Scandal and Canon Law

Before Dallas: The U.S. Bishops’ Response to Clergy Sexual Abuse of ­Children

by Nicholas P. Cafardi

Paulist, 255 pages, $27.95

In a 1979 allocution, John Paul II declared that “the task of the Church and her historic merit, which is to proclaim and defend in every place and in every age the fundamental human rights, does not exempt her but, on the contrary, obliges her to be herself a mirror of justice for the world.” It was with this view of the Church as a mirror of justice that he addressed the bishops of the United States in 1993 in a public letter that described the abuse of a minor by a priest as a “grave crime” and urged the imposition of canonical penalties.

Now, in a monograph called Before Dallas: The U.S. Bishops’ Response to Clergy Sexual Abuse of Children , Nicholas Cafardi offers a comprehensive overview of the failure of canon law to assuage the sexual abuse of minors in the United States. A professor of civil and canon law (and former dean of Duquesne Law School), Cafardi starts his study with a historical synopsis of the canonical crime of sexual abuse. Drawing on scriptural prohibitions of deviant sexual conduct, second-century Christian authors denounced the not uncommon practice of pagan antiquity in which adult men molested boys. The Councils of Elvira, Ancyra, Neocaesarea, and Nicea promulgated canons that condemned this impurity. The Irish penitentials calculated the severity of the penalty to be imposed on sexual offenders based on status, rank, and past history. Buchard of Worms prescribed a harsh set of corporeal and spiritual penalties for a cleric who sexually abused a child.

As the system of canon law began to emerge in the eleventh century, the delict of the sexual abuse of a minor by a cleric became part of the Corpus Iuris Canonici . The statutory versions of canon law promulgated in 1917 and 1983 defined the sin as a ­violation of the Sixth Commandment and a grave delict. The twentieth-­century codes also established a penal procedure through which a credible accusation of the delict could be investigated and adjudicated in a fair manner, with the imposition of the dismissal from the clerical state on a guilty party.

Cafardi recounts how, despite these provisions, the American bishops failed to employ the canonical procedures even in cases of priests who were serial abusers. In 2002, the media constructed its narrative of a “priest abuse epidemic” on the basis of these serial molesters: Louisiana’s Gilbert Gauthe, Fall River’s James Porter, and Boston’s John Geoghan and Paul Shanley.

Cafardi places part of the responsibility for the failure of canon law on such respected canon lawyers as Fathers Francis Morrissey, James Provost, and John Beal, who advised the bishops that the canonical penal process be employed only as an absolute last resort. The unsound canonical advice was based on the opinion that the penal process ­stipulated in canon law could not adequately adjudicate the matter. Specifically, the bishops and their canonists believed that the issues of imputability and prescription were insurmountable.

Imputability, for example, was allegedly a problem because psychological factors about the offender rendered it almost impossible to meet the canonical standard of “moral certainty” of guilt. This claim must be evaluated in light of the fact that diocesan tribunals in the United States throughout the post-Vatican II period were routinely annulling marriage cases on the basis of the same moral-certainty standard of proof. From 1985 until 1994, tribunals in the United States used the contentious process in an average of forty thousand marriage-annulment cases a year. Cafardi observes that the process against priest sexual abusers was nearly nonexistent over the same period.

Critics of the annulment process charged that the diocesan tribunals were showing excessive deference to psychological evidence in granting annulments. Such excessive deference apparently also led to the conclusion that a priest guilty of abuse was so mentally impaired that he could not be held canonically responsible for his actions. Attempting to check the deference shown in marriage cases, John Paul in 1988 admonished that “only the most severe forms of psychopathology impair substantially the freedom of the individual,” and “psychological concepts are not to be automatically transferred to the field of canon law.” If the bishops had heeded him, the multiple allegations brought against serial abusers might well have satisfied the moral-certainty standard.

Prescription, or the statute of limitations, was also thought to bar the prosecution of a case against a priest abuser. The 1983 code established a five-year period of prescription in the prosecution of a delict. Since ­victims of child abuse sometimes do not bring accusations to the attention of church authorities until many decades after the abuse has occurred, prescription would bar the canonical action.

In the case of the serial child abusers, however, diocesan records indicate that church authorities were often aware of multiple allegations within the canonical statute of limitations. Moreover, Cafardi astutely points to a 1962 Vatican instruction that reserved the delict of clergy ­sexual abuse to the Holy See. The reservation had the effect of suspending canonical prescription in a case of clergy sexual abuse. A 2004 study from John Jay College of Criminal Justice demonstrated that the vast majority of the abuse was perpetrated from 1965 to 1983. In 1994, the Holy See changed the prescription period to run for ten years from a minor’s eighteenth birthday. In fact, the recent practice of the Congregation for the Doctrine of the Faith has been to waive the prescription period in cases of clergy sexual abuse.

Still, the real problem in prosecuting clergy sexual-abuse cases was, according to Cafardi, not canon law itself. Rather, the problem was that bishops adopted a psychological model that excluded canon law, and they routinely sent priests accused of sexual abuse for psychological evaluation and treatment. The psychological route was thought to constitute a more “pastoral” approach than that of canon law; but, as Cafardi shows, the bishops often ended up reassigning such priests to ministry positions and failing to adopt elementary precautionary measures.

It is fair to say that the canon lawyers, psychologists, bishops, and religious superiors who favored the psychological model were not acting in bad faith; they genuinely believed the psychological approach to be correct. It is equally fair to observe that, if the canon law of the Church had been followed, some of the individual and communal injury would have been prevented.

Having served as a member of the National Review Board established by the bishops in the wake of the 2002 crisis, Cafardi does not write to point blame. The final chapter of his book lists the “canonical lessons to be learned” from the sexual-abuse crisis. Among these is the suggestion that the penal process in canon law be adjusted to address a case of clergy sexual abuse as fairly as possible. Before Dallas also calls for more transparency surrounding the way in which the church authorities respond to a case of sexual abuse.

Nicholas Cafardi has performed a service to all who seek to understand the 2002 crisis. It is, of course, not within the scope of a study entitled Before Dallas to treat the issues raised by the policies the bishops adopted at their 2002 Dallas meeting, especially with regard to the rights of the accused priest. Given its carefully defined parameters, this well-researched book is a balanced and authoritative account of the events leading to Dallas. For this reason, the study represents an important resource for canonists and other scholars. From a more general perspective, the book’s description of the bishops’ antinomian approach to canon law and preference for the psychological model teaches a lesson about the rule of canon law in the life of the Catholic Church. The proper functioning of canon law remains essential in fulfilling John Paul II’s vision of the Church as a mirror of justice.

Father John J. Coughlin, O.F.M. , is professor of law at the University of Notre Dame.