NEWS ANALYSIS ahead of the fall bishops’ meeting
By J.D. Flynn/CAN, Nov. 9, 2018
BALTIMORE — On Aug. 16, Cardinal Daniel DiNardo made U.S. Catholics a promise.
The cardinal, president of the U.S. bishops’ conference, wrote that a summer of scandal had revealed a spiritual crisis in the Church, through which “scores of beloved children of God were abandoned to face an abuse of power alone.”
“This is a moral catastrophe,” he wrote, while acknowledging that “one root cause is the failure of episcopal leadership.”
“We firmly resolve,” he wrote, “with the help of God’s grace, never to repeat it.”
As the bishops prepare to hold their first formal meeting since this summer’s scandal began to unfold, many Catholics are incredulous at the promise that episcopal failures of leadership will not happen again. Some Catholics remember that it was former Cardinal Theodore McCarrick who in 2002 promised that “we all look to end this, for the sake of the victims, for the sake of the Church, the sake of our people.”
The U.S. bishops have never faced a crisis like this. It has been more than four months since allegations against now-Archbishop McCarrick were made public, and anger has still not abated.
Many Catholics wonder what will be different this time. And now the U.S. Attorney’s Office wonders, as well: Amid the cascade of allegations made against bishops, state attorneys general have opened investigations, as has the federal government.
Several bishops have told CNA that they sincerely don’t know what Catholics expect right now, or how to meet the expectations that seem to be placed on them. One bishop said he believes the Church should do everything possible to prevent sexual abuse and misconduct, but he feels as though Catholics now expect bishops to pass policies that will eradicate any possibility of sin. Such an expectation is impossible to fulfill.
Those bishops have a point worth considering. While Catholics have good reason to expect their bishops to lead, few seem to know what exactly they hope the bishops will do next, or what level of effort from the bishops will be judged acceptable.
At the same time, it has also become scandalously clear that at least some parts of the Church are marred by serious administrative dysfunction, by negligence and by grave moral laxity, or, worse, by sexual relationships involving priests and bishops.
The November meeting can’t solve all of those issues. But the bishops seem to hope their policy agenda will be accepted as a first step.
But will the practical policies up for consideration at next week’s Baltimore meeting do anything to foster real change in the Church’s culture? It’s worth looking carefully at what the bishops will discuss and what’s already been decided.
Code of Conduct
To respond to complaints raised regarding sexual immorality or negligence on the part of bishops, the USCCB will discuss a proposed “Code of Conduct” for bishops.
The draft of this code is a seven-page document, by which bishops will pledge to support victims of sexual abuse, to respond to complaints about sexual abuse or harassment, to meet with neighboring bishops annually to discuss annual audits of safe-environment-policy compliance, and to not be sexually harassing or having a sexual relationship with anyone.
Bishops who sign the conduct code will promise not have a “double life” or “secret life.”
Of course, those with “double lives” or “secret lives” sustain them by lying. Signing a document that promises not to lead a double live is unlikely to deter anyone who is actually living one. And the code, as a moral agreement, will not normatively bind the bishops to anything.
For those reasons, some Catholics are likely to view the code as a public-relations move, not an actual commitment to change.
While there is merit to that view, there is one aspect of the conduct code that could catalyze cultural change among bishops. The conduct code attempts to encourage regular conversations among neighboring bishops about sexuality and sexual morality.
Those conversations could be perfunctory and formal, and in most cases are likely to be. But thoughtful metropolitan bishops — local archbishops — could seize on the opportunity those meetings present, turning them into an occasion at which bishops talk freely among themselves about the challenges of living out their own chastity and the challenges of calling priests to chastity.
Those kinds of conversations — if they happen — could be authentic, fraternal and valuable. And they could give metropolitans an idea of which bishops are not handling sexual-misconduct issues well, long before issues in any diocese have the opportunity to spin out of control.
Still, apart from that opportunity, few observers are likely to take solace in a seven-page document in which bishops promise to do things they’re mostly obliged already to do. The bishops run a risk that their code will seem insincere, and insufficient.
Reporting Systems and Investigative Commissions
Two other measures are designed to complement and strengthen the bishops’ code: a reporting system and an investigative commission.
The first has already been set into motion.
On Sept. 19, the USCCB’s administrative committee announced that it had “approved the establishment of a third-party reporting system that will receive confidentially, by phone and online, complaints of sexual abuse of minors by a bishop and sexual harassment of or sexual misconduct with adults by a bishop.”
Those complaints, the conference said, would be directed to the appropriate ecclesiastical authority — the apostolic nuncio — and, in cases required by law, to law enforcement authorities.
This system is intended to respond to those Catholics who say that priests and Church employees have no secure way to report misconduct, with assurances their reports will be taken seriously, and with standard whistleblower protections.
The self-admitted failure of Boston Cardinal Sean O’Malley to respond to letters about McCarrick from Father Boniface Ramsey seems to fit the bill, as does the situation of Siobhan O’Connor, former assistant to Buffalo’s Bishop Richard Malone, who felt she had no choice but to leak allegations of misconduct to the media.
But whether the reporting system is judged to be an effective step depends a great deal on whether Catholics trust the apostolic nuncio to act when he receives complaints of misconduct. In the aftermath of the McCarrick scandal, several recent nuncios of the United States have been criticized for failing to sufficiently act on reports about the archbishop.
Furthermore, retired nuncio Archbishop Carlo Viganò has been criticized for his handling of an investigation into the conduct of Archbishop John Nienstedt. Archbishop Vigano is alleged to have called the investigation to an end before it concluded, though he denies the charge. And the administration of the current nuncio, Archbishop Christophe Pierre, has been criticized for failing to assist a Minnesota diaconal candidate who claims to have been pressured by his bishop, Michael Hoeppner, into keeping silent about sexual abuse.
The third-party reporting system is likely to efficiently ferry complaints to the nuncio. What the nuncio does after complaints are received is a matter beyond the bishops’ control. But the credibility of this reform effort depends entirely on the credibility of the apostolic nuncio.
Recognizing that concern, the bishops will also vote on establishing a lay commission to receive and investigate complaints before they go to the nuncio. The commission will reportedly be called the “Special Commission for Review of Complaints Against Bishops for Violations of Episcopal Conduct.”
The idea is that if the nuncio is given a full report by an independent investigative body, the Vatican will be more likely to act on concerns about bishops.
Sources close to the USCCB have told CNA the commission would consist of six lay Catholics, two bishops and one priest, some with expertise in criminal investigations, canon law, psychology, civil law and other relevant fields. One lay member would be a survivor of sexual abuse.
The commission is almost certain to be approved by the full body of bishops, who are in no position to eschew the appearance of lay oversight or involvement in addressing sexual misconduct.
Draft statutes say the commission would be independent, funded by contributions from U.S. dioceses, and staffed by an executive director. While there is not yet clarity about how the lay members will be appointed, it seems likely that, like the USCCB’s National Review Board, members will be nominated by diocesan bishops and approved by the body of bishops.
Participation by bishops will be voluntary. In practice, most, if not all, bishops will agree to participate in funding the commission and commit to being open to any investigation it might make. The commission will publish an annual report of cooperating dioceses; even bishops who object will have very little choice but to participate.
But the commission will have no coercive authority; no subpoena power or statutory access to documents or personnel. The commission will have no way to know whether a bishop under investigation has responded honestly to its inquiries, whether relevant documents have been provided or instead hidden, whether facts have been reported fully or obscured.
In short, without the power to ensure it is being told the truth, there will be consistent questions about the value of the commission’s investigations and the veracity of its conclusions. And even if the commission is largely accepted, the bishops know they cannot control what will happen when reports are filed with nuncio.
As they learned this summer, it is impossible for American bishops to pressure the Vatican, or the Pope, to do anything, even if they publicly call on him to investigate an alleged serial predator in their midst.
Will They Help?
Will the “Code of Conduct,” the third-party reporting system and the independent commission make a change in the life of the Church? Only time will tell.
On the one hand, the changes could be seen to represent a commitment to cultural change; a reminder to all bishops that sexual immorality among clerics is, or should be, unacceptable. And they will give whistleblowers a pathway for raising important concerns and a forum in which they can, at least possibly, be evaluated.
On the other hand, the measures the bishops are considering lack any force or authority. This is not the bishops’ fault: The episcopal conference, as an institution, is not empowered to make normative change, or to undertake authoritative investigations.
Still, norms and agreements emanating from the bishops’ conference can transform culture, but only slowly, and only to a certain, and limited, extent.
For that reason, some observers have suggested the changes most urgently needed right now must be made at the loci of real power: at the Holy See and at the diocesan level.
A point of repeated discussion among bishops and commentators this summer is the fact that canon law does not explicitly penalize sexual relationships between clerics and other adults, even those that involve coercion or force.
This leaves bishops unsure of what to do when a priest is involved in a homosexual or heterosexual relationship, and, for some bishops, this lacuna in the law seems to imply that sexual relationships involving clerics and other adults are not issues of major importance.
Bishops will not consistently penalize priests involved in homosexual or heterosexual relationships unless canon law explicitly forbids those relationships. And bishops who would like to do so do not have legal tools available that enable them to act. Nor do they have the guidance of the law directing them to address that kind of sexual misconduct as a penal matter.
Absent legal norms, bishops tend to treat most sexual misconduct as a sign of a psychological malady, rather than a moral failing. This approach, many canonists say, has had disastrous effects.
Similarly, the Holy See is unlikely to take seriously sexual immorality among bishops that does not constitute a delict, a canonical crime.
For that reason, many canonists have suggested that the U.S. bishops should petition for amendments to the Church’s penal law that established a system of graduated penalties for celibate priests and bishops involved in sexual relationships. They say that, without that system, and those penalties, entire categories of serious sexual misconduct go too easily unaddressed, creating a climate in which sexual abuse is also more likely to occur.
It is uncertain whether the Holy See would amend penal law in that way. But some bishops have told CNA they feel the effort is a worthwhile one if the Church intends to take seriously coercive sexual misconduct involving priests, bishops, seminarians and other adults. It is unlikely, but the bishops could petition for this change during their meeting next week.
There are two changes that bishops could easily make at the diocesan level, even as individuals, that many commentators say would significantly change the culture of the Church with regard to clerical sexual immorality and episcopal negligence.
The first would be to require that all allegations of clerical sexual immorality be evaluated by the diocesan review board, not only those involving minors.
This would ensure that lay experts advise the bishop on every single case that could fester into something criminal and, in many cases, ensure that problematic situations are stopped before they get out of hand. It would also help the review to evaluate patterns, and — if the bishop himself were involved in sexual immorality involving priests or seminarians — it is likely that the review would begin to suspect that.
The second local change would be to significantly expand the role of the diocesan promoter of justice. The “promoter of justice” in canon law acts analogously to a public prosecutor. However, the function is usually filled by a chancery canon lawyer who carries the title as a third or fourth job, and only in a perfunctory way.
Promoters of justice don’t generally expect to have to do anything in the diocese unless a penal trial takes place, which is a rare occasion.
But if a bishop wanted to be held accountable within his diocese, he could refashion the role of the promoter of justice to resemble an ombudsman, or a civil district attorney. A well-funded and well-staffed office for a promoter of justice could include oversight of the diocesan safe-environment program and review board, involvement in personnel decisions, and a mediation role for whistleblowers and others involved in conflicts at the parish level.
A bishop could establish a promoter of justice who was empowered to keep authority figures, including himself, accountable to the norms of canon law and diocesan policy. The promoter could, if the bishop wished, even be supervised by the diocesan pastoral or finance council, in order to ensure independence. He could be required even to issue an annual report about the cases and issues he’d taken up each year.
Establishing a promoter in that way would be an unusual step for a bishop, but these are unusual times. Canon law says that the promoter of justice is “bound by office to provide for the public good.” At this moment, when trust is waning, such an office seems like it could be an extremely valuable step.
A Long Road
Next week, Catholics will look to Cardinal DiNardo, and to the bishops’ conference he leads, for some signal that serious reforms are coming to the governance structure of the Catholic Church and that the U.S. bishops might somehow be able to regain the trust of their people. The road to restored credibility, if it is to come at all, will be long and painful.
As the meeting begins, it remains to be seen whether the bishops will deliver on their promises of bold and courageous leadership. Catholics will be watching, hoping that, this time, bishops who say “Never again” will mean it.
J.D. Flynn is editor in chief of Catholic News Agency and a canon lawyer.