Neither canon law nor civil law processes can help the Catholic Church establish true accountability for the sexual-abuse scandal, argued Jennifer Haselberger during a talk she delivered yesterday at a conference for victims of clerical abuse. Haselberger--former top canonist for the struggling Archdiocese of St. Paul and Minneapolis--resigned in protest last year before going public with damning accounts of the way the archdiocese had handled cases of priests accused of sexual misconduct. Noting how difficult it was to acknowledge her role as "a perpetrator"--not of abuse itself but as part of a system that enabled it--she challenged her former colleagues in the Twin Cities and elsewhere to subject themselves to an examination of conscience with respect to their own roles in the scandal.

The Survivors Network of those Abused by Priests held its annual conference in Chicago this weekend, marking the organization's twenty-fifth anniversary. Speakers included Jason Berry, whose pioneering reporting--much of which ran in the National Catholic Reporter--introduced the scandal to a national audience; historian Garry Wills; Illinois Supreme Court Justice Anne Burke, who served as an inaugural member of the U.S. bishops' National Review Board; and Haselberger.

Responding to Pope Francis's call for "the whole church to find the grace to weep, to feel ashamed and to make reparation" for the sexual-abuse crisis, Haselberger sought to find "concrete actions" the church might take to establish accountability. But she did not spend much time looking for accountability in canon or civil law, which do not "have anything of significance to offer in this regard." While canonical procedures can be helpful in clarifying the status of accused clerics and removing them from ministry, "the processes are by their very nature incapable of producing the results sought by Pope Francis, or of reconciling the one abused with the broader faith community."

(Haselberger's remarks were condensed from a longer paper--all quotes here are taken from the full version of her talk, which has not yet been published.)

Canonical trials are designed to "insulate" the Catholic community from knowing that abuse has been committed, Haselberger continued. They are "oriented toward the offender" because their purpose is to assess guilt, not repair relationships. "In such a process the victim of the violation is reduced to a mere witness to the crime."

Other aspects of canonical trials can function as stumbling blocks to "acknowledging the harm that has been suffered and to making appropriate reparation," Haselberger wrote. For example, when attempting to assess guilt, a jurist must determine what statute applied at the time the alleged offense was committed.

A canonist in the United States might on the same day find that she must inform one victim that his or her abuser is not required to be permanently removed from ministry according to the provisions of the Charter for the Protection of Children and Young People/Essential Norms [the canon laws written in response to the scandal, and that apply to the United States alone] because the victim was seventeen when the abuse was committed on April 24, 1994, whereas her response to a second victim, also seventeen, but abused on April 26, 1994, is that his or her abuser is subject to the provisions of the Charter.

Of course, determining whether a crime is actionable "is a necessary aspect of the application of law, but this is a difficult message to communicate when the system of law in question is the internal law of a religious institution and as such is expected, rightly or wrongly, to conform to a higher set of expectations." That point was driven home for her when she read about the Vatican's response to the UN's critical report on the church's handling of clerical sexual abuse. While she "can appreciate the legal accuracy of the Holy See’s defense that its adherence to the treaty can only be assessed in relation to what occurs within the territory of the Vatican City State, in my heart I found such a response to be, simply, beneath us."

The "secrecy and mystery that surrounds canonical processes" may have been established to protect both the victim and the accused, Haselberger argued, but it has come to "represent the lack of transparency for which the Catholic Church has been rightly assailed." That lack of transparency "has benefitted very few except for the offenders" because it enables them to "perpetuate their own narrative of wrongs and false accusations" without the risk of being exposed. "The weight of the pontifical secret," she continued, "is heaviest on those attempting to administer justice, not on those whose actions have destroyed it."

Civil law isn't much better because it provides "very little incentive" for perpetrators "and those who have enabled them" to come clean about their misdeeds, Haselberger wrote. Yet in criminal and civil trials victims must "undergo harrowing examinations both in and out of court in order to prove the abuse they have suffered." Even the document dumps that often accompany civil sexual-abuse suits don't provide the truth of what happened because, she explained, important details are usually redacted and "such documents rarely lay bare the motivation behind the actions they describe."

Financial settlements themselves don't do enough to satisfy the requirements of justice either, Haselberger claimed, because "the aggrieved party is offered a sum of money, without any admission of fault, in exchange, basically, for going away." In a footnote, Haselberger recounted a telling exchange she witnessed between a diocesan victims-assistance coordinator and an attorney who worked for another diocese. The coordinator was discussing how difficult it had been to persuade her diocese to pay funeral costs for a "destitute victim who had received a settlement years before." The lawyer criticized those efforts because "the purpose of the settlement had been to end the diocese’s obligation to the victim," Haselberger recalled.

So if neither civil nor canon law can reliably establish accountability for the sexual-abuse scandal, then what can? Haselberger proposed looking to the Truth and Reconciliation Commission of South Africa, created to respond to human-rights abuses that occurred under apartheid. The TRC has "acknowledgment, healing, and reconciliation as its primary objectives," she wrote.

The TRC's approach is "victim-centered," Haselberger explained--"unlike the current internal processes of the Catholic Church." The commission applied "a broader notion of accountability by requiring individual amnesty petitions to be accompanied by a ‘full disclosure of all the relevant facts.’" This was not a painless process because of the TRC's "extremely (and often uncomfortably) public nature." Transparency was the commission's watchword. Indeed, as Haselberger noted, the South African Broadcasting Corporation aired a weekly program summarizing the commission's work.

The TRC sought victims' testimony by traveling to victims in their towns and villages. The victims didn't have to go to the commission. It conducted two sets of inquiries. First it determined whether a human-rights violation had occurred, and then it identified the victim. Then it tried to establish the identity of the perpetrator and his accountability. These distinct inquiries meant, Haselberger explained, that even if the commission found that a person was killed by police during an apartheid protest, but that the police were acting in self-defense, the victim's experience is not minimized--nor is the country's obligation to provide reparation. That approach may offer a correction to inequities in the church's canonical system, "where processes cannot begin without a perpetrator who can be held accountable and who is subject to penal sanctions," according to Haselberger. Many victims, she continued in a footnote, "have been denied the opportunity to vindicate their claims canonically" because the accused died, left the priesthood voluntarily, or was laicized following an earlier canonical process.

Haselberger pointed out that "the commission’s mandate required it to investigate and respond to gross violations of human rights committed both by those defending apartheid and those committed to its eradication." If the churfch were to adopt a similar commission, she argued in a footnote, "members of some organizations that support or advocate for victims’ rights might also have to ask if they have committed any violations for which they would need to request amnesty." Apart from victims who became victimizers, "most violations in this category would likely not be violations of bodily integrity (severe violations), but the Universal Declaration of Human Rights also identifies privacy and reputation as human rights."

The Truth and Reconciliation's mandate also required it to identify all "persons, authorities, institutions, and organizations" responsible for violating human rights--and hold them accountable. That meant investigating both the individuals who committed those crimes and "those who had aided and abetted those acts (including conspiracy, incitement, instigation, command, and procurement)," Haselberger wrote. That too is "contrary to our present internal Church processes."

Controversially, the TRC allowed perpetrators to petition for amnesty. The idea was in part to give perpetrators a reason to be honest about the crimes they committed, even if this resulted in rampant deception. Still, as Haselberger pointed out, the commission encouraged victims to attend amnesty hearings, where they could question the petitioner and elicit evidence. That part of the process "would have greatly improved many of the Catholic Church’s private negotiations for so-called ‘prayer and penance’ accommodations,'" she wrote.

The reparations recommended by the TRC offer a model for what the church might adopt. Haselberger suggested that "Catholic schools, colleges, and universities could establish scholarships for victims and/or their family members." She floated the idea that Catholic health care agencies that "provided services to clergy offenders could dedicate resources towards providing counseling, facilitating support groups, or providing other care for victims." All of that could be done without bishops' approval.

The public nature of the TRC's work was intended to make it harder to lie about the terrible history of apartheid. The Catholic Church needs that too, Haselberger wrote. "There is a very real need to similarly expose the number of lies circulating unchallenged in the discourse of the Catholic Church regarding its response to sexual abuse, as those of us who have worked within the Church and have confronted these issues are all too aware." She encouraged those attending the SNAP conference to imagine what it would be like for the church to listen

as 21,300 individuals recounted their experience of sexual abuse in the Catholic Church, followed by a similar period of time in which those responsible for that abuse--priests and deacons as well as the bishops and other officials who either enabled or failed to prevent the abuse--were forced to publicly either fully admitted to their actions and the motivations behind them, or were subpoenaed and forced to respond to the charges leveled against them.

Knowing the motives of those who committed abuse and those church leaders who responded to it--adequately or not--remains all too necessary, Haselberger argued, "in order to ensure such abuses of power do not continue, as they have even in the decade following the adoption [by the U.S. Catholic bishops] of the Charter for the Protection of Children and Young People/Essential Norms." It might also have the effect of bolstering priests' morale because it would increase the church's credibility in the eyes of the faithful, she noted. And it could quell fears among clerics that an errant touch would lead to public shaming and removal from ministry.

She acknowledged that the U.S. Conference of Catholic Bishops attempted to get at the truth of what happened by commissioning two studies of the scandal, one presenting data on victims and perpetrators and another attempting to explain what happened. But she also expressed doubt about the studies: "two of the three diocese in which I have worked did not provide accurate information to the researchers."

Would a Catholic Truth and Reconciliation Commission help to address the weaknesses in the U.S. bishops' studies of the abuse crisis? Haselberger thinks so. But, as she told attendees of the SNAP conference, "what I have proposed will never and likely could never be." That's because, she explained, the Catholic Church cannot indemnify its perpetrators or its assets from criminal and civil actions. So-called window legislation, which allows plaintiffs to sue for alleged abuse that took place long ago, makes it financially impossible for the church to authorizes such a commission.

But that doesn't mean the thought experiment lacks value. "The challenge is for each of us to situate ourselves within the paradigm established by the TRC, and honestly acknowledge our status as perpetrator or victim." It's not difficult point at an abuser and say, "There. There is the perpetrator." The harder, more important work requires the church to acknowledge "not only who committed what acts, but also who benefited from them, as well as to identify those structures and practices that facilitated them--our acts and omissions--and to acknowledge our accountability."

"Our"? In a footnote, Haselberger recalled the April deposition of a former vicar general of the Twin Cities diocese. In sworn testimony, "Father Kevin McDonough acknowledged that the Catholic Community Foundation was established as a way to insulate funds provided ‘for the support of Catholic services’ from potential legal judgments and settlements," she wrote. The CCF was established in order to support the "spiritual, educational and social needs of our Catholic community," according to its website. "It can be argued that anyone who benefitted from the work of the foundation (which is almost every Catholic in the Archdiocese since 1992), also benefitted from, and perhaps even contributed to, a policy designed to limit reparations made to those with legitimate claims against the Archdiocese (or the Archdiocese’s ability to pay them)," Haselberger wrote. "One might ask if such actions could also be understood as mistaking right or wrong for what is good or bad for the institution, and also begs the question of whether making reparation towards those who have been harmed is not also a spiritual and social need of the Catholic community."

For her, this sort of self-examination hasn't been easy. "It was extremely painful to come to the realization that my position in this paradigm was equivalent to that of an Afrikaner--in other words, that I was a perpetrator"--not of sexual abuse but as a part of an organization that enabled it. Nor has it been easy to go through "the process of publicly exposing the violations that have occurred and my complicity with them." But doing so was, she said, the only way she could make reparation to the victims of abuse--and request amnesty, if only symbolically.

As she brought her speech to a close, Haselberger called on her former colleagues in the Archdiocese of St. Paul and Minneapolis "and beyond, canon lawyers and civil lawyers, chancery officials and ordained ministers, to subject themselves to a similar examination" of conscience. "It is time that they ask themselves for what violations they need to seek amnesty, and what truths they must admit in order to receive it."

After all, she concluded, "They are certainly part of the ‘whole church’ that the Holy Father wishes to make reparation, and having personally and intimately encountered the reality of sexual abuse by clergy, they should not need grace to prod them into weeping or feeling ashamed."

Grant Gallicho joined Commonweal as an intern and was an associate editor for the magazine until 2015. 

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