The Bishops Get Their Report Card

On January 6, as scheduled, the bishops conference (USCCB) released the first report on compliance with the Charter adopted at its Dallas meeting in June 2002. The report contains no surprises, which is itself not surprising. The same may not be true of the report card on the bishops that the National Review Board (NRB) will be issuing at the end of February. The January 6 document reads like a very long corporate memorandum, much like something Ford might issue on what it is doing to remedy brake failures in the 2000 Taurus. The media have not been able to squeeze even one juicy tidbit out of the report, which is no doubt exactly what the bishops had in mind.

With a handful of exceptions—and in those cases for reasons unexceptionable—all the dioceses and eparchies (the latter are Eastern Rite jurisdictions) cooperated fully with the “audit” conducted by an army of investigators composed mainly of former FBI agents. A few jurisdictions are mildly criticized, all received a passing grade, and “commendations” were generously bestowed on those that anticipated or went beyond the rigorous mandates of Dallas. To judge by this report, the Catholic Church is well on its way to being the squeakiest clean institution in the country when it comes to protecting minors from a friendly pat on the back, never mind sexual abuse. (Although, admittedly, the two are hard to distinguish if one employs the elastic definition of sexual abuse adopted in Dallas.) It should be noted that the report does not cover the religious orders. They have about a third of the priests in the U.S., and it is not clear when or whether they will be issuing a comparable report on compliance with the Charter. Bishops do not have jurisdiction over the religious orders, aside from deciding whether to admit them to their dioceses, just as the USCCB does not have jurisdiction over bishops. Everything depends on voluntary cooperation, although, of course, pressures can be brought to bear.

Some bishops are expressing unhappiness that the organization hired to do the audit made a slew of “recommendations” that, it is said, exceed the organization’s mandate and infringe upon a bishop’s authority in deciding how to do his job. This complaint would be more credible if the bishops concerned had not voted for the present process at Dallas. They knew, or should have known, that when you hire people to evaluate the job you’re doing they’re likely to have some ideas of their own. The unhappy fact is that, in their panic-driven actions at Dallas, the bishops declared their incompetence in governing the Church. In a damage-containment mode, they appointed from the laity episcopoi of the episcopoi , overseers to oversee the overseers. To complain now about the consequent undermining of their authority is a little like a man’s seeking refuge from his creditors by declaring bankruptcy and then complaining that people think he is bankrupt.

Most of these dynamics are familiar by now, although see below on a new and important wrinkle on the role of canon law—or rather the ignoring of canon law—as a major factor in bringing about the crisis that has preoccupied the Church’s leadership for the last two years. As for January 6 and the audit, it was quite predictable that “emergency” measures adopted at Dallas would become entrenched. That is the way it is with organizations and bureaucracies. Among the recommendations of the auditing organization is that there be another audit next year, and the year after that, and, most probably, on and on. As for the NRB, it is unlikely to disappear. That specific institution may have a terminal point, but the taste for, and the perceived necessity of, lay supervision of the bishops is open-ended. It may be that some bishops at Dallas consoled themselves with the thought that this, too, shall pass, that the Church thinks in terms of centuries, and so forth. With Longfellow, they may have anticipated a better time coming:

And the night shall be filled with music,
And the cares, that infest the day,
Shall fold their tents, like the Arabs,
And as silently steal away.

Not very likely. The taste for and perceived necessity of lay supervision will not be denied. A mix of episcopal autocracy and episcopal laxity created the scandal, and neither the bishops who rejected any questioning of their authority nor the bishops who neglected to exercise their authority will be allowed to go back to business as usual. Which is undoubtedly a good thing. The big losers will be good bishops who understood and understand that their authority, while sacramentally bestowed, is made practically effective by holiness of example, by fatherly solicitude for and brotherly collaboration with priests and people, and by uncompromising fidelity to the teaching and norms of the Church they were ordained to serve. At Dallas, the good bishops, too, acquiesced in the declaration that they are bad bishops. They are not to be trusted. They must be watched carefully. That is the perception that they ratified by their votes. It is a perception that will be exploited, that is being exploited—by the media, by district attorneys, and by Catholic activists, none of whom believe that bishops are apostolic-ally entrusted with the governance of the Church.

“Perhaps so,” some bishops respond, “but what else were we to do? It was a crisis, a legal disaster, a media catastrophe. This was the plan presented to us and, despite misgivings, we went with it.” What else were they to do? They might have acted like bishops of the Catholic Church instead of frightened franchise managers in a time of corporate meltdown. They might have come to Dallas on their knees, or gone into seclusion for a long period of prayer, fasting, and reflection, instead of hastily recruiting hired guns as spin-meisters and damage controllers. They might have been bishops. They might have spoken a word about sin and forgiveness, about human fragility and the call to holiness, about grace and the amendment of life. Some bishops might have voluntarily resigned as an act of penance. Instead, the bishops produced self-exculpating press releases, organizational charts promising new levels of accountability, and a one-strike-and-you’re-out policy, even if it meant scapegoating priests to whom they had failed to be bishops. It was not an edifying sight. But the most damning indictment of non-leadership since the crisis broke in January 2002 is the collective failure to frame what has happened in terms of the gospel of Jesus Christ. Long before this was a legal, financial, and public relations crisis, it was—and this is infinitely more important—a spiritual and moral crisis.

In sum, the bishops let those who were in an adversarial mode—the media, the victims, their lawyers, and the prosecutors—define the nature of the crisis and what must be done about it. “Yes,” it is objected, “but that was inevitable. They were playing offense and we were playing defense. If we addressed the crisis in the terms of Catholic morality and teaching, we would not have been understood and would probably have been mocked and accused of evasiveness.” There is something to that objection, but I am not persuaded. There is venerable precedent for being misunderstood and mocked in the service of the Gospel. By choosing the route of damage control, they are perceived as failed managers seeking rehabilitation, not as bishops. Of course, corporate management is part of being a bishop, but it is far from the most important part. The Church is the Body of Christ, the Bride of Christ, the People of God, not the Catholic Church, Inc. I am speaking here, please note, about the collective voice of the bishops, the USCCB. Some bishops in their dioceses have addressed the crisis in spiritual and moral terms, finding it to be an occasion for effective evangelization and re-evangelization. Others have communicated with their people through nothing more than a letter or two that might have been written, and probably were written, by their lawyers. During this Long Lent, no bishop has emerged as a nationally effective voice of Catholic truth. Perhaps that was too much to expect.

Caught by Surprise

So we await the two NRB reports at the end of February. One will be the findings of a team from John Jay College of Criminal Justice on instances of abuse—how many, who, what, when, and how they were handled—and the second will be a more evaluative report by the NRB itself probing into possible causes, patterns of misconduct in dealing with cases, and what can be done to make sure nothing like it ever happens again. Of course bad things will happen again, as they have been happening since Our Lord in his infinite wisdom entrusted the leadership of his Church to frail human beings. One of the truly strange things of the last two years is the impression that the bishops were caught by surprise. Didn’t the Church have provisions in place for dealing with sexual abuse? That question is very helpfully addressed by Father John J. Coughlin in an article for the Boston College Law Review , “The Clergy Sexual Abuse Crisis and the Spirit of Canon Law.”

A Franciscan friar for twenty-five years and Professor of Law at Notre Dame University, Fr. Coughlin knows that his article “might be interpreted as critical of ecclesiastical authority,” but his purpose is to contribute to the renewal of that authority. Canon law, he notes, “has always considered the sexual abuse of a minor to be a grave crime and grievous sin.” As is now scandalously evident, “the failure to correct the injustice of clergy abuse through the rule of canon law aggravates the injury for all concerned, but especially for the abused minor.” Canon 1389 of the 1983 Codex Iuris Canonici “provides for a penalty, including deprivation of ecclesiastical office, for an official who abuses ecclesiastical power or who omits—through culpable negligence—to perform an act of ecclesiastical governance. A bishop who fails to employ the appropriate provisions of canon law in a case of sexual abuse of a minor is liable to penal sanctions imposed by the Holy See.” The undisputed fact is that many bishops failed to follow canon law in dealing with cases of priestly sexual abuse, typically with males of high school age. In such cases, as well as in instances of coerced sex or open concubinage with a woman, canon law provides serious penalties, including permanent removal from the clerical state. Why did so many bishops not follow canon law during the 1970s and ‘80s, the period when most of the sexual abuse was happening? Fr. Coughlin writes, “I am unaware of a single case in the United States during the past several decades in which a priest was dismissed from the clerical state as a result of the diocesan penal process stipulated in canon law.”

The history of the Church, Coughlin notes, displays periods of both legalism and antinomianism. The latter “so emphasizes faith alone that it excludes the correct function of the moral law in the economy of salvation.” When antinomianism holds sway, the very fact and idea of canon law is viewed as legalistic. Following Coughlin’s analysis, we see how the laxity encouraged by an antinomian atmosphere results in the countenancing of sinful and criminal behavior which, in turn, produces a legalistic reaction. Thus the hyper-legalism of the measures adopted at Dallas in June 2002. While the oscillation between legalism and laxity and back again is not new in the experience of the Church, this time it was intensified by the decision of the Second Vatican Council to revise the 1917 Code of Canon Law. Coughlin writes, “Over the course of almost three decades of revision, the 1917 Code, although theoretically still the universal law of the Church, fell into general disuse. It was in many instances abrogated in favor of postconciliar innovations ad experimentum . In retrospect, the ecclesial ambiance in the wake of Vatican II represented a swing of the pendulum from the preconciliar legalism toward the antinomian.”

In many instances, those who pitted the “spirit” of the Council against what the Council actually said undermined the very validity of canon law. Clear law was frequently flouted, Coughlin notes, in the great increase in the number of marriage annulments and in the reckless “alienation” of church property, the latter resulting in the loss of major Catholic educational and health care institutions. “Unfortunately, the negligence of church authorities in the United States in each of these broad areas of justice seems consistent with the failure to address cases of sexual abuse of minors during the last four decades.” There was yet another factor. As allegations of sexual abuse greatly increased, “the bishops opted for a therapeutic approach to the exclusion of correcting the grave injury through the rule of canon law.” At the time, psychologists and other professionals believed that sexual predators could be rehabilitated with proper treatment, and the bishops went along. They were not acting in malice, Coughlin underscores, but, having set canon law aside, followed what they were told was the best professional advice. Moreover, according to the psychological model, offenders were deemed to possess “diminished capacity” to control their impulses, which made the penalties prescribed by canon law seem inappropriate.

Reaping the Whirlwind

During these years, the Holy See repeatedly called on the U.S. bishops to follow the norms of canon law. “Despite the various authoritative calls to confront the problem,” writes Coughlin, “more than a few bishops failed to afford a just legal process when dealing with accusations. When the psychological model replaced the canonical order, the conditions were set for great damage to individuals and the common good.” To further compound the problem, the psychological model blurred the line between the “internal forum” and the “external forum.” Matters of conscience, as in the confessional, are internal, while matters of governance are external, which means they are public and verifiable. Coughlin writes, “A credible accusation of the sexual abuse of a minor officially reported to an ecclesiastical authority clearly belongs to the external forum. The exclusive reliance on the psychological model, however, tended to create the impression of secrecy and cover-up.” The scandal would not have flared as it did without the widespread appearance of secrecy and cover-up. Under the immense pressures of the public scandal, says Coughlin, “the bishops elected to correct the decades-long absence of canonical response with a rule of strict criminal liability.”

This paragraph deserves to be quoted in full:

Law hastily framed runs the risk of abrogating any semblance of fundamental fairness and justice. In the months following the formulation of the Dallas policy, it was not uncommon for a priest with a single allegation against him, which was placed in his diocesan personnel file twenty or more years ago, to be summarily dismissed from an active and fruitful ministry. Following years of faithful service, the priest suddenly found himself deprived of his life’s work and with his reputation irreparably damaged. Placed on indefinite administrative leave without adequate notice or opportunity to be heard, he received the same penalty as a serial child abuser. The implementation of the zero-tolerance approach in certain instances stunned priests and their parishioners and caused attorneys for the accused to raise questions about a lack of fundamental due process.

The denial of an opportunity to be heard and offer a defense, the absence of proportionality in penalties, and the retroactive application of law are issues that, in both civil and canon law, pertain to the fundamental human rights of an accused person. “The lack of concern to frame a fair and just policy that protects the rights of the accused displayed a strange combination of both antinomian and legalistic approaches. On the one hand, the bishops seemed simply to ignore many of the requirements of the natural law expressed in canon law. On the other hand, the bishops adopted an absolute rule that permitted little or no discretion.” In short, reaping the whirlwind of decades of negligence in not following the canon law that they were pledged to uphold, the bishops reacted by imposing a legalistic regime that is equally in violation of the canon law by which the Church’s life is to be ordered.

The result has deeply damaged what it means to be a bishop. Canon law says a bishop is to govern with “holiness, charity, humility, and simplicity of life.” Coughlin writes, “Although many bishops undoubtedly exemplify holiness of life, the bishops as a whole have not conveyed that inner harmony of life as a characteristic of their approach to canon law in cases of clergy abue . . . . Given their collective failure with regard to the rule of canon law, the bishops have now found it necessary to surrender their discretion for the zero-tolerance rule.” Moreover, the bishops have severely compromised the Church’s right to govern itself. “On the basis of two millennia of its historical development, the Church proclaims itself as an organic reality with juridical manifestations for the purpose of proclaiming salvation. During this long history, its canon law has been shaped by the Church’s supreme law, which remains the salvation of souls . . . . The secular order aims to establish a set of societal conditions that maximize the opportunity for material well-being and prosperity. Canon law, however, seeks to create the optimal conditions for salvation through the proclamation of conversion, forgiveness, and penance.” Put very directly, by surrendering crucial aspects of their governance to secular authorities, bishops have compromised not only canon law and the freedom of the Church but have compromised the mission for which they exist—namely, the salvation of souls.

Fr. Coughlin writes, “An antinomian approach to ecclesiastical governance only reinforces the perception that church authorities lack the resolve to protect children. Legalism, in contrast, communicates to priests and all the baptized that the internal order of the Church lacks justice as a result of the disrespect of fundamental rights.” “No law or policy can eradicate sin from the fallen nature of the human situation, including that of the human beings who comprise the priesthood.” The Church has known that for many centuries, and made ample provision in canon law for dealing with that circumstance. It is hard to disagree with Fr. Coughlin’s conclusion: “If bishops had fulfilled their duty to abide by the rule of law, especially in cases involving serial abusers, there probably would have been no crisis.”

Complexifications

There are some who persist in denying it, but it seems to be generally recognized now that this Long Lent (which is not yet over) was brought on by a widespread failure of fidelity. The de facto suspension of canon law’s provisions for dealing with abuse was, as Fr. Coughlin persuasively explains, occasioned in part by the false assumption that the 1917 code was in abeyance until the 1983 revised code came into effect. Behind that, however, was a growing belief, reinforced by what Philip Rieff aptly called “the triumph of the therapeutic,” that canon law, and indeed law itself, is in conflict with a “loving,” “pastoral,” and “evangelical” approach to human failures. Fr. Coughlin does not exaggerate in describing the resulting atmosphere and the episcopal negligence it fostered as “antinomian.” Faced with the massive public embarrassment, along with the financial and legal consequences of their negligence, the bishops at Dallas reacted in panic by imposing a legalistic regime that entails frequently unjust penalties for priests while protecting the bishops whose failure to do their duty created the crisis in the first place. As aforesaid, it is not an edifying spectacle.

The abrogation of canon law described by Coughlin was one important factor in creating an ecclesiastical climate of “wink and nudge” that lasted for decades. Other factors are by now well known: the misunderstanding of the Council’s call for aggiornamento as a mandate to embrace a culture that was in the 1960s in a state of terminal disintegration; seminary education encouraging the belief that in “the post-Vatican II Church” teachings and practices were up for grabs, and that vows, with most specific reference to the vow of celibacy, were made conditional by anticipated changes in the “status quo”; the widespread “openness” to homosexuals and assertive gays, resulting in “lavender” influence and sometimes control in seminaries and chanceries; and, under-girding and driving all of these deformations, the conviction that “the American Church” was pioneering a new and more authentic Catholicism against the “authoritarian” opposition of Rome.

There are no doubt many causes of the scandal of sexual abuse and the further scandal of the bishops’ response to the scandal. As it is said, “The matter is very complex.” The NRB has consulted with many experts, a breed prone to proving that they are experts by multiplying complexifications of the inconveniently obvious. One must hope that, and I think there is reason to believe that, the members of the NRB will not be taken in. I was from the first opposed to the creation of episcopoi of the episcopoi , but since we have them, pray their report will speak clearly and candidly to what happened and why, pointing the way toward—in the words of the Holy Father in April 2002—“a holier episcopate, a holier priesthood, a holier Church.”