Concerns About the Dallas Documents

                 The great American jurist Justice Oliver Wendell Holmes, Jr. once wrote: “Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”  The present crisis of dealing with sexual misconduct is such a case. The documents passed by the U.S. bishops in Dallas raise a host of concerns about justice, ecclesiology, sacramental theology, pastoral practice, and politics.

The element of forgiveness

                As the Holy Father said in his address to the American Cardinals in their meeting in Rome, “we cannot forget the power of Christian conversion, that radical decision to turn away from sin and back to God which reaches to the depths of a person’s soul and can work extraordinary change.” A number of  bishops have referred to cases of priests who may have committed an act of sexual abuse early in their priesthood and have gone on to live exemplary priestly lives for decades. To remove them now from priestly ministry seems contrary to the Gospel principles of forgiveness and reconciliation, which are also at the heart of church law.

The role of prudential judgment

                Because some bishops showed extremely poor judgment in handling cases of sexual abuse, the Norms basically remove the judgment of the bishop from the process. Removed from consideration are the period of prescription, the age of the minor, the type of offense involved, aggravating and mitigating circumstances, the imputability of the offense, the rehabilitation of the offender, and whether the offense occurred recently or decades ago. Mandatory laicization violates the principles of fundamental fairness at the heart of any system of justice.  Each case should be judged on its own merits with consideration given to all of its particular circumstances.

The sacramental character of priesthood

                The sacramental character of the priesthood is diminished by treating it as something disposable by fiat. The secular mentality looks on the laicization of a priest as the same as firing a person from a job or dismissing a person from the military. Our Catholic understanding of the sacramental character of the priesthood is something altogether different.

The relationship of bishop to priest

                 In our Catholic understanding, the bishop is a father to his priests. The Dallas Norms create an adversarial relationship. A priest can no longer confide in his bishop without fear of civil and ecclesiastical prosecution. If the Dallas norms are approved as framed, before questioning one of his priests, a bishop, in fairness to the priest, would have to have to give him “Miranda warnings” (advising him of his right to remain silent and his right to legal counsel and warning him that anything he says could be held against him) as the police do in America.

The role of religious priests

                Almost half of the priests in the United States are religious. The norms do not directly apply to them. The major superiors of religious orders of men are meeting in August and the bishops have asked them to accept the Dallas norms. Depending on what the superiors decide to do, we could have different standards of justice for diocesan and for religious priests.

                Also, the expectation that diocesan priests who have been accused of sexual abuse would be sent to monasteries shows a lack of appreciation of the monastic vocation.

Human rights in the Church

                The Church has been a leader in speaking up for human rights. The reform of the Code of Canon Law gave greater articulation to the rights of the faithful. The Church has an established system of due process.

                Strident voices in America seem to want the Church to emulate the old Soviet system of “justice” in which the accused has no right to due process. The hysterical voices seem to want the Church to operate like the Taliban which stones adulterers and lops off the hands of thieves. President Teddy  Roosevelt said, in decrying lynch mobs, that our humanity is degraded if we fail to accord the due process of law even to those who are guilty of heinous crimes.

A procedural hybrid

                The Norms run the danger of creating a hybrid of law and pastoral procedures. In many dioceses the role of the review board is described as “not adversarial or legal, but directed toward pastoral reconciliation and healing.” With the penalties for a finding of sexual abuse being so severe, a process which overlooks the adversarial and legal nature of an inquiry is dangerous.

Statutes of Limitations

                Statutes of limitations are not mere technicalities. The laws of every civilized nation include statutes of limitations. They serve to protect justice for several reasons. One is that after a passage of time it is difficult to adequately prove or disprove accusations. Memory (especially “recovered memory”) is faulty. Witnesses die. Also, it is deemed unjust and inhumane to hold over the heads of people the possibility of prosecution for alleged crimes long passed.

                The Church’s period of prescription for crimes of sexual abuse against minors (their 28^th birthday, usually) seems prudent and just. Bishops should support changes in the civil law which correspond to that.

Definition of sexual abuse

                The “Canadian definition” given in the Charter is excessively broad for a policy which requires the dismissal from the clerical state for any offender. The Canadian norms, on the other hand,  allow for the return to parish ministry, under some circumstances, for a priest who has been imprisoned for sexual abuse.

                The Church’s definition, given in canon 1395, §2 is a very adequate standard It includes the elements of grave matter, full knowledge, and free consent of the will.

Retroactive penalties

                Canon 1313, §1 states: “If a law is changed after an offense has been committed, the law which is more favorable to the accused is to be applied.” This enshrines a fundamental principle that ex post facto laws are unjust. In the United States they are unconstitutional. The Dallas Norms, however, create an ex post facto law by requiring mandatory laicization not only for future cases of sexual abuse of minors, but for past cases as well.

Double jeopardy

                In many cases, a priest was accused of sexual abuse of a minor in the past and his case was duly dealt with by the diocesan bishop. Often the priest was allowed to return to full or limited ministry. The Dallas Norms would now punish the offender a second time, and this time with the penalty of mandatory laicization. This, too, violates a basic principle of justice that once a case has been adjudicated or resolved, a new prosecution or penalty cannot be inflicted on an offender.

Is justice universal or national?

                Is justice different in the United States than it is in Rome or Canada or England or Australia? The fundamental principles of justice should be universal, as is our Church. The Dallas Norms, with their requirement of mandatory laicization, set up a  standard of justice for the United States which is fundamentally different than that found in the rest of the universal Church. To allow such an grave exception seems to create a separation of the “American Church” from the universal Church.

The National Review Board

                The National Review Board also raises concerns. Oklahoma Governor Frank Keating, the chairman of the group speaks of asking for the resignation of bishops. There is a concern that the board will see itself as a lay group which is superior to the hierarchy and stands in judgment of the hierarchy. What does this do to our ecclesiology?

                There is also concern about the wisdom of appointing some highly political persons to this board. The credibility of the Church of England suffers from the fact that bishops are chosen by the Queen and approved by Parliament. Will we now have politicians giving or withholding their stamp of approval to bishops?

A double standard

                The Dallas Norms apply to priests and deacons, but not to bishops who are accused of sexual misconduct with minors. A number of bishops have admitted to such misconduct. Are they, too, to be laicized? To do so would be severe; to fail to do so would create a double standard.

The “Law of Unintended Consequences”

                 Establishing the Draconian penalty of mandatory laicization may mean that some victims will be reluctant to come forward, especially if they have some positive feelings toward the accused. Accused clerics would also be inclined to exercise their canonical right to remain silent or perhaps to deny or fight an allegation, thus making it more difficult to determine the truth of an allegation and to achieve healing if the offense actually occurred.