VATICAN CITY—It wasn't USA Today's usual fare.

Father Jay Scott Newman wrote an opinion piece in the paper on canon law, responding to an article that appeared in the Jesuit biweekly La Civiltà Cattolica, a scholarly journal that doesn't even have pictures.

“As frustrating as this legal hairsplitting is, the rule of law must prevail,” wrote the Greenville, S.C. priest. “After all, lawlessness among priests caused this crisis; more lawlessness among bishops will not solve it.”

The article, which appeared May 18, was written by Father Gianfranco Ghirlanda, S.J., dean of the canon law faculty at the Jesuit-run Gregorian University, and an official consultant to several senior Vatican congregations.

The article received wide coverage, including the front page of the New York Times, as Father Ghirlanda raised concerns about some measures adopted by bishops in handling accusations of sexual abuse.

Writing strictly from the point of view of canon law, Father Ghirlanda opposed the use of mandatory psychological evaluations for accused priests, the turning over of names to civil authorities and the informing of parishioners of previous misconduct when reassigning priests.

All three elements are common practice in many dioceses and will likely be part of the national policy formulated at the American bishops' meeting June 13-15.

Because La Civiltà Cattolica's contents are reviewed by the Vatican Secretariat of State—and because of Father Ghirlanda's stature—the article was taken as a Vatican “directive,” though the author insisted that the article was only his view, and was written prior to the recent cardinals' summit on sexual abuse.

Father Ghirlanda stated that in handling sexual abuse allegations against clerics, bishops have a threefold obligation: to the victim, to the accused priest and to the common good of the diocese. That means that while a bishop may well say that “protecting children is my first priority,” canon law requires that it cannot be his only priority.

Father Newman's comment gets to the heart of Father Ghirlanda's concerns—that under pressure to remedy previous errors and oversights, the American bishops may adopt a policy that runs roughshod over their obligations in canon law.

Washington, D.C., Cardinal Theodore McCarrick has outlined in various interviews what he describes as five points of “consensus” around which a national policy can be drawn up:

E provision of care and counseling to the victim making the accusation,

E immediate removal of the priest from ministry while an investigation begins,

E notify civil authorities of the accusation,

E send the accused priest for a therapeutic evaluation, and

E refer to a lay review board to advise the bishop about any future reassignment of a priest found guilty.

Responsibility to the Victim

“The bishop must show all of his pastoral solicitude [for the victim],” writes Father Ghirlanda. “Nevertheless, it must be said, that from the canonical perspective, the bishop is neither morally nor juridically responsible for the criminal act committed by his cleric.”

Behind many of Father Ghirlanda's concerns is the fear that a system in which the bishop must choose between defending himself or defending the rights of his priests will lead to a situation in which priests no longer trust the bishop to defend them. This lack of trust is already evident in many dioceses as an ancillary result of the crisis.

On this point, though, there is little American bishops can do, as the civil law does hold the diocese responsible in such cases. Father Ghirlanda agrees that a bishop can be held responsible if, when informed of sexual abuse, he does nothing in terms of canon law to discipline the guilty priest and to ensure that no further harm is done.

“Any public intervention on the part of the bishop, solely on the basis of suspicions which may prove to be false, would not only be imprudent but unjustifiably damage the good reputation of the cleric, inasmuch as such an intervention would be interpreted by the people as a declaration by the bishop that [the criminal acts really occurred],” wrote Father Ghirlanda.

Canon law gives bishops the right and duty (Canon 1722) to suspend or remove a cleric from ministry in order “to preclude scandals, to protect the freedom of witnesses and to safeguard the course of justice” at any stage of the process, after having looked into the matter. The key question relates to the bishop's investigation before he takes action.

He is obliged (Canon 1717) to “cautiously inquire… about the facts and circumstances and about imputability” whenever he receives an accusation, and the same canon obliges “care must be taken lest anyone's good name be endangered by this investigation.”

Father Ghirlanda does not express himself explicitly on the question of immediate removals, but his article would clearly oppose practices where accusations are not investigated before priests are removed.

In many dioceses the standard is “credible accusation,” but in the current crisis, many accusations have been deemed credible before any meaningful investigation could have taken place.

It appears that a definition of “credible accusation,” or at least a defined procedure for determining such, will have to be part of any national policy that hopes to get Vatican approval. The Holy See would be unable to approve a policy that contradicted the obligations for investigation set out in canon law.

Civil Authorities

“Certainly it does not seem pastoral behavior that a bishop who receives an accusation informs the civil judicial authority in order to avoid being implicated in a civil process that the victim may undertake,” Father Ghirlanda's article states in the passage which attracted the most attention.

On this point, the options of bishops may be limited as many states already mandate reporting of sexual abuse allegations. Yet Father Ghirlanda's caution is that the bishop is first a pastor of souls, and not an agent of the state. Specifically, Father Ghirlanda says that a bishop should not report a priest to the civil authorities in order to avoid a lawsuit against the bishop himself—again the issue of the bishop's interest conflicting with those of his priests.

“In this case, I would say being a bishop comes first, not being a citizen,” said Father Ghirlanda in an interview with Catholic News Service.

“My position is this: If a bishop is questioned [by the state] he should respond. If he is not questioned, he should not report.”

While it is always possible for the victim, or a third party, to involve civil authorities, Father Ghirlanda raised the concern that a bishop cannot easily be a pastor to the victim, priest, and community if he himself initiates a criminal investigation.

“It is my opinion that it is not permissible that the accused cleric is forced to put himself under psychological evaluations in order to determine whether his personality is inclined to commit the crimes in question, or in order to extort a confession. Such practices are contrary to Canon 220, which protects the right to defend one's own privacy,” wrote Father Ghirlanda.

Here, Father Ghirlanda—who supports the “proper” use of psychological evaluation in priestly formation—runs counter to near-universal practice in the United States, where clerics are routinely sent for psychotherapy for various problems, not all sexual.

While such therapy is itself not contrary to canon law, Father Ghirlanda argues that to be forced to undergo it on the basis of accusations violates the emphasis in canon law on confidentiality, privacy and the right to protect the seal of confession.

Reassignment

The reassignment of clerics guilty of sexual abuse is likely to become a moot point, as an increasing number of dioceses have already announced that no such priest will ever be reassigned. On this issue, Father Ghirlanda wrote that it would be better not to reassign a priest than to reassign him and notify his parishioners of his crime. Such a policy would render the priest pastorally ineffective, Father Ghirlanda argues.

Like all policies, the details are all important. It is quite possible that the emerging national policy may combine the points of consensus enumerated by Cardinal McCarrick with the canonical concerns raised by Father Ghirlanda. That, after all, is what canon lawyers are trained to do. Nevertheless, the La Civiltà Cattolica article and the reaction to it signify that the Dallas meeting will be more complex, not less. Whatever the bishops decide, it will have to meet not only the test of compassion, justice, public opinion and the media, but the common sense encoded in the law of the Church.