Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, November 29, 2018

The police in the chanceries

As most readers already know, the forces of "the state" in the form of police officers, even Texas Rangers, spent some twelve hours yesterday rooting around inside the Houston Chancery in what the same Chancery does not want to hear called a "raid."  The non-raid, prosecutorial action for records related to clergy sex was, as most readers also already know, of the home-base of the president of the U.S. Conference of Catholic Bishops, Cardinal DiNardo. 

This latest prosecutorial investigation of the Church for things having to do with clergy sex abuse is just one among a large and doubtless soon-to-grow number of similar legal actions across the country: at least fourteen states, the District of Columbia, and the U.S. Department of Justice in what could well become a nationwide investigation and prosecution.  That Pope Francis, acting through the Congregation for Bishops, recently directed the USCCB not to vote on its planned reforms "to hold bishops more accountable," as the agenda items were often described by the press, could conceivably end up having emphatically-unintended legal consequence in the possible federal case against the Church.  The Vatican's stated reason for disallowing the USCCB's planned vote was the meeting Pope Francis had already called for in in Rome in February to address "clergy sex abuse" and related issues on a universal scale. 

As to that "meeting," I am deeply sympathetic to the need for universal Church governance on these issues, and I hope Pope Francis, who after all is the man in charge, will finally provide the rules and enforcement that are necessary to begin to get the wrongs righted and the ship turned closer to the right direction.  I'm not immediately hopeful, however. 

Consider that when Archbishop McCarrick belatedly "resigned" from the College of Cardinals at the end of July, the Vatican's one promise was that McCarrick would be subject to a canonical trial for his alleged crimes.  But, as the Washington Post reported last week (Nov. 23), there is zero evidence that that trial, the mere public beginning of which could begin to repair some broken trust, will ever occur.  It may well occur, but who knows?  There is an easy, available, if imperfect, point of comparison in recent Church history.  When Pope Benedict's butler committed his crime ("aggravated theft"), the butler got a speedy, public canonical trial that the Vatican was eager for the world to witness and take note of.  At the very least, we can say that McCarrick is not getting anything resembling a speedy trial, and there are of course plenty of possible reasons, some of them sinister, for the slow, if any, progress in bringing McCarrick to canonical justice. 

Meanwhile, McCarrick is an old man (88),  and there is ample reason to suppose that the Vatican has little interest in having all the facts possibly at issue in his trial spread upon the record.  It's worth noting in this connection that those who wag their finger and point to Archbishop Vigano's violation of the pontifical secret rarely then draw the obvious practical conclusion that  Archbishop Vigano should be put on canonical trial.  As with McCarrick, can you even imagine what would come out in that court room for the world then to have to face?   Pope Francis will "not say one word" about Vigano's actions and un-refuted allegations, but he also will not cause his legal system at Rome to bring the law-breaking Archbishop to trial.  Why should not Vigano, like McCarrick, be tried for his alleged crime(s)?  (Of course, there is arguably good reason to conclude that Vigano should not be tried because in his case the positive law of the Church was displaced by the demands of higher law, but that's another question and it is emphatically not the position the Vatican has taken in not prosecuting Vigano).

All of which, along with so much more to the same effect in the recent news, brings me to my present point: "in the interest of public utility, crimes ought not remain unpunished" ("publicae utilitas intersit, ne crimina remaneant impunita").  This doctrine, first stated by Pope Innocent III in 1203, was an essential part of the Church's way of authorizing secular governments to create penal systems and punish criminals.  This new doctrine, as Richard Fraher has written, "helped to justify the [then] nontraditional punitive measures which communal governments enacted to ensure stability and curb violence in the new city-states."  Fraher continues:  "the motivation behind the development of the new criminal procedures . . . was the perceived need for efficient enforcement of the canon law, for the purpose of deterring deviant behavior."   And, lest anyone wonder, the historical record makes perfectly clear that deviant, criminal behavior by members of the clergy was crucial in the Church's decisions, as in 1203, sometimes to defer to the secular government in enforcing the criminal law.

Innocent III's accommodation of 1203 is just one example of the Church's out-sourcing some of the dirty work the Church, like the state, wanted, with good reason, to see done and done reasonably well, granted by all concerned that secular justice would fall short of the understood higher demands of higher law.  From Pennsylvania and New York and Texas and probably soon to California, the states are doing work the Church has long relied on them to do.

To be sure, however, what the states are doing today is done against a radically different Church-state "balance" than any Innocent III could have imagined in his worst nightmares.  But, as I have long insisted, at the heart of the problem has been the Church's refusal to follow and enforce her own law.  It wasn't groovy for "the Church of accompaniment" even to acknowledge the Church's legal power over her members, let alone to threaten penal remedies and sometimes enforce them.  But it was the "accompaniment" model that was at work when "Uncle Ted" was spiriting young men off to his long-notorious shore house.  

"The Church of accompaniment" failed us, all of us: the victims, first of all and foremost, but also all the rest of us who were owed a Church that was governed the way Christ intended his shepherds to safeguard the faithful.   So, while I am distressed by pictures of the police raiding one chancery after another, I am relieved and grateful to see the state starting to do for men, women, and children what the ministers of the Church have so miserably failed to do.  

"The Church has its own inherent right [nativum et proprium Ecclesiae ius] to constrain with penal sanctions Christ's faithful who commit offences."  CIC  can. 1311.  The U.S. bishops have acknowledged their awareness that "the McCarrick case" deeply troubles the American faithful, as it should.  When will the Church exercise the duty correlative to her right "to constrain with penal sanctions" in the case of McCarrick, appropriate sanctions not approached by his current life of comparatively comfortable exile in an obscure Kansas Friary?  Why exactly has McCarrick not been reduced to the lay state?  Only Rome can accomplish the available justice in the McCarrick case.  Will it?  McCarrick has still not so much as offered a public apology, only a denial.  



Brennan, Patrick | Permalink