America Magazine: We can have both: Due process for accused priests and justice for sex abuse survivors
by Kevin E McKenna
Link to full article (printed below):
https://www.americamagazine.org/faith/2023/06/02/due-process-clergy-sexual-abuse-accusation-245117
The firestorm of accusations against priests of the sexual abuse of minors has created the suspicion, often fueled by the media, that any priest against whom allegations are made is guilty. The tremendous damage that has been perpetrated against the many victims in the sexual abuse crisis cannot be underestimated, nor can we underestimate what the church needs to do to make whole those who have been so horrendously hurt by members of the clergy. But it is important that safeguards for due process for those accused of abuse be honored, even as we work toward guaranteeing the safety of all members of the church.
A disturbing statistic from the recent
National Study of Catholic Priests
undertaken by the Catholic Project of the Catholic University of America, shows the
in due process protections for priests accused of sexual abuse. In that survey, 82 percent of all priests said they regularly fear being falsely accused of sexual abuse, and only 36 percent of diocesan priests believed that they would be provided with sufficient resources by their dioceses to defend themselves in court should an allegation be made. (Researchers contacted 10,000 Catholic priests, of whom 3,516 responded, and conducted further interviews with more than 100.)
“The fear of improper application of these [due process] policies in a circumstance of alleged abuse deeply worries the majority of priests,” write the study’s authors. “Many diocesan priests in particular fear they will not be adequately supported by their dioceses and bishops in the case of a false accusation.”
The authors also report that 67 percent of priests agree that a zero-tolerance policy toward sexual abuse “positively demonstrates the church’s values,” in particular “protecting the weak.” But creating a safe environment, healing and justice for the survivors of sexual abuse is not incompatible with due process for the accused. Priests want some assurance of the presumption of innocence as allegations are investigated, and due process is part of providing justice for the community injured by the sexual abuse of minors.
The rules following an accusation
To see how due process makes its way through the church, it is helpful to look at the church’s legal system and its governing documents. A defining contribution of the 1983 revision of the
the official body of laws systematically arranged for the governance of the church, is the inclusion of rights for all the Christian faithful (including the clergy). Canon 220 guarantees the right to a “good reputation.” Canon 221 lists the right to legitimately vindicate and defend rights in the competent ecclesiastical forum, the right to be judged according to the prescripts of law, and the right not to be punished with canonical penalties except according to the norm of law. And Canon 1321,
legislates the presumption of innocence.
Arguably, the most serious challenge to such rights of clerics accused of sexual abuse is during the “preliminary investigation” mandated by the Code of Canon Law when an accusation of a possible crime surfaces. The pope, the Roman dicasteries and the U.S. Conference of Catholic Bishops have all issued norms that include the right of accused clerics to due process with the presumption of innocence. The U.S.C.C.B.’s
which legislate the procedures to be followed after an allegation has been made (issued with the
and updated several times since), say that a preliminary investigation must begin “promptly and objectively,” during which the “accused enjoys the presumption of innocence, and all appropriate steps will be taken to protect his reputation”
Also, the accused “will be encouraged to retain the assistance of civil and canonical counsel and will be promptly notified of the results of the investigation.”
In addition, in an effort to help bishops implement the correct procedures to be followed in cases involving sexual crimes against minors, on June 5, 2022, the Dicastery for the Doctrine of the Faith issued an updated
(handbook) to be followed for a “standardized praxis.” This handbook makes clear that a preliminary investigation is not a trial but is meant to “gather data useful for a more detailed examination” and “to determine the plausibility of the report” (No. 33). It also states that care must be taken to “avoid any inappropriate or illicit diffusion to the public that could prejudice successive investigations or give the impression that the facts or the guilt of the cleric in question have already been determined with certainty” (No. 29).
It is troubling that in this important phase, in which the future ministry of the cleric is at stake, no legal counsel or protections are required at a questioning of the accused person: “since this is a preliminary phase prior to a possible process, it is not obligatory to name an official advocate for him. If he considers it helpful, however, he can be assisted by a patron of his choice” (No. 54, emphasis added). Lacking counsel, the accused could provide testimony that might make it harder for him to defend himself or be used against him in later judicial or administrative proceedings.
An accused priest is strongly encouraged to retain counsel during a preliminary investigation, since the bishop can take “precautionary measures” that can include exclusion from ministry and removal from a residence. The vademecum recommends that an explanation be provided that the measure is not penal in nature, “lest he [the accused] think that he has already been convicted and punished from the start” (No. 61). (The Association of United States Catholic Priests has prepared a helpful resource,
with guidance for how priests could respond when summoned to the chancery without knowledge of the purpose of the meeting, including: accompaniment with a trusted friend; requesting diocesan support in obtaining civil and canonical assistance if needed, and a waiting period before signing agreements.) But even before a formal trial or administrative process begins, it is possible that the accused cleric may be viewed by the public as most likely guilty of some sexual abuse of a minor.
In some cases false allegations of abuse can occur in cases of ‘Munchausen by proxy’ – i.e. the seeking of sympathetic attention by claiming illness in someone else, e.g. a child. It stands to reason that there could also be cases of false allegation from someone with a variant of Munchausen itself, the claiming of an illness or injury in oneself, for the very same reason of gaining attention – in that case not from medics but from the police. It’s also called ‘factitious disorder’ – a tendency to invent circumstances that will evoke sympathy for and attention to oneself.
See: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1029260/
Even in cases where false allegation occurs merely out of malice, or in an attempt to extort, the person suffering false allegation is in a position very close to that of Jesus himself and needs to remember this. To have suffered a medieval theology that does not interpret the crucifixion as an expression of solidarity with all true victims, but as due to the Father’s ‘dissatisfaction’, must add to the torture, by making false allegation an utterly lonely and inexplicable experience.
Everyone in ministry these days therefore needs to read James Cone’s ‘The Cross and the Lynching Tree’ – an account of how African American theology came to see the cross as God’s identification with those lynched on the basis of false allegation.
The Creed badly needs to be recited from that perspective also – as a prayer for resilience – and not as a recital of ‘six impossible things before breakfast’. Its essence was composed not by theological fundamentalists but by people in danger of being accused of treason for calling Jesus ‘Lord’ (instead of Caesar) and of cannibalism in a secret ritual known as the Eucharist.
False accusations are more common than one realizes within and without institutions.
We have a responsibility to pursue apologies for the offended whatever it takes or the period to attain it.
Turning the other cheek not applicable.