When Pope Francis accepted Cardinal Theodore McCarrick’s resignation from the College of Cardinals July 28, he directed him to live in “seclusion, prayer and penance” until the end of a canonical process.
Exactly two months later, it was announced that Archbishop McCarrick had been relocated to a Kansas friary to begin ... what exactly?
Since the announcement of the loss of the red hat and the imposition of a life — at least for a time — of prayer and penance, many in the Church have been struggling to know exactly how to characterize his status.
On the one hand, the still-emerging accounts of decades of sexual assault and abuse against priests and seminarians has given rise to an almost-universal presumption of guilt. Given that a life of “prayer and penance” is effectively a canonical penalty, it is hard to escape the impression that Archbishop McCarrick has begun a sentence for crimes committed.
On the other hand, the Pope did explicitly say that Archbishop McCarrick’s time of prayer and penance was pending the outcome of a canonical process, and however overwhelming the evidence may appear to be, it must be borne in mind that he has yet to have his day in court.
His current situation could perhaps best be described, then, as “in custody awaiting trial,” though even the word “trial” is subject to some qualification in this case.
Under canon law, there is a clearly marked-out process for handling allegations of sexual abuse and other grave crimes. The first step is the preliminary investigation. This is handled at the level of the diocese where the accusation is made, and its only purpose is to establish that the accusation is not “manifestly false or frivolous,” and, if not, forward the case to Rome.
In Archbishop McCarrick’s case, this was done by the Archdiocese of New York following the allegation that he had groped a 16-year-old boy in 1971 and then again the following year. This allegation was determined “credible” by the New York Archdiocese, and the case was sent to Rome, as required.
The next phase of the canonical process depends upon the strength of evidence uncovered during the preliminary investigation. If it is considered to be enough to raise a real possibility of guilt, but not enough to clearly establish guilt as a fact, a full canonical trial may be held.
However, if the evidence seems to be sufficiently compelling, a penal administrative process can be used. This is essentially an expedited procedure in which the accused is still given the opportunity to defend himself and have access to legal representation, but without many of the procedural stages associated with a full trial.
In Archbishop McCarrick’s case, as an archbishop, his case is immediately elevated to Rome for the Pope to decide how best to proceed.
Given the gravity of the case, and the prominence of the accusations, a full trial might seem the option best suited to justice being “seen to be done,” but this is by no means a certainty. There is no such thing as “normal” in the canonical prosecution of an archbishop, and the Pope may weigh a number of options in deciding how the matter is going to proceed.
One factor that may influence his decision is the archbishop’s age.
He is 88 years old, and the health effects of a public scandal such as his are real. In the past, it has not been unknown for Church authorities to drag their feet through the canonical process, allowing the scandal to die with the accused. This has, on occasion, been tacitly seen as a preferable outcome — sparing the Church a long investigation with the possibility of further revelations.
In Archbishop McCarrick’s case, we could actually be seeing the reverse — Rome acting quickly to ensure that he is seen to be punished in case he does die before the trial concludes.
This being the case, the preference may well be for a more procedurally stripped-down process rather than a full trial, which could last a year or more.
Of course, just as pressing a question as how Archbishop McCarrick will be tried is what he will be charged with.
The original allegation received and investigated in New York concerned a 16-year-old in 1971. Under canon law in force at the time, those 16 or over were not considered minors in abuse cases — the age has since been raised to 18.
Similarly, allegations of sexual assault or misconduct made against Archbishop McCarrick by various seminarians do not, at least looking at the publicly available details, necessarily rise to the level of a canonical crime — though they certainly concern sinful behavior. (The 1983 Code of Canon Law, unlike the past code, does not include a detailed list of illicit sexual behavior, except concerning abuse of minors.)
Officials at the Congregation for the Doctrine of the Faith (CDF), which handles cases of sexual abuse, have privately expressed frustration at a lack of a clear canonical charge to bring against Archbishop McCarrick. At the same time, they are working under the shadow of what appears, through the July 28 announcement indicating his withdrawal from public ministry to a life of prayer, to be a conviction and sentence before the fact.
In a case where the Pope directly informs the procedure to be followed, it is hard to predict exactly how the process will unfold — especially given that Pope Francis has indicated publicly he is taking a more hands-on approach in these cases.
Many U.S. bishops have called for an apostolic visitation, perhaps led by a prominent figure like Maltese Archbishop Charles Scicluna and conducted along the lines of those held in Chile and Ireland following scandals there. But officials in Rome have privately suggested that the level of media attention such an event would draw could hamper the evidence-gathering needed to proceed with Archbishop McCarrick’s case.
The next step may well be a much more discreet investigation in New Jersey, New York and Washington carried out by CDF officials. Such a visit would not make headlines, but could well make all the difference in ultimately resolving Archbishop McCarrick’s situation.
Ed Condon is a canon lawyer and
an editor with Catholic News Agency.