Someone must have slandered Josef K., for one morning, without having done anything wrong, he was arrested.” When Franz Kafka wrote the opening line of his famous story The Trial a century ago, the clerical sexual abuse crisis in the Catholic Church was a long way off. Yet Josef K.’s tragic fate parallels the experience of many Catholic priests in twenty-first-century America.
Hyperbole? Think again. An elderly priest, still hard at work as pastor of a town parish, may easily find himself removed from his rectory, indefinitely and immediately, without having done anything wrong. The Essential Norms, adopted by the U.S. bishops in 2002 at the same time as the Dallas Charter, require a priest to be removed from ministry the instant there is “sufficient evidence” of an accusation of child sexual abuse. In many situations, the “evidence” supporting an allegation comes only within the pages of a civil complaint, filed by a plaintiff’s attorney on behalf of an alleged victim.
By its very nature such a statement has yet to be proven and is “substantiated” only if and to the extent it is supported by the unilateral affirmations contained in the complaint. While some complaints may contain very detailed assertions, including dates, times, and places where the alleged abuse occurred, other complaints are extremely vague and do not rise to the level of “sufficient evidence.” They are mere allegations.
Dioceses, religious orders, and their liability insurers—eager to put years of scandal behind them—often cut deals that leave priests vulnerable and unable to defend themselves. The plaintiffs’ firms know this. So the lawsuits mount.
Many states have enacted variations of “look-back windows” in recent years, essentially eliminating statutes of limitation relating to child sexual abuse. Those in favor of such “reform” argue that the mere passage of time should not prevent healing for harms caused by horrible abuse inflicted on vulnerable children. True enough. But what kind of “healing” is involved when it addresses only financial harm, or when patently unprovable claims are made decades after the alleged events? How is a priest to defend himself when his own diocese paints him as already guilty?
There is something that bishops can do to reverse this sorry situation and administer true justice.
In the Code of Canon Law, canon 88 grants bishops the power to dispense from certain laws. If they wished, they could dispense from the Essential Norms, giving hard-working priests with spotless records the benefit of the doubt instead of a kick to the curb. Rather than suffering the indignity of onerous restrictions, including the end of his public ministry, the priest could be treated humanely and with the dignity his years of service demand.
The Essential Norms also require a bishop or superior to conduct a canonical preliminary investigation, which under canon 1717 obliges him to “enquire carefully” (caute inquirat) into the facts, circumstances, and imputability of the alleged offense, unless such inquiry would be “entirely superfluous.” Yet bishops often refuse to proceed canonically simply because of the existence of a civil lawsuit, which is a serious mistake, as it conflates the concepts of “civil investigation” and “civil litigation.”
The Holy See, through guidance issued by the Dicastery for the Doctrine of the Faith and the Dicastery for Legislative Texts, has been clear that preliminary canonical investigations, as a general rule, must be carried out independently of any corresponding investigation by the civil authorities. While there may be situations in which state law prohibits investigations parallel to its own, this relates most directly to those situations in which an actual investigation by law enforcement is occurring, or is likely to occur, such that any interference (real or perceived) ought to be avoided by ecclesiastical authorities. This appears to be very wise counsel, especially if it concerns a sensitive crime investigation. Yet it has nothing whatsoever to do with civil tort litigation in the United States, which involves no law enforcement personnel at all. Indeed, in many lawsuits permitted by look-back legislation, there is no question of criminal charges, given that the concept of statutes of limitation in criminal matters still has merit.
As a result, the refusal to pursue any canonical procedure simply because a civil lawsuit has been initiated seems to be without any legal foundation. It may, in fact, represent an omission of a duty (canon 1717), as well as a delict subject to punishment according to canon law. The obligation to repair any resultant harm, even that resulting from culpable negligence, is clear in the recently revised canon 1378.
While the evil of clerical sexual abuse of minors is a scourge that must be stopped, the answer to the problem does not lie in the intentional abandonment of the rule of law or the deliberate neglect of due process for accused priests. There is no room in the Church for Kafkaesque narratives. Understood in the correct way, as described above, a careful reading of the Essential Norms and a thoughtful application of canon 88 may serve to be powerful tools in the hands of a Catholic bishop or religious superior who seeks to do the right thing in a difficult situation, rendering justice to all parties.
