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Due process for priests is a sham, critics say

By JOE FEUERHERD

Washington

Four years ago, an adult woman informed her local diocese that a recently ordained priest had groped her.

No criminal or civil charges were filed, but the initial investigation showed that the accusation was plausible -- that it could have happened, recalled Fr. Michael Sullivan, a Minneapolis-St. Paul priest and canon lawyer who previously served as judicial vicar in the Crookston, Minn., diocese.

The diocesan review board, said Sullivan, eventually determined that the accusation "was a trumped-up charge." The priest, said Sullivan, had "spurned her affections," informing her "that I'm a celibate and we're not going there."

Still, said Sullivan, the bishop rejected the review board's determination and did not allow the priest to return to public ministry. The priest has appealed the bishop's ruling, but the case, said Sullivan, is "swallowed up in Rome." The priest currently receives no pay or medical benefits from the diocese, said Sullivan.

The details differ from case to case, but it's a story Sullivan says he has heard countless times. Due process for priests accused of abuse, he says, is a sham.

Nearly five years after the U.S. bishops approved national policies to remove sexually abusive diocesan priests from public ministry, critics of the process say the system is broken -- shielding some abusers from the consequences of their actions while simultaneously failing to ensure the rights of the accused, who are presumed innocent under both church and criminal law.

As written, the procedures (called "canonical norms") approved by the Vatican in 2002 and promulgated by the bishops provide a seemingly fair-minded step-by-step process for bishops and the Vatican's Congregation for the Doctrine of the Faith to determine the credibility of an abuse accusation. The procedures also provide for measures to remove the offender from ministry if the charges are proved. The norms call on dioceses to establish written policies to deal with accusations against clergy and to report credible allegations to local law enforcement.

Under the procedures, a diocesan official designated by the bishop (typically the chancellor or vicar general) conducts an initial investigation to determine if an allegation is "credible" or "substantive."

"That level of being 'credible' is a low level of certainty," said Michael Ritty, a canon lawyer who has worked with accused priests on about 250 such cases over the past five years. "I have seen it as low as the priest happened to be in the [same] parish at the time this person made this allegation -- that it was geographically possible. That might have been the only proof [necessary] to go forward."

In fact, in many cases, the standard of judging credibility is even lower than that, said Sullivan, who chairs the board of Justice for Priests and Deacons, a seven-year-old organization whose 90 affiliated canon lawyers have assisted approximately 540 priests and deacons, the vast majority of whom face allegations of sexual abuse.

Presumption of guilt

"The assumption is that [the allegation] must be correct because nobody would [come forward] otherwise and therefore the priest ends up being perceived as guilty almost all the time because it is pretty difficult to prove you have not done something," said Sullivan. "So the presumption has switched from [the accused] being innocent to being guilty," said the priest. "I'm reminded of the Salem Witch Hunts."

Others dispute the idea that an accusation is tantamount to a guilty finding. Five years ago 90 percent of abuse allegations against priests were found to be credible, a number that is down to 40 percent today, Patricia O'Donnell Ewers, chair of the National Review Board established by the bishops to oversee implementation of diocesan child protection plans, told a parish gathering in North Naples, Fla., March 29.

In 2006, 630 "credible allegations" of sexual abuse by clerics against minors were reported, according to the 193 dioceses that responded to a Center for Applied Research in the Apostolate survey released earlier this month. The vast majority of cases reported relate to abuse that allegedly occurred prior to the 1990s.

"A total of 22 priests or deacons were returned to ministry in 2006, based on the resolution of an allegation made during or prior to 2006," CARA reported, while "156 priests or deacons (36 identified in 2006 and 120 identified before 2006) have been temporarily removed from ministry pending completion of an investigation."

A flawed process

If an allegation is deemed credible in the preliminary investigation, the case is then referred to the diocesan review board. Across the nation diocesan review boards are largely lay committees established as part of the 2002 reforms. Their job is to investigate, to gather evidence (through interviews and documentation) and to give the bishop their opinion as to whether the accusation is substantive. "The priest is supposed to receive canonical advice at this time and be able to review the charges against him so he can respond to them," said Sullivan, but he is instead frequently blind-sided, forbidden in some cases from even knowing the name of his accuser or the nature of the accusation.

"In multiple cases from around the country there are instances where the priest is asked to answer the question, 'Are you guilty or innocent?' and the priest doesn't even know the charge" because diocesan officials fear violating the privacy rights of the accuser, said Sullivan.

The review board then makes its recommendation to the bishop, who is free to accept it (which is substantially easier when the cleric acknowledges guilt), reject or modify the board's advice. If the bishop finds the accusation credible, he typically removes the priest from public ministry -- a fate nearly 1,000 priests have faced since 2002, according to studies conducted by the John Jay School of Criminal Justice.

Then the bishop, in a votem sent to the Congregation for the Doctrine of the Faith, urges a particular course of action, ranging from a recommendation that the priest enter a private life of "prayer and penance" at a diocesan-owned facility; that a canonical trial be held to determine guilt or innocence; or, in some cases, forced laicization.

The parties then await a response from Rome. This time of waiting, clergy advocates say, is particularly trying for the accused. The priest, despite a technical presumption of innocence, may be the subject of diocesan news releases and media reports of his "removal from public ministry," and in some cases is left without a salary, housing or health insurance.

Typically, say experts who assist clergy in the process, the priest proclaiming his innocence and awaiting Rome's judgment is removed from his current assignment and told to live off church-owned property or is offered housing at a remote location, such as a retreat center or retirement home for priests. He is forbidden to present himself publicly as a priest -- to say Mass, hear confessions, and preside at funerals or weddings.

Some dioceses continue to pay priests a salary, others don't.

"In theory they should be [compensated], but in practice they rarely are," said Sullivan. If he is not offered or rejects an offer of church-sponsored housing, the priest could reside with family or friends, at a summer home, or in a private apartment. The diocese will not typically pay the cost of an apartment, said Sullivan, because that would result in an accused priest receiving compensation in the form of rent that is greater than he received prior to the accusation.

The 'guilty' priest

Then there are priests, like Rick Boyd, who acknowledge the accusations, but argue -- if they are allowed to -- that mitigating circumstances should have some impact on their punishment.

In 1984, Boyd, then an associate pastor in the Crookston, Minn., diocese, was arrested and convicted of possessing child pornography received through the mail. He served no prison time, but instead received six months of treatment at a counseling center for priests. For nearly two decades following his release from the center, Boyd served as pastor of three parishes in Crookston, thinking, he told NCR, that the episode was behind him.

No additional charges were ever made against him, says Boyd, and the counseling helped him confront his behavior, which he says resulted from the sexual abuse he suffered as a child. "I was a happy priest," he said.

And he would remain so until 2003 when, near the height of the national clergy sexual abuse scandal, a group of parishioners familiar with Boyd's 1984 conviction demanded that Bishop Victor Balke remove him from ministry. Boyd, 57, then left the diocese and spent part of the next two years studying canon law at The Catholic University of America and receiving additional counseling. During that time, Boyd said, he was unaware that the diocesan review board was investigating his case. His advocate, canon lawyer Fr. Virgil Helmin, was kept in the dark about his case, said Boyd.

He was subsequently laicized.

He has appealed his dismissal.

"Procedurally, neither Reverend Helmin or I were informed of any of the precise allegations against me; I received no formal citation," Boyd told a Vatican official in a July 2006 letter. "Neither Reverend Helmin or I were ever given an opportunity to give any canonical input or even a personal comment. Reverend Helmin was denied permission to view any documents. It appears that Reverend Helmin was advocate in name only, and he was never able to exercise his office."

Concluded Boyd, "I was never given an opportunity for a right of defense and there was no actual due process given to me."

In a statement provided to NCR, Msgr. Roger Grundhaus, Crookston vicar general, said: "In the mid-1980s Rick Boyd was arrested and convicted of possessing a large stash of child pornography and of receiving it in the mail. He pled guilty to the charges.

"He was then sent for treatment and fulfilled the requirements of his probation.

"He was placed back in ministry.

"After the bishops of the U.S. published their charter and norms in 2002, and when it became known to the bishop of Crookston that the possession of child pornography was equivalent to child abuse, his file had to be submitted to the Congregation for the Doctrine of the Faith for their disposition.

"They responded with a dismissal from the clerical state."

Boyd currently lives with friends in Minnesota, still hoping to get a response from the Vatican.

Though the process is slow, said Ritty, a canon lawyer, "Rome will generally do what the bishop has asked for. If the bishop has asked for a trial, they will authorize a trial, if the bishop has asked for an administrative penal process they will follow that, and if the bishop has asked for an outright ex officio laicization -- dismissal from the clerical state -- they may go ahead and do that."

A common outcome, said Ritty, is what amounts to a settlement. "I think there are a number of priests who have felt that things have come down to one person's word against another's, that they don't have the emotional, psychological or spiritual energy to fight the charges that have been brought against them, and they [in agreement with their bishop] have opted for early retirement."

And what of the accused priests who request a canonical trial -- a full-fledged judicial process where three canon lawyers (typically priests) hear testimony from the accused and the accuser, where the diocesan promoter of justice serves as prosecutor and the accused has a right to counsel?

Ritty has participated in four such trials since the norms were approved in 2002 and anticipates that about a dozen more cases will go to trial. "The quality of the judging has been good," said Ritty. "The priests who serve the role of judges have taken their roles seriously. They investigate and ask questions appropriately and try to weigh everything in making their judgments."

What should happen?

Canon law is not the culprit here, said the priest advocates. "Had the bishops actually been following canon law ... they would have dealt with [sexual abuse by clergy] when it came up" in the 1980s and 1990s, said Sullivan. "Sexual relationships have always been seen as a violation of the sixth commandment and that should have been an impediment to functioning as a priest. So if they had done canonical processes years ago, and even currently, then the priest would have been removed."

He continued, "I don't think the norms were essential had they been doing canon law. But they had not been doing canon law for so many decades that [the norms] became, in the eyes of the bishops at least, necessary."

A California civil attorney who has defended four priests charged with abuse, three of whom he said faced accusations that had little or no basis, said that for "these men who are wrongfully accused and where the claim itself is found to be without basis, there needs to be an expedited process. The diocese should pay for a quick review because these men do not have the financial resources to wait years and it is unfair to expect someone who lives on $1,000 a month to have a legal defense fund -- and that's basically what they are asking these priests to have."

Joe Feuerherd is NCR Washington correspondent. His e-mail address is:

jfeuerherd@NCRonline.org.

National Catholic Reporter, April 27, 2007