Chandler J. Reece[1]
If you ask someone to tell you a Catholic joke, it could be about a priest acting inappropriately with a child. That situation reflects the significant impact that the abuse crisis continues to have on the Catholic church. [2] Given the seriousness of this ongoing topic, this Blog provides a history of recent major events concerning the abuse crisis, discusses church policies within the Catholic Church[3] to respond to sex abuse, and discusses how civil law can combat the crisis.
I. History of the Abuse Crisis
Despite exhortations to solve the clerical abuse crisis,[4] church leaders have continued to commit sexual misconduct.[5] In 2018, a Pennsylvania grand jury investigating six of the state’s eight dioceses found that there were credible accusations against over three hundred priests and over one thousand minor victims.[6] Even powerful figures have been implicated such as Theodore McCarrick, the former archbishop of Washington,[7] who was made a cardinal in 2001.[8] Having abused minors and adults, he lost his title of cardinal in 2018 and was defrocked (banned from performed any clerical role)[9] in 2019.[10] Further, the canonization process of Archbishop Fulton Sheen, a renowned twentieth century figure,[11] was delayed in 2019 due to concerns that a New York investigation could implicate him in a coverup of a particular priest.[12] Last January, a Munich law firm hired by the Archdiocese of Munich and Freising released a report finding that Benedict XVI, when he was the archbishop there, mishandled four sex abuse cases.[13] His open letter asked for forgiveness without directly stating whether he was at fault.[14] In short, the crisis has implicated top officials and even people on the path to sainthood.[15] Given these impacts and the inherent seriousness of sexual abuse, church officials and others need to fight it.
II. American and Vatican Policies to Combat the Abuse Crisis
Church laws in the United States and the Vatican can heavily police clerical abuse if used properly.[16] The United States Conference of Catholic Bishops (“USCCB”) promulgated the “Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons” (“USCCB Rules”) for dealing with allegations of abuse in 2002 and revised them in 2006.[17] Most pertinent among these policies are requirements to comply with local reporting laws,[18] to begin an internal investigation into received allegations of sexual assault,[19] to ban a priest or deacon whose misconduct is admitted or established from participating in “ecclesiastical ministry,”[20] to refrain from transferring such a priest or deacon for work in another diocese,[21] and to conduct background checks for priests and deacons entering into a diocese.[22] The USCCB Rules also established five-member review boards in each diocese to help the local bishop in assessing sexual abuse cases.[23] Established cases are referred to the Congregation for the Doctrine of the Faith,[24] which can recommend that the pope defrock the abuser.[25] These USCCB Rules are far from the only ones promulgated to fight clerical sex abuse.[26]
In 2019, Pope Francis promulgated church law in a motu proprio,[27] Vos Estis Lux Mundi (“VELM”), to deal with the crisis.[28] VELM took effect in June of 2019[29] with a three-year sunset clause,[30] meaning it will expire this summer. It governs sexual relations with minors and vulnerable people, with or without coercion, and attempts to hinder secular and religious investigations.[31] VELM deals with authorities higher than priests[32] and with reports and investigations into abuse by these high-ranking authorities.[33] Although anyone may “submit a report concerning” such misconduct,[34] a cleric who “has notice of, or well-founded motives to believe that” abuse has occurred must report it to the ordinary[35] in whose jurisdiction the misconduct took place.[36]
When the alleged abuser is a bishop or cardinal, the Vatican[37] and the archbishop “of the Ecclesiastical Province where the person reported is domiciled” must be notified.[38] Once the investigation begins, the archbishop conducts it under Vatican supervision.[39] Generally, the investigation must be completed within ninety days.[40] After the relevant Vatican organization receives the results, it “proceeds in accordance with the law provided for the specific case.”[41] As discussed above, there is recent precedent for removing titles and defrocking.[42] While VELM investigations have taken place and one investigation forced a bishop to resign,[43] observers have noted room for improvement.[44] Given the ongoing impact the clerical abuse crisis has on the church and these prior VELM investigations, it would be safe to assume that Francis will either repromulgate VELM as is or with modifications.[45]
In brief, what the USCCB rules and VELM show is that, regardless of one’s beliefs about how well the church handles sexual abuses cases, church organizations can severely punish sexual abusers. To fight abuse on both fronts, informers should submit reports to religious and secular authorities. Religious laws are not the only ones combatting clerical abuse because civil law also applies.
III. Civil Law and the Clerical Abuse Crisis
Civil lawsuits provide another tool to combat the clerical abuse crisis, but the First Amendment lays a minefield that lawyers and victims must navigate.[46] Due to the severe injuries sexual abuse brings upon someone, tort law applies through the ancient rule that those who are injured should be recompensed.[47] A cleric who sexually abuses can be liable,[48] but the liability of other church officials is more unclear. The United States Supreme Court has long held that the “law knows no heresy, and is committed to the support of no dogma.”[49] Courts, therefore, may not resolve disputes whose resolution requires “extensive inquiry by civil courts into religious law and polity.”[50]
Given this precedent, parties filing tort claims against clerics other than the abuser must be mindful of the First Amendment.[51] First Amendment cases have long held that laws of neutral applicability can regulate religious conduct,[52] meaning tort liability can lie against religious officials.[53] Still, Lawyers must be wary of jurisdictional splits. Depending on the jurisdiction, the First Amendment may bar a negligent supervision claim against a church entity or official, or it may not.[54] Missouri, for instance, has allowed intentional failure to supervise an employee to proceed against them, but not negligent failure.[55] Tort liability would be a strong disincentive to abuse and attempts to cover it up.
Aside from negligence, injunctive suits run into issues as well. Creative lawyers might try to sue church authorities to seek an injunction to have a cleric defrocked.[56] Such a suit would fail because courts have routinely found judicial interference into churches’ internal hiring and firing unconstitutional because the disputes turn on ecclesial law.[57]
Tort liability provides an avenue to police church misconduct, even if the exact route to liability depends on the jurisdiction. Not only would recovery assist a victim, the fear of liability provides a strong incentive for officials to police church affairs.
IV. Conclusion
The clerical abuse crisis in the Catholic Church is a stain upon its legacy. Cause for hope exists, however, because church officials have taken disciplinary actions under church law to combat clerical sex abuse. Consistent enforcement of church law will discourage potential abusers from doing so and make Catholic communities safer. Further, civil lawsuits may provide victims of clerical sexual abuse with relief. Indeed, tort recovery (and the fear of it) may also discourage potential abusers and officials from covering up cases of abuse. Though imperfect, these resources should hopefully create a world where clerical sexual abuse starts to become a thing of the past.
[1] I would like to thank Carli Berasi and Mike Liu for their in-depth help with writing this article.
[2] See Matthew Newsome, Lessons from History: How to Respond to Scandal in the Church, Medium: Test Everything (Sept. 1, 2018), https://testeverythingblog.com/lessons-from-history-how-to-respond-to-scandal-in-the-church-bb75a3943732 (observing how, even though the Catholic Church has faced challenges throughout the centuries, the clerical abuse scandal is “hitting [modern Catholics] hard” because it is contemporary); Nicole Winfield, Vatican Tries to Reboot Priesthood amid Crisis over Abuses, AP News (Feb. 17, 2022), https://apnews.com/article/religion-marc-ouellet-eab681e2ac3eec8c05964ede59ed2d8f (reporting on Cardinal Marc Ouellet’s remarks at a Vatican conference on the priesthood last February condemning “depraved” sex abuse and noting how it reflects other issues present in the priesthood).
[3] To be specific, the “Catholic Church” not only includes the Latin Church of the Catholic Church, which most westerners are familiar with, but also several other eastern churches that are in communion with Rome, the Latin Church, and each other. See generally The Rites of the Catholic Church, Cath. News Agency, https://www.catholicnewsagency.com/resource/56009/the-rites-of-the-catholic-church (last visited Mar. 11, 2022) (discussing seven major rites); Matthew Newsome, Catholic Churches, East and West, WCU Cath. Campus Ministry: Online Catechesis (Nov. 17, 2016), http://wcucatholic.org/catholic-churches-east-and-west/ (discussing the difference between a church and a rite in Catholicism). The eastern churches are separate from the Eastern Orthodox churches, which are not in communion with Rome and the Catholic Church. Newsome, supra. Due to most people’s familiarity with the Latin Church, this Blog uses “Catholic Church” to refer to the Latin Church.
[4] E.g., John Paul II, Address to the Cardinals of the United States, (Apr. 23, 2002), https://www.vatican.va/content/john-paul-ii/en/speeches/2002/april/documents/hf_jp-ii_spe_20020423_usa-cardinals.html.
[5] For a comprehensive report concerning hundreds of instances clerical abuse in several Pennsylvania dioceses, see generally Off. of Att’y Gen. Commonwealth of Pa., Report I of the 40th Statewide Investigating Grand jury (2018), https://www.attorneygeneral.gov/wp-content/uploads/2018/08/A-Report-of-the-Fortieth-Statewide-Investigating-Grand-Jury_Cleland-Redactions-8-12-08_Redacted.pdf.
[6] Id. at 1; see also Katie Meyer et al., Report Reveals Widespread Sexual Abuse by over 300 Priests in Pennsylvania, NPR, https://www.npr.org/2018/08/14/636855561/report-reveals-widespread-sexual-abuse-by-over-300-priests-in-pa (Aug. 14, 2018, 4:33 PM) (summarizing the Pennsylvania grand jury report on clerical child abuse and its immediate aftermath).
[7] Sarah Delaney, For McCarrick, a Higher Office, Wash. Post (Feb. 22, 2001), https://www.washingtonpost.com/archive/local/2001/02/22/for-mccarrick-a-higher-office/928cf2c9-db8f-434f-897d-d84af63ff7f2/.
[8] Id.
[9] Defrocked or laicized clerics have no permission to perform the sacraments or other clerical functions, 1983 Code c. 292, but they may hear a confession from someone “in danger of death.” Id. c. 976. In the religious sense, defrocking or laicization can only forbid performing the sacraments and cannot remove the power to perform them because “once validly received, sacred ordination never becomes invalid.” Id. c. 290.
[10] Francis X. Rocca, Pope Francis, in a First, Dismisses U.S. Cardinal from the Priesthood, Wall St. J., https://www.wsj.com/articles/u-s-former-cardinal-is-defrocked-after-sex-abuse-conviction-11550311326 (Feb. 16, 2019, 6:20 PM).
[11] For a biography of Archbishop Fulton Sheen from a secular and religious source, see Fulton J. Sheen: American Religious Leader, Evangelist, Writer, Roman Catholic Priest, and Radio and Television Personality, Encyclopedia Britannica, https://www.britannica.com/biography/Fulton-J-Sheen (Dec. 5, 2021); Michael O’Neill, ‘They Might Be Saints’ — Archbishop Fulton Sheen, Nat’l Cath. Reg. (Jan. 13, 2022), https://www.ncregister.com/blog/archbishop-sheen-they-might-be-saints.
[12] Ed Condon & JD Flynn, Rochester Bishop Requested Fulton Sheen Beatification Delay, Cath. News Agency (Dec. 4, 2019, 5:00 PM), https://www.catholicnewsagency.com/news/42995/rochester-bishop-requested-fulton-sheen-beatification-delay. More specifically, the second-to-last step in his canonization, beatification, was delayed. Id.
[13] Francis X. Rocca & Bojan Pancevski, Probe Blames Pope Benedict XVI for Failures on Clerical Sex Abuse as Archbishop, Wall St. J., https://www.wsj.com/articles/probe-blames-pope-benedict-xvi-for-failures-on-clerical-sex-abuse-as-archbishop-11642688550 (Jan. 20, 2022, 11:45 AM). To read the sections relating to Benedict XVI in the original report, see Westpfahl Spilker Wastl Rechtsanwälte, Sexueller Missbrauch Minderjähriger und erwachsener Schutzbefohlener durch Kleriker sowie hauptamliche Bedienstete im Bereich der Erzdiözese München und Freising von 1945 bis 2019 [SEXUAL ABUSE OF VULNERABLE MINORS AND ADULTS BY CLERICS AND FULL-TIME EMPLOYEES WITHIN THE TERRITORY OF THE ARCHDIOCESE OF MUNICH AND FREISING FROM 1945 TO 2019] 682–754 (2022), https://westpfahl-spilker.de/wp-content/uploads/2022/01/WSW-Gutachten-Erzdioezese-Muenchen-und-Freising-vom-20.-Januar-2022.pdf.
[14] Press Release, Emeritus Benedict XVI, Letter of Pope Emeritus Benedict XVI Regarding the Report of Abuse in the Archdiocese of Munich-Freising, (Feb. 6, 2022), https://press.vatican.va/content/salastampa/en/bollettino/pubblico/2022/02/08/220208b.html.
[15] See supra text accompanying notes 8–15.
[16] In this Post, “church law” is broad, encompassing Canon law, particular law, and binding Vatican proclamations. Canon law refers to the 1983 Code of Canon Law, which is a “code of ecclesiastical laws governing the Catholic Church.” Canon Law, U.S. Conf. of Cath. Bishops, https://www.usccb.org/beliefs-and-teachings/what-we-believe/canon-law (last visited Mar. 11, 2022); see also id. (noting that there is a separate code binding the Eastern Catholic Churches); 1983 Code c. 1 (“The canons of this Code regard only the Latin Church.”). Particular law refers to laws governing particular regions within the Catholic Church. See 1983 Code c. 13 § 1 (“Particular laws are not presumed to be personal but territorial unless it is otherwise evident.”); id. c. 13 § 3 (“Transients are bound by both universal and particular laws which are in force in the place where they are present.”). Binding Vatican proclamations are published in the Acta Apostolicae Sedis and become law throughout the whole church. Id. c. 8 § 1.
[17] Press Release, William S. Skylstad, President, U.S. Conf. of Cath. Bishops, Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons: Decree of Promulgation (May 5, 2006), reprinted in U.S. Conf. of Cath. Bishops, Promise to Protect: Pledge to Heal 19, 19, 20 (2018), https://www.usccb.org/test/upload/Charter-for-the-Protection-of-Children-and-Young-People-2018-final(1).pdf. As particular law, the USCCB rules bind the jurisdictions over which the USCCB’s diocesan members govern. U.S. Conf. of Cath. Bishops, Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons ¶ 1 (2006), reprinted in U.S. Conf. of Cath. Bishops, supra, at 21, 22; see 1983 Code c. 13 § 1.
[18] See U.S. Conf. of Cath. Bishops, supra note 17, ¶ 11, at 25.
[19] Id. ¶ 6, at 23.
[20] Id. ¶ 8, at 23–24.
[21] Id. ¶ 12, at 25.
[22] Id.
[23] Id. ¶¶ 4(a), 5, at 22, 23.
[24] Id. ¶ 6, at 23. The Congregation for the Doctrine of the Faith is a Vatican organization with several functions. See generally Congregation for the Doctrine of the Faith, Holy See, https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_pro_14071997_en.html (last visited Mar. 11, 2022) (summarizing its history and reorganizations).
[25] Norms Regarding Delicts Reserved to the Congregation for the Doctrine of the Faith, art. 26 (2011), https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20211011_norme-delittiriservati-cfaith_en.html.
[26] See, e.g., U.S Conf. of Cath. Bishops, Charter for the Protection of Children and Young People, in U.S. Conf. of Cath. Bishops, supra note 17, at 3.
[27] A motu proprio is a papal document issued “of his own accord and apart from the advice of others.” Motu Proprio, Merriam-Webster, https://www.merriam-webster.com/dictionary/motu%20proprio (last visited Mar. 10, 2020).
[28] Francis, Vos Estis Lux Mundi, prmbl. (May 7, 2019) [hereinafter VELM], https://www.vatican.va/content/francesco/en/motu_proprio/documents/papa-francesco-motu-proprio-20190507_vos-estis-lux-mundi.html. VELM was published in the Acta Apostolicae Sedis, id. at art. 19, giving it binding legal effect throughout the Catholic Church; see 1983 Code c. 8, § 1.
[29] VELM, supra note 28, art. 19.
[30] Id. art. 19.
[31] Id. art. 1, § 1 (a)(i–ii), (b). The definition of “vulnerable person” is quite strict on an abuser because it includes people who suffer fleeting moments of mental infirmity. Id. art. 1, § 2(b).
[32] Id. art. 6(a–d) (applying to “Cardinals, Patriarchs, Bishops, and Legates of the Roman Pontiff” among other high-ranking officials). Provisions relating to priests and deacons are found elsewhere in Vatican legal documents. See, e.g., Norms Regarding Delicts Reserved to the Congregation for the Doctrine of the Faith, supra note 25, art. 6, § 1; id. art. 26.
[33] VELM, supra note 28, prmbl., art. 6(a–d). The main provisions dealing with other topics require that church authorities provide spiritual and medical care, id. art. 5, § 1(b–c), and protect “the good name and privacy of the persons involved,” id. at art. 5, § 2.
[34] Id. art. 3, § 2.
[35] “Ordinary” is a broad term and encompasses bishops and similar positions of authority–like prelates and abbots–over a jurisdiction, like a diocese, prelature, or abbacy. 1983 Code c. 134 § 1; c. 368.
[36] VELM, supra note 28, art. 3, § 1. VELM is written to cover several contingencies. See, e.g., id. art. 12, § 3 (requiring the archbishop to take “necessary measures” to protect investigatory documents if there is reason to believe they are “at risk of being removed or destroyed”). This Blog skips most of them because they are not relevant.
[37] Depending on the alleged abuser’s position, one of several Vatican organizations, including the Congregation for the Doctrine of the Faith, could get involved. Id. art. 7, § 1. Due to their fact-specific involvement, this Blog’s discussion about VELM refers to them as “the Vatican” or “the Vatican organization.”
[38] Id. art. 6(a); art. 8, § 1(a). An ecclesiastical province is a union of dioceses whose head is a metropolitan, “the archbishop of his diocese.” Id. c. 435.
[39] See id. art. 12, § 1; id. art. 12, § 9.
[40] Id. art. 14, § 1.
[41] Id. art. 17, § 1; id. art. 18.
[42] See supra notes 7–10 and accompanying text.
[43] Christopher White, ‘Vos Estis’ Expires in One Year. What Works and What Changes are Needed in Version 2.0? Nat’l Cath. Rep. (May 10, 2021), https://www.ncronline.org/news/accountability/vos-estis-expires-one-year-what-works-and-what-changes-are-needed-version-20.
[44] See id. (recounting an interview with a canon lawyer about improvements she believes should be made).
[45] See Winfield, supra note 1 (reporting on a Vatican conference to resolve issues with the priesthood last February).
[46] Broadly speaking, courts hesitate to interfere with internal church matters. See, e.g., Serbian E. Orthodox Diocese for the U.S. & Can. v. Milivojevich, 426 U.S. 696, 720 (1976) (characterizing lower court review into a church’s disciplinary actions as reviewing “quintessentially religious controversies” and holding it violated the First Amendment).
[47] Thames Steamboat Co. v. Housatonic R.R. Co., 24 Conn. 40, 54 (1855); accord The Holy See, Catechism of the Catholic Church ¶ 1459 (2d ed. 1997) (“Many sins wrong our neighbor. One must do what is possible in order to repair the harm . . . [including] pay[ing] compensation for injuries”).
[48] Cf. Schmidt v. Mt. Angel Abbey, 223 P.3d 399, 401, 409 (Or. 2009) (allowing tort lawsuit to proceed against a priest because his conduct fell within statute of limitations exceptions).
[49] Serbian E. Orthodox, 426 U.S. at 710–711 (quoting Watson v. Jones, 80 U.S. (13 Wall.) 679, 728–29 (1871)). For an excellent discussion of the Anglo-American history of church and state and how it relates to the First Amendment, see Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp. Opportunity Comm’n, 565 U.S. 171, 181–87 (2012).
[50] Serbian E. Orthodox, 426 U.S. at 709.
[51] In wrongful termination lawsuits, for instance, the United States Supreme Court once allowed the First Amendment to be an affirmative defense to a wrongful termination claim of a teacher hired with religious qualifications. Hosanna-Tabor, 565 U.S. at 177–78, 196.
[52] E.g., Doe v. Diocese of Raleigh, 776 S.E.2d 29, 39 (N.C. Ct. App. 2015).
[53] See, e.g., id.
[54] Id. at 37 (surveying the split among state jurisdictions on whether the First Amendment bars negligent supervision claims).
[55] Doe v. Marianist Province of the U.S., 620 S.W.3d 73, 80–81 (Mo. 2021).
[56] Cf. Serbian E. Orthodox Diocese for the U.S. & Can. v. Milivojevich, 426 U.S. 696, 706, 707 (1976) (defrocked Serbian Orthodox bishop challenging the decision of the Serbian Orthodox Church Holy Assembly of Bishops to defrock him).
[57] See, e.g., id. at 720 (overturning an injunction to reinstate a defrocked Serbian Orthodox bishop); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp. Opportunity Comm’n, 565 U.S. 171, 188 (2012) (“By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.”).
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