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Comments on “The Charter and Norms Two Years Later

1/17/05

A Statement of Opus Bono Sacerdotii

Comments on “The Charter and Norms Two Years Later:

Toward a Resolution of Recent Canonical Dilemmas”

by Msgr.  Ronny Jenkins

(Presentation to the convention of the Canon Law Society of America,

 Pittsburgh, PA, October 12, 2004; printed in Origins, pp. 349-359.)

Overall reaction

Msgr. Jenkins’s presentation puts the best face possible on the Charter and the Norms. He acknowledges the trenchant criticisms of Cardinal Avery Dulles and others. While recognizing many valid concerns, Jenkins raises related aspects which also need to be considered.

OBS considers it to be extremely important to note that Msgr. Jenkins agrees with Cardinal Dulles that the Charter and the Norms cannot be applied retroactively. This means (1)  that actions which were not delicts when committed cannot be treated as delicts because of a later change in the law; and (2) that the “zero tolerance” provisions of the Charter and the Norms cannot be applied retroactively, because  the law more favorable to the accused is to be applied.

Presumption of Innocence

Msgr. Jenkins correctly points out that the Code does not explicitly state that there is a presumption of innocence; although he concedes that it is implied in the law. For instance, canon 1526 §1 says: “The burden of proof rests upon the person who makes the allegation.”

It is unfortunate that Jenkins’s exposition on this point may give the incorrect impression that in canon law one does not enjoy the presumption of innocence.   Indeed, Jenkins points out that in canon law one enjoys the presumption of a good reputation (c. 220), which is an even broader presumption than the presumption of innocence.   In an article Jenkins wrote on   “Defamation of Character” (Studia Canonica, vol 36/2, 2002), he says:

“A person who is otherwise unknown to the public is still presumed to have a good reputation and certainly the right to one. [Here Jenkins says in a footnote: “There are many instances in the Code where the law requires that a person possess a good reputation as a prerequisite to holding an office or fulfilling some other function (e.g., cc. 1048, 1361 §3, 1455, 1548, 1717"]

“In certain cases a person might not only enjoy a good reputation but the reputation he or she enjoys might actually be held in esteem by the public. When this happens the person is said to enjoy an honorable reputation; that is, a reputation publicly acknowledged as good.... The more publicly known a person’s good reputation is, the more serious the act of defamation will be that harms it...”

Jenkins’s attempt to explain the effect of an acquittal could be misleading. He points out that


when an accused is proven innocent, this is to be declared by the court (c. 1726: “If at any grade and stage of the penal trial it is evidently established that the accused did not commit the delict, the judge must declare this in a sentence and absolve the accused even if it is also established that criminal action has been extinguished.”).   This type of declaration is distinguished from an acquittal, which means that the accused has not been proven guilty with moral certitude.

So far, so good. However, Jenkins says that even when an accused is declared innocent of an accusation of sexual abuse of a child, that only means that he is innocent of the crime alleged but “not that the defendant has never committed an act of abuse against the alleged victim or any other minor.”  This is true, but misleading and could imply that the accused is still under suspicion.  No court could declare a person innocent of a crime of which the person has not been accused. That is why there is a presumption of innocence and a presumption of a good reputation. Jenkins’s point illustrates the virtual impossibility of restoring the reputation of a cleric who has been publicly accused of the sexual abuse of a minor.

It is also unfortunate that Jenkins implies that it is legitimate to infer that an accused cleric is guilty or has something to hide if he declines to participate in the investigation of an allegation beyond denying the accusation. It could well be that the cleric has been advised not to make any statements because they could be used in secular criminal or civil proceedings. Also, the accused may have been advised that the investigation is proceeding illegitimately. 

The common good and individual rights

Msgr. Jenkins defends the use of canon 223 §2 to justify a bishop imposing nonpenal administrative restrictions on a cleric’s ministry, in view of the common good, even where the cleric has not been found guilty of the sexual abuse of a child.  Jenkins gives as an example the situation in which an allegation is made of the sexual abuse of a minor by a cleric and the resolution is inconclusive. Jenkins says that in this case, the bishop could restrict the cleric’s ministry with access to minors.  Jenkins also says that the bishop should act in a fair and equitable manner.

Canonically, what Jenkins asserts is true. However, in practice, canon 223 §2 is misused by bishops to restrict a cleric from all public ministry when an allegation cannot be disproved.  As it is being applied in the U.S., this is not moderating the rights of the clergy, but denying them without due process. These are penalties in everything but name.

The Definition of Sexual Abuse

Msgr. Jenkins defends the appropriateness of the broad norm for sexual abuse which appears in the Charter and the Essential Norms. However, the appropriateness of a definition of sexual abuse must be considered in light of the one-size-fits-all penalty provided for in the Charter and the Essential Norms. In other words, a broader definition of sexual abuse, as provided in canon 1395 §2, is appropriate when the judge can consider all of the facts and circumstances and determine an appropriate and proportionate penalty. If, however, the Charter and the Norms are to retain a one-size-fits-all penalty for sexual abuse, then the definition of sexual abuse must be more carefully circumscribed.

Jenkins recognizes that such a broad norm is open to ambiguity. He mentions two safeguards: the necessity of moral certitude and the possibility of appeal. However, recent experience shows these to be rights devoid of content.

Principle of Proportionality and Zero Tolerance

Msgr. Jenkins defends the “one-size-fits-all” approach of the Charter and the norms, citing canon 1315 §3 which allows for particular law to make determinate a penalty which is indeterminate in the universal law.  Jenkins might also have mentioned canon 1317 which says, in part: “Particular law, however, cannot establish a penalty of dismissal from the clerical state.”

In defense of zero tolerance, Jenkins cites canon 694 §1 which provides for automatic dismissal of a religious who defects from the faith or attempts marriage. However, dismissal from religious life is not as severe a penalty as  dismissal from the priesthood. Archbishop Milengo defected from the faith and attempted marriage; yet he repented and was fully restored to his episcopal dignity.  Had he been a religious, one might assume that he could have been restored to his membership in the religious institute as well.

Jenkins rightly points out that the “zero tolerance” stance of Norm 8 is subject to canon 1344 which provides that a judge can moderate a sentence.. However, the effect of this mitigation can be vitiated by Norm 9, which provides that the bishop can still use his executive power of governance to remove an offending priest from all public ministry.

Jenkins also points out that the bishop can dispense from the rigors of the one-size-fits-all policy. However, in today’s reality, it would take extraordinary courage to do so.

Retroactivity of Law

Msgr. Jenkins concedes that the Essential Norms cannot be applied retroactively. Canon 1313 §1 says: “If a law is changed after a delict has been committed, the law more favorable to the accused is to be applied.”   He also cautions against using the “executive power of governance” as a “backdoor way to the imposition of penalties.”

The importance of this cannot be emphasized enough: zero tolerance cannot be imposed on past misconduct. If the bishops were to acknowledge this point, they could solve a lot of the difficult cases in which there was some misconduct in the distant past and since then the priest has provided decades of exemplary priestly ministry. In these cases, the bishop might limit the priest’s ministry to children but he could not forbid all exercise of priestly ministry.

Prescription 

The Revised Norms (Norm 8A) indicate: “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 dispensation from the prescription, while indicating appropriate pastoral reasons.”

Msgr. Jenkins acknowledges the importance of prescription and defends its derogation only in exceptional cases. Recent actions of the Holy See indicate a  reluctance to derogate from prescription. Moreover, Ladislas Orsy has written that prescription creates an acquired right not to be charged with a crime and that it makes no sense, canonically, to derogate from rights.

Jenkins say that where prescription has run, the accused is deprived of a means of vindication against an accusation and “as a consequence the only one who might be content with prescription could be the true perpetrator who fears imposition of a penalty.” This is dangerous reasoning. It implies that unless an accused is willing to waive prescription he is probably guilty. However, among the reasons for prescription are that with the passage of time the possibility of erroneous conviction is increased because memories fade, witnesses die and physical evidence cannot be obtained.

Bishop Gregory stated in his July 30, 2004 letter to the U.S. bishops that even where an action is barred by prescription, a bishop is free to employ the administrative non-penal measures of canon 223 §2 to restrict the ministry of an accused priest. This approach can render the rights acquired by prescription meaningless. It might be the case that a bishop could legitimately decide to appoint an accused priest to a position not involving the care of children, but to remove him from all ministry is something entirely different.

One of the chief reasons for prescription is that after a long period of time it is virtually impossible to have a fair trial. The factors which militate against a fair trial apply a fortiori to administrative judgments by the bishop, especially an administrative decision to remove a priest from all ministry.

Oversight, Therapy and the Prospect of Reinstatement

Msgr. Jenkins expresses the opinion that any risk of recidivism is too great and says: “Perhaps the standard should remain that no public ministry will occur, although the facts in a given case can allow for the rarest of exceptions.”   To this one could make several objections. One is that the broad range of misconduct covered by the Essential Norms includes not only behavior that is compulsive and psychologically aberrant, but behavior that would not fall within any category of aberrant behavior according to the DSM-IV (Diagnostic and Statistical Manual). 

Another response is that the exercise of ministry doesn’t have to be all-or-nothing. A priest could be allowed to exercise public ministry, but restricted from ministering to children.

Confidentiality

Msgr. Jenkins gives an example which incorrectly implies that the Roman Rota would have the right to demand that a bishop turn over to them the personnel files of all of the priests of the diocese. Such an action is without precedent and it is difficult to believe that this would be upheld on appeal.

The problem of confidentiality  is exemplified in the recent agreement of the Diocese of Orange to voluntarily make public all of their clergy personnel records not protected by law.

Settlements

In regard to diocesan announcements of settlement agreements, Msgr. Jenkins holds that a statement that the settlement is not an admission of guilt or liability is appropriate only where the accused has actively maintained his innocence. Jenkins seems to be begrudging in protecting a priest’s reputation (which c. 384 requires the bishop to do). A statement that a settlement is not an admission of guilt or liability is usually true as a matter of fact. Beyond that, it would be inappropriate for the diocese to remark on the response of the accused. If they do so in some cases, their failure to do so in other cases will be noted. It is quite possible that the response of the accused may be complicated, i.e, the cleric may admit to some errors of judgment but deny sexual abuse or he may admit some accusations and deny other accusations. In any event, the response of the cleric in a confidential church proceeding should remain confidential even if the diocese enters into a settlement agreement which is announced publicly.

Remuneration of Accused Priests

Msgr. Jenkins rightly maintains that “it would be advisable in my view for any revision of the charter and norms to contain a general norm that no priest is to suffer undue financial loss pending the outcome of an accusation.” 

Jenkins mentions several scenarios whereby priests may justly suffer a loss of income if they  have been found guilty of sexual abuse of a minor. However, he doesn’t address the problem of the priest who has not been found guilty of child sexual abuse, but whose ministry is nevertheless restricted  administratively by his bishop. In many of these cases, bishops are depriving these men of remuneration and forcing them into secular employment.

Jenkins urges advocates in these case to be constructive partners and not antagonists. That is always a good idea, but it often proves to be impossible when a bishop is unreasonable and unbending.

Access to Trial

Although not mentioned by Msgr. Jenkins, many canonists note that priests are denied canonical due process in that diocesan investigations, all too often, do not proceed according to the norm of law. Mistakes made at the initial stages of the process are very hard to correct later on.

[Jenkins’s other statements on prescription are addressed above.]

Virtual Laicization and Laicization

Msgr. Jenkins acknowledges the problems in this area without taking any position.

Offenses Beyond the Norms’ Scope

Msgr. Jenkins acknowledges the problem of “charter creep” whereby the Charter is broadly interpreted, rather than strictly interpreted as required by law.

Universal legislation

 Msgr. Jenkins finds merit in Cardinal Dulles’s desire for universal legislation. Jenkins mentions the possibility of establishing the sexual abuse of a minor as an irregularity for the reception and exercise of orders; but, he rightly points out: “Before this were to occur, however, precision as to what constitutes sexual abuse of a minor would have to be addressed.”

Conclusion

It would be a misunderstanding to think that Msgr. Jenkins’s presentation is a refutation of the criticisms of Cardinal Dulles or that it is a definitive defense of the Charter and the Norm. It is neither.   It is an erudite contribution to the dialogue and debate about the Charter and the Norms. One would hope that in revising the Charter and the Norms the U.S. bishops will pay close attention to the canonical concerns expressed by Msgr. Jenkins, Cardinal Dulles, and numerous experts.