Last Rights: Canon Law in a Mirror of Justice Cracked
The story of sex abuse and the Catholic priesthood has itself been abused to malign the Church. A canon lawyer describes the resulting erosion of the rights of priests.by Father Stuart MacDonald, J.C.L.Note from Father Gordon MacRae: It is an honor to host this guest post by Father Stuart MacDonald whose previous contribution at These Stone Walls was one year ago with “Ever Ancient, Ever New: Jesus’ Priesthood in a Time of Chaos.”A few weeks ago, Fr Gordon MacRae published, yet again, a profound post - Holy Orders in Exile: The Ascension of Persona Christi - which was shared on Facebook an astonishing 25,000 times. Father’s posts are normally shared in the hundreds, only once reaching 15,000 shares. Both of those record-breaking posts dealt with due process in the Church - an issue with which Fr MacRae is justifiably interested.Something else happened, moreover, on this latest post: an unusually high number of clerics chimed in with comments. You might think, “big deal.” Let me tell you, as a priest, it is because normally priests are reticent to associate with a brother priest who has been convicted of that crime for fear of being guilty by association, or labeled a priest protector or for any other number of reasons.Something clearly is happening in the Church and the world - apart from Fr MacRae’s bold and prophetic posts - that is emboldening priests, and others - cf. Patricia MacDonald’s (no relation to me) comment from the June 6 post - to speak out against the injustice that is routinely being carried out in the Church against priests. Followers of TSW are well aware of Fr MacRae’s innocence and the double-blow of lack of due process dealt him. His is but one egregious case of many.In an age in which liberty and choice are glorified, the reality is that priests have little freedom and fewer rights than most. The debacle that we refer to as the sex abuse scandal has made priests pariahs in both the secular and ecclesiastical worlds. In the secular world now, priests, in general, are held in suspicion; accused ones, considered guilty no matter what.In the ecclesiastical world, priests are seen as a potential liability for a law suit against the diocese: they have become the pawns of risk management. The result is a form of tyranny with which a bishop treats his priests. Many bishops, in the name of protecting minors, incorrectly have bought into the argument that laws, due process, and rights are not nearly as important as appearing to be on top of things, read: the accuser is always right. Based on the incorrectly understood mantra that a priest must obey in all things but sin, priests, routinely, are pressured into giving up, or are forced to cede, their ecclesiastical, and sometimes even their civil, rights, all for the good of the Church.For the good of the Church - pro bono Ecclesiae, as those in the know use it - is an interesting concept. The way it is bantered about today refers to the fact that the Church is going to be vigilant in protecting minors and vulnerable adults (as if the Church is going to wipe out that sin completely, and one wonders where the Gospel efforts are to wipe out the same sin in families, in sports and any number of other arenas). There is zero-tolerance in a zero sum game; any priest who is accused must be dealt with severely. Perhaps some laws and rights have to be glossed over, the thinking goes, but it is better for the Church this way, in the sense that the Church needs to regain her credibility among the faithful and the wider world. It’s all at the service of the Gospel. So they think; so they say. What those who subscribe to this theory fail to realise is that the good of the Church is only ever served when truth and justice are held as the highest standard, not credibility.Truth has been compromised countless times in cases involving accused priests because, if the accusation is credible - in other words, the abuse could have happened, in theory, because the dates are relatively correct, the priest was serving in that parish at that time etc etc (which in Fr MacRae’s case is not true!) - then the priest is considered guilty. Judicial process, or even truly credible proofs, are not necessary: accusation has become the de facto standard of guilt for the world, and very nearly so in the ecclesiastical world. There is no opportunity for the accused priest to refute the accusation or to confront the accuser. Truth and justice are secondary to dealing with the problem. The expedient way of dealing with an accusation is automatically to believe the accuser.What is ironic is that this mindset has now infiltrated the secular world with the #metoo movement. People lose jobs, are pilloried in the press, simply because an anonymous accuser says that Mr. X did or said something five, ten or twenty years ago. No proof (truth), no process (justice). Just accusation and guilt. In the Church, this does not lead to respect and confidence. It quiets the madding crowd for a while, to be sure; however, it belies that the Church still cannot be trusted because she uses power to do whatever she wants - which is exactly the same complaint that was levelled against her regarding the sex-abuse crisis. Bishops thought they were above the law, ignored it, and tried to protect the institution pro bono Ecclesiae. Well, the chickens have come home to roost, and it is making even bishops run scared. The result is more tyranny. Strangely, the result is also more clergy who are willing to stand in solidarity with those of their confreres whose rights have been trampled upon.THE POWER BUT NOT THE GLORY
Several years ago, my own bishop - now emeritus - recounted to me how a priest had been telling him that a priest’s obedience was not about everything and anything (“obey in ALL things buts sin”) but only pertained to those things over which a bishop had legitimate claim. I recognized that this was a conversation I had had recently with the priest in question and that the bishop was seeking to correct me. The bishop said to me, “I told Father, that’s simply not true. I own each and every one of my priests.” I shall never forget that conversation. It opened my eyes to how deeply the abuse of authority runs.The problem is that power, which is the tool of a bully, has been mistaken for authority, which is the legitimate tool of superiors. Power is getting one’s way by force and might. Authority is the superior’s prerogative of making licit decisions. The tyranny that reigns against priests is of bishops who think they can do whatever they want with those under their care because of ‘obedience’. It’s nothing new in the Church. A bit of history is in order.An interesting book by Fr Kevin McKenna, For the Defense: the Work of Some Nineteenth Century American Canonists in the Protection of Rights (2014), outlines in great detail the struggle of some priests in the United States to assert their rights in the face of illicit removal from office or transfer as a pastor. Various canonists had to write in defense of priests, had to appeal to the Holy See in order to bring about change in the law of the Church at the time. One might think again, “big deal.” And again, I say, it is.Priests are completely dependent on their bishops for their work and sustenance. Without leaving the priesthood - a very serious, and most often sinful thing - a priest can’t just go and find some other work or a new bishop. Therefore, it can sometimes be nigh impossible to find a canon lawyer (priest or lay) who is willing to advocate on behalf of a priest, because an advocate is seen, not as someone performing a legitimate and necessary function, but as someone who is challenging authority. That is as true now as it was in nineteenth-century America. Thankfully, that advocacy led to changes which were codified in the 1917 and 1983 Codes of Canon Law. Unfortunately, it remains an uphill battle to find canonists willing to assist a priest.Even though the rights of clerics have been enshrined in the law of the Church, some canonists and bishops still find ways of getting around them. When the ugly face of sexual abuse manifested itself in the 1980s, canon law in general and penal (criminal) canon law specifically was held in disdain. Law was considered old-fashioned and rigid in the after-glow of Vatican II. Dioceses were ill-equipped to handle a trial for a priest accused of serious canonical crime. They didn’t have enough canonists, let alone the requisite knowledge, to conduct a trial.Instead of using applicable canon law, superiors made other laws fit the situation if they even bothered to use the canons themselves. One such example occurred when canonists, using interpretations that have never been part of the canonical patrimony, distorted other laws that allowed priests to be removed from ministry, namely, laws regarding impediments to ordination. Just as there are certain situations which prevent a couple from marrying, things we call impediments to marriage - like not marrying too close a relative, for example - so there are impediments to being ordained a priest or exercising priestly ministry. In the old days, for example, you couldn’t be ordained a priest, or say Mass if you were already a priest if you were missing fingers that would be needed to hold the host. One such impediment which remains today in the law is the presence of insanity or psychic infirmity. Obviously, a person who is not compos mentis cannot be allowed to celebrate the sacraments for fear that they would be administered invalidly. In the 1980's, abuse of a minor by a cleric suddenly became an indication of severe psychic infirmity, hence a cleric so accused was declared impeded from exercising his ministry in any and all ways. It was a complete misapplication of the law against which the priest had little or no recourse.Administrative leave is the other common misapplication of ecclesiastical law. The concept, of course, is borrowed from civil law and business praxis. Someone is alleged to have done something seriously wrong in the workplace, pending an investigation, they are removed from their duties while still being paid. When the investigation is over, the leave comes to an end: the person is dismissed or she returns to work. Canon law has a similar practice. When an ecclesiastical trial is undertaken, a priest can be removed from ministry pending the outcome of the trial. At the end of the trial, the priest is either exonerated or punished, but the removal from ministry, as such, comes to an end.Bishops began to misapply this part of the law. When a priest was accused, he was removed from ministry and placed on “administrative leave” that never ended because no trial was contemplated, let alone conducted. Soon bishops began to assert that a priest’s ministry was completely dependent upon the discretion of the bishop. Many canonists argued against these practices. When the full brunt of the abuse crisis exploded and the Church was caught with pants down - figuratively and, ahem, literally - something ‘more legal’ was needed to deal with the situation.Just prior to the explosion of the crisis, and in response to what was seen as these inadequate practices by dioceses, the Holy See took on exclusive competence for handling abuse cases. While the Holy See was well-intentioned in its desire to see proper canonical procedures followed, it did not foresee the number of cases on the horizon for which it didn’t have enough staff. In 2002 the Boston scandal hit. Suddenly there was an avalanche of cases as dioceses scoured their personnel files to send cases to Rome, read: let them take care of it so we can wash our hands of it. Most of these cases were already well known to the local dioceses and had been dealt with in whatever way the local church chose: transfer the priest for a new start, declare the impediment or administrative leave. Almost none of them had been dealt with in the proper legal manner envisioned by the Church’s law.Rome’s new competence meant that the local church could declare to the press that they were dealing with these cases with total transparency (often publishing the names of any priest who had been accused, including deceased ones, even though there had never been a proper investigation into the allegation). It was the pro bono Ecclesiae mentality firmly taking root - protect the Church, and her assets from being sued, rather than seek truth and justice.Soon after, the American bishops - the Latin rite ones - enacted what have become known as the Essential Norms. Those are the laws that call for zero tolerance. But even they are fraught with difficulties - an article I wrote in 2006 “Legality and Law: some reflections” published in Advocacy Vademcum argues that the Norms might not even be valid law and may not apply to religious priests, among other problems.It soon became clear that the Church could not handle the cases. Rome began delegating local dioceses to conduct trials. Dioceses responded that they didn’t have the ability to conduct them. Provision was made for shorter ‘administrative’ processes to be conducted locally. Furthermore, the issue of prescription (the Church’s equivalent of a statute of limitations) came up. The Holy Father approved a new law that would allow for the ‘statute of limitations’ to be set aside. It quickly became clear that due process and the rule of law were sitting on ever-changing sands.What is especially ironic about the panic and legal wrangling that ensued is the bravado with which bishops, on the one hand, proclaimed they were seeking the protection of children by dispensing from the Church’s statute of limitations, pro bono Ecclesiae, while, on the other hand, they screamed “unfair!” at civil legislatures removing the civil statute of limitations for cases against the Church. People who claimed abuse often sued both the priest and the diocese for damages (Fr MacRae has written about how unscrupulous that whole business sometimes is). But those civil suits were often barred by the statute of limitations. Various legislatures removed the statute, clearing the way for the civil suits to move forward and for the dioceses to have to pay out money. It baffles any academically honest mind how someone could claim that removing prescription pro bono Ecclesiae was acceptable but that removing the statute of limitations was unfair. I guess it depends on which side of the power divide one stands.THE MIRROR OF JUSTICE CRACKED
So now we come to the present. The madding crowd was not satisfied with going after the priests: they want the bishops too. First, they wanted the priests held accountable for the abuse. Now they want bishops to pay the price for what is seen as cover-up. [In defense of the bishops, it needs to be pointed out that, for the most part, what is now seen to be cover-up and transferring priests to protect the Church, was, in reality, a dereliction of responsibility for carrying out canonical procedures, yes, but also, according to the anti-legal sentiment of the time, following the expert opinions of the professional psychologists who counselled bishops that transferring an abusive priest to a new setting would help him with his problem. Much needs to be laid at the feet of the medical professionals and the clergy rehab centers.]In response to this public pressure, we see bishops increasingly, but quietly, being removed from office because they didn’t report accusations to the police, or harbored an accused priest. Just recently, Pope Francis excoriated the episcopate of Chile for the culture of cover-up. Almost all of the Chilean bishops have submitted their resignations to the Pope. Not so long ago, a Vatican diplomat was removed from the clerical state as a canonical punishment for sexual abuse - a punishment rarely, if ever, meted out to a bishop - and died before being tried in the Vatican’s civil court. An Australian Cardinal is currently being tried for sexual abuse of a minor in the Australian courts. Another bishop in Australia, criminally convicted of failing to report abuse, decided to take a leave of absence during his appeal and appointed a delegate. That didn’t fly: the Pope, in turn, has appointed an Apostolic Administrator - in other words, neither the convicted bishop nor his delegate is going to govern the diocese.There is a new fear afoot - that of the bishops. The public is still hungry and the Church is once again struggling to gain credibility. Bishops are looking over their shoulders to see who is monitoring them. It’s not just priests who worry about being removed from ministry and tossed on the streets. It’s all ironic because bishops, in one sense, have even fewer rights enshrined in law than priests about these things. They serve at the will of and are judged only by, the Pope. The law just doesn’t envision that a bishop would be derelict in his duty or have to be removed from office, let alone removed from the clerical state - defrocking as the press quite incorrectly terms it. A priest, if he has the courage, can lodge a lengthy, financially costly recourse to higher authority, but a bishop? Short of begging the Holy Father… The irony brings no satisfaction or comfort to anyone. Bishops are on the hook now as well, and, in some senses, are being treated in the same manner as they have been treating their priests, all pro bono Ecclesiae. But the Church is no healthier. The faith is waning drastically in Western culture.This sad situation will continue as long as the Church is interested only in appearing to be in control of the situation by the abuse of power. If all that matters is that we regain lost credibility with the world and the faithful, and we are willing to do that without truth and justice, then the credibility we gain is only temporary. Bishops will continue to show that they are strict and zealous, at the expense of their priests. If we thought it was bad before, it will only be worse because a bishop fears, not just public outcry about an allegation, but now he fears that his own job will be on the line.Our Lord taught us that He is the way, the truth, and the life. If we are not interested in finding our way to the truth of accusations, of admitting mistakes, of admitting that human justice is never perfect and that perhaps a particular accused cleric here or there is beyond the scope of human justice, then we are not living in the way and the truth. Our Lord was sent to His death by accusations that no one bothered to investigate and by fear of the mob. Our credibility will return only when due process, as best as it can be done in our human condition, is respected. That will not make us popular; it will, however, make us authentic and transparent.In saying all this, no one is trying to downplay or deny, the very serious crimes that have been committed by a very small number of priests, or even the egregious dereliction of duty by some bishops. But they, and much more so the innocent ones, deserve the same justice that Kim Kardashian was seeking for the convicted, and confessed, drug dealer. Where are the Kim Kardashians seeking the release of Fr Gordon MacRae? They deserve the same justice that bishops are bending over backward to get for illegal immigrants: I think we call it mercy.Even if all the priests who have been accused were guilty, trampling truth and justice pro bono Ecclesiae is not the answer. Increasingly people see the injustice that Fr MacRae has suffered. It’s no wonder his post about fidelity to the priesthood was shared 25,000 times, that so many priests commented in support of him. His story, his wisdom scream to be shared. Thank God, priests and other clergy are recognizing the hypocrisy of it all and are willing to speak up. They are bold enough to speak out in support of Fr MacRae. God bless them. God reward them, but most of all, God protect them from pro bono Ecclesiae, truly for the good of the Church.
Father Stuart MacDonald, J.C.L., is a priest of the Diocese of St. Catharine in Ontario, Canada, Father Stuart is a canon lawyer, licensed paralegal, and former official in service to the Holy See. In addition to theological credentials, he holds a Master of Arts in History from McGill University and a Licentiate in Canon Law from the Pontifical Gregorian University in Rome. Father Stuart is presently administrator of St. Anthony Parish in Welland, Ontario.His guest post this week is a masterful analysis of what has happened in the last few decades in the Church in America, and he brings a much-needed insight into my own situation. His is a summons to Gospel fidelity for all Catholics - the only roadmap out of Dante’s “Dark Wood of Error” that is now the state of due process for Catholic priests.Note from Father Gordon MacRae: Please share this most important post on your social media, and if you are in contact with other priests and deacons, please send them a link to this. It is once again my honor to welcome Father Stuart MacDonald to These Stone Walls. You may also like these related posts from These Stone Walls: