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THE CLERGY SEXUAL ABUSE CRISIS AND THE SPIRIT OF CANON LAW

Rev. John J. Coughlin, O.F.M.*

The discipline of the clergy for sexual offenses is not something novel in the history of the church, and canonical structures have long been in place to address the problem.  In the United States, recent revelations of seemingly endless cases in which Catholic priests have sexually abused minors over the course of the last five decades have drawn intense media scrutiny and public outrage. This attention has often focused on the conduct of church authorities in allegedly concealing and facilitating the crimes of priests.  While there are many possible explanations for the present crisis in the life of the church, my focus in this brief article is directed to canon law.  Specifically, I shall suggest that the crisis has resulted in part from a failure to respect and enforce the relevant provisions of canon law.  My discussion consists of three parts:  (1) the rule of canon law and antinomian and legalistic approaches; (2) the failure of the rule of canon law and the problem of clergy sexual abuse; and (3) several consequences of the failure of canon law.

I.              The Rule of Canon Law

                In the long historical development of canon law, the balance between law and spirit remains a significant issue. Canon law acts as a limitation upon personal freedom and autonomy.  It may also be experienced as the instrument of the powerful within the institution, which can be determined by their will to yield oppressive outcomes.  On the other hand, canon law is necessary to maintain the ordered and peaceful life of the ecclesiastical community.  Given the reality of the fallen nature of the human situation, it places limitations on others who would harm the individual and common good.  Because of its potential to be manipulated by the will of the powerful, canon law requires for its validity the recognition of certain normative principles drawn from natural and theological sources.  The rule of canon law signifies that its coercive power will be used only in accord with normative principles.  The rule of canon law also entails that those vested with authority employ the law to correct injustices that plainly violate the normative principles of natural and divine law. 

                As the following story illustrates, the failure to correct the injustice of clergy abuse through the rule of canon law aggravates the injury for all concerned, but especially for the abused minor.  After several years of weekly counseling sessions, a woman in her mid-twenties was finally able to forgive her father, who had sexually abused her over the course of the years when she was a young girl.  She nonetheless found it even more difficult to forgive her mother, who had known about the continuing abuse and taken no steps to stop it.  All too often persons abused by clergy report that their complaints to bishops and other diocesan officials were met with varying degrees of denial, arrogance and incompetence.  Such attitudes only aggravated the psychological damage caused by the abuse.  Although some bishops handled cases well, the costs of not observing the rule of canon law are now all too readily apparent. 

                Even after many months of media scrutiny of the issue of the sexual abuse of minors by Catholic priests, I find it curious that there seems to be a paucity of accurate statistical information on the actual number of allegations, suspensions, canonical processes and penalties.  In the most reliable survey to date, The New York Times determined that 1.8 percent of all priests ordained from 1950 to 2001 had been accused of sexually abusing a minor.  The study also disclosed that the bulk of accusations concern crimes that allegedly occurred at least twenty years ago.  According to the study, the greatest amount of abuse occurred during the 1970’s to the 1980’s, and there has been a significant drop in the number of abuse allegations from the 1990 to 2001.  A consistent trend in instances of clergy sexual abuse is that a large percentage of the minors were high school age males.  Accurate data would not relieve the suffering caused by the abuse.   Understanding the parameters of the problem, however, seems important to insure that the church allocates sufficient resources to support its internal investigations and penal processes in responding in accord with the rule of canon law.  

Substantively, canon law has, of course, always considered the sexual abuse of a minor to be a grave crime and grievous sin.  Canon 1395 of the 1983 Code establishes that sexual contact with a minor counts as one of four classifications of sexual offences for which a man may be permanently removed from the clerical state.   The other three grounds include any form of coerced sex, a public offense against the sixth commandment of the Decalogue, and continued open concubinage with a woman after an official warning.  Permanent removal from the clerical state constitutes one of the most serious penalties contemplated by canon law.  Canon 2359 of the 1917 Code contained essentially similar provisions as those stipulated in the present statute.  The substantive provisions of canon law also envision penalties for ecclesiastical authorities who fail to apply canon law.  Canon 1389 of the 1983 Code provides for a penalty, including deprivation of ecclesiastical office, for an official who abuses ecclesiastical power or who through culpable negligence omits to place an act of ecclesiastical governance.  A bishop who failed to employ the appropriate provisions of canon law in the case of the sexual abuse of a minor would be liable to penal sanctions imposed by the Holy See.     

Procedurally, the 1983 Code affords both an administrative process for the investigation of an allegation of abuse and an administrative or judicial means to determine guilt or innocence and impose a penalty.  It is the bishop’s responsibility, through his delegates, to initiate, pursue and bring to closure an allegation against a priest of his diocese.  Cases that may result in permanent removal from the clerical state would normally require a judicial process to protect the rights of the accused cleric given the gravity of the penalty that may be imposed.  However, in clear and, or, notorious cases even this ultimate canonical penalty may be imposed on a guilty cleric through a simple administrative procedure.   Again the 1917 Code afforded essentially similar procedural provisions to those of the 1983 Code.  From a purely anecdotal perspective, I am unaware of even a single case during the past several decades in the United States in which a priest was dismissed from the clerical state as a result of the diocesan penal process stipulated in canon law.  Given the lack of accurate statistical data regarding how the church in the United States has responded to allegations of abuse, one must be cautious in drawing generalizations.  It does seem clear, however, that over the course of several decades, many, and perhaps most, bishops declined to implement and enforce the rule of canon law.  This failure violated the normative principles of natural and divine justice.

The failure also distrubed the proper balance between law and spirit.  The gospels record the words of Jesus that he came “not to abolish but to fulfill the law.”  In preaching the good news, St. Paul contrasted the “life of the spirit” with the “slavery to the law.”  At the same time, Paul recognized the importance of the “law written on the human heart” and of discipline in the life of the church.  Acknowledging the tension, Pope John Paul II has explained:  “The Code attempts to create a balance in the ecclesial society that recognizes the primacy of love, grace and charisms while at the same time sets the conditions for an ordered progress in the life of both the ecclesial society and the individual persons who belong to it.”  Canon law functions optimally when it facilitates a balance between freedom and responsibility, charism and office, grace and sacrament, spirit and law.  From the origins of canon law in the ancient church through the present day, the tension has sometimes become unbalanced.  Typically, the result of the unbalance has been manifested in an approach to law either antinomian or legalistic in its focus.   

Antinomianism diminishes the proper function of the rule of canon law in affording an ordered ecclesial life.  For example, the thirteenth century Franciscan spiritualists adopted the thought of Joachim of Fiore calling for a “spirit age,” which would abrogate institution, law and sacrament.  Their antinomian attitude challenged the future of the Franciscan Order.  In contrast, legalism reflects a rigid and formalistic misunderstanding of law that denies the unity of canon law with its inner theological meaning.  The fifteenth century ecclesiastical courts in annulling marriages frequently recognized legalistic exceptions to the teaching on the indissolubility of marriage.  From the Protestant Reformer’s perspective, the tribunal practice re-enforced the perception of the corruption of canon law.  Both antinomian and legalistic approaches result in a separation of the law’s outer form from its inner spirit.  The imbalance between law and spirit lends credence to the perception of canon law as placing unjustified limitations on personal autonomy.  The antinomians reject the validity of law, while the legalists posit law as the end in itself.

II.            The Failure of the Rule of Canon Law and the Sexual Abuse Crisis                                  

It is fair to describe the approach to canon law in the several decades immediately prior to Vatican II as sometimes manifesting characteristics of legalism.  When in 1959 Pope John XXIII announced his intention to convoke an Ecumenical Council, the pontiff also called for the revision of the 1917 Code.  Pope John had urged a general renewal (aggiornamento) in the church.  The desire to revise the 1917 Code stemmed from the realization that the legalism of the pre-conciliar period needed to be corrected in light of recent developments especially in the areas of theological anthropology and ecclesiology.  These developments led the Ecumenical Council to endorse a much needed “new habit of mind” (novus habitus mentis) with regard to church law and discipline. 

The process of the revision of the 1917 Code commenced at the conclusion of the Council and continued throughout the pontificates of Pope Paul IV and John Paul I with the hope that the new legislation would reflect the theology of Vatican II.  Over the course of almost three decades of revision, although theoretically still the universal law of the church, the 1917 Code fell into general disuse.  It was in many instances abrogated in favor of post-conciliar innovations ad exerimentum.  In retrospect, the ecclesial ambiance in the wake of Vatican II represented a swing of the pendulum from the pre-conciliar legalism toward the antinomian.  While it would overstate the matter to claim that the juridical structures of the church disintegrated during the post-conciliar years, it seems accurate to observe that proper function of law in the church became unbalanced.  The legalism of the past had been superceded by not only an openness to the new spirit but perhaps also the tendency to underestimate the need for a healthy ecclesial order.  The culture of canon law was reduced with the effect that law was seen as an obstacle to the manifestation of the spirit in the church.

Following his election as the Successor to St. Peter in 1978, Pope John Paul II was determined to check the general antinomian spirit that had surfaced during the post-conciliar years.  When he promulgated the new Code on the first Sunday of Advent in 1983, John Paul II expressly acknowledged that the legislation was a response to the “insistent and vehement demands of the bishops throughout the world.”  Joined with the Successor to Peter, the college of bishops had discerned the pressing need to restore the balance of law and spirit.  Referring to the 1983 Code as the “final document of Vatican II,” the Supreme Legislator intended the revised universal law of the church to express in juridical terms the dynamic theological perspective of the Council.  While the advent of the new Code had the much larger goal of restoring the balance between law and spirit in the life of the universal church, it also affirmed the significance of the church’s penal order in dealing with cases of the sexual abuse of minors by clergy.      

Some twenty years after its promulgation, it is not clear that the new universal law of the church has yet been entirely successful in fulfilling either the general legislative intent or the more specific need to address clergy child abuse.  Several quite broad areas of legal concern suggest a continuing suspicion of the role of canon law and at times even a denial of its validity.  Much criticism, for instance, has been directed to the function of the diocesan tribunals in the United States in granting nullity of marriage sentences.  Although some of the criticism lacks substance, it is true that the tribunals sometimes disregard fundamental procedural and substantive guarantees rooted in natural rights and expressed in canon law.  Another troubling example of the imbalance seems present with regard to the administration of ecclesiastical property.  In ignoring the requirement for the valid alienation of church property, the legal ownership and control of major Catholic educational and health care institutions have been de facto alienated from their original and sponsoring corporate entities in the church.  Unfortunately, the negligence of church authorities in the United States in each of these broad areas of justice seems consistent with the failure to address cases of sexual abuse of minors over the course of the last four decades.

                My point here is not to prove a direct nexus between the post-conciliar antinomianism and clergy sexual abuse.  For a believer such as myself, Vatican II represents an historic and grace-filled moment in the life of the church.  Among its many spiritual fruits were a dissipation of legalism, a call to retrieve the authentic inner meaning of the law and openness to developments in the secular realm especially concerning the protection of human rights.  Vatican II, however, was never intended to usher in an antinomian age.  Rather, I am suggesting that the reduction of the culture of canon law was a contributing factor in the failure to employ the juridical structure to check abuse. 

First, the bishops opted for a therapeutic approach to the exclusion of correcting the grave injury through the rule of canon law.  The available statistical information confirms that it was during this time from the 1970s through the 1980s that the number of allegations of sexual abuse against priests ballooned.  It was also during this time period that the infamous crimes of priests, such as Boston’s John Goegan and Paul Shanley, first came to the attention of diocesan officials.  In response to these kinds of allegations, bishops routinely sought psychological evaluations and treatment for the offenders.  The church’s emphasis on a psychological model reflected a general trend in American society, and many mental health professionals believed at the time that a sexual predator could be reformed with proper treatment.  Although the psychological and canonical approaches have never been mutually exclusive, the focus shifted to the rehabilitation of the priest through therapy from punishment for the crime.  In hindsight, the psychological approach may have been justified in certain cases involving a single offense with an older age minor.  It was not helpful in dealing with cases of true pedophiles who commit serial sexual abuse.

Moreover, reliance on the psychological model tended to mitigate the imputability of the offense on the ground that the priest possessed diminished capacity to control his impulses.  The diminished capacity would present serious problems in imposing the penalty pursuant to Canon 1321 § 1.  Perhaps more importantly, the bishops continued to forsake canonical measures even after a general societal shift occurred in the 1980s with regard to sexual abuse from the psychological to the punitive. As early as 1992, the United States Bishops Conference started to distribute policies from various dioceses as model guidelines for dealing with the clergy sexual abuse of minors.  During the following year, Pope John Paul II addressed a public letter to the United States Bishops affirming the canonical processes in cases of clergy abuse.  That year the Holy See issued special norms to facilitate the effectiveness of the canonical process.  Despite the various authoritative calls to address the problem, more than a few bishops failed to afford a just legal process in dealing with accusations.  When the psychological model replaced the canonical order, the conditions were set for great resulting damage to individuals and the common good.  

Second, the psychological approach tended to blur the distinction between the internal and external fora.  The internal forum pertains to matter of conscience, and it involves confidentiality in both sacramental and non-sacramental communications.  The therapy afforded priests accused of sexual abuse generally falls within the parameters of the non-sacramental internal forum  In contrast, the external forum signifies an act of governance, which remains public and verifiable.  For example, a status of person question, such as that of a cleric who has been suspended or dismissed from the clerical state for the sexual abuse of a minor, belongs to the external forum.  Clearly, a case of the sexual abuse of a minor officially reported to an ecclesiastical authority belongs to the external forum.  The exclusive reliance on the psychological model tended to create the impression of secrecy and cover-up.   

Canon law’s distinction between the internal and external fora reflects a balance between the common good and the individual person’s rights of privacy and good reputation. When an act of governance is posited for the common good, such as dismissal from the clerical state, it concerns the public social relations between persons.  Such an act must admit of external proof and verification.  Alternatively, the vast majority of sins, including most mortal sins, are not crimes subject to the ecclesiastical penal order.  The distinction protects not just clerics but all of the vast mass of baptized persons who constitute the Body of Christ.  All are sinners, and all may benefit from the counsel and forgiveness available in the internal forum.  The criticism of this traditional distinction on the ground that it enables a “clerical culture of secrecy” fails to appreciate the ancient wisdom of the Church in protecting individual dignity and privacy.  In dealing with cases of sexual abuse, the Church’s wisdom was not evident in a policy that focused on the therapeutic approach and neglected the external forum of the canonical penal sanctions. 

   Third, confronted with the crisis of the last year, the bishops finally abandoned the psychological model in favor of an absolute rule.  In the Fall 2002, the Catholic Church and in particular the priesthood became the focus of months of extraordinary media attention, coverage “unequaled in American religious history.”  Aside from the damage to the public image of the priesthood, the media began to allege a pattern in which church authorities covered-up the abuse.  Aware of the need for an effective resolution of the crisis, Pope John Paul II summoned the American Cardinals to the Vatican and urged them to deal with the problem.  Although several of the American Cardinals have impressive backgrounds in canon law, the Rome meeting failed to result in unanimity about the rule of law.  When the United States Bishops assembled in Dallas in June 2003, the atmosphere might fairly be described as one of extreme urgency, if not bordering on the hysterical.  Clearly under enormous pressure from the media and victims groups, the bishops adopted a so-called “zero-tolerance” policy.   Pursuant to the Dallas policy, any priest with an admitted or proven act against him at any time was to be expelled from the clerical state and/or banned from public ministry for life.  The bishops apparently elected to correct the decades long absence of a canonical response to the problem with a rule of strict criminal liability.

Law hastily framed runs the risk of abrogating any semblance of fundamental fairness and justice.  In the months following Dallas, it was not uncommon for a priest with a single allegation against him, which was placed in his diocesan personnel file twenty or more years ago, to be summarily dismissed from an active and fruitful ministry.  Following years of faithful service, the priest suddenly found himself deprived of his life’s work and with his reputation irreparably damaged.  Placed on indefinite administrative leave without adequate notice or opportunity to be heard, he received the same penalty as a serial child abuser.  The implementation of the zero-tolerance approach in certain instances stunned priests and their parishioners and caused attorneys for the accused to raise questions about a lack of fundamental due process. 

The due process concerns for the rights of the accused included, inter alia, the following issues:  the lack of notice of the precise nature of the allegation; the imposition of indefinite administrative leave with no legal recourse; the vagueness of the definition of the offense of sexual abuse in the Dallas policy; the disregard of the statute of limitations which special canon law has established as ten years running from the victim’s eighteenth year; the denial of the opportunity to be heard and offer a defense; the absence of proportionality in penalties; and the retroactive application of law.  Few if any American or canon lawyers would dispute that these issues pertain to the fundamental human rights of an accused person.  The lack of concern to frame a fair and just policy that would protect the rights of the accused displayed a strange combination of both antinomian and legalistic approaches.  On the one hand, the bishops seemed simply to ignore many of the requirements of the natural law as expressed in canon law.  On the other hand, the bishops adopted an absolute rule that permitted little or no discretion.

The Holy See declined to grant approval (recognitio) to the Dallas policy even on an experimental basis.  A mixed commission of representatives from Rome and the American bishops was formed to suggest revisions.  It is perhaps ironic that the Vatican found itself in the position of raising questions about the Dallas policy, which violated quite elementary principles of American justice.  However, these same basic principles are shared by the church’s canon law.  In response to the recommendations of the mixed commission, it was necessary for the bishops to reconsider the policy approved at Dallas.  Assembled in Washington in November 2003, the bishops affirmed the zero-tolerance approach to be implemented in accord with the procedural requirements of canon law.  Given the record of antinomian and legalistic approaches on the part of the United States bishops, there remains understandable concern that the bishops will adhere to the policy in a manner that respects the rights of all the parties.  

III.           Several Consequences of the Failure of the Rule of Canon Law

In this final section, I shall identify several major canonical consequences of the imbalance between law and spirit as a result of the crisis.  First, the imbalance has caused a lack

of confidence in canon law.  From the victims’ perspective, perhaps no policy will suffice.  A Boston group, for example, stated:  “Canon law was irrelevant to us.  Children were being abused.  Sexual predators were being protected.  Canon law should have nothing to do with it.  But they were determined to keep this problem, and their response to it, within their culture.”    Victims of sexual abuse by clergy have every right to expect that the Church will take action to correct the injustice and prevent future harm.  The rights of victims, however, are not the only considerations in a policy that restores justice.

The authority to impose penalties stems both from the Church’s mission to preach the healing love of Christ as well as the need to maintain ecclesiastical order.  For this reason, the ecclesiastical penal order depends primarily on “medicinal” sanctions.  Excommunication, interdict and the suspension of a cleric constitute remedial penalties.  The goal of such sanctions is to encourage the offender’s change of mind and heart.  Once conversion with repentance has occurred, the remedial penalty is lifted, and the offender is reintegrated into the full communion of the Church.  As an exception to the general theory, canon law provides for certain expiatory or vindictive penalties.  Such penalties obviously do not depend on the offender’s change of heart, but are intended as a means of retributive justice.  Few in number, they are imposed only for the most serious offenses such as the sexual abuse of a minor by a cleric.  The horrendously disordered priest who sexually abuses a child has not only harmed the victim but the entire Mystical Body of Christ.  While he may be forgiven his sin no matter how grave, a just ecclesial order may require that he can no longer function as a priest. 

The origins of this penal theory derive from the centrality of the forgiveness of sins in the Gospels and experience of the early Church.  In the Gospels, Jesus appears eating and drinking with sinners, and the vox Christi is addressed not to the self righteous but to those in need of redemption.  One of the great theological, pastoral and canonical issues to face the primitive communities of the first several centuries of Christianity was the question of post-baptisimal forgiveness of sin.  As a result of the controversy in the early church, the doctrine and law were clarified.  Any sin no matter how grave might be forgiven as long as the sinner manifested repentance.  The focus on medicinal penalties thus reflects the unity of law and theology.  Canon law is designed to enhance the preaching of Christ’s redemption. 

Second, the imbalance has resulted in a diminished understanding of the proper function of the bishop.  Canon law reflects the theological belief that bishops are successors to the Apostles, and as such are vested with sacred responsibility to teach, sanctify and exercise a “ministry of governance.”  The phrase “ministry of governance” distinguishes the office of the bishop from some secular function.  The power of the bishop is not worldly but sacred power.  In fulfilling his ministry of governance, the words of canon law require the bishop to act in accord with “holiness, charity, humility and simplicity of life.”  

Although many bishops undoubtedly exemplify holiness of life, the bishops as a whole have not been able to convey that inner harmony of life as characteristic of the approach to canon law in addressing cases of clergy abuse.  Each one of these cases is fact specific.  The cases range from the quite small number of horrendously disordered priests who perpetrated years of unchecked abuses to the priest now in his late seventies with an otherwise exemplary record of service who in his twenties is alleged to have had a sexual encounter with a seventeen year old.  Canon law is designed to permit some flexibility and discretion in the way in which cases are resolved.  The protection of individual rights as well as the common good depends on this kind of intelligent approach.  Given their collective failure with regard to the rule of canon law, the bishops have now found it necessary to surrender their discretion for the zero tolerance rule.  This absolutist approach may be necessary to restore faith in the church, but it belies canon law’s image of the bishop who exercises a wise discretion that flows from integrity, compassion and holiness.  The restoration of confidence in the rule of canon law will require that the bishop implement the new policy in a manner that conveys that the bishop himself is a just, compassionate and holy man.

Third, the imbalance has tended to reduce society’s understanding of the church to a corporate entity dependent on the state.  The unity between the theology of conversion and canon law testifies to the way in which the church understands itself.  To start, the church understands itself as distinct from the sate.  On the basis of two millennia of its historical development, the church proclaims itself as an “organic reality with juridical manifestations” for the purpose of proclaiming salvation.  During this long history, its canon law has been shaped by the church’s supreme law, which remains the salvation of souls.  The principle of the salvation of souls distinguishes canon law from the secular law of the civil state.  The secular order aims to establish a set of societal conditions that maximize the opportunity for material well-being and prosperity.  Canon law, however, seeks to create the optimal conditions for salvation through the proclamation of conversion, forgiveness and penance.  From an American perspective, it is clear that the framers of the religious guarantees of the first amendment to the federal constitution recognized, and desired to safeguard, the role of religion apart from the state. 

Additionally, the church understands itself as more than a mere corporate structure within the secular state.  Unlike a corporation, the church is not the creature of the state.  Nor is its purpose the maximization of financial profits, but rather the proclamation of the salvation offered by Christ.  To reduce the role of the church to a corporate entity dependent on state recognition amounts to an historical dislocation from the histories of canon law and United States constitutional law.  The reduction serves neither the purposes of the church nor the state.  The state has the authority to prosecute an alleged abuser pursuant to its regime of criminal law.  The fact that the accused happens to be a priest should make no difference in a state prosecution of the crime.  The state, however, ought not to interfere into the church’s decisions about whom is fit for ministry.  With regard to its own governance, the church rightly claims an independence from secular authority.  In the present crisis, bishops and government officials need to exercise caution not to enter into agreements that violate the legitimate separation of church and state.             

CONCLUSION

When canon law functions properly, it maintains the balance between law and spirit in the life of the church.  The present crisis in the life of the church may be attributed at least in some part to a failure on the part of the United States bishops to observe the rule of canon law.  My point is that the bishops’ response to the problem of clergy sexual abuse of minors has combined antinomian and legalistic trends that have defeated the balance of law and spirit in the life of the church.  If bishops had fulfilled their duty to abide by the rule of law, especially in the cases involving clergy who are serial child abusers, there would have been no crisis.  To be sure, honoring the rule of law would have communicated to victims, clergy and all concerned that church authorities were taking appropriate steps to protect children.  An important aspect of responding to present crisis must entail that the bishops re-commit to the rule of law.  This “new way of thinking” on the part of the bishops would promise to promote the church’s mission of healing and forgiveness.  Even one case of the sexual abuse of a minor by a priest and perception of cover-up by a bishop contradicts the mission.  Despite the negative image of the priesthood generated by the crisis, many people continue to look to the church for its proclamation that healing and redemption are possible.  No law or policy can eradicate sin from the fallen nature of the human situation, including that of the human beings who comprise the priesthood.  The proper balance of law and spirit, however, can dispose injured individuals and communities to healing and forgiveness.