By Rev. Kevin E. McKenna
A disturbing statistic from the recent National Study of Catholic Priests undertaken by the Catholic Project of the Catholic University of America was the strong lack of trust in any due process protections for priests accused of sexual abuse. The survey of 10,000 Catholic priests, of whom 3,516 responded (36% valid case response rate) included interviews with more than 100. It reported that priests support the core policies of the Dallas Charter designed to protect the vulnerable. But those surveyed maintained that creating a safe environment, healing, and justice for victims is not incompatible with due process. “The fear of improper application of these policies in a circumstance of alleged abuse deeply worries the majority of priests. Many diocesan priests in particular fear they will not be adequately supported by their dioceses and bishops in the case of a false accusation.” 82% of priests fear being falsely accused of sexual abuse; there is an ignorance of what process(es) will be used should an allegation be made. Priests want some assurance of due process and the presumption of innocence before proven guilty.
A defining contribution of the revised Priests and the Right to Due Process 1983 Code of Canon Law was the inclusion of rights for all the Christian faithful (which include the clergy) such as: the right to a good reputation (canon 220); to legitimately vindicate and defend rights in the competent ecclesiastical forum, to be judged according to the prescripts of law and not to be punished with canonical penalties except according to the norm of law (c. 221). A new canon, 1321§1 has been added to t which specifies the presumption of innocence.
Arguably the most serious challenge to such rights of clerics accused of sexual abuse of a minor occurs during the “preliminary investigation” mandated by the Code of Canon Law when a possible accusation surfaces. The Pope, the Roman dicasteries and the United States Conference of Catholic Bishops have all issued norms that include the right of clerics accused to due process with the presumption of innocence. The United States Conference of Catholic Bishops in the “Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons” declare that after an allegation has been made, a preliminary investigation begins “promptly and objectively” during which the “accused enjoys the presumption of innocence, and all appropriate steps will be taken to protect his reputation (no. 6).” Also, the accused “will be encouraged to retain the assistance of civil and canonical counsel and will be promptly notified of the results of the investigation.”
On June 5, 2022, the Dicastery for the Doctrine of the Faith issued a “Vademecum on Certain Points of Procedure in Treating Cases of Sexual Abuse of Minors Committed by Clerics,” a handbook to be followed for a “standardized praxis.” The preliminary investigation is not a trial but seeks to “gather data useful for a more detailed examination” and “to determine the plausibility of the report” (no. 33). Care must be taken to “avoid any inappropriate or illicit diffusion to the public that could prejudice successive investigations or give the impression that the facts or the guilt of the cleric in question have already been determined with certainty (no. 29).”
Sadly, at this important phase where the future ministry of the cleric is at stake no legal counsel or protections are required “Should a decision be made to question the accused person, since this is a preliminary phase prior to a possible process, it is not obligatory to name an official advocate for him. If he considers it helpful, he can be assisted by a patron of his choice. An accused could self-incriminate unwittingly and provide testimony that could be used against him in further judicial or administrative procedures. The accused should be strongly encouraged to retain advocacy during the preliminary investigation since the bishop can take “precautionary measures” that can include exclusion from ministry and removal from a residence. The Vademecum suggests explanation be provided that the measure is not penal in nature, “lest he (the accused) think that he has already been convicted and punished from the start” (no. 61). But even before a formal trial or administrative process begins, the accused cleric can be viewed by the public as probably guilty of some misdeed, most likely sexual abuse of a minor.
The Association of United States Catholic Priests (auscp.org) has prepared a helpful resource, the “Rights of Priests” that provides practical guidance for how priests could respond when summoned to the chancery without knowledge of the purpose of the meeting, including: accompaniment with a trusted friend; requesting diocesan support in obtaining civil and canonical assistance if needed, and a waiting period before signing agreements.
Since legal costs, both canonical and civil could be prohibitive and thereby jeopardize due process rights, a diocese/eparchy could establish a restricted fund to which priests might voluntarily contribute, that could assist priests accused of sexual misconduct to defray legal expenses. Limitations could be imposed and monitored as to a maximum amount and the frequency of use. In my own diocese, Rochester, New York, a “Clergy Relief Society” was created many years ago, to which priests voluntarily pay a fixed amount semi-annually, created originally to assist priests in paying medical bills beyond insurance costs. It has recently been expanded to include legal fees, with a capped amount and frequency. Some dioceses reimburse priests’ legal expense if the cleric is later exonerated.
The Vatican II document on the “Ministry and Life of Priests asserts that bishops are to regard their priests as brothers and friends and are to take the greatest interest they are capable of in their welfare both temporal and spiritual” (no.7). When investigating accusations made against priests, it’s important to begin with the presumption of innocence and to make available the assistance of legal advocates to those accused. These would be concrete steps that could help rebuild trust and confidence in bishop-priest relationships.