Priests and the Right to Due Process

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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 ( 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.

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