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BY Thomas A. Szyszkiewicz
PHOENIX — An agreement has been reached between a diocese and a law-enforcement agency that critics say compromises a Catholic bishop's authority.
Bishop Thomas O'Brien of the Diocese of Phoenix reached a settlement with Maricopa County Attorney Rick Romley in order to avoid facing charges of obstruction of justice.
The agreement, signed May 3 but not revealed until a month later, binds Bishop O'Brien to appoint a moderator of the curia (a canonical position) and delegate to him the responsibility for dealing with sexual misconduct. He also must apologize for placing accused priests in parishes.
The agreement also requires the diocese to appoint a youth protection advocate to enforce diocesan policy on sexual misconduct. The diocese must pay $300,000 to the county victim compensation fund; $300,000 for counseling for those victimized by abuse; and $100,000 to reimburse the county attorney's office for its investigation into child sex abuse. It must host and pay for a summit on sexual abuse with the county attorney's office.
One observer, Deacon Keith Fournier, former director of the American Center for Law and Justice, thought the agreement was a good one.
Deacon Fournier is a constitutional lawyer who as a juvenile prosecutor once represented children's services in Jefferson County, Ohio, and administered a youth services grant there.
When sex abuse of children is involved, “We are talking about the mystery of iniquity here,” he said, “We're talking about evil, and evil needs to be exposed.”
But that exposure might be coming at a high price to the Church, according to attorneys.
“What is most objectionable about this agreement,” said Pat Schiltz, a law professor at the University of St. Thomas in Minneapolis, “is that the bishop plea-bargained himself out of some probation and a possible $5,000 fine to the tune of $600,000-plus that the people of the Diocese of Phoenix now have to pay out.”
The diocese, though, said the payment to the victim's assistance fund and partial cost of the investigation is coming from the profit on the sale of property no longer needed for future parish sites because the diocese is establishing larger geographical parishes and constructing larger churches. No money is coming from a Charity and Development Appeal or parish collections, and most of the money will go to help victims, said diocesan spokeswoman Kim Sue Lia Perkes.
Schiltz, who has defended numerous churches and dioceses against sexual-abuse lawsuits, also said the bishop's admission is not going to help in any future lawsuits against him.
“It will be hard for him to argue that he was not negligent,” he said.
The admission, Schiltz said, “is very carefully worded, but it's not something I would want to have hanging around my neck if I were defending him.”
The agreement goes a step further than similar cases in New Hampshire and the Diocese of Manchester, N.H., Schiltz said. The New Hampshire agreement “monitors the results” of actions the diocese is taking to curb child sexual abuse, he said. But “what Phoenix has done is to realign the operations of the diocese at the whim of the state.”
That realignment could have included Bishop O'Brien's resignation, according to press reports. Barnett Lotstein, a spokesman for the Maricopa County Attorney's Office, told the Register the office knew for a fact that Bishop O'Brien was seeking to resign from his office but that the papal nuncio to the United States, Archbishop Gabriel Montalvo, refused the resignation. According to the Arizona Republic, the resignation was rejected because it came at the request of county attorney.
On the question of his resignation, Bishop O'Brien said, “There has been no speculation about my service as bishop of the Diocese of Phoenix. Although we explored several different resolutions to this matter, we made it clear to Mr. Romley and his office that my resignation was not an option. I serve at the pleasure of the Pope, not the county attorney.”
Perkes told the Register that Romley demanded the bishop's resignation. “That demand was shared with the bishop's religious superiors and he was told that he could not resign,” she said.
Bishop O'Brien, 67, has been bishop of Phoenix since 1981. He is chairman of the U.S. Conference of Catholic Bishops Administrative Committee and its Committee on Marriage and Family. The latter committee, under his chairmanship, in 1997 issued “Always Our Children,” a statement on homosexuality that had to be subsequently revised at the direction of the Vatican.
Two Bad Effects
Angela Carmella, a law professor at Seton Hall University in New Jersey, believes the situation could have two bad effects on the Church: the state could start making diocesan policy and it could show the Church is getting lazy.
“If the state has a law that applies to all, I have no problem with the state enforcing that law,” Carmella said. “But for the state to have a say in the policies themselves, the institutional boundaries are crossed there.”
Additionally, “the Church itself is responsible for its own renewal and reform,” Carmella said.
The exposure of sex abuse was brought about by the public, the press and the state, she added, “and that's okay.”
But, she continued, “My big concern about these agreements is that the Church might be tempted to abdicate its responsibility for reform by saying, ‘Oh look, we're complying with the law.’”
But the law the Church should be complying with is canon law, said Msgr. Brian Ferme, the new dean of the canon law school at Catholic University of America.
“The [canon] law is that when someone is accused — and the most extraordinary thing is it's never done — there must be a preliminary investigation,” said Msgr. Ferme, former dean of canon law at the Lateran University in Rome. The preliminary investigation is simply to establish whether there is any credibility for the accusation, he said, and then there are canonical steps to follow after that.
Unfortunately, though, the Church has “done everything but what it should do — apply canon law and get on with it,” he said. And in most instances, canon law is more rigorous than civil law.
Thomas A. Szyszkiewicz writes from Altura, Minnesota.