Over the past few years there has been a saturation of media coverage that bishops have covered up clerical sexual abuse of minors. Under intense public pressure, the U.S. bishops passed a set of norms in 2002, which established a policy of “zero tolerance” for sexual abuse of a minor.1 Thousands of priests who have been accused of misconduct with a minor were removed from ministry and their names have been publicly disseminated.
What is usually overlooked in this whole episode is, “What happens to the accused priest?” Is he considered innocent until proven guilty? Is he afforded due process of law? Is he treated with justice and charity? All too often, unfortunately, the answer is “No.” And yet, as the British weekly The Economist said: “No crime, not even murder, is so vilified in the western world as pedophilia. Being accused, even wrongly, of anything to do with child abuse can ruin people’s lives.” 2
No one doubts that some priests have been guilty of heinous crimes and some bishops have been grossly negligent in not removing such priests from ministry. Because bishops have been accused of inappropriately protecting priests in the past, they are now reluctant to provide priests the protection of their legitimate rights. All too often, priests with outstanding reputations are being removed from ministry because of even a single nebulous, unproven charge from decades ago. Often these are retired priests, in poor health, facing an accusation from 40 or 50 years ago and some are even dead.
Canon law (i.e., church law) provides an imminently fair process for determining the truth of an allegation. The Essential Norms, revised in 2006 and passed by the U.S. bishops and approved by Rome, require that the processes of canon law are to be followed. According to canonical due process, when a plausible accusation has been made (and a lay review board can advise the bishop as to whether an accusation is plausible), the bishop is to appoint a canonical investigator, who is to be assisted by a canonical notary. Testimony is to be taken under oath and recorded verbatim. A formal record is to be created. The diocesan bishop is to review the record of the investigation and determine whether there is sufficient evidence of a canonical crime i.e., probable cause to move the case forward. He then refers the case to the Congregation for the Doctrine of the Faith.
Statute of Limitations or Prescription
Church law allows a person to bring an accusation of sexual abuse of a minor until the person is 28 years old. After that, any penal action is barred by prescription (i.e., the statute of limitations).
There are many substantive reasons for a statute of limitations. They are expressed in:
The United States Model Penal Code (Sec. 1.06 Comment, 1985)
“First, and foremost, is the desirability that prosecutions be based upon reasonably fresh evidence. With the passage of time memories fade, witnesses die or leave the area, and physical evidence becomes more difficult to obtain, identify, or preserve. In short, the possibility of erroneous conviction is minimized when prosecution is prompt.
“Second, if the actor refrains from further criminal activity, the likelihood increases that he has reformed, diminishing the necessity for imposition of criminal sanctions. If he has repeated his criminal behavior, he can be prosecuted for recent offenses committed within the period of limitations. Hence, the necessity of protecting society against the perpetrator of a particular offense becomes less compelling as the years pass.
“Third, after a protracted period the retributive impulse which may have existed in the community is likely to yield to a sense of compassion aroused by the prosecution for an offense long forgotten.
“Fourth, it is desirable to reduce the possibility of blackmail based on a threat to prosecute or to disclose evidence to enforcement officials.
“Finally, statutes of limitations promote repose by giving security and stability to human affairs.”
Some would have us believe that in regard to this issue there should be no statutes of limitations. They argue that many victims repress their painful memories and only find the courage to come forward decades later.
However, psychological scholarship has debunked the idea of recovered memories of sexual abuse.3 When people have experienced a trauma like sexual abuse, they have trouble forgetting it, not trouble remembering it.4 Studies have shown that people who are emotionally unstable are susceptible to developing false “memories” of sexual abuse.5 This doesn’t mean that they are making up stories. They may truly believe that they were abused, but it may never have happened. This is especially true in times when there is public hysteria over alleged sexual abuse.6
Therefore, there is all the more reason to observe the statute of limitations in regard to allegations of sexual abuse. When an allegation is made that abuse occurred decades ago, it is usually impossible to determine whether the allegation is true or false. A priest who is accused of such misconduct from decades ago is put in the impossible situation of proving his innocence.
In canon law, the allegation and the preliminary process are to be treated confidentially. This is to protect those who may be falsely accused, to make sure that there is not a trial-by-media, and to avoid polluting the testimony of potential witnesses.
What Does Happen
Almost every diocese now has a lay review board which acts as investigator, prosecutor, judge and jury. Often, no written accusation is filed, so the accused does not know exactly what he is charged with. In addition, no sworn testimony is taken and no verbatim record of testimony is made. As soon as the review board advises the bishop that an accusation is plausible, without any further investigation being done, many dioceses announce publicly that there is a plausible accusation of sexual abuse of a minor against the priest and he is removed from ministry. Usually, he is ordered to vacate his rectory immediately and is given no place to live. He is given only a nominal sum to live on and no financial support or assistance in hiring a canon lawyer or a secular lawyer. All too often, instead of requiring that an accusation be proven, an accused priest is considered guilty.
A Political Football
The issue of sexual abuse of minors has become a political football for extremists who use this as a vehicle for attacking the male, celibate priesthood and the hierarchical structure of the Church and for arguing that the Church is finished because of moral laxity, permissiveness, and a homosexual clergy.7
A Media Feeding Frenzy
The issue of clergy sexual abuse of minors has been subject to great distortion by the media. It is portrayed as a “priest” problem, despite the lack of evidence that there is any greater incidence of sexual abuse of minors among priests than there is among other clergy, teachers, scoutmasters, or any group that deals with minors. It is portrayed as a “pedophile” problem, despite the evidence that there are very few reported cases of priests preying on pre-adolescent children. Characterizing the issue as one of “pedophilia,” also creates the supposition that there is no hope of rehabilitation. The media also portrays this as an on-going problem despite the fact that there have been very few allegations made of sexual abuse occurring in the past ten years. Sad to say, stories of priests and the sexual abuse of minors or illicit sexual activity with adults sell newspapers and draw viewers.8
A Lawyer’s Dream
Of all churches, the Catholic Church is the easiest to sue because of its centralized, hierarchical structure and because of its extensive record keeping.9 There is no doubt that there are true victims who deserve compensation. However, there is also the phenomenon that after a crash of a bus holding 50 people, sometimes 100 people file claims that they were on the bus. Some “kings of torts” have used irresponsible methods to solicit thousands of claimants.10
These lawyers understand that most dioceses prefer to settle even a dubious claim rather than go through the expense and the barrage of negative publicity involved in defending a lawsuit for an allegation of sexual abuse of a minor.11 The Archdiocese of Chicago reported that it spent $1.2 million about ten years ago to defend one priest who was falsely accused of sexual abuse of a minor. All through the years of protracted litigation, the Archdiocese was pilloried for using “aggressive legal tactics,” despite the fact that Cardinal Bernardin tried to be imminently fair and even hired a retired federal judge to study the record and to advise him as to whether he was following the proper course.
The Caiaphas Syndrome & the U.S. Catholic Bishops
Given the fact that bishops find themselves in a “no-win” situation, it is not surprising, from a human point of view, that many bishops have caved in to the pressure and decided that accused priests are expendable.12 At the Dallas meeting of the U.S. bishops in June 2002, one American Cardinal even voiced this point of view, saying, “Unfortunately, some priests have to be sacrificed for the greater good of the Church.” This statement echoes -- in an alarming way, for believers -- that of the High Priest Caiaphas, who said to the Sanhedrin, “...it is better for you that one man should die instead of the people, so that the whole nation may not perish.”13 Of course, Caiaphas has not gone down in history as a hero in the story.
A Civilized Society
The weekend after the Dallas bishops meeting, by coincidence newspapers also reported that Russia had joined the ranks of civilized societies by establishing a new criminal code which provided that a person was innocent until proven guilty and by establishing that no one could be deprived of their liberty without due process of law. Unfortunately, in some cases the Church seems to be abandoning its great legacy of justice by assuming the guilt of priests who were accused of sexual abuse of a minor, and denying them due process of law.
The Gospel of Mercy
The Charter for the Protection of Children and Young People quotes Pope John Paul II’s remarks to the meeting of Cardinals on April 23, 2002: “There is no place in the priesthood or religious life for those who would harm the young.” But the Charter fails to quote the Pope’s balancing statement: “At the same time ... 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.”
At the 2002 Dallas meeting, Cardinal George expressed the opinion that American culture is Calvinistic and even American Catholics are tinged with Calvinism. Some theologians see the Charter and Essential Norms as Calvinistic documents, expressing the total depravity of the sinner and giving short shrift to the Catholic belief in grace and redemption. The documents acknowledge that a priest can be forgiven sacramentally, but not institutionally. If a priest has ever sinned with someone under 18, no matter what the mitigating circumstances, his priestly ministry is considered forever unacceptable to the Catholic community.
The blanket policy on exclusion from ministry ignores the reality that in some cases of sexual misconduct a bishop years ago made a responsible judgment that a priest was rehabilitated and fit to return to ministry in some fashion or other. If the intervening years have shown the wisdom of that particular judgment, through a priest’s exemplary ministry, by what rationale should that priest now be banished from ministry? There is no basis in canon law. In speaking of the safety of children, it is important to remember that many ministries do not involve the priest with children at all: academic work, adult spiritual direction, adult retreat work, work in office or agencies, ministry in a retirement home, chaplain in a convent. Removing a rehabilitated priest from these ministries does not ensure the safety of children.
1. The Charter for the Protection of Children and Young People and the Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests, Deacons, and Other Church Personnel.
2. The Economist, January 18, 2003, p. 10.
3. Terence W. Campbell, Ph.D., Smoke and Mirrors: The Devastating Effect of Fale Sexual Abuse Claims (New York: Insight Books, 1998); Dr. Elizabeth Loftus & Katherine Ketcham, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (New York: St. Martin’s Griffin, 1994); Dorothy Rabinowitz, No Crueler Tyrannies: Accusations, False Witness and Other Terrors of Our Times (New York: Free Press, 2003).
4. Richard J. McNally, Remembering Trauma (Cambridge, MA: Harvard University Press, 2003).
5. Campbell, op. cit.; Loftus & Ketcham, op. cit..
6. Philip Jenkins, Moral Panic (New Haven: Yale University Press 1998); Campbell op. cit.; Loftus & Ketcham, op. cit..
7. See Philip Jenkins, Pedophiles and Priests (New York: Oxford University Press, 1996), Chapter 6.
8. Ibid., Chapter 4.
9. Ibid., Chapter 8.
10. Daniel Lyons, Sex, God & Greed, Forbes, June 9, 2003, pp. 66-72.
11. Archdiocese of Chicago, Ten Year Report on Clerical Sexual Abuse of Minors in the Archdiocese of Chicago: January 1, 1993 – January 16, 2003.
12. Laurie Goodstein, A Time to Bend: U.S. Bishops, Sure of their Ground in the Past, Let Public Opinion Guide Them This Time, New York Times, June 16, 2002, p. 1.
13. John 11: 50.