Loose Canons

Ratzinger, Church Law & the Sexual-Abuse Crisis

The Italian word dietrismo translates literally as “behind-ism,” but it means more than that. It expresses the Italian belief that things are never as they seem, that there is always a story behind the public story. The powerful know what’s really happening and the let the rest of us see what they want us to see. In a nation of conspiracy theorists, dietrismo can apply to politics, soccer leagues, or the Vatican.

On December 2, 2010, L’Osservatore Romano published an interesting piece of dietrismo by Bishop Juan Ignacio Arrieta, secretary of the Pontifical Council for Legislative Texts and a preeminent canon lawyer. According to Arrieta, in February 1988—four years after Fr. Gilbert Gauthe was prosecuted in Louisiana for sexual abuse—Cardinal Joseph Ratzinger, then prefect of the Congregation for the Doctrine of the Faith (CDF), wrote to Cardinal José Rosalío Castillo Lara, president of what was then called the Pontifical Commission for the Authentic Interpretation of the Code of Canon Law, asking for a change in church law. Ratzinger sought a simpler canonical criminal process to deal with sexually abusive priests. Castillo Lara politely declined.

At the time, the CDF handled “administrative laicization” requests from priests around the world. Such petitions were granted as a matter of mercy by the church for men who no longer wanted to function as priests. Laicization requests had poured in after Vatican II, and Pope Paul VI (d. 1978) regularly—and speedily—granted them. But Pope John Paul II put an end to that practice. He believed slowing the process might make these men rethink their decision. John Paul ruled, soon after becoming pope, that no priest under forty could be granted an administrative laicization. (Full disclosure: on occasion, I’ve done pro-bono work for the Vatican reviewing pleadings in sovereign-immunity cases.)

In 1988, the CDF was fielding lots of laicization requests—many from accused American priests—and being pressured by U.S. bishops to grant them quickly. But Ratzinger found that objectionable. In his L’Osservatore article, Arrieta explains that Ratzinger’s problem was the “natural repugnance of a justice system to grant as a matter of grace (dispensation from the obligations of priesthood) something that should, instead be imposed as a punishment (dismissal, as a penalty, from the priesthood).” Ratzinger wanted to make it clear that offending priests were receiving canonical punishment, not mercy.

So Ratzinger asked the church’s chief canon lawyer, “Can’t we streamline the penal process to deal with these men?” Castillo Lara’s response was lawyerly: The law will work if the bishops use it, but they are not using it. “The involved bishops have not first exercised their judicial authority to properly punish such crimes, even for the protection of the common good. The problem is not so much one of juridic procedure but of responsible exercise of a bishop’s governing authority.” Castillo Lara, too, had been hearing bishops complain that they could not use the canonical criminal system because it was too unwieldy. The fact that he mentions “the involved bishops” in his letter indicates that he thought bishops should have held abusive priests responsible in the canonical criminal trials provided for in the Code. Ratzinger replied courteously, and that was the end of the exchange.

Was Castillo Lara right? Were U.S. bishops not doing their jobs? Yes and no. While it’s true that many U.S. bishops had come to the conclusion that administrative laicization was the best way to handle sexually abusive priests, it’s not as though they didn’t have their reasons.

First, the Code of Canon Law had been revised in 1983, so at the time of Ratzinger’s writing, it was still unfamiliar to many canonists and bishops—especially with respect to criminal procedures. American canonists who were trained in the old Code (those who graduated in the 1960s, ’70s, and early ’80s) simply didn’t know the new criminal process. And those who were trained in the revised Code focused almost exclusively on marriage cases. But the new Code also removed certain episcopal powers that in the past would have made it easier to get rid of abusive priests. For example, malefactor priests could no longer be suspended on the basis of a bishop’s informed conscience, and a bishop could no longer on his own petition for a priest’s administrative laicization—the priest had to make the request. What’s more, the ’83 Code instructed that in criminal cases pastoral solutions were preferable to judicial ones, and that a priest’s mental disturbance was a mitigating factor in imposing criminal penalties (such as laicization). Pedophilia certainly seemed to qualify.

Second, bishops feared that Rome wouldn’t uphold judicially imposed laicizations as a penalty for sexual abuse. Why? Their experience with the Roman Rota, the tribunal that would have heard appeals from U.S. canonical criminal trials, had not been encouraging. The Rota had a long history of slapping down U.S. tribunals for sloppy legal reasoning—primarily in annulment cases. How much harsher would the Rota be in penal cases, which were much more complicated than marriage cases? And while Rota decisions are not widely known—they are not always published—bishops were aware that the Rota had overturned diocesan sentences of laicization. For example, in 1994 the Rota overturned a Dublin tribunal’s decision to laicize Fr. Tony Walsh, Ireland’s most notorious pedophile. On appeal, the Rota ordered the sentence substituted with a milder one: ten years of service in a monastery—and no laicization. As late as 2002, U.S. bishops’ spokesman Msgr. Francis Maniscalco acknowledged that “some suspended priests have won reinstatement from the Vatican.”

Third, and perhaps decisively, the administrative laicization process was faster. Canonical criminal trials can drag on for years, and are inevitably appealed to Rome. Take, for example, the case of the recently laicized Charles Kavanagh in the Archdiocese of New York. In 2003, a diocesan review board found him credibly charged with misconduct in the 1980s, and he was suspended. Kavanaugh challenged the decision, requesting a formal canonical trial in another diocese. When that tribunal found him guilty, he appealed again. That tribunal also found him guilty, and he was laicized, but only in December 2010. Imagine the bishops taking that route with every credibly accused priest in America.

So you can see why Ratzinger wanted Castillo Lara to simplify the penal process. Just a few months after their 1988 exchange, Pope John Paul II promulgated his apostolic constitution, Pastor bonus, which restructured the Roman curia, giving exclusive jurisdiction over “more serious crimes committed against morals” to the CDF. Arrieta argues that John Paul’s decision to reserve an entire category of crimes to the CDF indicates that he realized the system wasn’t working. Yet, as Arrieta notes, Pastor bonus was not all that clear. It didn’t spell out the “more serious crimes committed against morals” over which that the CDF had sole competency. Those more specific norms were not promulgated until 2001—thirteen years later—a period during which the U.S. bishops handled and mishandled the sexual abuse crisis on their own (with some minor modifications to the Code for the United States from Rome). Defenders of Ratzinger often point out that it wasn’t until those norms were clarified in ’01 that the CDF had jurisdiction over abuse cases. But even that’s not so clear. The 1962 document Crimen sollicitationis, which Arrieta fails to mention in his article, could be read as giving CDF authority over the crime of clerical sexual abuse of minors nearly forty years earlier.

Ratzinger’s reluctance to use administrative laicization instead of the penal process might also explain the CDF’s response to a few U.S. cases that made headlines last year. Why, it was asked, didn’t Ratzinger act more quickly to grant certain abusive priests’ requests for laicization? Now we know: Ratzinger thought that would be a misuse of the system. That’s why the CDF instructed the Archdiocese of Milwaukee to hold a full canonical trial for Fr. Lawrence Murphy rather than grant him an administrative laicization (although it doesn’t explain why then-Archbishop Tarcisio Bertone of the CDF later reversed that decision). It also explains why the CDF initially refused laicization requests for Stephen Kiesle of Oakland—in addition to the fact that Kiesle was under forty when he first asked to be laicized. While it’s true that neither Murphy nor Kiesle was in active ministry when their requests got to the CDF, it hasn’t always worked out that way. Dublin’s Fr. Tony Walsh continued to be arrested for sexual abuse after the Rota overturned his laicization sentence in 1994. Two years later, Ratzinger issued a decree of administrative laicization against him. Why Ratzinger broke his own rule for Walsh but not for Kiesle—who was convicted of abuse—remains unclear.

Soon after Arrieta’s article appeared in December, several commentators floated the theory that the Vatican had timed it to cushion the blow of a soon-to-be-released report on abusive priests in Munich, where Ratzinger had served as bishop. In fact, the piece had been banging around the corridors of the Vatican for almost two years while officials debated whether publishing it would do more harm than good. Of course, given the Vatican’s underwhelming record of transparency throughout the crisis—and its time-honored tradition of botching P.R.—who could be blamed for speculating about a darker motive? Journalists abhor a vacuum. What they loathe even more is a story that doesn’t add up.

And finally, that may be the most important lesson of this mini-revelation: there is no single explanation for the crisis. Take, for example, the recently published 1997 letter from the Vatican ambassador to Ireland to the nation’s bishops warning them about their mandatory-reporting policy. The nuncio related the Congregation for Clergy’s sense that such a practice might run afoul of canonical protections for accused priests. On its face, not a surprising concern. But at the time the congregation was headed by Cardinal Dario Castrillon Hoyos, who in 2001 praised a French bishop for not reporting a known abuser to the police. Why was his congregation weighing in—rather than, say, the CDF or the church’s chief canonist—and was its opinion determinative? As with so many revelations about the scandal, it’s hard to say.

What we do know is that eventually a few curial officials came to understand the insufficiency of official responses to the scandal—and many more couldn’t or wouldn’t grasp its magnitude. Some bishops and their canonical advisers were flummoxed by the new Code; others looked the other way. The Ratzinger who in 1988 sought a speedier canonical process for handling abusive priests delayed decisions to remove them later. The same man who as a cardinal refused financial gifts from the Legion of Christ as pope allowed the order’s abusive founder Fr. Marcial Maciel to fade into a life of prayer and penance. By all accounts, Ratzinger’s awareness of the sexual-abuse crisis evolved over time, not always in a straight line, and often in conflict with other curial officials. Evidently Cardinal Angelo Sodano, John Paul’s powerful secretary of state, worked hard to frustrate investigations into the sexual abuse perpetrated by Maciel. We may never know whether or how Ratzinger fought to break Sodano’s blockade. Likewise, it seems improbable that we will ever know the full story of Ratzinger’s role in the reassignment of an abusive priest during his tenure as archbishop of Munich. The various currents of power in Rome can be overwhelming—even for a pope. This is a culture that, as the pope noted in his latest book of interviews, informed Benedict that he’d have to wear a white cassock in the manner of John Paul.

Obviously, there’s no shortage of blame to go around. The Catholic community deserves a fuller explanation of Rome’s reticence in laicizing known abusers. (In turn, church critics ought to acknowledge that cutting a molester loose doesn’t necessarily protect kids.) The pope could do that. He should do that. We need less “back story” and more openness. If there’s anything we can say with certainty about the crisis, it’s that secrecy does more harm than good. What if Ratzinger’s exchange with Castillo Lara had been published when it took place? The discussion that might have engendered among bishops, canonists, and the faithful could have saved the church—and her victims—from profound and enduring grief.


Related: Fraternal Correction and The Scandal of Secrecy, by Nicholas P. Cafardi
Pope Benedict's Question Time, from dotCommonweal
For more of Commonweal's coverage of the sexual-abuse crisis, click here.

Nicholas P. Cafardi is a civil and canon lawyer. He is Dean Emeritus and Professor of Law at Duquesne University School of Law. Cafardi was one of the original members of the USCCB’s National Review Board for the Protection of Children and Youth. His book Before Dallas (Paulist Press) is a history of the clergy child sexual-abuse crisis in the United States.

Also by this author
The Scandal of Secrecy

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