The Clergy in Court Recent Developments Concerning Canonical Rights

THOMAS P. DOYLE, O~P. The Clergy in Court Recent developments concerning canonical rights

Part I children is now a major question facing of their patients. many bishops in our country. It is not a It seems there may be some In January of 1988, The Priest publish question with a finn answer because misunderstanding or at least.misinfor ed an article of mine titled "The Qergy there are several aspects of the issue marion in this area, because one in Court." Since that article appeared that place the bishops in a delicate and prominent legal specialist in clergy much has happened in the area of cler potentially "no win" situation. malpractice is of the opinion that gy malpractice, especially with regard liability can possibly be reduced if a to the sexual abuse of children. Listen to whom? priest is in after-care and in a super There have been more unfortunate vised ministry: cases ofpriests and Religious who have The first and most obvious aspect is abused children. More money has been liability. Many dioceses have been sued Religious superiors or educational expended by the Church for damage for large sums of money by victims and superiors usually will be protectedfrom awards, out-of-court settlements, legal their families. There are several the civil liability by the opinions ofthe fees and medical treatment fees. More ories of liability, none of which are medical people who hLlve evaluated the priests have been sent to prison and still uniformly applied in the civil courts reformed offender. Again, however, more have been given probation. throughout 'the land. there is not100 percent immunityfrom In addition to the accusations of In some instances, bishops and civil suits.2 recent child abuse by priests and Reli dioceses have been held liable for what gious, adults who were victimized in they "knew or should have known" In this article I want to take a look their youth are now coming forward about a priest with a sexual problem. at the canonical rights ofthe. bishops, with lawsuits. In others the liability has been the victims, the community and the af~ based on the legal doctrine of "negli flicted priests. In many instances .the Major question gent supervision." rights of victims and their families have If a bishop reinstates a priest, been neglected because of the fear that On the positive side, an increasing known to have a problem, he takes a contact with them by Cburch officials number of archdioceses and dioceses risk. would bave adverse effects in the event have established policies and programs Is this risk diminished ifthe priest of civil·litigation..•... for investigating accusations, offering has completed treatment with a hopeful pastoral care for victims and their prognosis and assumes some ministerial Right~protected families, and providing adequate treat position under supervision? ment of priests involved. Who should be listened to: The at TItereisalso the question of the In some instances priests have com torneys who may strongly urge that no rights ofthe accused. Often these have pleted in-patient treatment and have . priest with a past problem or history of been overshadowed by tbe.fear.of continued with out-patient after-care sexual·abuse (no matter how limited) liability and financial disaster. Yet, the which has enabled them to effectively be admitted to any fonn of ministry? Or Code ofCanon Law is a reality and the control their problems. should the bishops listen to the medical canonical rights of the community as a In still other cases, priests in this professionals ... the psychologists and whole, the bishops, the victims and category have been readmitted to some psychiatrists who have not only treated their families, and the·afflicted priests form of specialized ministry by the priests but who have kept up-to are most important. courageous and compassionate bishops. date on the developments in medical re This is especially ttue ofthe vic Also, much has been done by search on sexual disorders? tims, their families, and the afflicted psychologists and psychiatrists in priests since it·seems th~y bave suffered developing evaluation techniques and Look at rights most in this area. especially therapeutic treatment The civil law, with its reporting programs that offer hope to afflicted Often the two groups are at odds statutes and child protective agencies, priests that their disorders can be con with one another. The attorneys have protects the rights of the victims of trolled, allowing them to enjoy produc the obligation ofprotecting 'the legal abuse. It also protects the· rights ofthe 1 tive lives. and financial stability of the diocese, accused w~e the allegation is being in The problem of what to do with and the medical professionals have, as vestigated and a trialis being con priests who have sexually abused their primary concern, the well-being ducted. The very pUlpose ofthe trial, if

nmPRIEST/July~l990 35 there is one, is to protect the rights of threat to the faithful. are staggering. Insurance coverage for all, and special attention is paid to the The bishop also has a special obliga such awards, if they are the result of rights of the accused. tion toward the clergy (C. 384). Surely sexual misconduct, has been eliminated The Code speaks more of the obliga be has obligations to priests who are in in the case ofmost dioceses. The poten tions and responsibilities ofdiocesan trouble, but he also has obligations to tial for financial ruin, therefore, is very bishops than it does of their rights. Yet, the presbyterate in general, and from real for many dioceses. some,rights can be assumed in that they this would come the right to do what is When individual priests who have arise from the obligations. necessary to protect the good name and , had problems with sexual abuse per Canon 383 states: reputation of all of the priests. ceive their bishops as acting only with concern for the financial state of the "In the exercise ofhis pastoral office a Financial responsibilities diocese, they should keep in mind that diocesan bishop is to show that he is it is not only the money itself that is im concerned with all the Christian faith Finally, we come to those rights portant, but the responsibility to the lui who are committed to his care connected with the bishop's financial faithful who have donated the money. regardless ofage, condition or responsibilities. In past cases, bishops have received nationality. .. ." He is ultimately responsible for conflicting advice from lawyers con seeing to it that proper stewardship is cerning contact with the victims of From this canon it is obvious that exercised over the financial patrimony sexual contact and/or their families. the bishop has the right to make of the diocese. Some have been advised to avoid all decisions and take actions that will For the most part, the diocese contact, others to send a subordinate, safeguard the faithful from scandal and operates on free-will offerings of the and still others have been encouraged undue hann. With this canon in mind, faithful ~hich are usually invested so to make immediate and direct contact. the bishop can make decisions concern as to obtain more financial advantage. The conflict is based on the attempt ing the continuing ministry of priests or The monetary awards that have been to avoid liability or an appearance of Religious who may pose a potential given as a result of diocesan liability coercion not to prosecute. Today the consensus among law yers is to advise immediate contact with the victims and their families. This Most Pastors dislike spending is certainly good pastoral practice. homily time asking, begging, From a legal viewpoint, it will dem threatening. Noll Offering onstrate that the bishop and the diocese Envelopes can help. Through the as awhole are not condoning the inci use of out "stewardship" series of dent. offertory envelopes, our parish sacrificial giving programs and Sexual contact with a child can be out parish computer software an especially traumatic and even devas programs, our customer pastors tating experience. The degree and depth tell of an increased offering and of the trauma will depend on the type parishioner involvement. of contact and the psychological make Let us take the onerous chore of up or stability of the child. The event "Money Talk" away from you. will be even more traumatic if the per We want to show you. Call us son instigating the contact is a priest or collect: (219) 356-2020. Religious because it will not only have NOLL OFFERING ENVELOPES a severe psychological effect but a -EXCLUSIVELYCATHOLIC spiritual one as well. Provider of Annual Boxes, Nearly all ofthe children who have Periodic Mailing, Computer been sexually involved with priests or Software, Sacrificial Giving, and Religious come from practicing Stewardship Aids Catholic families whose lives have been closely involved with the Church. A Subsidillry Of As one attorney rightly stated, "Our Sundlly Visitor" NOLL PRINTING CO. "No priest is ever going to get his 100 Noll Plaza hands on Jimmy Swaggart's grandson." Huntington, IN 46750 When a child experiences sexual molestation it usually affects the entire

FOR MORE INFO CIRCLE 15 ON ~EPlY CARD family. The victim's relationships with

36 THE PRIEST/July 1990 his parents will be affected as will his family) people directly involved in an relationships with his siblings. incident of sexual contact want and If the incident becomes public. the deselVe more concrete infonnation. victim and the family may be looked This they should be given on a regular upon with suspicion by other members basis. ofthe community. The biggest mistake a bishop can There have even been incidents make is to completely ignore a com when families have been subjected to plaint or accusation. various fODDs of harassment by other Second to this is listening to the CATHOLIC ADULT VIDEO members of the community because of complaint, assuring the complainant EDUCATION PROGRAM a warped belief that they were out to that something will be done and then ig hun the O1urch by pursuing some fonn noring the victim and 'the family. If ofredress for the wrong done. people find that the ecclesiastical struc Without question, the victim and his tures and mechanisms are not handling or her family have a right to special pas their problem to their satisfaction, their toral care from the bishop and the frustration can easily lead them to the diocese. In most instances, it is ad civil authorities. visable that the bishop himself initiate this care. The rights of accused He should be ready to encounter priests and Religious anger, rage, shock, confusion and disap pointment that a person in whom the Most families involved in such victim and family placed so much trust siniations do not sue the Church out of has betrayed them in such a grievous pure malice or a desire to get revenge. manner. They do so because they want as The victim and family should be of surance that the priest or Religious with fered whatever psychological or medi the sexual problem will get help or be cal assistance is necessary. . cause they believe that they have not It is almost always advisable that been properly treated. the victim undergo a medical and To be fair, it must be said that at psychological examination to obtain an this point most bishops are handling ac ~n>z initial detennination of the damage cusations in a responsible and sensitive ~ - 0 > m ~ C ~ done. manner. There have been secular news ~ ~ m o V't There should be ongoing contact stories of attempts at cover-up or other Z V't with the victim and family to show the irresponsible behavior by Church (5 m ~ caring nature of the bishop and the authorities. ~ o diocese and to monitor the effects of In fact, most of the cases that occur ~ the sexual contact and progress made in are handled properly by the bishops. m counseling or therapy·ifit is initiated at If there is a temptation to ignore the this time. complaints, or even worse, to try to dis credit the families making the accusa Handled well tion, those so tempted should realize that it wiD almost certainly backfire. A primary concern of every family In spite of the serious nature of an with a child who has been sexually accusation ofsexual contact with a molested is the disposition of the ac child, the accused still has cenain rights cused. Usually the initial reaction is a which must be honored in the course of desire for retribution and punishment. the investigation and even afterward. Often this changes to a demand that the This is not to say that by doing so; person receive help so as to avoid fu Church authorities are either condoning N ture occurrences of sexual contact with his action or ttying to cover it up. :; anyone. The first right of an accused priest When the bishop or other diocesan or Religious is to an impartial investiga officials are asked "what is being tion of the incident. This is a right done?U it is simply not enough to assure shared by the victim and his or ber fami people that the problem is being taken ly. The presumption of guilt and moral care of and not to worry. Those (victim, turpitude should not be made as soon as FOR MORE INFO CIRCLE 6 ON REPlV CARD

TIlE PRIEST/July 1990 37 the accusation is lodged. Depending on the state statute, the holds that this canon may be invoked If an incident or accusation is made bishop or other person receiving the ini only during the fonnal judicial trial and to someone other than the diocesan tial accusation may be obliged to report not during the preliminary investiga bishop (a pastor, chancery official, the incident to the civil authorities. An tion, nor may it be used if a penalty is etc.), it should be conveyed to the investigation will commence very short to be imposed by an administrative bishop as soon as possible. The bishop ly which could conclude with the arrest process. then initiates the investigation accord of the priest or Religious accused. The other interpretation is more ing to Canons 1717-1719 ("The Prior As soon as possible after the con flexible. The leave may be imposed as Investigation"). frontation, the accused should have a soon as the Ordinary has reason to Basically, this involves evaluating comprehensive medical and psy believe it is needed.. the complaint and the credibility of the chiatric/psychological evaluation at a Since it is rare that fonnal judicial complainant and interviewing the ac health-care facility equipped to handle proceedings are held, Canon 1722 .cused. This can be done by the bishop such cases. Even if the accused person would be useless to bishops if the nar.. himself or someone delegated by him. is arrested, this evaluation should take row interpretation is followed. The canonical procedures outlined place as soon as possible after he is Father Bertram Griffin published a in the Code should be followed because released from 'the initial custody. short study of the issue and reached the they will protect the rights of all con following conclusion: cerned. What about suspension? Canonical procedures are also ad In any event, the dubiumjuris visable from a civil law perspective. By We now come to the consideration raised by canonists on this issue leaves using them correctly, the Church . of the application of canonical penalties. the Ordinary free to impose Had.. authorities manifest to the civil Th~ bishop's first inclination upon ministrative leave" whenever necessary authorities, and later in a court oflaw if confronting the accused may be to during any stage o/the penal process, necessary, that the Church has a suspend him. This is advisable only if until such time as the legislator grants method of investigating complaints and there is convincing evidence that the in an authentic interpretation to the con .. that this method was used. cident took place and the accused frary, or until recourse in a particular refuses to cooperate with the bishop by case decides that ~'administrative Faces radical change moving his residence, ceasing his leave" was illegitimate.3 public ministry, and going for an Lawyers and medical professionals evaluation. Suspension itself is a censure or agree that once a priest or Religious is In lieu of suspension, the same ef medicinal penalty. It is not an expiatory accused, he should be compelled to fect can be obtained by placing the ac penalty or in the language of the 1917 move from his residence immediately cused on an "administrative leave" ac Code, a vindictive penalty. As such, its and take up residence in a monastery, a cording to the nonn of Canon 1722. application and remission are subject to seminary, with the bishop, or in some "Administrative leave" is not a canoni definite nonns oflaw. setting where there are other priests or cal tenn, yet it comes closest to describ Religious present. ing what happens when the bishop in Understand conditions In the first place, such a move will vokes Canon 1722. hopefully diminish the possibility of By the terms of this canon an ac Before proceeding, it may be help scandal. cused can be compelled to cease public ful to expand on the distinction be Second, it will be an indication to ministty or any administration ofthe tween medicinal and expiatory penal the family involved and to civil sacraments, change his residence and ties. authorities that the Church is doing even refrain from celebrating the A medicinal penalty is aimed something. Eucharist primarily at the reform of the offender. Third, it is necessaIy for the welfare An expiatory penalty, while it has of the accused. (iriffin's conclusion the spiritual well-being of the offender When a priest or Religious is con in mind, is aimed more at the restora fronted with an accusation of child It is. not a penal remedy or punish tion ofjustice and the deterrence of abuse, he will no doubt be at the lowest ment. Rather, it approximates the type others from similar behavior. point in his life. He may well know that of action often taken with members of In short, an expiatory penalty is or he now faces a radical change in his ex other professions (medical, law enforce dered more to punishment than refonn. istence which will include a great deal ment, etc.) while an accusation of Both medicinal and expiatory penal ofpersonal pain and suffering. Without wrong-doing or malpractice is being in ties can include the prohibition ofexer condoning the actions of the accused, vestigated. cising the power of orders and ecclesias the bishop should offer moral support There are two schools of thought tical office. Only an expiatory penalty and an assurance that adequate medical concerning the applicability of Canon can prohibit or deny residence (C. help will be provided. 1722. The more narrow interpretation 1337).

38 THEPRIEST/JuJy 1990 The Code specifically states that by or restrict human rights are to be inter commentary on this canon, Green··says: reason of a suspension, a cleric cannot preted strictly. The canon in question The 1917 Code stated that either could be deprived of a residence which he has (1341) does not establish a penalty, but be the basis ofimputability (CIC 2199). by reason of office (C. 1333, par. 3, n. it is directly related to the imposition of However, the present canon states that 2). a penalty and the restriction of human normally dolus, or deliberate intent to It is important to understand the con rights. violate the law, is necessaryfor penal ditions under which the penalty of If we follow the spirit of this canon, imputability.6 suspension may be imposed and how it then all three negative situations must may be imposed. be present in order to proceed with a Referring to malice (dolus), one Suspension may be imposed as a penalty. Short of an official interpreta commentary ~n the 1917 Code stated: result of a canonical trial or by an ad tion, there seems to be no clear answer ministrative decree of the bishop to 'the dilemma. Malice here means the deliberate will without a trial. If imposed by ad What is clear however, is this: If the to violate the law,. opposed to it on the ministrative decree, the suspension can accused has admitted the deed, com part ofthe mind is want ofknowledge, not be perpetual or indefinite. It may be plied with the Ordinary's wishes, sub on the part ofthe will, want offreedom. for a specific time only. mitted to evaluation, etc., then he can When an external violation ofthe law The imposition of canonical penal not be considered to be unrefonned and has been committed, malice is pre ties should be seen as a last resort. This therefore contumacious. A suspension sumed in the externalforum unless the 7 is quite clear from the Code. Canon cannot be imposed as a vindictive penal contrary IS. prove d. 1341 tells ecclesiastical·superiors when ty and, therefore, it would be inap they may proceed: propriate and invalid to do so solely as Canons 1322, 1323 and 1324 ad a punishment. dress the issue of factors that either Only after he has ascertained that scan remove or diminish imputability. The dal cannot sufficiently be repaired, that Question of imputability most important canon for our study is justice cannot be sufficiently restored Canon 1324 which deals with factors and that the accused cannot sufficiently The notion ofimputability is crucial which diminish imputability without be reformed by fraternal correction, to the success or failure of a penal removing it altogether. , rebuke and other ways ofpastoral care process. is the Ordinary then to provide for a Imputability is the character of a One who violates a law or precept is judicial oradministrative procedure to moral act which makes it attributable to not exemptfrom a penalty but the penal impose or to declare penalties.4 a certain person. Canon 1321, 1 states: ty set by law or precept must be tempered or a penance substituted in its It is not enough that there be proof No one is punished unless the external place ifthe offense was committed: of a canonical crime. Other factors violation ofa law or precept committed 1. by a person with only the imperfect must be considered - such as the state by a person is seriously imputable to use ofreason,· of mind of the accused, the circumstan that person by reason ofmalice or cul2. by a person who lac~ed the use of ces under which the crime was com pability. reason due to drunkenness or another mitted, and the ultimate purpose to be similar mental disturbance which was served by imposing a penalty. The key factors in detennining im culpable; Again, we are not dealing here with putability are malice and culpability. In his 3. in the serious heat ofpassion which anything new to legal systems. Most, if not all, civil law systems take these fac tors and others into account when legal action and the application of penalties is being considered. Canon 1341 (above) lists three·nega tive conditions for the imposition of NO MORE TAPES - NO MORE PROBLEMS penalties. Must all three be present? -HOLDS OVER 400 SELECTIONS In his commentary on the canon, -INCLUDES CHIMES, BELLS, TIME STRIKES Thomas Green says: -FEATURES NEVER BEFORE POSSIBLE -UPGRADE YOUR PRESENT SYSTEM NOW The first two seem more properly re-COMPLETE··SYSTEMS AVAILABLE lated to expiatory penalties while the last one falls more properly within the CHIME MASTER SYSTEMS 2669 Sawbury Blvd. '.+ 5 purview oJ censures. Worthington, OH 430851-aOO-344-RING On the other hand, Canon 18 stipu lates that laws which establish a penalty FOR MORE INFO CIRCLE 11 ON REPLY CARD

TIlE PRIEST/July 1990 39 did not precede and impede all an expiatory penalty. decent support. 1bis issue would have deliberation ofmind and consent ofwill The warning presumes that the ac to be dealt with in an equitable and as long as the passion itselfhad not cused is in contumacy or contempt. On charitable manner by the Ordinary. been voluntarily stirred up orfostered. a practical level, contumacy could be presumed ifan accused refuses to cease lSee the excellent article by Dr. Eric Grif The same canon lists five other fac his illicit activities or perhaps even if he fin-Shelley, ··The Clergy and Compulsive tors, however these are far less relevant refuses to submit to the conditions laid Sexual Behaviors:' The Priest, May, 1989, than the three mentioned above. We down by the Ordinary, such as moving p.40-45. will return to this canon in the section his residence, ceasing public ministry 2Robert W. McMenamin, J.D., and Wil on clinical or medical considerations. or submitting to clinical evaluation. liam,P. Kralovec, J.D., Clergy and Teacher Malpractice: Recognition and Prevention, The accused bears the burden of If the accused admits the ailega Portland, Oregon, Jomac Publishing, 1987, proof to overturn the presumption of tions, follows the instructions of the Or p.156. malice or imputability. dinary and submits to an evaluation, it 3Griffin, Bertram. ··Canon 1722: Ad In dealing with persons who have is difficult to see how he could be con ministrative Leave Against an Accused," sexual contact with children, it follows sidered contumacious. Jurist 48 (1988), p. 107. that input from medical experts is neces If he had previously been suspended 4 The Code ofCanon Law, English transla sary to detennine if their disorder was and is no longer contumacious, the law tion published by the Canon Law Society of such that it affected 'the will to the ex stipulates that the censure must be America, Washington, D.C., 1985. All tent that imputability is either removed lifted if the accused so requests (C. English citations of the canons are taken from this translation. or diminished. 1358, 1). 5James Coriden, Thomas Green, Donald Those who wish to impose penalties Heintschel, The Code ofCanon Law: A Text have no choice but to listen to medical Right of support and Commentary. (New York: Paulist Press, science in this regard. 1985), p. 91l. The older presumptions, that any During the period of the investiga &ntomas Green, ibid., p. 901. sexual act is a matter of the will have tion or penal trial an accused cleric has 'T. L. Bousearen, A.C. Ellis, F.N. Korth, generally given way to evidence to the a right to financial support. This right Canon law: A Text and Commentary, fourth contrary. this evidence has shown that remains intact even if the cleric is revised edition, (Milwaukee: Bruce Publish in situations involving a disorder, the suspended. 1bis is obvious from Canon ing Company, 1963), p. 860. person has a seriously diminished 135,1: ability to control his or her actions. (Next month: Father Doyle con· Unless it is a question ofdismissal from eludes his update with a discussion of The warning the clerical state, wizen penalties are right of appeal, laicization, clinical imposed upon a cleric, provision must considerations, compulsion and con· The law requires that the accused be always be made that he does not lack trol, cure and treatment, and return given at least one warning before a cen those things which are necessaryfor his to ministry.) sure is imposed (C. 1347). The warning decent support. is required only for penalties that will FATHER DOYLE, who resides at the be imposed and not those that are auto If the law stipulates that a cleric Dominican House of Studies in matically incurred. found guilty of a canonical crime be Washington, D.C., is a judge with the The canonical crime under con properly supported by his ecclesiastical Archdiocese of Military Services. Born sideration (C. 1395, 2) does not have an superiors, then it follows that this sup in Sheboygan, Wisconsin, he holds automatic penalty attached to it. There port must also be extended prior to the degrees in philosophy, theology, politi fore, if the Ordinary is contemplating initiation of the fonna! canonical proce cal science, and canon law. Before as the imposition of a penalty such as dure. Although it has happened, it is suming his present duties, Father was a suspension, the warning is required for simply unjust and clearly illegal from a secretary at the apostolic delegation in the validity ofhis action. canonical perspective to cut off an ac .Washington and a visiting lecturer in The warning is not required if an ex cused cleric's financial support and canon law at The Catholic University piatory penalty is to be imposed. As we health-care benefits or deny him ofAmerica. have already said, suspension is a residence while an investigation is medicinal penalty or censure. It is not pending.· If the accused admits the al CCopyrlght Thom•• P. Doyl.1980 legations and the Ordinary proceeds in an administrative manner, the right to support remains intact. The amount of support is another maner. The Code does not state that full pay is required, only that the cleric not be denied what is necessary for THOMAS P. DOYLE, O.P., The Clergy in Court Recent developments concerning canonical rights

Part II The Ordinary is to respond within a cleric who has been involved in Right to an advocate 30 days of receiving the petition. sexual contact with children is ill-ad and to appeal The law states that the decree itself vised. is suspended from the time a petition This may be because the scandal If an Ordinary contemplates either ad for change or revocation is received by that resulted from his actions could es ministrative or judicial action against the Ordinary (Canon 1736, 1). calate if the community knew he was an accused cleric, he must provide him This canon does not state which back in action or because of the very with a canonical advocate (Canons matters result in suspensive effect, how high risk that he will act out again. 1481, 1 and 1723). The right to a com ever Canon 1353 tells us that any In such cases, it is perhaps best for petent defense is basic to both the civil recourse against a penal decree has the cleric and for the Church if he peti and canon law systems, yet in many suspensive effect. Therefore, recourse tion himself for a return to the lay state. cases, clerics facing disciplinary or against an administrative suspension Laicization ex officio by the Holy penal action are not advised to obtain suspends the decree by which the See has been done in isolated instances the assistance of a canon lawyer, much suspension is imposed. in the past, although no documentation less are they provided one. The cleric is not in fact suspended or hard proof of this is readily available. Canonical penal trials are rare to the until the issue has been decided accord At the present time it is not the point of being nonexistent in this ing to the nOnTIS of law. policy of the Holy Father to laicize country. The action taken against priests against their will. This has been clerics accused of sexual contact with Laicization or return made clear by public statements of offi children has been administrative for the to the lay state cials of the Congregation for the most part. Doctrine of the Faith in the recent past. Clerics who have been suspended or If the Ordinary refuses to amend the At this writing, there is no indication placed on administrative leave or who decree in any way, the cleric then has that this policy has changed. have had other measures taken against the option of pursuing hierarchic re Consequently, the only possibilities them often do not realize that they are course. for laicization are petition of the cleric entitled to an appeal process. Properly He must address his petition for himself and imposition as a penalty speaking, there is no appeal against an recourse to the hierarchic superior of after a canonical trial. administrative decree. The appeal be the person who issued the original longs to the fonnal judicial process. decree within 15 days of receiving the Canons applicable Rather, the code provides for recourse response to his initial petition to the (Canons 1732-1739). author (Canon 1735). Although laicization following a If the superior who issued the canonical trial is a rarity, it is worth con Suspends decree original decree is a diocesan Ordinary, sidering both for the infonnation of then the recourse is to the Holy See (the clerics who may be threatened with a Recourse against an administrative Congregation for the Clergy, to be penal process on the local level, and Or decree of suspension (or the equivalent) specific). As in the case of formal judi dinaries, who may contemplate such ac begins with a request by the person cial procedures, the law states that the tion. receiving the decree to the one who is one making recourse has the right to the Weare speaking of the canonical sued it. This means that the accused use of an advocate (Canon 1738). crime or delict mentioned in Canon cleric, upon receipt of the notice of The return of a cleric to the lay state 1395: sexual contact with a minor of suspension, writes to the Ordinary, as can be accomplished in three ways: a) either sex below the age of 16. This king him to either amend its terms or by administrative action of the Holy canon does not specify an automatic revoke it entirely. See upon petition of the cleric himself, penalty (latae sententiae). In doing so, he obviously should b) ex officio by the Holy See even It states that the cleric is to be state the reasons why he believes the without the cleric's petition and possib decree is unwarranted. ly against his wishes and c) as a penalty " .... punished with just penalties, in This petition to the Ordinary must following a canonical trial conducted cluding dismissal from the clerical state be made within. 10 working days ofthe even on the local leveL ij~ the case warrants it." date the cleric received notice.of the In certain instances it is conceivable decree. that a return to any fonn of ministry by We have already considered some

THE PRIEST/August 1990· 29 of the rights of clerics subjected to pedophilic acts, a strong case can be I do not believe that alcoholism, drug penal process in the section on suspen built for the presumption that the ac addiction, pederasty and sins against sion. These same provisions hold true cused did not act with complete morality are diseases or pathological for a laicization process, e.g., the right freedom of the will. disorders. I believe these are sins to canonical counsel, the right to infor Even if an accused priest has been against God, man and self. ... Don't mation about the accusation and the found guilty by a tribunal, Canon 1324 be fooled: In the eyes ofGod, sin is still proofs (Canon 1720) and the right to ap could be invoked to preclude the pos sin, and every human being is held ac peal (Canon 1628). sibility of laicization as the penalty. countable to God for the sins he or she In general, the canons of Book VII, commits. 8 "Processes," are applicable in penal tri Clinical considerations als. This means that the accused may The opinion of this well-intentioned call witnesses and the judges may re It is obviously the task of medical but certainly misguided individual quest the assistance of expert witnesses. experts to provide testimony concern typifies the approach of many to pedo The letter and spirit of Canons 1321 ing the general nature of sexual disor philic acting out. The writer fails to (imputability), 1341 (penalty as last ders and the particular nature of a disor make the distinction between the acts resort) and 1324 (diminishing factors) der in a specific case. This leads to a themselves and the motivating factors present the same problems to a laiciza most important part of our considera behind the acts, i.e., the matter and the tion process as they do to a process tions: the nature of pedophilia and intent. looking toward the suspension of an ac pedophilic acts. Needless to say, it is dangerous to cused cleric. The following is a quote from a let~ conjure up presumptions about those In the first place, the use of a penal ter published by a secular newspaper who act·out sexually with children, process must be a last resort, but, more following the disclosure that a priest without first having clinical input in importantly, serious imputability must had been involved in a relationship order to understand more realistically be proven (graviter imputabilis). with a young boy. and accurately the nature of this com Given the nature of pedophilia and plex disorder. 9 Some of the common presumptions are the following:

THE a) All persons who have sexual con fiOLq~I{OOD tact with children are true pedophiles. b) Pedophilia and homosexuality GOrLD are one and the same.

c) A person chooses to be a pedophile and can just as easHy choose not to be one. Liturgical Vesture d) Once ~ person acts out with of highest quality children, he will continue to do so. from the monks of Saint Joseph's Abbey e) The disorder cannot be control led. Spencer, MA 01562 508-885-3468 or First, we begin by accepting the fact that pedophilia is a sexual disorder. It is 508-885-9882 one of the type known as "paraphilia" and is listed as such in the Diagnostic and Statistical Manual ofMental Disor ders (Third Edition). Although one might commonly pic Please write or phone for ture a pedophile as a sleazy predator our free catalogue. seeking to inflict harm on children, there is no single social profile for per sons inflicted with this disorder: It can be found among judges, teachers, doc tors, priests or persons from any walk

FOR MORE INFO CIRCLE 11 ON REPLY CARD of life.

30 THE PRIEST/August 1990 Similarly, it is impossible to situate not constitute clinical proof of al this distinction? Because it will have a pedophiles or persons who have en coholism. great. deal to do with the way· ali ac gaged in pedophilic acts, in one or the cused person is clinically treated and other moral or personality category. However, a diagnosis such as pedo should have an impact on the determina This means that the afflicted person philia cannot be made simply by con tion of his suitability for later ministry. is not, ipsofacto, a callous, immoral in sidering behavior alone. Rather,for dividual. He may be quite caring, intel purposes ofdiagnosis andfor proper How acquired? ligent, sophisticated, with a high set of treatment, one must try to appreciate ethical standards. His source of sexual the state ofmind which contributed to Why some adults become sexually satisfaction does not govern other fac the individuals's behavior. Like any be interested in children is subject to tors of his personality. . havior, sexual behavior with a child theory and not scientifically proven can be enactedfor a variety ofrea fact. At this point, it is not known for Important point sons. 12 certain how or why a person becomes a pedophile. Researchers have advanced What must be clearly understood is The authors give several examples various theories on environmental, that persons do not choose to be pedo of adult-child sexual contact, including biological and psychological causes, or philes. Dr. Fred Berlin of Johns Hop a s.chizophrenic who responds to more accurately, a combination of kins University emphasizes this: voices, a mentally retarded person and these. 14 an alcoholic. They conclude: The whole question is under intense People do not decide voluntarily what study. The fact that medical science is will arouse them sexually. Rather, in "In none ofthese instances would a still in the research stage of the causes maturing they discover the nature of primary diagnosis ofpedophilia neces of pedophilia (and numerous other their own sexual orientation and inter sarily apply." 13 sexual disorders) should not lead ests, persons differ from one another in Church authorities to dismiss the results terms of(a) the types ofpartners whom Why is it necessary to understand of this research at this point and jump they find to be erotically appealing, and (b) the types ofbehaviors they find to be erotically appealing. They also dif THE LAST Demand the kneelers so fer in intensity ofsexual drive, the de KNEELERS durable, they're used by gree ofdifficulty that they experience in leading pew makers trying to resist sexual temptations, and YOU WILL Over 30 years ago Hamlin's revo in their attitudes about whether or not EVER BUY lutionary kneeler made old-fashioned such temptations should be resisted. 10 wooden kneelers obsolete. That's because Hamlin's design was strong and quiet as a church mouse. This is a very important point that Today Hamlin's Kneelers are even must be accepted by ecclesiastical supe better. A new, improvedkneeler leg riors who deal with clergy-pedophiles. with an integrated rubber pad makes It is inconsistent \Yith scientific findings operation even quieter and helps pre to presume that a man goes out one vent floors from being marred. The steel frame day, decides to try sex with· a child, and construction continues if he likes it. and thick up holstered pad Pedophilic acts provide strength and pedophilia and comfort. The sturdy metal arms feature silent bushings that never need· messy It is necessary to make a distinction lubrication. between the disorder, pedophilia, and You can choose from a rainbow of pedophilic acts, that is, acts of a sexual upholstery colors in either rugged nature between an adult and a child. naugahyde or textured fabric that suits Not every adult who engages in some the decor of your church. To find out more about Hamlin Kneelers call the fonn of sexual communication with a Hamlin Manufacturing Company toll free number. Or, callyouf pew child is a true pedofhile in the clinical 684 Tek Drive· P.O. Box 9168 maker today,.be·sureyou're getting or scientific sense. 1 Crystal Lake, IL 60014-9168 the complete, lightweight· Hamlin (815)477-1177 IL· Toll Free (800)621-5523 In other words, the behavior with a Kneeler. child in itself is not sufficient to arrive Sales Representative Inquiries Invited at a diagnosis of pedophilia, just as an FOR MORE INFO CIRCLE 12 ON REPLY CARD incident or incidents of intoxication do to the conclusion that "the scientists sexuality . .. was severely chastised. 16 We must be cautious however, and aren't sure what it's all about. There avoid generalizing about everyone who fore we will hold to the conclusion that Without doubt, this theory will be a relates well to children or who has dif it is a moral problem." difficult pill for many Catholics (and ficulty relating to adult women. These In point of fact, the scientists have others no doubt) to swallow. If human factors are not necessarily symptoms of accumulated impressive data to justify sexuality is considered only in moral pedophilia as much as they are charac each of the various theories of causality. categories and somewhat pessimistical teristics that may accompany the disor Let us first take a brief look at en ly ("the most grievous sins are sins of der. vironmental causes. the flesh"), then it will be difficult to Biological factors also play into the Life experiences can have an effect step out of this mind-set and be open to possible causes of pedophilia. The de on sexual development and sexual inter the possibility that certain sexual be gree of biological influence on sexual ests. These experiences do not neces havior may be morally neutral and / or orientation and desire varies with re sarily have a radical or decisive role to beyond the complete control of the in searchers on the subject. play in this regard, but they cannot be dividual. Some (and Dr. John Money of discounted. Johns Hopkins University is among The data indicate that a significant Equal to child's them) hold that sexual orientation number of men being treated for develops when a person" is still in the pedophilia or pedophilic acts, were A person brought up in a repressive womb. themselves involved sexually with an household may equate any fonn or Others believe that there is evidence adult when they were children. ~is even mention of sexuality with evil or of some biological or chemical in data applies also to clerics being treated sin and likewise may identify intimacy fluence but not enough to support the in for pedophilia. or affective needs and expressions with utero theory. The important issue is why the sexuality (and therefore sin). The In any event, if the biological basis phenomenon is repeated. person's emotional and psychological for human sexual orientation and be Again, we are faced with theory, development may lag behind chrono havior becomes accepted scientific fact, not conclusions. logical development, thus impeding his our traditional approach to the morality or her ability to relate to others in a ma of sexual activity will be subject to Familial environment ture fashion. serious reconsideration. Such a person may be confused In his book Lovemaps, Dr.Money ar Some theorists have proposed that about sexuality and its connection with gues convincingly for the biological ap sexual involvements with children per intimacy. In seeking relief from loneli proach, realizing the reaction it will mit the pedophile to work out the ef ness, he or she may develop a relation evoke in some: fects of a trauma he experienced when ship with a child or adolescent, not he was a child.... Now that they are fully realizing or at least accepting the The very idea that sex hormones can adults, they victimize children to fact that it is inappropriate. program the unborn brain in such a reverse their earlier roles as victims. 15 The adult often has a sexual matu way as to preordain the behavior ofsex Another environmental factor is ex rity level equal to that of the child. in later life is total anathema to people ternal influences on the development of who believe that all human sexual be a person's understanding of sexuality. ... Pedophiles relate to children be havior is under motivational control The most important of these is the cause they are at the same emotional and voluntary choice. 19 familial environment, that is, what a and psychological/evel as children. person was taught at home regarding Being children themse,lves, they can Compulsion and control sex, whether this teaching was explicit easily relate to the interests and con or implicit. This of course, can be rein cerns of "other" children. 17 The true pedophile finds it quite dif forced by attitudes conveyed at school ficult and often impossible to resist the and church. The religious influence on The same author mentions the pos urge to seek sexual satisfaction. the formation of a person's sexual sibility that many pedophiles resort to According to Dr. Money: psychology can be profound and far relationships with children because reaching. they have problems relating to age- and In paraphilia, love and love-bonding gender-appropriate partners: are compromised because the genitalia J. Money has proposed that excessive continue to function in the service of prohibition ofearly sexual expression Evidence does seem to support the idea . lust, but according to the specifications may also put one at risk ofdeveloping that many pedophiles do have problems ofa vandalized and redesigned pedophilic sexual desires. He has relating to adult women and that poor lovemap, and often with compulsivefre reported. that many men ltl-'ith sexual dis social skills and sexual anxiety about quency.20 orders have come from homes where women may contribiite to this blockage even the slightest expression of offemale adults from their lives. 18 A pedophile experiences a much

32 THE PRIEST/August 1990 Ihigher and more intense level of com eight months or longer. Ipulsion for sex than one who is not af This is followed by a carefully \(Q£~TIONS flicted with a disorder. He has not, planned after-care program consisting chosen the object of his sexual desires of psychotherapy, support-group par A RELIGIOUS PUBLICATION ON VOCATION MINISTRY and he has a more problematic time ticipation and possibly medication. dealing with these desires. The fact of The treatment programs for pedo If you are a: the higher level ofcompulsion must be philes differ from those recommended considered by ecclesiastical superiors for men who have had sexual contact • Priest as they deal with cleric-pedophiles. Be with children but not as a result of • Nun. cause of the reduced ability for self-con pedophilia. It is too early to have an in • Diocesan or Religious trol, it would seem that this disorder depth assessment of the success or would diminish imputability for a failure of the treatment programs. Vocation Director canonical crime. Nevertheless, the medical director • C.C.D. Director The effect of compulsion may hot of one treatment facility boasts a 100 • Community Leader be acceptable to some, yet it is a fact: percent success (no relapse) record for more than 45 persons treated during the THEN THIS MAGAZINE It is easy for a person who is not past four years. IS FOR YOU tempted sexually by children to argue that any pedophile could stop having Return to ministry In every issue: sex with children ifhe would simply make up his mind to do so. When it What happens to a cleric who has • Biblical and Theological comes to appetites or drives such as completed in-patient therapy and is Perspectives hunger, thirst, pain . .. sex, biological ready for discharge and the beginning regulatory systems exist that may cause of his after-care program? Does he • Spirituality and an individual to experience desires to return to any form of ministry or should Everyday Life satisfy those hungers in ways that can he seek laicization and find another oc • Teachings of the Church not invariably be successfully resisted cupation? through will-power alone. Sometimes , There is no single answer because • Statistics persons mayfeel so discomforted by each case differs. Some priests are able • Forum their cravings that they feel compelled to return to a specialized ministry and, • Interviews to diminish their discomfort. 21 indeed, a number have done so and are functioning as priests. Naturally, the • Prayer and Teaching Aids One final clinical distinction is ap after-care program and continued super You can find a propriate. Not everyone who has vision is a must. pedophilic tendencies wants them. In other cases, the probability of complete view of the Some men who are attracted to children returning to any form of ministry is Vocation issue in its do not want to be and would welcome remote. This may be so because of the theological dimensions change. Often, their acting out is fol nature and extent of the priest's sexual and Pastoral applications. lowed by massive guilt feelings, sincere contacts, scandal ora poor prognosis remorse and even self-hatred. Such that he will remain in remission. men are classified as ego-dystonic. The decision concerning future min o Free copy On the other hand there are men istry should not be made unilaterally by (No further obligations) who are quite comfortable with their at the bishop alone. It should be the result o 1year subscription traction toward children. They ex of consultation with the health-care (4 issues) $12.00 perience no conflict~ of conscience and professionals who have treated the o 2 year subscription (8 issues) $20.00 are classified as ego-syntonic. priest, the law enforcement and legal Although no conclusive research personnel and the priest himself. o Bin me 0 Payment enclosed data is available, clinicians who have In some instances, input from the Name \ worked with priest / clergy pedophiles victims and their families should also Address ) have noted that most are ego-dystonic. be sought. City State ~ Zip __. Like alcoholism, pedophilia cannot A primary concern will be the risk Send to: VOCATIONS ~nd PRAYER be cured. It can, however, be successful incurred by the diocese or religious 9815 Colu~us Ave. ly controlled to the point that some af community. The bishop should obtain Sepulveda(CA 91343 flicted persons can function quite well. realistic legal advice to determine if the HThe harvest/is good but The vast majority of clerics treated risk factor is actually reduced if the laborers are ;tarce. Beg the harvest master to send for pedophilia began with a lengthy in priest has completed treatment and is in out laborers to gather patient program extending from six to a supervised after-care program. this harvest. " (Mt. 9,36-7)

THE PRIEST/August 1990 33 FOR MORE INFO CIRCLE 8 ON REPLY CARD It is most important that the bishop as alcoholism, is often a highly effec an excellent job of summarizing the clinical realize that no medical person can give tive minister. data on pedophilia. All ecclesiastical supe 100 percent certitude that his patient There are no uniform and easy riors (diocesan and Religious) would do well to obtain a copy of the complete paper will never suffer a relapse. To this end answers to this problem. As time goes or the author's article on the subject: "The the bishop should be certain that in on, new factors enter the issue to make Clinical and Canonical Considerations in reading the medical reports and prog it even more complicated than when it Cases of Pedophilia: the Bishop's Role," noses for the future, he understands first became a public problem several Studia Canonica 22 (1988), pp. 77-124. what the therapists intended to say. years ago. We cannot succumb to the 10 Fred Berlin, M.D., Ph.D., and Edgar It is incorrect to assume that any temptation to condemn or abandon the Krout, M.A., "Pedophilia: Diagnostic Con priest with a sexual difficulty is unfit clerics who must live with this disorder. cepts, Treatment, and Ethical Considera for ministry, either from the viewpoint Similarly, we cannot ignore or nur tions," American Journal ofForensic of the disorder itself, or the possibility ture the belief that prayer, self-denial Ps~chiatry 7(1986), p. 13. 1 Here we must keep in mind the distinc of civil liability. and warnings will keep the problem in tion between the legal and clinical defini check. tions of pedophilia. The law may consider Many clergy or education malpractice Finally, we cannot simply banish anyone who acts out with a child under a cases are a result ofmental or psy every cleric who has some type of certain age to be a pedophile. Medical chological problems or disorders. ... sexual problem, especially pedophilia. science has another approach. Those who The religious institution or school will prefer adolescents, or post-pubertal males or have to rely on medical experts to let Finally, it is the hallmark ofthe Chris females are classified as "ephebophiles." In them know ifan offender can be placed tian to extend compassion and support addition, some who act out with children in certain work opportunities or posi to all those who are struggling and in may do so not because they are true pedo tions ofresponsibility. While need. The pedophiles in today's Church philes but for other psychological reasons. 12 Berlin and Krout, p. 19. psychiatrists and psychologists cannot are often the most despised, but also in 13 Idem. the greatest need. 23 predict behavior with 100 percent cer 14 Fred Berlin, M.D., Ph.D., "Treatment titude, they can, however, give their of Pedophilia," The Medical-Moral Newslet educated opinion about probabilities ter, 21(1984), p. 23. 22 and expectedfuture conduct. 8 For obvious reasons the source of this 15 G. Keller, "Sexual Abuse of Minors," citation will remain confidential for the sake Human Development 7( 1986), p. 32. of the priest to whom the letter refers, as Robert McMenamin, author of the 16 F. Berlin and E. Krout, p. 17. well as the letter writer. above quotation has much experience 17 Keller, Ope cit., p. 32. 9 Jerry E. Paulson, The C/infcal and 18 Keller, p. 33. in handling clergy malpractice cases. Canonical Considerations in Cases of 19 John Money, Lovemaps, New York: Ir At the conclusion of his chapter on Pedophilia: The Bishop's Role. Master's vin§ton Press, 1986, p. 14. rehabilitation, he repeats what many ec Paper, Faculty of Canon Law, Saint Paul 2 John Money, Lovemaps, p. xvi. clesiastical superiors know to be true: University, Ottawa, Ontario, Canada, 1987, 21 Berlin and Krout, p. 20. that a priest with a treated problem such p. 7-32. The author of this paper has done 22 Robert W. McMenamin, J.D., and Wil liam P. Kralovec, J.D., Clergy and Teacher Malpractice: Recognition and Prevention, Portland, Oregon, Jomac Publishing,. 1987, p.156. 23 Rev. G. Martin Keller, "The Pastoral Care of Pedophiles," House of Affirmation NO MORE TAPES - NO MORE PROBLEMS Newsletter, Spring 1989, p. 2. -HOLDS OVER 400 SELECTIONS -INCLUDES CHIMES, BELLS, TIME STRIKES FATHER DOYLE, who resides at the -FEATURES NEVER BEFORE POSSIBLE Dominican House of Studies in -UPGRADE YOUR PRESENT SYSTEM NOW Washington, D.C., is a judge with the -COMPLETE SYSTEMS AVAILABLE Archdiocese of Military Services. Born in Sheboygan, Wisconsin, he holds CHIME MASTER SYSTEMS 2669 Sawbury Blvd. degrees in philosophy, theology, politi Worthington, OH 43085 1-800-344-RING cal science, and canon law. Before as suming his present duties, Father was a FOR MORE INFO CIRCLE 15 ON REPLY CARD secretary at the apostolic delegation in Washington and a visiting lecturer in canon law at The Catholic University of America.

34 THE PRIEST/August 1990