not the of the legal or spiritual welfare victims but the security of hierarchical power. The review boards are only consultative. The norms state that boards must be “at least five persons of outstanding integrity and good judgment in full communion with the Church.” By demanding that members be practicing Catholics the norms set up the real possibility that the members can be controlled by the bishop who appointed them and at whose pleasure they serve. Thus the norms have effectively neutralized any possibility that the review boards will be truly effective. Any that are will be so by exception and because the local bishop has the integrity of putting the notion of justice and pastoral sensitivity before the retention of power. There is no reason why members must be Catholics. This is not a doctrinal issue but a matter of criminal actions that are sanctioned in both civil and canon law. Religious adherence has nothing to do with determining the veracity of an offense.

c. The Congregation for the Doctrine of the Faith. Every case is to be initially referred to the CDF which will determine whether or not it will be processed on the local diocesan level or by the Vatican congregation. This is a most unfortunate restatement of the Vatican document that was issued last year. This means that the Vatican retains to power to control the process, to re-impose the shroud of pathological secrecy on cases and to apply its own procedural laws. Consistent past experiences with persons investigated by this congregation has shown that it has little respect for the rights of the accused. Its processes have been secretive, brutal and shown little evidence of having objective truth as their goal. This norm alone is highly problematic and should strike fear in the hearts of accused and survivors alike. Although U.S. bishops have stated that reservation of cases to the CDF would probably be rare, experience has taught that such assurances mean little if anything. The Vatican has clearly demonstrated its lack of concern for and sensitivity to victims and surviviors. It has also made it quite clear that there is a smoldering hostility towards the U.S. civil law demands for accountability and similar hostility towards the U.S. media. The Vatican appears to believe that the clergy and hierarchy are somehow above civil laws which is clearly not the case. Repeated statements by Vatican officials and other high ranking ecclesiastics makes it quite clear that they are primarily concerned about shoring up their power and not concerned about the massive devastation to victims by clergy abuse.

d. Prescription – The Statute of Limitations. “Prescription” refers to the statute of limitations which for the U.S. is 10 years past majority (18 yrs of age.) The norms re-instate the Statute for all cases but say that in some cases the local bishop can ask that it be waived or dispensed from: “If the case would otherwise be barred by prescription, because sexual abuse of a minor is a grave offense, the bishop/eparch shall apply to the Congregation for the Doctrine of the Faith for a derogation from the prescription, while indicating appropriate pastoral reasons.”
There are serious problems with this:
1. Canon Law demands that the official record of judicial criminal cases be kept for 10 years after a case has been finished or until the accused dies. The imposition of the Statute leaves the bishops a loophole whereby they can destroy any records of accusations or cases that are outside the statute.
2. The bishop retains control: he can decide subjectively whether or not to ask for a waiver from the Statute. There is no assurance that this provision would be followed with any degree of integrity. The bishops had control in the past and the process was consistently violated to their benefit and to the detriment of the victims. This norms allows for a continuation of such abuse.

e. Reporting Obligations. The revised norm significantly watered down the comparable norm proposed by the bishops: “The diocese/eparchy will comply with all applicable civil laws with respect to the reporting of allegations of sexual abuse of minors to civil authorities and will cooperate in their investigation.” The norms says that the civil laws that are applicable” will be complied with which means that this norm would apply only in those States that mandate the clergy as reporters of sexual or other forms of child abuse. In any case, sexual abuse of a person is a felony crime. The norm should have demanded that in all cases of alleged sexual abuse the matter be turned over to the civil law enforcement authorities. This norm reflects the Vatican officials’ skewed opinion that bishops not be obliged to report clerics who have engaged in criminal activity. One Vatican official alluded to a violation of the paternal relationship that exists between a priest and his bishop. This paternal relationship however, is no eschews to allow the destruction of souls through clergy sexual abuse.

f. Norm 9. Norm 9 is confusing and contradictory. In spite of the fact that the norms in general implicitly state that Canon Law, leading to an administrative or judicial process be followed, this norm refers to the bishop’s power to resolve a case using the administrative procedure. However even then, the bishop cannot impose a permanent suspension nor can he issue a decree of laicization. It is unclear if this norm has anything more than rhetorical purpose.

8. Summary
The revisions are mixed but on balance they appear to be a significant step backward in what many have hoped would be a gradual path toward hierarchical accountability. The process is almost totally clericalized. The lay review boards have no decisive power and the potential exists to completely neutralize them. The tribunal process, if followed, leaves room for the possibility of one lay judge to be appointed to a three judge tribunal to try a case.

The norms show no evidence that survivors were consulted for any meaningful input at any stage of the process. This is a crucial point. The survivors are aware as no other group is of the destructive effects of the traditional manner of handling abuse accusations. Their reflections, observations and critiques have been labeled as “subjective” by defenders of the clerical/hierarchical establishment and status quo. Yet this whole matter is about restoring justice and spiritual well-being to victims and survivors and ensuring that a similar travesty of justice not happen in the present or future. Yet the institutional church has, in spite of token appearances by and consultations with survivors, consistently eliminated them from any meaningful participation in this process.

The norms almost promise that there will be a continuation of the pathological secrecy that has been so instrumental in bring the institution to its knees. It is this secrecy that helps to destroy any hope of returning the U.S. and Vatican episcopacy to any semblance of credibility.

Most important, the norms sidestep consistent, objective and uniform justice for all by leaving open the possibility that clerics who have sexually abused in the past can continue to function and never be brought to justice simply because the offense happened years ago. The accused cleric may well have refrained from successive abuse and may have reformed his life BUT the victims continue to suffer the profound effects of abuse.

Most if not all professions have internal norms for professional conduct and processes whereby members who violate these norms are investigated and either exonerated or punished. Canon Law is not a “separate and above” legal system but a set of internal norms. Criminal behavior must be investigated by civil authorities. Church authorities lack both the professional competence to investigate complex issues such as sexual abuse but even more important, they have shown by past actions that they lack the integrity to carry out such investigations with accuracy and objectivity.

What will happen next? The Vatican and U.S. bishops may think that the approval of these norms at the November US Bishops’ meeting with bring closure to this phase of the sexual abuse problem. This is delusional. The process whereby the norms came into being and the norms themselves guarantee that the survivors, their supporters and lay people and concerned clergy in general will continue to demand credible accountability. As long as the issue remains heavily clericalized it will fall prey to the destructive force of clericalism. The bishops still have made no moves to look into their own responsibility for the entire debacle. The repeated apologies have nothing to do with an objective, probing and complete study of why the exercise of episcopal authority has allowed thousands of men and women in our church to have their bodies and souls raped and brutalized by clerics. Until this happens the matter will never be anything but an ever growing cancer in the universal church.

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