Clergy Sexual Abuse in the United States

by Thomas Brom (2010)

Although the Vatican vows to improve disciplinary proceedings for priests accused of sexual abuse, canonical trials remain far from the eyes of the public.

On a trip to the United Kingdom in September, Pope Benedict XVI publicly apologized for not acting swiftly to stop the sexual abuse of children by priests in Europe and the United States. “For all of this,” Benedict said, “We are in a moment of penitence.”

But the Pope’s apology came on the heels of a reassertion of the Roman Catholic Church’s authority to adjudicate charges of clergy sexual abuse within its canonical forums. In April the Holy See’s Congregation for the Doctrine of the Faith (CDF) posted on the Vatican’s website a “Guide to Understanding Basic CDF Procedures Concerning Sexual Abuse Allegations.” Months later it released new guidelines, “Norms Concerning the Most Serious Crimes,” to update the Vatican’s procedures for prosecuting clergy sexual abuse cases.

The U.S. Conference of Catholic Bishops and the Canon Law Society of America then sponsored a seminar on the new procedures in Washington, D.C. The Very Reverend Lawrence A. DiNardo of the Diocese of Pittsburgh reviewed the essential documents, including the 1983 revised Codes of Canon Law and Pope John Paul II’s 2001 Motu Proprio, which gave the CDF original jurisdiction over allegations of the sexual abuse of a minor.

DiNardo’s tutorial outlined a parallel judicial universe largely unknown to practitioners in “civilian” criminal and civil law systems. Each of these has its own statute of limitations, rules of procedure, and standard of proof. Each serves distinct but overlapping constituencies – the community of the faithful, the public safety, and a plaintiff’s right to seek damages for civil wrongs. Frictions between the systems are unavoidable.

“Sure, there’s tension,” says Jeff R. Anderson, a principal in Jeff Anderson & Associates in St. Paul, Minnesota. “Sometimes there are parallel investigations going on, with competing depositions. How do you protect witnesses in those situations? In one recent case, the canonical court wouldn’t permit us to represent our client, so we hired a canon lawyer to do it.”

Andrea Leavitt, a San Diego sole practitioner, has represented plaintiffs in dozens of sexual abuse cases. “Even if the canonical court is competent, there is an inherent conflict of interest because the Church has liability,” she says. “They may call it a criminal proceeding, but it’s really an obstruction of justice.”

The canonical trials are held in secret, so no one really knows how many are occurring or have occurred in the past. “There have been very few canonical trials in the past 40 years,” says Jeffrey S. Lena, a Berkeley sole practitioner who represents the Holy See in the United States. “There are various cultural reasons for that – many of the accused ‘plead out,’ for instance, rather than insisting on a trial. But there are canonical trials going on now.”

Canonical Trials

Canonical proceedings are inquisitional rather than adversarial, adjudicated by a presiding judge and two collegiate judges. Criminal allegations contested by the accused are conducted according to the Code of Canon Law. (1983 CODE c. 1501-1670; c. 1717-1731; and c. 1732-1739.)

According to DiNardo, a prosecutor – called the Promoter of Justice – presents evidence that has been gathered by an Auditor through witnesses, documents, or other means. The accused is represented by an Advocate, who possesses at least a licentiate in canon law. Most U.S. constitutional rights, including the right to remain silent, do not apply. “The court has some power over witnesses within the community of the faithful,” Lena says. “While the Bishop cannot compel testimony, witnesses can feel a strong sense of duty or obedience to testify.”

Rules of evidence in federal and state civil or criminal proceedings also do not apply. “Though evidentiary privileges exist, there are no rules of exclusion, such as a hearsay rule,” Lena says. “Hearsay goes to the weight of the evidence rather than to admissibility.”

At the discretion of the presiding judge, witnesses may or may not be represented by a “consulting attorney,” who also must be a canon lawyer. “The instructing judge commonly denies witness requests for representation,” says Thomas P. Doyle, a canon lawyer for 26 years who lives in Maine and has represented chief complaining witnesses in ten canonical trials. “The atmosphere is intimidating, and the language of the court is confusing. There’s very little sensitivity to what the witness is going through. At one trial in Pennsylvania, I could tell the witness was having a severe emotional reaction talking about his sexual abuse. He went outside the hearing room and vomited all over, and I told the court, ‘There’s your testimony.’ ”

At the outset of the trial, according to Doyle, all participants – judges, advocates, witnesses, and the accused – are obliged to sign an oath of “pontifical secret.” The penalty for breaking that oath could be excommunication. “I advise witnesses to refuse to sign,” Doyle says. “Despite the pressure, the canonical court cannot refuse to hear testimony from a witness who refuses.”

A Notary for the diocese then sees that trial documents are appropriately signed and sealed. In a canonical court the standard for determining guilt is “moral certitude,” defined by DiNardo as “a practical judgment on the part of the judge based on the available proofs, considered as a whole and not a collection of isolated factors.”

According to the Q&A on canonical trials by the U.S. Conference of Catholic Bishops, penalties upon conviction range from suspension from priestly duties to “a life of prayer and penance” or dismissal, referred to as a “dispensation from the obligations of the clerical state.” The priest is no longer counted as a cleric, but remains within the Church in a different legal status. “I’ve never seen damages awarded to a victim” of clergy sexual abuse, Doyle says.

Both the verdict and any imposed penalty may be appealed to the CDF in Rome. Appeals may take years, and a decision of the supreme tribunal is final.

Doyle estimates that 200 to 300 canonical trials are in progress around the United States, though most of those involve marriage annulments.

Criminal Trials

In order to qualify for federal funding, all 50 states have some form of mandatory reporting law for child abuse and neglect. In 1996, the California Legislature added clergy to the list of those required to report known or suspected instances of child abuse to child protective agencies. (Cal. Penal Code § 11166(d).) The penal code protects these mandatory reporters from suffering any sanction for complying with the statute. (§ 11672.)

But the Penal Code provisions include an exception that protects the confidentiality of privileged communications between parishioners and priests in the confessional. (Cal. Penal Code § 11166(d)(1).) “The reporting of clergy sexual abuse allegations is about as good as Bernie Madoff’s reporting to the SEC,” says John Manly, a principal at Manly & Stewart in Newport Beach who represents dozens of plaintiffs in child sexual abuse cases. “Failure to report clergy abuse has become a pattern and practice, and apparently there are no consequences. Some bishops are trying, but they are up against institutional arrogance and resentment that sexual abuse claims are overblown. You can see it in how some of the bishops act.”

In June 2010, a redacted version of Manly’s deposition of Cardinal Roger Mahony, taken in a civil case earlier in the year, was made public (Clergy Cases I, No. BC 376766 (Los Angeles Super. Ct. final redaction stipulated June 15, 2010)). Asked by Manly why he had not reported allegations of clergy sexual abuse made by two men in 2000, Mahony replied, “The two men were adults. They were not children, so there was no longer suspected child abuse.” Mahony testified that he could recall about 50 cases of abuse reported to authorities from 1997 to 2002, many reported by religious orders rather than by the archdiocese.

Says Manly, “The archdiocese’s view is that it has no obligation to report abuse if the allegations are made by an adult. I think that’s a misreading of the statute. If I were the U.S. Conference of Catholic Bishops, I would be very worried for my exposure.”

Civil Trials

In 2002 California’s Legislature responded to the growing number of clergy sexual abuse cases by amending the Code of Civil Procedure to allow victims who confront their childhood abuse in adulthood to file suit against third parties up to three years after they discover the roots of their trauma. (Cal. Code Civ. Proc. §§ 340.1(a) and (b).) The state Supreme Court is currently considering a Los Angeles case that asks whether the amended code section applies retroactively (Quarry v. Doe 1, 170 Cal. App. 4th 1574 (review granted as No. S171382 Jun. 10, 2009)).

For plaintiffs lawyers, the holy grail is gaining access to documents and depositions from canonical trials that may have occurred decades ago. “Those transcripts can turn a lawsuit into a multimillion-dollar case, and it will never go to trial,” says Patrick J. Wall, a canonical lawyer and former priest who works at Manly & Stewart as a consultant.

In a high-profile federal case, plaintiffs attorney Anderson has acquired the canonical trial record of a priest laicized in the 1960s for serial child sexual abuse. Last year the Ninth Circuit let an Oregon state law claim go forward against the Holy See, holding that the priest had acted within the scope of his employment (Doe v. Holy See, 557 F.3d 1066 (9th Civ. 2009) cert. denied, 130 S. Ct. 3497 (2010)).

Because the stakes in civil cases are so high, requests for canonical trial documents can take years. “According to the 2001 Norms, canon law prosecutors are instructed to send all materials to Rome through the papal nuncio’s diplomatic pouch,” Wall says. “There, Cardinal William Levada at the CDF decides whether to assert original jurisdiction, or to permit the local bishop to prosecute. Everything takes time-there’s no five-year civil rule in the canonical system.”

But the Holy See’s Lena says, “I can’t think of a case when the canonical record was not produced in civil proceedings.”

According to Wall, the biggest change since promulgation of the 2001 Motu Proprio is the overlap between the canonical and civilian systems.

“I would describe canonical trials as a true conflict-of-laws issue,” he says. “Sometimes we’re opposed from three different sides – defense lawyers who represent the accused in criminal proceedings, civil proceedings, and canonical proceedings. Defense lawyers fear that more civil discovery could increase their clients’ criminal exposure.”

Both Wall and Doyle advise prosecutors and plaintiffs attorneys on matters of canon law. Civilian defense attorneys, Wall says, now work in many of California’s chancery offices. “And because the CDF in Rome can offer local dioceses special dispensation, civilian lawyers may serve as advocates and judges in canonical trials.”

Occasionally, a disciplined priest strikes back in state court. Robert Stepek, a laicized priest in Chicago, sued Anderson and his clients for defamation based on statements made by witnesses in the canonical trial. The witnesses countersued, filing claims against the Catholic Bishop of Chicago. The Church then moved to dismiss, asserting that under the First Amendment the circuit court lacked subject matter jurisdiction over claims arising solely from statements made in a canonical trial. In an intermediate appellate court, the Church prevailed. The Supreme Court of Illinois refused to hear the case, thereby effectively extending First Amendment protection to members of a religious body who testify in canonical trials. (See Stepek v. Doe, 392 Ill. App. 3d 739, appeal denied, 233 Ill. 2d 600 (2009).)

If civilian advocates and First Amendment rights can be grafted onto canonical trials, can due process, evidentiary rules, and the right to jury trials be far behind? And as dioceses move more swiftly to investigate accusations, can conflicts with criminal investigators be avoided? Finally, what is the point of having three overlapping systems for adjudicating claims of sexual abuse by clergy?

A millennium after Henry II famously battled Thomas á Becket over civil authority, the Church is still reluctant to render unto Caesar what is Caesar’s.