By Msgr. Thomas Green of the Catholic University of America

Some thoughts on the Charter for the Protection of Children and Young People, approved on June 14, 2002

(Draft 2 of an earlier draft July 5, 2002, in light of comments from various canonists)

Purpose: to highlight some significant positive but especially negative elements in the aforementioned document and to elicit a further response in light of others reading the same document (see Origins 32/7 [June 27, 2002] 102Ñ106). Some points mentioned in connection with the Charter are also relevant to the and vice-versa.

Approach: Review the document section by section, highlighting the positive and negative elements. By negative, I do not necessarily mean legally problematic factors but also areas that pose questions because the document does not seem especially clear or complete. The Charter will be consistently referred to as the document.

Preamble: Ten paragraphs

Positive features

A. There is a helpful identification of some of the key areas of concern: the nature of the crisis, the damages caused by episcopal failures to act, the pervasive loss of trust (paragraphs 1-4).

B. The document recognizes some steps taken by the NCCB to deal with the issue, e.g., the 1993 text “Restoring Trust.” This is also true for some individual dioceses (par.5).

C. There is a forceful commitment in principle to pastoral healing, accountability, and dialogue within the Catholic community (par. 10).

Negative features

A. Methodologically speaking the “Charter” might have confined itself to general theological, canonical and pastoral observations on the bishops’ response to clerical sexual misconduct while leaving technical procedural details to the norms.

B. Pending Roman recognitio of the accompanying norms, universal law prevails over any elements of the norms that may be contrary to it. Universal law here means especially but not exclusively Books VI and VII of the code, the April 30, 2001 motu proprio Sacramentorum sanctitatis tutela and the May 18, 2001 CDF letter accompanying and spelling out its implications. Elements of the norms not contrary to universal law may but need not be implemented immediately; but if this is done, diocesan bishops must issue a decree implementing them as particular law for their dioceses.

C. It might have been helpful to have spelled out a bit more the culture of secrecy that is so ecclesially destructive (par. 1).

D. A general observation: the text speaks of ‘children,’ ‘minors,’ and ‘young people.’ Does the last term encompass the other two? Or does the term ‘young people’ take us beyond minors canonically (under 18; c. 97, 1)? Would it have been better simply to speak of minors throughout the document unless there were special reasons for speaking of children?

E. While the bonds of trust within the Catholic community have been severely strained, it is not clear that the bishops are committing themselves to serious collaboration with the people of God in addressing the problem, e.g., by significantly altering governance structures at various levels to incorporate significant lay as well as clerical decisional input.

F. While it is a less serious concern than the extensive abuse of minors, what about the tragedy of false accusations and the deleterious effect on the reputations and lives of those falsely accused? Might this also contribute to the rather poisonous climate within the Church in some circles?

G. The document says nothing about the importance of the bishop-priest (cleric) relationship, which is rooted in the sharing of orders and a common mission. This relationship is highlighted in canons such as 384 stressing the bishop’s solemn obligation to protect the rights of priests while seeing to it that they comply with their obligations. The document fails to recognize the distinction between the priesthood and the clerical state, which has significant theological and canonical repercussions. Removing a cleric from a ministry is not the same as firing an employee from a job. The document practically speaking does not reflect the thoughtful observations on bishop-priest relationships articulated in the 1991 NCCB text “United in Service: Reflections on the Presbyteral Council.” (Origins 21/26 [December 5, 1991] 409; 411-421).

H. If the bishops are interested in true accountability, it is strange that, with due regard for an occasional reference to ‘clerics,’ the text normally speaks only of alleged priest abusers or possibly deacons and other persons without any mention of bishop abusers. Indeed, the document emphasizes priest abusers. Should it simply have spoken about ‘clerics’ throughout for consistency sake? Furthermore, and more significantly, not a word is said about bishops who in the past have failed to behave responsibly in discharging their supervisory responsibilities or who in the future may fail to do so. Is not that neglect precisely one of the major causes of the undercutting of episcopal authority among the faithful? The National Review Board will approve the annual report of the National Office for Child and Youth Protection, which may point out dioceses not complying with the ‘Charter/Norms’ (articles 8-9); but what are the practical canonical implications of such a statement for the bishops of said dioceses? Will they be subject to disciplinary/penal action? If so, by whom? As we know, technically only the pope can penalize bishops [c. 1405, 1,3*]. Should intermediary level bodies (conferences) or persons (metropolitans) be accorded such disciplinary/penal competency in the interests of genuine accountability and according to the principle of subsidiarity with due regard for possible appeal/recourse to the pope?

I. Undeniably grievous and at times irreparable harm has been done to minors and other vulnerable persons within the Catholic community, and every possible effort must be made to heal and reconcile them. However, the Preamble might properly have said something about efforts to reconcile the clerical offenders; after all, one of the integral purposes of the penal system of a Church committed to reconciliation is the rehabilitation of the offender. This is said with due regard for the equally important and at times more pressing need to restore justice, repair scandal, [c. 1341] and deter future wrongdoing.

J. For a thoughtful and more detailed set of reflections on some of the key issues raised in the Preamble, see “Towards Healing: Principles and Procedures in Responding to Complaints of Abuse against Personnel of the Catholic Church of Australia,” December 2000. (Hereafter cited TH). See also “Integrity in Ministry: A Document of Principles and Standards for Catholic Clergy and Religious in Australia,” June 1999. (Hereafter cited IM) (I have not had an occasion yet to seriously to review these documents, which look quite interesting.)

K. Should there be a generic reference to issues of overlapping jurisdiction, canonical and civil, in this area (e.g., reporting obligations) and to the need for bishops and religious superiors to be duly attentive to the requirements of both? However, we also need to consider certain canonical qualifications regarding Church observance of civil law [c. 22], e.g., privileged communications such as those subject to the inviolable confessional seal [cc. 983; 1388]. Such a nuanced approach to civil law is lacking in the last sentence of the penultimate paragraph of the document, which says simply: “We also note that diocesan/eparchial policies must be in accord with the civil law.”

Part I: Promoting Healing and Reconciliation with Victims/Survivors of Sexual Abuse of Minors: articles 1-3 (See TM, par. 16-19 (victim); 20-25 (other persons); 26-29 (accused or guilty party)

Article 1: Outreach to victims and families

Positive features:

Helpful mention of varied dimensions of outreach to victims and varied types of assistance to them and to faith communities adversely affected by abuse.ÃÃ2. Ú

Negative features: (See TM, par. 1-4 on sexual abuse and 34 on various pertinent definitions of terms.)

A. In an area of church law that stresses strict interpretation [c.18], one wonders about the very broad definition of sex abuse taken from the Canadian bishops’ From Pain to Hope - see the penultimate paragraph of the document. My concern is not precisely the broad range of proscribed sexual behavior it envisions; this is regrettably a painful fact of life. My concern is rather the fact that the penalty for any such behavior seems to be the same without any discrimination in terms of the type of behavior. However, our church penal system reflects a sense of proportionality with the seriousness of the penalty corresponding to the seriousness of the offense with possibly mitigating factors being taken into account. Such distinctions seem to be flattened in both the Charter and the Norms, whereas given the seriousness of the penalties envisioned, we need to define carefully the meaning of the pertinent delict in question and consider factors that may impact imputability in breaking the law. As one reads in a 1995 NCCB text on canonical delicts: “The norm is whether the act in question is an external act that qualifies as an ‘objectively grave violation of the sixth commandment.’ ... The traditional rules about the requisites for personal culpability (full use of reason and free consent of the will) must be addressed ... in deciding about the imputability of the alleged acts to the accused and the appropriateness of the penalty of dismissal or some lesser penalty. ...The external act alone does not suffice. It must be a human act, posited with sufficient internal deliberation and freedom to be gravely imputable insofar as it results from personal malice or culpability.” (Canonical Delicts Involving Sexual Misconduct and Dismissal from the Clerical State [Washington: USCC, 1995] 6, 39-40]).

B. There seems to be absent from the text any thought of a possible ministry to the abuser, however reprehensible the behavior. In a community seriously committed to reconciliation and healing, this is an essential element to be taken into account. In fact in articulating certain purposes of the penal system (c. 1341), the code makes the rehabilitation of the offender an integral consideration even if in expiatory penalties it is not as strongly highlighted as the values of restoration of justice, repairing of scandal (c. 1336), and the deterring of future criminal behavior.

Article 2: Assistance coordinator/diocesan review board

Positive features:

A. The provision for an ecclesially diversified but primarily lay diocesan review board in principle seems to be a very practical realization of the commitment to engage a cross section of the people of God in addressing certain aspects of the sex abuse crisis.

B. The provision for publicizing complaint procedures regularly seems sound.

Negative features:

A. What are the qualifications of the so-called “assistance coordinator,” who is to care pastorally for those claiming to have been abused sexually as minors? (On the role of a so-called “facilitator,” see TM, par.41).

B. The diocesan review board is to assist the bishop in assessing allegations and fitness for ministry. Does this first role mean simply the assessment of the credibility of an allegation that is the normal role of the preliminary investigator (c. 1717)? Or is it understood in a broader sense, i.e., determining the final outcome of a case? This seems clearly contrary to current universal law regarding the competent judicial and administrative penal authorities. What does assessing fitness for ministry mean? Is this function operative after a priest has been penalized and the issue of reassignment is being contemplated? Should we assume that the board has a consultative vote in such decisions? What are the criteria for such a fitness determination? What are the qualifications for such review board members, who also are authorized to review diocesan policies? While some should be skilled in the area of sex abuse of minors, what about canonical or civil law expertise?

C. The diocesan review board is said to be able to act retrospectively and prospectively on these matters. What exactly does this mean? It is also competent to advise (bishops presumably) on all aspects of responses in such cases. What is meant here?

Article 3: Confidentiality agreements.

Nothing special from my vantage point, although one trusts that such agreements will be entered into by dioceses/eparchies only after appropriate canonical and civil law consultation.

Part II: Guarantee an Effective Response to Allegations: articles 4-7

Article 4: Reporting alleged abuse to civil authorities (see TM, par. 37)

Positive features: This seems to be in principle a positive provision that should foster constructive Church-State relationships. (see earlier comment (j) regarding Preamble)

Negative features:

A. There should be some qualification regarding canonically privileged communications (see norm 10).

B. Is reporting in cases where no minor is involved civilly necessary? This is a civil law question about which I am unsure. However, if there is no civil obligation to report, why should we do so as long as we proceed canonically where appropriate?

Article 5: Hard to summarize succinctly the various issues addressed in this somewhat perplexing and lengthy text, at least from my perspective. (Cf. TM, par. 39 ff)

Positive features:

A. The document generically mentions the need to follow canonical procedures although this text is located in the middle of the article rather than at the beginning, and other provisions such as administrative leave, permanent removal from ministry for one act of sexual abuse, and the meaning of sexual abuse raise significant questions.

B. The document calls for efforts to restore the good name of the accused priest or deacon if the accusation is unfounded, and it stresses offering the offending priest or deacon professionalœassistance.

Negative features:

A. With due regard for the aforementioned restoration of an accused cleric’s good name, the document should have affirmed a presumption of his innocence until he is proven guilty. A thoughtful Australian text offers a possibly useful statement in this regard: “All persons are presumed innocent unless and until guilt is either admitted or determined by due process. If Church personnel accused of abuse are asked to step aside from the office they hold while the matter is pending, it is to be clearly understood that they are on leave and that no admissions or guilt are implied by this fact. Unless and until guilt has been admitted or proved, those accused should not be referred to as offenders or in any way treated as offenders.(TM,par. 26).

B. As is true throughout the document, no reference is made to complaints against bishops, with due regard for the fact that only the pope or his delegate can punish them [c. 1405, 1, 3].

C. The second paragraph speaks of relieving the alleged offender of his ministerial duties once the preliminary investigation so indicates. Presumably this means that the allegation is a founded one, and there is probable cause to proceed further by way of a penal procedure. This decision would be differentiated from situations in which, for example, the cleric’s behavior was inappropriate yet not criminal or in which disciplinary (e.g., removal from pastorate) but not criminal action is warranted. Yet in all such instances what criteria ground such a decision? Is this investigation the one conducted by the diocesan review board mentioned in article 2? Furthermore, unlike canon 1722on similar measures, once the penal procedure is initiated, no reference is made here to citing the accused or the promoter of justice. What provisions are made for the support of the accused cleric [c.281] and for protecting his reputation pending completion of a formal penal procedure [c. 221]?

D. The formulation regarding a medical and psychological evaluation for such a priest or deacon seems more forceful (“will be referred” ) than in norm 8 (“will ask him [priest or deacon] to undergo appropriate medical and psychological evaluation and intervention, if possible”). In this context it should be noted that Holy See jurisprudence is clear that no one can be obliged to engage in invasive psychological testing without the person’s free consent.

E. Paragraph 3 speaks of sexual abuse being admitted or established after an appropriate investigation in accord with canon law. Presumably this means sexual abuse of a minor, but this is not explicitly stated. Does such “investigation” presuppose a formal judicial process as differentiated from the preliminary investigation? Presumably it does. However, despite a reference in paragraph 5 to the May 2001 CDF letter on reserved delicts, the document does not refer to the necessary post-preliminary investigation referral of a case to CDF before it is processed.

F. Interestingly enough the document does not mention the primary legal document on reserved delicts, the April 2001 motu proprio “Sacramentorum sanctitatis tutela” of John Paul II on which the CDF letter is based. The document refers to the 1995 NCCB instruction “Canonical Delicts,” a text providing helpful suggestions on handling sex abuse of minor cases. However, this rather nuanced text has no special legislative standing.

G. Paragraph 4 provides that for even one act of sexual abuse the offending priest or deacon is to be permanently removed from ministry. This does not seem to be a precise penal category as articulated in Book VI. Perhaps it is envisioned as a perpetual expiatory penalty depriving one of various canonical options [c. 1336, 1,3]. It seems tantamount to laicization even if it isn’t such technically. This provision’s sweeping reference to penalizing past, present, or future sexual abuse seems to take no cognizance of at least two significant universal penal law provisions. Canon 1341 views penal procedures and penalties as a last, not a first, resort in dealing with problematic behavior; and the May 2001 CDF letter indicates that penal actions are prescribed ten years after the alleged victim reaches his or her eighteenth birthday. Both the Charter here and no. 9A of the Norms questionably insist on the complete removal from ministry of a priest or deacon despite their possibly successfully rehabilitating themselves psychologically and spiritually and serving the people of God faithfully for years.

H. As noted earlier, the penultimate paragraph of the document broadly describes sexual abuse in light of the 1992 Canadian bishops’ text From Pain to Hope. Various types of prohibited and destructive behavior are mentioned; yet the penalties envisioned seem to be the same no matter what the nature of the “abuse.” No allowance is made for the kind of judicial/administrative discretion in assessing imputability that canons 1343-1346 among others envision. Universal penal law reflects a certain “proportionality” principle: the more serious the offense, the more serious the penalty. Regrettably such an approach seems absent from this document and the Norms.

I. Paragraph 4 of this article refers to “prevention” as one purpose of professional assistance for the offender. Presumably this means precluding future delicts but it is not entirely clear.

J. Paragraph 5, speaking of various options in such cases, indicates as one option a request from the bishop for involuntary dismissal from the clerical state. This presumably means recourse to an extraordinary papal administrative dismissal of a cleric; one might have thought that this would have been spelled out. What about the cleric’s right of defense? Or could it be that the bishop requests his tribunal to dismiss the cleric? Yet this seems precluded by the fact that the CDF makes the decision regarding the procedure to be followed in such cases.

K. The text makes no allowance for other alternatives to dismissal, e.g., personal precept prohibiting contact with minors, surveillance, declaration of impediment to the exercise of orders, etc. (cf. “Canonical Delicts”).

L. Given the potentially serious consequences of a penal procedure, the necessity of access to canonical counsel should be specified more forcefully (see cc. 1481,2; 1723). The accused cleric’s right of defense against any charges is to be affirmed as forthrightly in theory and in practice as is the right of the promoter of justice and the alleged victim to make as persuasive a case as possible for his punishment.

M. Paragraph 6 refers to the non-applying of the penalty of dismissal in some cases and mentions infirmity as one of the reasons. Does this refer to the imputability-altering factors specified in canons 1322-1327? Interestingly the very basic penal reality of “imputability” does not seem to be mentioned in either document.

Article 6: Standards of ministerial behavior

Positive features:

The development of well-understood standards of ministerial behavior seems a positive step forward. Such standards are currently articulated in various places: New Testament, Vatican II, code, post-code directories etc. Perhaps a restatement of such might be beneficial. In this connection see IM passim: eight principles treated in some detail followed by three appendices and a brief bibliography.

Negative features:

A. How precisely will such standards of behavior (and “appropriate boundaries” [presumably in clergy-laity relationships]) be developed?

B. What individuals/groups will be involved in developing such standards?

C. What criteria will guide this enterprise?

Article 7: Communications policy

Positive features:

The value of openness in our diocesan communications seems an important consideration in light of the noteworthy “credibility gap” that has emerged due to the secrecy of the clerical culture in the past and in the present.

Negative features:

A. How precisely will such a communications policy be developed?

B. What individuals/groups will be involved in developing such a policy?

C. What criteria will guide this enterprise? It needs to reflect a sensitivity to the exigencies of openness and transparency in diocesan communications as well as a respect for privacy and confidentiality as warranted.

Part III: Ensure Accountability of Procedures: Articles 8-11

Article 8: National Office for Child and Youth Protection (cf. TM, par. 35,1-2)

Positive features:

A. There seems to be a genuine value in structuring such a national office to aid dioceses and provinces in fostering a safe environment for minors, i.e., those under 18.

B. There’s some wisdom in regular updates on diocesan compliance with the Charter (hopefully refashioned during the recognitio process)

Negative features:

A. The next article speaks of a National Review Board that will somewhat monitor the work of the aforementioned office and commission various studies. Are two such national bodies really necessary or is this a case of over-bureaucratization, for which conferences were criticized during the 1917 code revision process?

B. What authority does the Office have besides publishing a list of non-compliant dioceses to address the failures of bishops to be accountable in this area, a major complaint of the faithful? Who can penalize/discipline non-compliant bishops? The pope/Holy See alone? See John Huels, “The Correction and Punishment of a Diocesan Bishop,” The Jurist 49 (1989) 507-542. Should there be some provision for a more significant oversight role by intermediary agencies of accountability, e.g., metropolitans (senior suffragans) in provinces? This issue was raised in August 1989 during the work of the CLSA Apostolic Visitation Committee, which criticized the absence of intermediary level accountability mechanisms in analyzing the apostolic visitation of the Archdiocese of Seattle during the tenure of Archbishop Hunthausen. See “Apostolic Visitation, Accountability, and the Rights of the Local Church, The Jurist 49 (1989) 341-346.

C. Given the threefold task of the Child and Youth Protection Office, there should be criteria for its members other than expertise in sexual abuse of minors, however indispensable such input. For example, legal expertise, canonical and civil, seems crucial.

D. What is the relationship of the members of the Office to the USCCB General Secretary who appoints them? Do they have to clear whatever they do through him? Whom does he consult, if anyone, in choosing Office members? The USCCB President/Officers? Is there any role for the USCCB Ad Hoc Committee on Sexual Abuse in this area (see art. 10 on reconstitution of this committee)?

Article 9: National Review Board

Positive features:

The commissioning of studies on the current crisis and on the nature and scope of the problem seems positive in principle.

Negative features:

A. See 2a under article 8.

B. One wonders what recommendations might emerge from the aforementioned Office’s assessment of compliance with the Charter? Might they have disciplinary or penal implications? See 2b under article 8.

C. What might be criteria for membership on this National Review Board?

D. Who determines the scope of the aforementioned studies on various issues? Those who will study such issues?

Article 10: Ad Hoc Committee on Sexual Abuse

Positive features:

Given the national scope of the sex abuse of minors scandal, the reconstitution of this body to include representatives from throughout the country is a positive development.

Negative features:

A. The functions of this committee may be specified in USCCB documentation with which I am unfamiliar; but perhaps they should have been clarified in the document (see, however, article 15 on consultation with the CMSM).

B. How is this committee to relate practically to the aforementioned Office and Review Board? This does not seem to be addressed explicitly in the 2001 USCCB Statutes, Bylaws, Handbook 48-51 (ad hoc committees).

Article 11: Notification of Holy See: nothing seemingly worthy of comment.

Part IV: To Protect the Faithful in the Future: articles 12-17

Article 12: Diocesan safe environment programs: nothing especially noteworthy except a question about how precisely such programs will be designed.

A. Will some individual/group be primarily responsible for crafting such? The diocesan review board (art.2)?

B. How broad a consultative process is envisioned? What about canonically recognized consultative bodies such as presbyteral councils (cc. 495-501) and diocesan pastoral councils (cc. 511-514)?

Article 13: Background evaluation of ministerial personnel: nothing seemingly worthy of comment, although one might assume that in such evaluations distinctly ecclesial sources as well as those of law enforcement and other community agencies will be relevant.

Article 14: Background checks

Positive features:

This effort at trying to protect the People of God against unsuitable ministers makes eminently good sense and in some instances is long overdue.

Negative features:

A. Interestingly enough while this text speaks of “clerics in transition,” the somewhat corresponding norm 11 speaks only of priests and deacons, hence exempting bishops from such scrutiny. Or is it presumed that the Congregation for Bishops and the Nuncio will take cognizance of such concerns in the episcopal selection process?

B. This article quite rightly refers to major superiors whereas the somewhat corresponding norm 11 does not mention them.

C. The document does not adequately distinguish between the diocesan “assignment” of a religious cleric over which a bishop has some control [ c. 682] from the “residence” of a religious which is generally not technically within the bishop’s competence. However, for a most serious reason the bishop can prohibit a religious from residing in the diocese; but if the religious superior fails to act, the issue is to be referred to the Holy See [c. 679].

Article 15: Bishop-religious superior consultation

Positive features:

References to such Ad Hoc Committee on Sexual Abuse-CMSM consultation make eminently good sense given the significant number of religious clerics ministering in the country. One wonders whether similar episcopal-religious consultation took place during the drafting of the Charter. However, such consultation was an integral part of the drafting of the two Australian documents referred to at the beginning of these reflections.

Negative features:

A. The article should speak about clerical “societies of apostolic life” as well as clerical institutes.

B. It should be noted that while the USCCB under certain conditions has some juridical authority over individual diocesan bishops (e.g., cc. 455-456), the CMSM has no such juridical authority over the superiors of the institutes and societies who are its members.

Article 16: Ecumenical research on sexual abuse of minors: nothing seemingly worthy of comment.

Article 17: Seminary/religious house visitation

Positive features:

Hopefully a carefully designed visitation may foster the formation of spiritually and emotionally mature priests and deacons.

Negative features:

A. How will the parameters of the visitation be designed?

B. What will be the involvement of officials of seminaries and formation houses? Of the USCCB, which has no direct authority over the houses of religious formation? Of the CMSM?

C. Why the focus solely on priests? What about deacons? And once again no reference is made to bishops.

National Catholic Reporter, Posted September 19, 2002

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