Revising the Norms on Sexual Abuse by Clerics
Interview with Archbishop Julián Herranz
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VATICAN CITY, Nov. 14 2002 (Zenit.org).- What prompted the Holy See to request revisions to the norms regarding the sexual abuse of minors drafted by the U.S. bishop's last June in Dallas?
Zenit has asked Archbishop Julián Herranz, president of the Pontifical Council for Legislative Texts, to provide an insight to the viewpoint of the Holy See.
Q: Zenit: From the viewpoint of canon law, would the original U.S. norms on sex-abuse allegations really help to protect children?
Herranz: The U.S. bishops who gathered in Dallas last June were to be congratulated for addressing directly an extremely difficult situation. By making the collective commitment to deal effectively and appropriately with cases of sexual abuse of minors by clerics, to reach out to those who had been abused, and to collaborate with parents, educators and civil authorities, the bishops surely began the process of creating an environment that would offer further protection for children.
Working under the extreme pressure of deadlines and media scrutiny, the bishops adopted in Dallas a set of essential norms that attempted to translate the common resolve of the bishops into legislation that would bind, after approval by the Holy See, each of the diocesan bishops in the United States. The essential norms were subsequently sent to Rome for study, as is always the case when an episcopal conference proposes binding legislation. The point of the review in Rome is primarily to make sure that the proposals for laws on the local level are consistent with the universal laws of the Church promulgated by the supreme legislator. In the Church's juridical ordering, as in most systems of law, there is a "hierarchy of norms"—laws promulgated at a local or inferior level need to conform to those already promulgated at a higher level.
In the weeks that followed, while the Holy See was conducting its routine examination of the proposal, individual bishops, scholars and practicing canonists in the United States were all trying to imagine how the essential norms would be applied in concrete cases. By the end of the summer, they had identified a number of areas of ambiguity, and even potential conflict with the universal law of the Church, that would need to be clarified or resolved before the essential norms could begin to afford the greater protection to children that the bishops had intended in Dallas.
It was with the intention of clearing up those difficulties that representatives from the USCCB and the Holy See met in Rome at the end of October. Aware of a number of potential difficulties and lacunae that had become apparent since the Dallas meeting, the commission tried to sharpen the focus of the essential norms.
There was no intention to step away from the commitment made by the bishops in June, or to reduce or narrow the avenues available to victims to seek justice and the pastoral care that they require. Rather, it was hoped that by reducing ambiguities and spelling out with greater particularity the fair and proper process to be used in these cases, and thereby grounding the norms in the universal law of the Church, the Church would actually be able to offer even greater protection to children.
Q: What is the most significant change proposed for the U.S. bishops' norms regarding sex-abuse allegations?
In my opinion, it was absolutely essential that the norms reaffirm the principle, rooted in the natural law and respected in legitimate legal systems throughout the world, that a person who is accused of an offense must be considered innocent prior to a determination of his guilt or innocence, either by means of a regular process in which the truth of the accusations could be ascertained and the alleged victim and the accused would both have the possibility of defending their positions, or by virtue of a confession.
While it is crucial that those who have been judged to have abused children receive appropriate punishment and that those who pose a danger to the welfare of children not be given further opportunities to use their sacred office to misuse the trust that has been placed in them, fairness requires that those measures be taken only after there has been an admission on the part of the accused or a determination that he is indeed guilty.
The Code of Canon Law prudently gives the diocesan bishop the right to impose some significant precautionary measures at any step of the process such as prohibiting the accused from the exercise of the sacred ministry or of some ecclesiastical office, imposing or forbidding residence in a certain area, or even prohibiting public participation in the blessed Eucharist. These measures are not to be considered punitive and are wholly temporary, lasting only until the case is concluded; they can be imposed only where the diocesan bishop determines that they are necessary to prevent scandal, protect the freedom of the witnesses, or safeguard the course of justice (cfr. Code of Canon Law, can. 1722).
The Church already has a well-developed process in place for protecting the common good and ensuring that the rights of victims and the rights of the accused be respected. She would be selling herself short, settling for any system that allowed those who have been accused to be punished or their reputation to be destroyed on the basis of mere allegations, without the opportunity to defend themselves by means of a proceeding that respects the fundamentals of "due process."
It was to ensure fairness that the norms have been revised to include explicit mention of the special statute of limitations that is ordinarily to be applied in these cases. In recognition of the gravity of this particular offense, the Church in 2001 extended the period of limitations in cases involving the sexual abuse of minors from 3 to 10 years. Moreover, given that the victims are necessarily minors, the Church determined that the 10-year period would not be deemed to have begun until the victim turned 18 years of age. I am told that a survey of the laws of the United States would show that the Church's provision is considerably more favorable to those bringing allegations than the majority of state laws in this area.
While there are some who advocated the elimination of any statute of limitations in these cases, such a proposal ignores the virtual impossibility of determining the truth or falsity of allegations concerning conduct that happened in the distant past. Indeed, in the context of ecclesiastical penal proceedings, it would be extremely difficult for the victim and Promotor of Justice to meet the standard of proof necessary for a finding that a delict had occurred, and equally difficult for the accused cleric to assemble an adequate defense. It is that practical reality, and not any desire to cover up crimes or reward criminals, that has been responsible for the introduction of the concept of statutes of limitations in all modern juridical systems.
To deal with those exceptional cases, however, in which the diocesan bishop is of the opinion that the statue of limitations should nonetheless be waived, the Congregation for the Doctrine of the Faith has indicated the willingness of the Holy See to evaluate those instances on a case-by-case basis, taking into account the reasons for exceptional treatment identified by the bishop.
Q: A key concern of the Vatican seemed to be about the definition of sexual abuse. Is that something canon law can, or has, defined?
The Code of Canon Law does not define or even use the term "sexual abuse". That does not mean, however, that the Church has not already recognized the problem and provided a means of redressing that grave wrong.
In can. 1395, the Code recognizes as a "delict" - crime - all "external sins against the sixth commandment of the Decalogue" when committed by a cleric. Section 2 of that canon goes on to note that the gravity of that crime is increased when committed "with a minor" — and provides for the possible infliction not only of a "perpetual suspension from the exercise of ministry" but even "dismissal from the clerical state," the most severe penalty that can be applied against a cleric.
In speaking of "external sins against the sixth commandment involving a minor," the Church uses a vocabulary and categories that she and her members understand well. Indeed, those concepts have been enriched and rendered more precise by 2000 years of the Church's moral teaching. Given the choice of using that terminology, firmly grounded in the Church's tradition, or trying to reformulate a definition that would take into consideration the various definitions promulgated by the civil authorities throughout the fifty states, it is not surprising that the bishops of the United States, in revising the original proposal for the norms, have wisely opted to anchor their policy in the terminology used by the Code of Canon Law, the universal law of the Church. This helps to remind us, moreover, that the norms are "particular laws" within the universal juridical ordering of the Catholic Church.
Q: Was Rome fearful that the U.S. norms would erode episcopal authority? Why? Would the norms give the state too much authority? How exactly?
It is important to remember that our bishops are indeed successors of the Apostles and have been entrusted by Christ with the sacred authority to be true shepherds for the faithful. The administration of justice within the local Church is an intrinsic element of the diocesan bishop's pastoral office. He would not be truly a shepherd if he were to abdicate responsibility for safeguarding the course of justice. For the good ordering of the Church and for the spiritual good of the Faithful, diocesan bishops must see that the laws of the Church, including her penal provisions, are faithfully applied, no matter how personally painful it might be for a bishop to proceed against one of his priests.
The Church's penal laws are designed to address problems particular to the life of the Church. When confronted with a delict - that is, an ecclesiastical "crime"- the bishop is to see that justice be restored and that scandal be sufficiently repaired for the spiritual well-being of the community of the faithful. While other members of the faithful may collaborate with the bishop as he carries out that function, the responsibility is ultimately his, as shepherd by Christ's design.
It was with that in mind that the mixed commission sought to clarify the role of the diocesan review boards mentioned in the norms. They are to function in this specialized area in a manner akin to that of the diocesan pastoral council, as described in the Code of Canon Law. While their recommendations can never substitute for the decision of the diocesan bishop himself, their role is extremely important, providing the bishop with the best possible advice when he is assessing allegations as part of the preliminary investigation, determining suitability for ministry, and reviewing diocesan policies. Given the extent of their involvement in the bishop's pastoral decision-making, it is not surprising that the revised norms would specify that the ordinary members of these boards, like those of the diocesan pastoral council, must be in full communion with the Catholic Church.
Given the serious consequences of any incident of sexual abuse involving minors on the whole Church, it would be difficult to understand how any diocesan bishop could think that he has satisfied his pastoral obligation by simply turning the matter over to the civil authorities. When committed by a cleric, a minister of Christ and His Church, a crime of that sort requires penal action on the part of the Church.
That is not to deny in any way that the state has the right, and indeed the obligation, to prosecute those who have sexually abused minors, even if they are clerics. Contrary to some media reports, the Holy See has by no means claimed exclusive jurisdiction over cases involving clerics. Inasmuch as clerics are citizens, they are to be held accountable to the laws of the state. Inasmuch as they are Catholics and sacred ministers, they need to be held accountable according to the laws of the Church.
While it would be naive to expect that there will never be a conflict between the church and the state as they both assert their rights and carry out their responsibilities in this area, I believe that it would be overly pessimistic to assert that those difficulties could not be addressed and overcome as they arise. Indeed, in light of the fact that the church and the state are both committed to the goals of protecting children and punishing those who would sexually abuse them, I share the optimism voiced by many pastors, lawyers and canonists in the United States that "goodwill and cooperation" could indeed allow these two parallel legal systems to coexist without insurmountable friction.
Q: What problem did the original U.S. norms pose for bishop-priest confidentiality?
From the perspective of the Church, the relationship between a diocesan bishop and his priests is likened to that shared by a father and his sons. The richness of the theological reality is impoverished if we see the relationship solely in the secular terms of employer and employee or, even worse, as adversaries. For the good of the Church, a priest has to be free to approach his diocesan bishop and to speak to him with honesty and openness.
With that in mind, the Church recognizes an exemption from testifying in ecclesiastical proceedings for bishops and other clerics with respect to those matters that were "revealed to them by reason of their sacred ministry" (cfr. Code of Canon Law, can. 1548, § 2, 1).
Sadly, the civil laws do not always recognize that important need and, instead, sometimes foster an attitude of fear and suspicion. We would do well to bring to the attention of those responsible for civil legislation the importance of recognizing the unique nature of the pastoral dialogue shared by diocesan bishops and their priests, which certainly merits at least the same kinds of protection that are given to communications between lawyers and their clients or physicians and their patients.
Even in the absence of such protections, it is my hope that the revisions to the norms which were recently accepted by the USCCB will -- because of their increased clarity, their greater certainty, and their insistence on basic fairness -- significantly reduce the tension that has been reported between some priests and their bishops.
Q: What problems do the U.S. norms pose for confidentiality regarding the sacramental seal?
The seal of the confessional is inviolable. It goes far beyond being simply a provision of the present universal legislation (cfr. Code of Canon Law, cann. 983 and 984). In our 2000-year history as a Church, priests have endured prison and even shed their blood, rather than reveal information that was communicated to them under the seal of confession. The right of the penitent to that absolute confidentiality is not something that could ever be negotiated away.
Q: Are there areas that the U.S. norms don't even try to address, such as criteria for screening candidates to the priesthood?
It seems to me that the U.S. norms, as reflected in their designation "essential norms," were never intended to address every aspect of the problem of the sexual abuse of minors or to be the final word on this matter. In fact, the norms themselves provide for an automatic review after two years, to be followed by any necessary revision.
Given the complicated nature of the issues involved, it could be expected that the bishops will continue to study the matter at the conference level, and to propose plans for addressing the problem in a collaborative fashion.
In light of the fact that the bishops have already pledged themselves to a careful evaluation of all applicants to the seminary (cfr. the Preamble to the Norms), it would not be surprising if one of the first areas of joint study would involve the question of more effective screening of candidates for the priesthood.
Q: How did the norms take the Holy Father's directives into consideration?
Above all, the norms echo the Holy Father's profound sense of solidarity and concern for the victims and their families, acknowledging that the appalling, sinful and criminal activity of a relatively small number of clerics has indeed caused great harm. In requiring diocesan bishops to pursue vigorously each credible allegation by means of the procedures already established by the laws of the Church, I believe that the norms have tried to be faithful to the Holy Father's assertion that "there is no place in the priesthood and religious life for those who would harm the young."
At the same time, the careful attempt to provide the necessary procedural safeguards and to protect the reputation of those accused until proven guilty would seem to be reflective of the Holy Father's constant teaching on the dignity of the human person, and in line with his hope that the Church would always be seen as a community of charity and of truth.
The norms also share the Holy Father's optimism that the bishops of the United States, acting with the Lord's help and drawing on the Church's wealth of experience and great spiritual and institutional resources, will be able to guide their dioceses through these difficult times, restoring the trust that binds together bishops, clergy and the faithful.
The restoration of that trust is indeed crucial. Even the casual observer will note the presence of those few who are trying to taking advantage of the current situation to promote divisions within the Church, so as to lessen her moral authority and obscure her magisterium. Present circumstances suggest, however, that the Church's strong moral voice is needed, now more than ever. As the Holy Father noted when he addressed the cardinals from the United States and the leaders of the USCCB last spring, the Catholic Church in the United States "has always promoted human and Christian values with great vigor and generosity, in a way that has helped to consolidate all that is noble in the American people." Let us hope and pray that the present trials and purification will only strengthen the Church in the United States as she humbly strives to continue that important mission.