Canon Law, Civil Law, and the Current Crisis in the Church

Last fall I left my job as a corporate lawyer and began studying canon law in Rome. Explaining my rationale to my colleagues wasn’t as difficult as I had imagined. Whether they were practicing Catholics, fallen-away Catholics, not-yet Catholics, or non-Catholics, virtually everyone understood: the Catholic priesthood and, by extension, the entire Catholic Church, is under attack, and priests need legal representation of both a civil and a canonical nature. By and large, my co-workers were supportive of my decision to do what I could do to help.

And there is a need. The costs of what is commonly referred to as the “U.S. sexual-abuse crisis” are obvious, and they are many. Fiscally speaking, we now know that since 2002, the Catholic Church in the USA has paid out over $3 billion in (known) settlements to claimants of sexual abuse.¹ In addition, it was recently reported that roughly two dozen entities (including dioceses, archdioceses, and religious order provinces) have filed for bankruptcy or have announced their intention to do so.²

The sexual-abuse crisis obviously has also had many other, and far more serious, consequences: from the real and lasting harm done to the many victims (78% of whom were pubescent or post-pubescent young men, according to the John Jay Institute study published in May 2011),³ the damage done to the victims’ families and friends, and perhaps most tragic, widespread, and lasting is the tremendous loss of time and energy spent on things other than the preaching of the Word of God, celebrating the sacraments, and performing the almost innumerable works of charity done every day by the largest charitable organization in human history: the Catholic Church.

In addition to all these costs, there is now an added one: the relentless assault on the due process rights of priests, as well as a shocking disregard for their right to a presumption of innocence and of their right to a good name. In this brief article, I would like to offer some perspective on this question from someone who is studying canon law in Rome; an area of study and a city that are very much in the news these days. Second, I hope to offer some encouragement on what can be done in the very difficult days in which we find ourselves.

Perspective

Let me begin by offering some perspective, something in abundant supply in a city where human beings have been living for some 2700 years, where the crews working on the latest subway track cannot dig for six inches without happening upon some major archeological marvel; where every bridge or gate has a history involving invasions, rebellions, and wars; where every street corner has been touched by a famous fire or flood; where every other building has been the home of a famous (or infamous) family; where every other church has been the place of prayer of some martyr, some cardinal, or some pope; and where millions of anonymous Christians (our big brothers and sisters within the family of God) have lived out their days in obscurity, come feast or famine, in sickness and in health, since Saints Peter and Paul first set their eyes on the city walls just decades after the Resurrection of Our Lord and found their first converts among the Jews living in Trastevere.

Such perspective also comes from being steeped in history — something in which we who bear the name Catholic should take great pride — especially given our belief in the communion of saints that transcends national and temporal boundaries, those fellow members of the Church who once upon a time had to get up morning after morning, put up with bad backs and sore knees, deal with irritating members of their families and religious communities, and read (or heard) story after story of bishops who were weak, clergy who were wayward, or lay people who were just plain weird.

One of those saints, Peter Damian, wrote a book that was immensely consoling to me last year when my temptation to despair was quite strong: Liber Gormorrhianus (The Book of Gomorrah). In his book, St. Peter Damian details with painful precision the corruption and sexual sin that was rampant in the church in the 11th century (which shows, among other things, that this is not the Church’s first battle with this particular foe). It was not too long after this struggle with corruption that the “golden age” of canon law dawned, beginning with the humble Italian monk Gratian assembling the hugely influential work in about 1140 (later known as the Decretum) as an aid to his law students in Bologna, which in turn paved the way for St. Raymond of Penyafort’s official compilation of law known as the Decretals of Pope Gregory IX in 1234.

Importantly, neither of these works was a legal code as we know it today; rather, they were compilations of various documents representing the collected wisdom of jurists intent on finding the just solution to the myriad number of conflicts that could and did arise between sinful human beings — even baptized human beings who nevertheless bear the burden of concupiscence. In fact, during my first year of canon law school just this past year, I was surprised to learn that the Catholic Church had no “code of canon law” until 1917. It is amazing to consider that through all those Christological battles in the early Church, through all those dark days at the end of the first millennium in which the sins of simony (bishops openly buying their offices), sodomy (see St. Peter Damian’s book), and schism (between West and East in 1054) racked the Church, through those years when Pope St. Gregory VII heroically battled Emperor Henry IV over lay investiture, through the period immediately following the discovery of the New World in which new questions about human rights and economic laws were raised, even throughout the Protestant Revolution and the conflict over King Henry VIII’s marriage — all of these were handled without the aid of a “code,” an authoritative and established book of statutes that could be consulted for an answer.

Instead, these jurists went to the very heart of the law — the ius (the res iusta, “that which is just”) and not just the lex (as in “the written law”). This is a fundamental point and not just an exercise in Latin. In fact, at my university we spent the first several months of our first year discussing what the word “law” really means. It was helpful to do this in Italian and in Latin with people from all over the world, diving into St. Thomas Aquinas’s Summa and Aristotle’s Nicomachean Ethics, thoroughly examining the essence of the question beyond the limits imposed by various national languages and backgrounds, looking at issues that are of concern not just to canonists, but to all lawyers — and, in fact, to all men and women everywhere.

St. Thomas, following a formula by the ancient Roman jurist Ulpius, defines iustitia (“justice”) as the “constant and perpetual will to give to each that which is his due.” In a different part of his Summa, he defines “law” as “an ordinance of reason for the common good promulgated by one who has responsibility for the care of the community.” Distinguishing these two related but distinct concepts helps us, among other things, to understand the fundamental link between “law” and “justice” and how the “law” must never be turned into something that is merely an instrument of power or simply a means to secure a perceived subjective “right.” This is true even — or especially — when judicial power is in the hands of those in the Church who profess to use it for good. But more on that later.

One last point about “perspective” — the frame of reference I am discussing comes also from the study of the law of the Catholic Church; the oldest continuously functioning body of law in the Western world, with roots so firmly planted in Roman Law that no canon lawyer’s education can be complete without some formation in the Corpus Iuris Civilis (a.k.a. the Code of Justinian) and in even older sources of the law that provided the juridical framework for the Roman Empire — including not only legal axioms still valid today,⁴ but important principles of due process and of certain inviolable rights of those accused of crimes.⁵

Encouragement

Against the backdrop of the current crisis, and working from the perspective just described, I hope we can see how canon law has within it the seeds for some much-needed hope and encouragement, as well as how canonists (or, even better, “jurists” — i.e., those laboring to be experts in pursuing what is just) can be of assistance in these troubled days.

Such a concept may sound a bit strange to many, given our antinomian climate. But as we have seen all too clearly the past few years, not carefully caring for the juridical foundations of our Church leads to ruin. We are now witnesses to the tragic failures of the 1960s and ’70s, in which the penal provisions of canon law were not applied, so that gravely sinful and even criminal conduct was ignored or hushed up. Serious malefactors were spared “punishment” out of a false sense of “mercy” or based on a naive faith in the bad advice of psychologists; these evil-doers were instead put into a position where they could cause even more harm.

Now, however, we are witnesses to a predictable but extremely serious counterreaction that represents a different kind of tragic failure: the lack of due process for those accused of misconduct, including a dismaying disregard for their presumption of innocence and the protection of their good name, all of which are natural human rights.

The harsh reality is that false accusations are in fact a real problem. Although only indirectly relevant to our topic, it is at least interesting to note that a 2017 study funded by the U.S. Dept. of Justice using DNA data from murder and sexual assault convictions in the state of Virginia from 1973–87 estimated a wrongful conviction rate of such crimes at 11.6% — if the number is that high for convictions, it is reasonable to assume that false accusations could be at least that high — at least for those kinds of crimes.⁶

Closer to home, the 2004 John Jay Report, commissioned by the USCCB, reported that 17% of the annotated surveys detailing accusations of child sexual abuse against priests and religious were ultimately deemed “not credible.”⁷ This same 17% rate applied in calendar year 2010, according to the USCCB’s annual report of sexual abuse claims,⁸ with 71 of the 428 new “credible” accusations reported that year were found by year’s end to be either “unsubstantiated or determined to be false.” The rate of unsubstantiated claims was even higher — 27% — in the most recent annual survey of child sexual-abuse claims.⁹

An even higher number of problematic claims can be found on the website hosted by the Archdiocese of Boston, which lists the names of 68 clerics whose cases were concluded civilly and/or canonically, ended without a finding of culpability because the priest voluntary separated to the lay state, or whose canonical cases are still pending. The same website lists more than half that same number — 35 — who had been accused publicly but who were either acquitted of allegations after a canonical process or who saw the allegations against them found to be unsubstantiated by an archdiocesan review board. Thus, even in Boston more than 33% of the allegations against priests were found to be without foundation.¹⁰

Sadly, the possibility of false accusations persists even after death. The Center for Applied Research in the Apostolate (CARA) is a research group affiliated with Georgetown University that audits various aspects of the Catholic Church in the USA, including clergy sexual abuse. To take the year 2010 as one example, CARA found that over 43% of all clerics who were accused of abuse in the US that year were already dead. How one adequately defends himself beyond the grave is a fair question.¹¹

As if all this weren’t enough, the number of dubious accusations could soon skyrocket, given the spread of a phenomenon known as the IRCP (“Independent Reconciliation and Compensation Programs”), described in detail in an April 15, 2019 article by Paul Elie in the New Yorker.¹² Originally conceived in the archdiocese of New York and launched in the fall of 2016, and now spreading to over two dozen dioceses and archdioceses (covering territory containing some 40% of Catholics in the USA), this type of program apparently allows anyone who wishes to do so to make a claim of abuse against a priest, irrespective of statutes of limitation or judicial standards of evidence.

According to the New Yorker article, Cardinal Dolan of New York chose attorney Kenneth Feinberg, noted mediator of disaster claims, to administer the IRCP in an effort to respond to the claims of abuse and to the lack of credibility of the New York Archdiocese. Employing what Feinberg describes as “our lenient standards of evidence,” the program is based on a strategy of paying out on “‘weak claims’ as well as strong ones, in order to lead to a collective sense of resolution.” While following such a strategy costs more, the article notes, “it keeps dissension to a minimum. It’s part compassion, part public relations.” Concern about public relations could indeed have played an important role in the motivation for the program, given that the state of New York had been threatening to throw out statutes of limitation for claims of certain kinds of sexual misconduct, which, not surprisingly, would have a disproportionate impact against the Catholic Church.

In any event, decisions to pay claims in the Archdiocese of New York appear to have been made largely by Feinberg’s business associate, Camille Biros, who maintained that she and her staff, when meeting with claimants, can tell “in thirty seconds whether [someone is] telling the truth.” Claimants and their beneficiaries have received over $63 million in settlement money (ranging from $25,000–$500,000 each) in exchange for a promise not to sue the archdiocese (but, significantly, without having to abide by a nondisclosure agreement, which means that they are free to talk to the press or to other possible claimants about their settlements). Although the article notes that these programs do not “make any recommendations about measures against priests still in active ministry,” an accused priest must wonder how a settlement paid to his accuser will affect the ultimate judgment against him, if any should be made.

Unfortunately, our priests are subject to even more exposure. As of January of this year, over 1/3 of the dioceses and archdioceses across the country have published the names of priests “credibly accused” of the sexual abuse of minors. While at first blush this seems like long overdue transparency, upon further scrutiny it shows what amounts in too many instances to a shocking violation of the due process rights of the men whose names are on the list — and even of their natural human right of the presumption of innocence and of the right to a good name. Disclaimers in small-font do not appear to be much of a help in the internet age, where one’s reputation can be destroyed — overnight and for years thereafter — by a single claim of abuse.

Even more problematic is the amorphous term “credible,” an uncanonical term that means different things in different dioceses. Still more worrisome is the damage done by publishing the names of people who have dedicated their lives to the service of the Church, whose entire career, vocation, and life can be jeopardized by a single allegation. One wonders whether dioceses engaged in this practice are actually increasing their liability — not from alleged victims of sexual misconduct, but from defamation claims brought by those whose names have been published.¹³

One important question to ask here is whether anyone is aware of any other employer in the country which would publish the names of employees merely accused of sexual misconduct in the way that many dioceses have. The answer is self-evident, given the obvious liability risks if nothing else. And a second question: Does this refusal to publish such a list mean that these companies are unsympathetic to the victims of sexual assault, or that they are engaged in a massive cover-up? Or, rather, could it be that even non-Catholic entities are wary of throwing their employees’ reputations under the proverbial bus — even in the face of public sentiment?

Such an overcompensation on the part of ecclesial authorities — “the proverbial pendulum swinging too far,” in the words of one editorial from the Board of the Pittsburgh Post-Gazette in April of this year¹⁴ — has not gone totally unnoticed by the mainstream media. In addition to the Pittsburgh editorial just cited, reporter Ralph Cipriano wrote a piece in Newsweek entitled “Catholic Guilt? The Lying, Scheming Altar Boy Behind a Lurid Rape Case,”¹⁵ detailing the exploits of the delusional drug addict Daniel Gallagher, the “star witness” of the Philadelphia District Attorney at the time: Seth Williams, who is now in prison himself on charges of theft and corruption.

The two criminal trials that resulted led to the conviction of two priests and one Catholic school teacher for sexual abuse as well as the conviction of Msgr. William Lynn, an official of the Archdiocese of Philadelphia, for child endangerment because he failed to stop the alleged abuse. One of the accused assailants of Mr. Gallagher was Fr. Charles Engelhardt, who refused to sign a plea deal on the eve of trial (that would have sentenced him only to community service) because, in the words of his provincial, “he would not perjure himself by pleading guilty to ‘make a deal,’ to admit to a crime that he did not commit.” Fr. Engelhardt was then sentenced to 6–12 years in prison and immediately appealed, but died two years into his sentence while handcuffed to a hospital bed, under armed guard, having been denied a potentially life-saving heart operation.

Several years prior to the Newsweek piece, the Wall Street Journal featured two articles by noted author Dorothy Rabinowitz, a Pulitzer Prize–winning columnist who had authored an explosive series of columns that was eventually assembled into a 2003 book entitled No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times detailing the nightmarish hysteria over sexual-abuse allegations — esp. of children at daycares — in the 1980s and ’90s. In any event, in April 2005 Rabinowitz exposed the astoundingly unfair case of Fr. Gordon MacRae in New Hampshire, who is presently 25 years into a 67-year sentence for the sexual assault of a teenage boy. The case of the 66-year old Fr. MacRae is noteworthy for several reasons, one of which is that it illustrates what can happen when a priest engages in imprudent or even immoral behavior, but is nevertheless punished for something he did not do. Miscarriages of justice still matter, even if some people find the defendant unsympathetic, unpopular, or a member of an unfavorable group.¹⁶ (Recall that the Salem Witch Trials ended only after Governor William Phipps — apparently after his own wife was accused — effectively brought them to a halt after strengthening the rules of evidence.)¹⁷

This, of course, is precisely why we believe in due process, and why lawyers serve a vital role in a society regulated by reason rather than passion. In her 2003 book, Rabinowitz cites a Boston-area prosecutor who, at the height of the child abuse hysteria there in 1992, asked a Boston Globe reporter whether society shouldn’t be “willing to trade off a couple of situations that are really unfair, in exchange for being sure that hundreds of children are protected?”¹⁸ Not to put too fine a point on it, but those working the guillotines during the French Revolution couldn’t have put it better themselves.

Let me add here that I don’t think making such references to the French Revolution or the Salem Witch Trials or the Satanic Day Care hysteria is out of line; on the contrary, I maintain that the same sort of “moral panic” that caused so much damage during those periods appears to be at work in our day, both inside and outside the Church. It must be emphasized: The weaponization of sex-abuse claims represents a gross injustice not only to those who are falsely accused, but to the real victims of sexual abuse, of whatever age. It also represents a direct attack on the Catholic Church — its assets, its moral authority, its very existence as we know it, at least in the U.S.

To cite just one example, consider the infamous Pennsylvania Grand Jury Report from August 2018 and the equally infamous response within the Church to it. This article is not the place for an in-depth analysis of a report of almost 900 pages containing allegations against over 300 priests spanning over 7 decades, and I can pretty much guarantee that no one reading this article has read the entire thing, either. One wonders how many of those who reported on it in the mass media actually read it as well, though one notable exception is Peter Steinfels, former religion writer for the New York Times, who analyzed the report in a thorough and fair article in Commonweal in January of this year.¹⁹

It is important to be reminded, especially these days, that grand juries are essentially just instruments of law enforcement. They are driven by state prosecutors and are designed to determine whether criminal charges should be brought against a given defendant. That’s it — they are not courts in which the normal rules of evidence and the rules of adversarial process apply. Furthermore, prosecutors who bring charges against the accused after the work of a grand jury is over are bound by the rules of ethics to refrain from making “extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused,” an ethical rule which evidently does not apply when the defendant is the Catholic Church; nor does the presumption of innocence apply when the accused happens to be wearing a roman collar. Just listen to the polemic in the introduction of the Grand Jury Report: “Priests were raping little boys and girls, and the men of God who were responsible for them not only did nothing; they hid it all.” As Steinfels says in his Commonweal article, “This ugly, indiscriminate, and inflammatory charge, unsubstantiated by the report’s own evidence, to say nothing of the evidence the report ignores, is truly unworthy of a judicial body responsible for impartial justice.”

Never mind the grand jury’s job was only to consider whether charges should be filed, not whether those who were accused were in fact guilty; never mind the lurid details splashed on page after page stretched back some 70 years; never mind those claims against priests who had already been dead for decades before ever being accused; never mind the claims of mistaken identity or allegations that had already been retracted; and most certainly never mind the fact that the 301 accusations resulted in only 2 indictments.

So instead of serving the cause of justice, the Pennsylvania Attorney General, Josh Shapiro, made his report sound like the Catholic Church is an evil cabal that must not be taken seriously by any right-thinking person. But as was stated earlier, the hard data show that the problem in the Catholic Church was not pedophilia; rather, it was homosexual predatory activity that, when proven, merits the condemnation it deserves (dating back to Genesis) and the punishment set forth according to the law (both civil and canonical). But for what should be obvious political reasons, Mr. Shapiro cannot condemn homosexual activity, and for equally obvious political reasons he has to instead condemn the Catholic Church, the only institution left in the Western World, it seems, with the moral authority to weigh in on this highly unpopular topic, and on many other subjects, such as abortion, contraception, economic justice, and unjust wars. As we all know, however, the Church is held in almost universal contempt by all those in polite society these days. Not only this, but while it is being relentlessly bullied around by the political and media elites, the bishops of the U.S. have, by and large, and for reasons that escape me, refuse to fight back. Or worse.

I am thinking specifically of the case of a bishop in Indiana, who within 48 hours after the Pennsylvania Grand Jury Report was released last August, decided to tell the media this: “If the Pennsylvania Grand Jury report taught us anything, it’s that victims deserve to see the names of their abusers made public for all to see. For everyone to know the pain caused by these priests.”²⁰ A short time later, the bishop released the names of 17 priests, 8 of whom were already dead, who had been “credibly accused of abuse.” With all due respect to the bishop, one has to ask: What was the thought process that brought him from seeing the media reports about the inflammatory and unsubstantiated anti-Catholic screed emanating from the Pennsylvania Attorney General’s office to publishing the names of 17 of his priests — before the allegations were even proven?

Bishop Rhodes is not alone. There are, sadly, a growing number of alarming cases involving dubious allegations such as this. There are some cases that have made the news — e.g., Fr. Frank Phillips in Chicago, Fr. Ed Perrone in Detroit, Fr. Eugene Boland in Ireland, Msgr. William McCarthy in the diocese of Paterson, New Jersey, who ultimately wrote a book about his 5-year ordeal.²¹ Perhaps most notably, however, is the infamous case of Cardinal George Pell in Australia, who as of this writing has not only spent 6 months in solitary confinement in an Australian jail cell, but who also has been denied the ability the say Mass.²² Anecdotally, the new national organization known as Men of Melchizedek is at present receiving roughly one new request each day for material and/or legal assistance from priests in need. Then there are those cases that flash briefly in the news, whose full stories may never be known this side of the grave — one particularly painful example is that of the two French priests last fall who committed suicide, just weeks apart and in different dioceses, after being accused. Their obituaries were characterized not only with words such as “young and dynamic,” but also “investigated but not charged.” Space does not permit a discussion of all of these various cases here, so I leave that to the reader’s further research — and fervent prayer.²³

Let us end on that note — on prayer. It is clear from our faith that prayer matters, and that prayer and fasting can change things. These are the times in which we live, and while they appear to be dark, in the grand scheme of things they may not be any darker than those that our big brothers and sisters in the faith have faced — from St. Peter Damian to St. Catherine of Siena to St. Thomas More. We have it on good authority that the gates of Hell will not prevail against the Catholic Church, even if there are defections, betrayals, and a fifth column in our ranks. The Lord is on His throne, and the truth will out. All we need to do is to make the most of the time that has been given to us by the good Lord, in whatever way He has called us to serve. So we should be of good cheer, and confidently face even an uncertain future as people firmly rooted in hope, fully aware of our rights under the law and with a healthy respect for authentic justice. Ave crux, spes unica.