PART I
MEMORANDUM
From: Thomas P. Doyle, O.P., J.C.D.
To: Attorney Sylvia Demarest
Date: September 10, 1995
Case: Does v. Diocese of Dallas et al
Subject: Dallas Litigation
PRELIMINARY REMARKS
1. In preparation for this report I have reviewed relevant portions of the Code of Canon Law, the fundamental legal document of the Roman Catholic Church. The Code was formulated first in 1917 and remained in force until 1983 at which time the revised Code took effect. The norms of the 1917 Code apply to events in these cases which took place prior to November, 1983. Any and all references to the separate codifications of Church law will be made clear in the ensuing paragraphs of this report. The Code governs the actions, relationships and structures of the Roman Catholic Church throughout the world. Each bishop of a diocese is subject to the Code. The Code also regulates the relationships and lines of authority between bishops and the priests and lay people within their jurisdiction.
2. The purpose of the review of Canon Law is to determine whether there is any conflict between the regulations and norms contained in the Code and other Church law provisions, and the secular or civil law on matters related to the impropriety of sexually abusing, molesting or otherwise harassing children and/or young adolescents. This review will also seek to determine if there is any conflict between the requirements of Canon law concerning the reporting and investigation of suspected incidents of such sexual abuse and the civil law requirements for the same. Finally, the review will seek to determine if there is any conflict between the prescribed duties of the clergy and other Church officials as regards to protection of children and similar duties in civil law.
3. A careful examination of the Canon law of the Roman Catholic Church indicates that in fact, there is no conflict between Church law and practice and the civil law requirements concerning the sexual abuse of children. Canon law has long recognized that sexual contact with children is wrong and quite contrary to the basic principles of the Catholic Church and is also contrary to the obligations and very role of the priest. Sexual abuse of minors is deemed a crime in Canon law, which has its own section on crimes and penalties. Canon law also contains provisions which are ordered to the protection of the rights and welfare of children (among others) and these provisions call for the reporting and investigation of suspected incidents of child abuse. It may also be helpful to mention the fact that members of the Catholic Church, including and especially members in leadership positions such as priests and bishops, are obliged to follow and obey the civil laws of the country in which they live so long as these laws are not contrary to divine law which is understood to be the law of God.
4. I have also reviewed several depositions and other related files pertaining to the alleged abuse of the plaintiffs DOE by Robert Peebles, Rudolph Kos and William J. Hughes, Jr. all priests of the Diocese of Dallas at the time the alleged abuse took place. I have also reviewed information in the form of files, depositions, policy statements etc. pertaining to the Military Vicariate of the United States also and later known as the Archdiocese for the Military Services USA and documents, files and statements concerning the National Conference of Catholic Bishops-United States Catholic Conference (NCCB-USCC). I understand that there are additional depositions and documents that I have not had the opportunity to review due to the fact that discovery is on-going.
5. It is my understanding that this case is about the sexual molestation and/or exploitation of young boys and one young girl by priests incardinated (assigned) to the Roman Catholic Diocese of Dallas, Texas, one of whom was an active duty chaplain in the United States Army at the time of the alleged abuse. The other two priests, Kos and Hughes, were diocesan priests who were functioning within the Diocese of Dallas at the time of the alleged abuse.
THE INTER-RELATIONSHIP OF CHURCH BODIES IN THIS CASE
6. At the outset it appears that there is an inter-relationship between at least four recognized entities of the Roman Catholic Church and the events and/or actions which occurred as a result of the alleged sexual abuse of minor children by the three priests mentioned. These entities are the following: The Diocese of Dallas, the Military Vicariate of the United States, the Archdiocese of New York, the Servants of the Paraclete and the National Conference of Catholic Bishops-United States Catholic Conference. To wit:
a. The Diocese of Dallas: each of the priests was incardinated or officially assigned to the Diocese of Dallas at the time of the abuse. As such the Diocese of Dallas had primary authority over the priests and primary pastoral responsibility for the care of the victims of the abuse suffered at the hands of priests of the Diocese of Dallas.
b. The Military Vicariate: this entity is directly involved with respect to the case involving Robert Ray Peebles. Peebles was either a reserve or an active duty chaplain at the time of the abuse. As such, he remained a priest of the Diocese of Dallas but a significant amount of authority over him as regards the exercise of his pastoral or priestly duties had been assumed by the Military Vicariate. The Vicariate had been established as an ecclesiastical entity to foster, supervise and direct the work of chaplains ministering to military members, their families as well as the Veterans Administration. The Vicariate was and is recognized the United States Government, Department of Defense as the primary or fundamental endorsing or approving agent for priests who sought to be commissioned as military officers and thus exercise their ministry as military chaplains. By reason of Department of Defense Directive 1304.19 (Jan. 9, 1980, revised and issued again on Nov. 22, 1988)), the Military Vicariate was charged with implementing the requirements and criteria set forth. The Jan. 9, 1980 document states that the ecclesiastical endorsement of a chaplain certifies that the chaplain is, among other things, “recommended as being spiritually, morally, intellectually and emotionally qualified to represent the applicant’s religious body to the chaplaincy of the Armed Forces.”
By reason of this directive, the Vicariate had not only the authority but the responsibility of determining that individual candidates for the chaplaincy satisfied the requirements as set forth. The question for consideration is this: what type of investigation did the Vicariate conduct into the backgrounds of candidates for the chaplaincy prior to issuing the endorsement and what type of investigation took place concerning Peebles in particular?
c. The Archdiocese of New York: in 1981 and 1984, when the alleged abuse at the hands of Peebles took place, the Military Vicariate was headed by the Archbishop of New York who had been appointed Apostolic Administrator by the Vatican. Heretofore the Military Vicariate had been headed by a Military Vicar who had always been the same person as the Archbishop of New York or who was later known as Apostolic Administrator. The title “Apostolic Administrator” had been given the Archbishop of New York as regards the Vicariate as part of the transition process whereby the Vicariate would move from an ecclesiastical entity dependent on the Archdiocese of New York to a fully independent archdiocese with its own independent archbishop. The process was completed in 1985 when the Archbishop of New York (John O’Connor) ceased being Apostolic Administrator and full authority was invested in Archbishop Joseph T. Ryan, formerly Coadjutor archbishop of the Military ordinariate or Vicariate as it was also called, as Archbishop of the Archdiocese for the Military Services.
d. NCCB-USCC: A strict reading of the Code of Canon law indicates that there is no authority level between a diocesan bishop and the Pope. Yet the national bishops’ conferences, instituted after Vatican II, do in fact, constitute a very real source of authority and influence over the diocesan bishops. The conferences are empowered by church law to legislate for the dioceses within their respective jurisdictions on a number of issues. The revised Code (1983) contained a number of areas which were specifically left to the conferences to decide. On an on-going basis the conferences study and vote on issues which can bind the entire country. In some instances the ultimate approval of the Holy See is required for such legislation, yet the fact remains that the conference has the power to make such policy decisions, the power to propose legislation for the bishops of the country and the power and resources to provide information, direction and suggested courses of action for individual bishops. The conferences, including the NCCB-USCC, can do for bishops of individual dioceses what these bishops could not do on their own.
This entity has assumed responsibility for the study of a number of issues that impact on the day to day life of Catholics in each diocese in the country including the Diocese of Dallas. As a corporate entity or conglomerate of the collective bishops of the US, the NCCB has, over the years, created policies and procedures and conducted studies in a variety of areas that impact on the individual dioceses. In many instances the NCCB has sought to influence the public policy of the federal government of the US and/or the secular governments of the several States in areas that it assumed some degree of competence or authority over. Some examples of this attempt at influencing public policy include studies and programs related to the U.S. policy of Nuclear Deterrence, the U.S. policy relating to immigration and illegal aliens, health care matters and practices followed in both Catholic sponsored and non-sectarian hospitals, the Right to Life Movement and legislation related to abortion, the Hispanic and Black Ministry Movements and various kinds of legislation concerning minorities and immigrants.
The NCCB also has funded and conducted numerous studies on the physical, emotional, spiritual and psychological state of the priesthood in the United States and is and has been cognizant of the various kinds of difficulties facing Catholic priests. It has given amounts of money to the Catholic sponsored and Catholic run health care facility specifically geared to treating priests with emotional, substance and psycho-sexual problems (the Paraclete Facilities).
Since the NCCB has sought to influence public policy in a number of areas directly related to Church matters and in keeping with Catholic theology and law, it can also be presumed to have a direct interest in the moral issues related to certain of the above mentioned issues (immigrants, nuclear war, abortion). The area of study concerning priests also impacts on and is related to civil law issues. These include the various civil law regulations and statutes which are connected with the sexual abuse of minor children (infants or young adolescents), a felony crime in each of the several States and the District of Columbia. The question is whether and how the NCCB-USCC used its information, resources and influence to assist the individual dioceses, including the Diocese of Dallas, in dealing with priests who had committed civil crimes related to child sexual abuse.
Traditionally the Catholic Church has advocated the obligations of the secular State towards the individual and common good. It has, as an international and national entity, assumed the right to speak out on various public issues which it has claimed are grounded in religious teaching and impact on the civic culture. On the national level the NCCB-USCC has invoked this claim in its efforts to influence public policy in a number of areas, including areas directly related to sexual morality such as abortion, sterilization, distribution of contraceptives etc. Sexual abuse of children is a felony crime in civil law and an ecclesiastical crime as well. The NCCB has established a pattern of proaction in similar issues. What action did it take or not take in the matter of the national issue of individual priests committing unlawful sex acts with minor children.
Finally, the NCCB-USCC possesses broad influence in the area of media communications. It controls a national news service which is available to religious and secular news papers throughout the country. It controls a closed-circuit television network and has a media or public relations staff. This media are has regularly been used to influence public policy, opinion and practice in areas which the Catholic Church claims to have competence over, including matters related to sexual morality. The question is, did the NCCB-USCC ever use this media power and if so, to what extent, to either explain openly the problem of sexual abuse of minors by priests or to warn the faithful about this problem.
In spite of claims that it is simply a pastoral advisory entity, the NCCB-USCC has vast resources, receives very significant funding to operate its bureaucracy from individual lay Catholics, Catholic organizations individual dioceses and maintains various kinds of offices or representatives in individual dioceses. The practice of the NCCB-USCC has demonstrated that it is, in fact, acting as a governing body by establishing policy and supervising the implementation of this policy over issues of national concern to the Catholic Church in the US as opposed to issues of merely local concern to the individual dioceses.
e) The Servants of the Paraclete: The Servants of the Paraclete is a religious institute approved of and affiliated with the Roman Catholic Church. Its mission is the care of priests with psychological and physical problems. The Servant’s facilities are properly known as health care facilities. Priests and religious men from throughout the United States are sent, upon the recommendation of their bishops or religious superiors, to the Servants at one of their facilities for evaluation and treatment for a variety of problems. All of these are maladies that are highly sensitive and potentially embarrassing in nature, e.g., alcohol and drug abuse, sexual problems. Priests with less embarrassing or potentially damaging difficulties such as ordinary physical ailments, are generally treated at conventional health care facilities.
Priests sent to the Paraclete’s are supported in their therapy by the religious institutions to which they belong, i.e., dioceses and religious communities. In a sense the Paraclete’s depend on the religious superiors for their survival since it is these superiors who send priests to the Paraclete’s and who pay their bills. The Paraclete’s have also received an annual grant from the National Conference of Catholic Bishops. Often times the future of priests who complete therapy at the Paraclete’s depends in great part on the findings of the health care providers while they are in treatment and upon the final recommendations and prognosis of these providers.
(In addition to the Paraclete facilities, several other facilities are used by Catholic dioceses and religious orders for the treatment of sex offenders: St. Luke Institute, Suitland Maryland, St. John Vianney Center in Downingtown PA and Southdown in Toronto, ONT, Canada. This is not an exhaustive list since there are possibly other such church related centers in the US and Canada. In addition, some priests and religious are sent to non-sectarian health care institutions.)
Although the bishops as individuals and as a corporate group do not have direct or official control over these church related institutions, there is a significant amount of “unofficial” control in that it is the bishops who provide priests/patients to these institutions and it is the bishops and religious superiors who pay the treatment fees. In the case of the Paracletes the situation is somewhat different in that the religious institution of the Paracletes depends on the approval of the church authorities for its existence as an officially recognized religious community.
CANONICAL ISSUES
7. Sexual Abuse By Priests
The sexual abuse of or contact with a minor under the age of 16 is a violation of a priest’s obligation of celibacy. This obligation is clearly set forth in both the 1917 and 1983 Codes of Canon law (canons 132 and 277). Because sexual acting out with a minor by a cleric is particularly heinous, it has also been enumerated as a crime or delict in Canon Law. This crime is mentioned in the 1917 Code in Canon 2359, 2 and in the 1983 Code in Canon 1395. This is not the first time sex by clerics with minors is mentioned in the law of the Church. The Canon in the 1917 Code, repeated in the 1983 Code, was based on earlier specific legislation enacted by the Church. This legislation, specifically mentioned sex with minors because of its particularly reprehensible nature, goes back to the earliest days of the Church and is found repeatedly in collections of ecclesiastical laws.
The canons mentioned above state that clerics guilty of sex abuse of minors are to be punished with appropriate penalties not excluding dismissal from the clerical state.
In addition to the canons directly related to sexual abuse, there are other related offenses. One canon for instance, states that an offense is aggravated if the offender used his office or position to aid in the perpetration of the offense.
The Code does not mention homosexuality or homosexual acts specifically. However, it is clear that homosexual acts whether with age-appropriate persons or underage persons, are forbidden by the obligation of chastity. The 1917 Code stated that clerics who committed any crime against the sixth commandment, especially if they had care of souls, were to be punished with severe penalties.
A crime against the “sixth commandment” is, in ecclesiastical parlance, any act of a sexual nature with members of one’s own or the opposite sex. This can include various forms of sexual intercourse, touches, embraces etc. The Canon in the 1917 Code stresses that the offense is particularly serious if committed by one who had the “care of souls.” This too is canonical language or Church parlance and it refers directly to priests who have pastoral duties as pastors or assistant pastors.
In Sum: Sexual abuse or contact with adults and children is strictly forbidden by Church law. Sex with children is considered in Church law to be an especially grave offense.
8. Homosexuality
Homosexuality as such is generally considered to be a sexual orientation just as heterosexuality is an orientation. There are differing opinions among Catholic moral theologians as to whether this situation is a freely chosen state or one that the person has no control over. Suffice it to say at this point that the intelligentsia or intellectual establishment of the Catholic Church including the leadership, has not always been known to be completely up to date with the findings and developments of the positive sciences (medical, psychiatry etc.) Recent Catholic pronouncements however have agreed that the sexual orientation of homosexuality in itself is not wrong, however acting out sexually is wrong.
It is a fact that there are numerous members of the Catholic clergy who are homosexual in orientation. Some estimates range from between 25 to 40% of Catholic clergy. Like members of the laity, the clergy have not always made a clear distinction between homosexuality and pedophilia (or other sexual disorders for that matter). In the past it was common to refer to priests who had sexually abused male children as homosexuals when in fact “pedophiles” would have been the correct term. This confusion exists today. In much of the documentation I have read concerning sexual abuse cases, I am convinced that the use of the term “homosexual” when referring to actions with young boys actually meant pedophilia or at least pedophilic acts. Obviously not all homosexual priests are also pedophiles. Not all pedophiles are homosexuals in the common understanding of the term. A man who is sexually attracted to young boys may be a homosexual pedophile but not necessarily a homosexual in the sense that he is sexually attracted to males his own age. In sum, this discussion of the clinical nature and categorization of the disorders which prompt men to seek out either children or young adolescents for sexual gratification is actually within the competence of medical professionals. It is useful within the context at hand however, for purposes of clarification and accuracy in the discussion.
9. Supervisory Issues
The bishop of a diocese has nearly complete authority within his diocese. Canon law states that he is at once the legislator, judge and executive officer of the diocese. In the Church power is vested in persons and not in bodies as is the case in American secular government. The bishop is answerable directly to the Pope. Priests and others within a diocese are answerable directly to the bishop. There may be others with authority positions such as vicars, chancellors, board directors etc., but these all have delegated power. The bishop is a single authority of the diocese with power in his own name. The archbishop of the ecclesiastical province, in this case the archbishop of San Antonio, does not have canonically derived authority over the bishop of Dallas, however he does have a kind of unofficial persuasive power or moral authority over the bishops of other dioceses within the province.
The bishop has what amounts to absolute authority over the priests incardinated in his diocese. This means that he alone can decide if they can be ordained priests. He has the final word on assignments and can always overrule any recommendations given him by a personnel board or anyone else. The Code states that the bishop’s primary duties are to see that the laws of the Church are obeyed by all and that abuses, particularly moral abuses, are to be prevented. The 1983 Code specifically states that bishops are to see that priests fulfill the obligations of their state (Canon 384).
Another way of looking at the bishop’s supervisory duty is within the context of his obligations towards all the faithful. He is obliged to see that faith and morals are protected. In selecting priests for ordination and after ordination for assignment to parishes and other ministerial positions, the bishop is to first make sure that the candidate possess all of the requisite intellectual, spiritual and moral qualities. With regard to pastors and assistant pastors, the bishop has the obligation of seeing that the requisite qualities are present in those he appoints. These include “good moral character, learning, zeal, prudence.” (Canon 454) In the recent past (since Vatican Council II) bishops have created clergy personnel boards or committees. These committees have functioned in various ways but basically, their task has been to evaluate needs of parishes and other ministerial positions, qualifications of candidates for these positions, and make recommendations to the bishops.
The bishop’s duties are also mentioned in the section of the Code dealing with Catholic education. They are to watch that in any schools in their diocese nothing is done or taught which is contrary to faith and good morals (Canon 1381, 2).
Finally, it is most important to understand that the Catholic Church’s governmental and judicial system is fundamentally different from that of a democratic society. Its governmental system is hierarchic with power descending from the top down, and vested in persons assigned/appointed to various offices. Power is not obtained by election to an office by the laity. There are no checks and balances. Legislation may be drawn up by consultative bodies but it takes force or has meaning only when enacted on or given such force by individuals with legislative power (the Pope and diocesan bishops). Even the decrees of ecumenical councils, e.g., Vatican II, are meaningless unless they are approved by the Pope.
At this juncture however, the influence of certain corporate bodies (especially the national bishops’ conferences) cannot be discounted. The NCCB for instance, a corporate body comprised of the American bishops, can vote on legislation as allowed by Canon Law. It can also propose and vote on legislation not specifically contained in the Law, which legislation would in turn be approved by the Holy See for implementation in the dioceses of the United States. In effect then, although legislative power resides in individual office holders on one level, the corporate body of the NCCB in fact, possesses power to draw up and propose legislation.
Similarly the judicial system, contained in the Code of Canon Law, reflects the hierarchical nature of government. The bishop is the first judge of his diocese. He appoints judges and other judicial officials. He has the power to initiate judicial inquiries, investigations or trials.
One of the priests accused of sexual abuse was an active duty chaplain at the time that some of the abuse took place. As such he fell under the authority of his own bishop, the bishop of the Diocese of Dallas. He was also under the authority of the bishop (archbishop) of the Military Vicariate, later known as the Archdiocese for the Military Services. It is important to understand the precise nature of the rather unique situation of priests serving in the military.
In sum: The bishop has almost total authority over priests. He has a clear canonical obligation to assign only qualified priests to parish positions.
10. Priests serving in the military
Both diocesan and religious priests serve as chaplains in the U.S. military. While doing so they fall under the authority of three separate entities: the U.S. Military Service to which they are attached, their own diocese or religious community and the Archdiocese for the Military Services, formerly known as the Military Vicariate and Military ordinariate This is a unique situation which is repeated in certain other countries for military chaplains.
a. A chaplain is a military officer, commissioned, trained and subject to the same regulations as other officers. The military service determines his assignments, provides for his training, pays him etc. The religious entities have nothing to say about his assignments nor about where he may go while on duty (TDY for example, whereby a chaplain may be sent to Saudi Arabia, Bosnia, South America on temporary duty). As a chaplain he is subject to the same rules of behavior as other officers as well as to special rules that cover the military chaplaincy. He is also subject to his own denominational rules or norms, which for Catholic priest are contained in the Code of Canon Law. Because of his position as a chaplain, he is looked upon or regarded by the military authorities as a kind of moral leader, expected to set a good example by his lifestyle and behavior.
b. In order to become a military chaplain, a man must meet the minimum standards (age, physical health, weight etc.) demanded by the particular service. Before he can be commissioned he must first obtain the permission of his own religious superior (bishop or superior of his religious institute). This permission is known as an endorsement and is sent to the Archdiocese for the Military Services. The Archdiocese for the Military Services (hereinafter referred to as the AMS), acts as the final endorsing agency for a priest. The AMS is recognized by the Department of Defense as the official endorsing agency for Catholic priests who are prospective chaplains in the various military services. The guidelines covering endorsement, what it means and presumes, are found in DOD directives, especially number 1304.19 (Jan. 8, 1980 and Nov. 22, 1988). This endorsement, according to the government regulation, “shall certify that the applicant is….(c.) Recommended as being spiritually, morally, intellectually and emotionally qualified to represent the applicant’s religious body in the chaplaincy of the Armed Services.” (Jan. 8, 1980, n. 4, c.) The precise and detailed manner by which the AMS investigates or otherwise determines that these criteria are met is not set forth in the DOD directive. Presumably the AMS seeks information from the applicant’s bishop or religious superior and presumably this information is complete and honest when provided. It is also understood that applicants must meet the fundamental requirements expected of all priests as found in the Code of Canon Law, which requirements include moral and spiritual fitness to exercise the duties of the priest. A priest who fails to meet his own denomination’s requirements for fitness by that very fact, fails to meet the requirements of the DOD. Consequently an endorsement cannot be given.
c. After the AMS endorses a priest, the paperwork for his commission may commence. If he passes the physical etc., as well as the security check conducted by the military service, he may be commissioned as an officer. Endorsement alone does not guarantee that the military service will accept a candidate.
d. The priest has a unique relationship to the AMS. He is not assigned by them, nor do they take the place of his proper bishop. The AMS has the ecclesiastical authority to issue certain disciplinary regulations with regard to pastoral matters such as the administration of the sacraments. Chaplains are not incardinated into the AMS. The AMS has a certain amount of authority over a chaplain: they can remove his endorsement which means that he will have to leave the Catholic chaplaincy but not necessarily the military service although removal of an endorsement in practice usually means the end of a military career. The AMS can also suspend a priest for violation of Canon law. It can institute canonical disciplinary procedures just as the priest’s proper bishop can do.
e. The AMS was originated as a Vicariate for military chaplains in 1917. A Vicariate is an ecclesiastical entity somewhat like a diocese in that it is set up to foster the spiritual care of people in a certain territory or of all people of a certain class, in this case, military personnel. The first military vicar was Bishop Patrick Hayes. When he became Archbishop of New York he also retained his position as military vicar. Subsequent to his death, the archbishops of New York were also appointed as military vicars and later called Military Ordinaries. The military ordinariate was a unique entity that served primarily as the endorsing agent and as a record keeping agency for military chaplains. In 1975 Archbishop Joseph Ryan was named coadjutor archbishop for the Military ordinariate. The proper bishop was still the archbishop of New York. After Cardinal Cooke died in 1983, Cardinal O’Connor was appointed Archbishop of New York. He was shortly thereafter appointed Apostolic Administrator of the Military Ordinariate as a first step in completely separating the latter entity from the Archdiocese of New York. He remained in this position until 1985. In 1985 all of the Military ordinariates and vicariates in the world were named as separate dioceses. On March 25, 1985 Archbishop Ryan was named the first completely independent archbishop of the new archdiocese for the military services. At that time the AMS became totally independent of the Archdiocese of New York.
f. Prior to its independence, although the Military Ordinariate (or Vicariate) was officially headed by the archbishop of New York, the day to day affairs were conducted by auxiliary bishops specifically named for it. In 1975 Archbishop Ryan was appointed coadjutor archbishop with the intention that he be the de facto functioning head of the military ordinariate.
g. In matters of day to day discipline, the military service has primary authority over chaplains. If they get in trouble while on active duty, transgress the law etc., they are subject to the Uniform Code of Military Justice. A military commander does not, as a matter of course, notify a priest’s ecclesiastical superiors if the priest gets in trouble. If there is a question about the deportment of a priest or if a priest gets in some form of trouble, a commander will usually bring it to the attention of the priest’s supervisor, the senior chaplain on the installation. The senior chaplain would then notify the senior chaplain in the major command and/or the chief of chaplains. The local senior chaplain might also notify the priest’s endorsing agency, namely, the AMS.
h. If a chaplain is charged with a felony offense while on active duty, people in the chain of command will be notified according to the protocol for such notification. These would include the office of the Chief of Chaplains, the military body responsible for chaplains. (Since chaplains, though officers, are not allowed to hold command in the military, the ultimate special authority under which they fall is not a command as such. Rather the head chaplain is called “chief” rather than “commander.”
I. If a chaplain gets in trouble, the information is passed on up the line from installation chaplain, to command chaplain to chief. Disciplinary action is not taken by the chaplains but by the line officer under whose authority the chapel section falls. He has no responsibility to notify or consult with the priest’s civilian superior in such cases.
j. The chaplains on lower levels of authority would ordinarily defer to the chief of chaplains to notify a priest’s civilian superior.
k. There are no direct lines of authority in the military chain of command between the military and the AMS. In other words, the AMS is not part of the military chain of command but is a civilian agency separate from the military and the DOD.
l. General Comments on the AMS or Vicariate: The AMS is an authentic “diocese” as generally defined by the Code of Canon Law. It is a unique ecclesiastical entity however because of the fact that it possesses no set territory and has as its subjects persons of a specific class (military active duty, dependents, residents of VA facilities). The jurisdiction of the AMS in matters of dispensations, marriage, baptism etc. extends to persons dwelling on military installations and all military persons anywhere.
Another factor that makes the AMS unique is the nature and scope of its authority over both the lay participants and the clergy. It has no clergy properly incardinated or officially attached to it. This limits the scope of disciplinary authority it has over the clergy. All priests related to the AMS as chaplains are incardinated into another diocese or religious institute somewhere.
For administrative purposes the AMS has a diocesan curia (Canon 469-494). The curia processes dispensations for sacramental purposes and provides other support activities for the chaplains. There is also a tribunal or court which deals exclusively with matrimonial matters (annulments). It also has an extensive sacramental records department which includes records of the reception of the sacraments of baptism, confirmation and first communion.
11. The Extent of a Priest’s Obligations
A priest is bound by his obligations of celibacy and overall good conduct not only during those times when he is fulfilling some official duties within his parish but at all times….this includes when he is on vacation, days off etc. His primary ministry is to preach by good example. The bishop has authority over a priest at all times and in all places.
The priest is obliged to observe the law of celibacy. He is also obliged to avoid any situations that wold cause scandal, wonderment or possibly lead to inappropriate situations.
A priest is a priest at all times….24 hours a day and 7 days a week, when on “duty”, on days off and/or on vacation.
12. The Duty to Report Allegations of Sexual Misconduct
Sexual misconduct by a priest with anyone but particularly with a child is an especially serious offense. Sexual misconduct with a child or minor is singled out by the Code of Canon Law (1917 and 1983) as a specific canonical crime. From this is can be deduced that it is particularly odious and particularly problematic for the church. It causes grave harm to the child, his parents and family and to the community in general (both Church community and secular community). Because of the extremely grave harm that an be caused a child, allegations of sexual abuse must not be dismissed without thorough investigation and must be reported by all who become aware of them. This obligation is especially onerous for other priests since they have a special obligation towards the laity and towards children.
Pastors are responsible for the spiritual and moral welfare of all in their charge. If serious harm is coming to someone because of the actions of an assistant priest for instance, it is the pastor’s duty to do all he can to correct this harm. The Code does not make specific mention of possible harm from sexual abuse however the obligation to act may be deduced from other canons of a more general nature which deal with the pastor’s obligations regarding the spiritual and moral welfare of the people (canons 464, 470). Pastors are to see that nothing is done against faith or morals in their parish, especially in the schools (Canon 469).
The 1917 Code was more specific than the 1983 Code about the pastor’s supervisory role over his assistant pastors. Canon 476 states that the pastor is to “paternally instruct and direct them in the care of souls, watch over them and send each year a report to the bishop concerning their conduct.”
Is there a specifically mentioned duty to report a canonical crime? The 1917 Code had provisions for liability with regard to canonical crimes. Canon 2209 states quite clearly that a person who, because of his office (“office” here refers to any official Church position, including pastor or bishop but also vicar etc.) failed to prevent an offense, sheltered an offender etc. shared in the responsibility for the offense itself. This liability also includes carelessness in supervision by a superior over a subject.
In sum: Pastors especially but other priests also have a canonical obligation to report allegations of sexual abuse of children by priests (or anyone for that matter) to Church officials.
13. Canonically Mandated Action in reference to a Report of an Offence
A Bishop has a grave moral and canonical obligation to safeguard the spiritual welfare of all those who are under his care. These include Catholics who have actual residence in a diocese as well as those who may be simply staying there temporarily. This obligation is mentioned in the Code (Canon 383) and in the many documents that deal with the office of Bishop. Much of the non-canonical information is contained in several important Vatican II decrees, the Dogmatic Constitution on the Church (Nov. 21, 1964), The Decree on the Pastoral Office of Bishops in the Church (Oct. 28, 1965) the Apostolic Letter implementing certain aspects of this decree, Ecclesiae Sanctae (Aug. 6, 1966) and the Directory on the Pastoral Office of Bishops (1974)
a. The other factor in assessing the bishop’s obligation to investigate and take appropriate action when an accusation is made against a cleric is the nature of the bishop’s relationship to a cleric. Because this is such a close and all-pervasive relationship, the bishop can hardly absolve himself of responsibility for what a cleric under his authority does whether the action takes place while the priest is actually performing ministerial duties such as performing the liturgy, or not. This issue is treated in the canons of both the 1917 Code but more clearly in the 1983 Code:
The diocesan bishop is to attend to the priests with special concern and listen to them as his assistants and advisers; he is to protect their rights and see to it that they correctly fulfill the obligations proper to their state and that means and institutions which they need are available to them to foster their spiritual and intellectual life… (Canon 384)
b. Thus in evaluating the bishops obligation to personally investigate and take action when an accusation of child molestation is made, we have two canonical imperatives at work: the first is the bishop’s obligation to show concern for all of the faithful and the right to this according to the Code and the second is the bishop’s obligation to see to it that the priests observe their obligations in regard to chastity. A third consideration is no less important and that is the obligation to investigate the allegation of a serious canonical crime.
c. In the Code there is a section dealing with penal law. There is a specific crime mentioned which deals with offenses by priests against the law of celibacy.
“Apart from the case mentioned in can. 1394 [attempted marriage], a cleric living in concubinage, and a cleric who continues in some other external sin against the sixth commandment of the Decalogue which causes scandal, is to be punished with suspension. To this end other penalties can progressively be added if after a warning he persists in the offense, until eventually he can be dismissed from the clerical state.
2. A cleric who has offended in other ways against the sixth commandment of the Decalogue, if the crime was committed by force, or by threats, or in public, or with a minor under the age of sixteen years, is to be punished with just penalties, not excluding dismissal from the clerical state if the case so warrants.” (canons 1395)
N.B. By the sixth commandment of the Decalogue is meant the traditional sixth commandment, “Thou shalt not commit adultery” which is used in the law to include any sexual activity outside of marriage.
d. The Code, in the same section on penal law, contains canons which outline the manner with which an allegation is to be investigated. If there is reason to believe that a canonical crime was committed, there is also procedure to be followed for a judicial examination with the possible application of penalties.
e. If such a matter is reported to a confessor or a spiritual director, a problem arises with the issue of confidential/privileged communications. Priests are never allowed to divulge anything revealed to them in confession for any reason or under any circumstances (Canon 983). With a spiritual director/mentor, a person has a special and confidential relationship. Information revealed to such a person also falls under the umbrella of confidentiality and it would not be expected nor ethically proper to reveal such information to a third party. However, the appropriate action for the spiritual director would be to advise the person aggrieved to report such actions to the proper diocesan authorities. It would also be possible for the spiritual director to obtain the specific permission of the directee to disclose the information to third parties.
f. Ordinarily in sexual misconduct cases involving priests, the preliminary investigation of the incident should take place very quickly after the report is received. In the canons concerning the preliminary investigation (canons 1939-1946 of the 1917 Code and canons 1717-1728 of the 1983 Code), it says that if information about an offense comes forward from any source….report, rumor, complaint, public knowledge, an investigation is to take place. This investigation is initiated by the bishop and is to be documented. After the proofs have been examined (reports, interviews etc.) the accused is then to be confronted. Once he is confronted the decision on subsequent action is made. The bishop has a choice of judicial or administrative action.
g. Action on an offense can be either in the form of judicial action (a canonical trial) or administrative action. It can result in the imposition of a canonical penalty.
The canons do not mention a specific penalty for the commission of the crime of sexual abuse of minors. The gravity of the penalty depends on the gravity of the offence and attending circumstances, such as force etc. Transfer of a priest from one parish to another is not a penalty nor is it an acceptable administrative action in the light of a confirmed commission of an ecclesiastical crime.
The bishop is not obliged to impose a penalty but should do so only as a last resort after it is clear that the damage resulting from the crime has not been repaired, nor the offender reformed. In any event, the bishop is obliged to conduct an investigation according to the norms of the law and following the procedures outlined in the norms of the law, prior to making any decision.
If there is a question of mixed jurisdiction i.e., when two or more ecclesiastical jurisdictions are involved, in this case the Dallas Diocese, the Military Vicariate and the territorial diocese wherein Ft. Benning is located, especially since the victim spent time after the offense was reported, in the care of civilian diocesan priests of the local area the obligation to investigate can fall on all three bishops since all three have some form of jurisdiction over the victim, perpetrator and territory.
In sum: There is a process in Canon law for investigating complaints, including complaints of sex abuse, which is a canonical crime.
14. Standards Relative to A Priest’s Personal and/or Inter-Personal Relationships
The canons of the 1917 and 1983 Codes are clear on the basic standards of the deportment of priests concerning the obligation of chastity. There is no question that the priest is obliged to refrain from any kind of sexual activity with adults and children of either sex. The priest is also obliged to conduct himself in a mature, stable, responsible and Christian manner. In addition to the Code, there are other sources from Church documents which point out standards of priestly conduct.
Priests are charged with representing Christ and the Church to the people whom they are called to serve. They are charged with treating all people with respect and kindness. It goes without saying that taking advantage of people is not part of the job description of a priest. They are called to be prudent in their dealings.
a. The Vatican Council’s decree on the Life and Ministry of Priests states that “..in building up the Church priests ought to treat everybody with the greatest kindness after the model of our Lord. They should act towards people not according to what would please men but according to the demands of Christian doctrine and life.” (par. 6)
b. The council recognized the special kind of leadership role of the priest. Because of the spiritual power involved it is easy to take advantage of this leadership role for personal gain. To this end the same document says “Priests should therefore, occupy their position of leadership as men who do not seek the things that are their own but the things that are Jesus Christ’s.
c. In part, the standards of conduct can be deduced from the section in the Code concerning the rights of the faithful and the laity. They have the right to make their needs known and to express their opinions (c. 212) and they have a right to be assisted in the spiritual riches of the Church (c. 213)
d. Taking any kind of sexual advantage of a person is in no way consonant with the standards of conduct of a priest.
15. The Rights of the Laity
The Church is hierarchical in its political and social structure. Power rests in persons not in representative bodies. There is little if any system of checks and balances, separation of powers or accountability of office holders to the laity. The Code of Canon Law is a legal system which grew out of monarchical governmental systems and reflects this bias quite clearly. Nevertheless with the Vatican Council came a demand that certain rights of the laity be recognized and included in the Church’s legal structure. Although the mention of these rights has only been included in the 1983 Code, the fact of the rights is grounded in Vatican Council II and in other more fundamental theological issues.
In assessing the responsibility of the Church governmental structure to respond to the victims of sexual abuse by the clergy it is helpful to consider the nature of the rights of the laity. At this point, it might be interesting to note that in the USA there are 59,000,000 Catholics. Of this number there are 50,000 priests, 11 Cardinals, 45 archbishops and 344 bishops (this number includes active and retired). Thus the governmental, leadership or clerical section of the Church amounts to about .008 % of the total. Vatican II teaches that the Church is the “People of God” and not simply the government, hierarchy or clergy.
The Code of Canon Law of 1983 contains a significant section on the rights of the faithful, canons 208-223(both clerics and laity) and the rights of the laity, canons 224-231. The theological foundation for these rights, especially those accorded to the laity, is revolutionary in the new Code, which was promulgated or published in 1984. These rights are grounded in the new understanding of the meaning of the “Church” which was set forth by Vatican Council II, especially in the constitution on The Church, commonly referred to by its Latin name Lumen Gentium. Basically, the Church is no longer identified with the institution as such, the structures or the hierarchy (which includes all clerics). With the new definition, the Church is more accurately understood to be “The People of God,” meaning that the Church is all of the people who profess belief. This has impact on cases such as this because it ties in with the justification often heard from Church officials for either denying wrong-doing by the clergy or attempting to minimize it. People who believe themselves aggrieved are often asked not to take civil action or otherwise make an issue in order to avoid scandal “for the good of the Church.” In such instances the concept of the “Church” is erroneous since the “good” referred to is the “good of the power structure” or institution. Thus, the true good of the Church is best served by calling to accountability clerics and office holders who abuse the laity in any way.
a. Basically, all of the faithful have the right to make their needs known to Church officials. The Canon (Canon 212, par 2) refers to making needs known to the “pastors” of the Church. “Pastors” refers to the bishops. Thus a person abused has the right to make the need for redress known to the bishop.
b. Another Canon (Canon 220) states that “No one is permitted to damage unlawfully the good reputation which another person enjoys nor to violate the right of another person to protect his or her own privacy.”
c. Finally, Canon 221 states that all of the faithful have the right to vindicate their rights before a competent ecclesiastical court according to the norms of law. Basically this is the right to due process. This would be the Canon to which one would appeal in arguing that a person alleging sexual abuse by a cleric has a right to some form of process.
In sum: the laity have certain rights to just treatment at the hands of Church leadership. The section on their rights is important as a foundation for assessing the way that lay persons have been treated when they have approached the Church leadership about sex abuse by priests. In short, they have a right to justice.
16. Religious Duress and Role Models within the Church Structure
By tradition, Catholics have been taught to hold the priesthood and the bishopric in the highest esteem. This attitude of respect has been fostered by official Church teaching on the meaning of the sacrament of Holy Orders (the priesthood, bishopric and diaconate). This teaching is contained both in theological documents and in Canon law. It is important to understand or grasp this attitude in order to put into proper perspective the way that reports of sexual abuse by clerics have historically been handled by Church officials as well as the reluctance on the part of catholics to believe that such sexual abuse occurs. This attitude also helps to explain why victims themselves often were reluctant to step forward and report and incident.
a. The Catechism of the Council of Trent contains statements that basically summarize the Church’s understanding of the priesthood as it was taught up to the era of Vatican Council II. The present official understanding is much akin to that found in this document although couched in terms that are less triumphalistic.
In the first place, then, the faithful should be shown how great is the dignity and excellence of this sacrament considered in its highest degree, the priesthood.
Bishops and priests being, as they are, God’s interpreters and ambassadors, empowered in his name to teach mankind the divine law and the rules of conduct and holding, as they do, His place on earth, it is evident that no nobler function than theirs can be imagined. Justly therefore are they called not only Angles, but even gods, because of the fact that they exercise in our midst the power and prerogatives of the immortal God.
In all ages priests have been held in the highest honor; yet the priests of the New testament far exceed all others. For the power of consecrating and offering the body and blood of our Lord and of forgiving sins, which has been conferred on them, not only has nothing equal or like it on earth, but even surpasses human reason and understanding. (The Catechism of the Council of Trent, translated by McHugh and Callan, 1923)
b. The Code of Canon Law of 1917 put into legislation the practical application of traditional teaching on the priesthood. In the first place, only clerics could hold the power of jurisdiction or actual power, in the Church. Only clerics could hold ecclesiastical offices. In general this is repeated in the revised Code. In addition, several other canons or sections of canons point to this exalted position.
1. All the faithful owe reverence to clerics according to their various grades and offices; and they commit a sacrilege if they do real injury to a cleric. (Canon 119)
2. Clerics could not be summoned before civil courts unless special permission was obtained to do so. (Canon 120)
3. Certain occupations, activities and entertainments were considered unbecoming for clerics because of their state. (i.e., hunting to hounds, unbecoming shows, practicing a trade or doing business.
4. Persons who laid violent hands on a cleric (from the Pope on down to simple priests) were punished by excommunication.
c. The mood of the Church Vatican Council II was such that the exalted phrases of the pre-Vatican era were not included in Vatican II documents nor in the revised Code of Canon Law. However the attitude or conviction of the superiority of the priests and bishops is still evident.
1. The Christian faithful, conscious of their own responsibilities, are bound by Christian obedience to follow what the sacred pastors, as representatives of Christ, declare as teachers of the faith or determine as leaders of the Church. (Canon 212, 1, revised Code)
2. Through the Holy Spirit who has been given to them, bishops are the successors of the apostles by divine institution; they are constituted pastors in the Church so that they are the teachers of doctrine, priests of sacred worship and ministers of governance. (Canon 375 of the revised Code)
3. One who uses physical force against a cleric or religious out of contempt for the faith, or for the Church, or ecclesiastical power, or ministry, is to be punished with a just penalty. (Canon 1369 of the revised Code)
d. Deacons, priests and bishops are not lay people but belong to a separate state in life called the clerical state. The Church has consistently taught that the clerical state is of divine institution, i.e., instituted by God.
Among the Christian faithful by divine institution there exist in the Church sacred ministers, who are called clerics by law, and other Christian faithful, who are called laity (Canon 207,1 of the revised Code)
1. Only members of the clerical state may exercise holy orders or the powers of the diaconate, priesthood and bishopric. A man becomes a cleric automatically when he is ordained a deacon. If he is removed from the clerical state, he is forbidden to exercise the powers of the holy order he holds.
2. Only clerics can hold most of the key offices in the Church.
3. There has arisen and exists an attitude commonly known as “clericalism” which is marked by a presumption that clerics are above the laity and entitled to special privileges and respect. Some of the effects of this attitude have been manifest in the laity in the past and continue to be manifest. These would include an enduring attitude that it is sinful or wrong to make any kind of accusation against a priest or a bishop. There also continues to exist a belief among some that priests and bishops cannot and would not do anything considered to be evil or wrong.
4. In the past Catholics were consistently taught to have the highest respect for a priest and even higher respect for a bishop. In the broader spectrum of civil society, it is not uncommon to find the conviction among civic leaders that to bring charges against a priest or bishop is especially odious and is tantamount to an attack against the Church itself.
17. How the Church Handles Complaints of Sexual Abuse by Clerics
The sexual abuse of adults, adolescents and children by the Catholic clergy is not an issue that only began to happen in 1984. It has always been a serious problem for the Church. This is evidenced by the fact that there is on record Church legislation going back to the fourth century concerning priests who sexually abuse people but especially children. This legislation was first codified in 1917 and revised in 1983. The difference between the period after 1984 and the period before that date is twofold:
– the way that Church officials responded to allegations of sex abuse by priests and other clerics and,
– the extent of public knowledge of sexual abuse by priests and the acceptance of such abuse as fact by the Catholic laity and general public.
a. Traditionally reports of the sexual abuse of children by priests were handled in a secretive, private way. The Church officials have always realized that public knowledge of such abuse would severely harm the Church’s credibility, the image of the priesthood and in general result in serious scandal.
b. It is also important to note that traditional Church teaching had always held that a priest enjoyed an exalted position. (See above section) To speak ill of a priest or to accuse him of something as heinous as sexual abuse was and still is considered by many to be sinful. Catholics were brought up with the notion that a priest represented Christ. Among devout Catholics it was simply unbelievable that a priest would sexually abuse a child. This attitude and the respect and fear engendered among the devout laity was used by Church officials in its attempts to dissuade people from pressing complaints against offending priests. It is well documented that many adults, once abused as children, hesitated to report the sexual abuse because they feared they would never be believed or worse, would receive punishment at the hands of their parents.
c. It is ironic that Church officials had and have the belief that child abuse by clerics is so offensive that it should be kept secret at all costs and at the same time have claimed that they never realized how destructive a problem it is, hence excusing the lack of adequate action in the face of allegations. Sexual abuse of children is a felony that is abhorred by society. It is understandable that no organization would want to let it be known that its own officials are guilty of such abuse, yet the harm done by the abuse far outweighs the bad image of the institution.
d. In the past priests confronted with accusations of sexual abuse were admonished by their superiors. Often the shame of the event would prompt promises that it would never happen again. In short, the Church often appealed to a kind of “spiritual” approach to remedy the problem. Priests were reminded of their vows, of the potential for scandal and harm to the Church etc. It has been thought by some that sexual abuse is primarily a moral problem which some form of spiritual conversion could take care of. Confession has been mentioned in some documents as the way the problem was handled. Confession may absolve the moral guilt but it does not cure the sexual disorder. In some instances, priests were sent for some form of psychiatric or other medical treatment after they had acted out more than once.
The Church has traditionally held a certain degree of mistrust for the psychiatric profession. The belief that all sexual problems were a matter of the will was prominent for decades and is still present in some circles. The assistance of the medical profession in dealing with sexual abuse problems has often been reluctant and a last resort after it had become apparent that other methods of control, i.e., appeals to obedience, obligations etc. had failed.
e. Often they were quietly transferred from one parish to another in an effort to give the accused a new start and avoid the possibility of added problems and exposure in the parish wherein the abuse had taken place. In my experience over the past ten years I have seen documented evidence that in numerous dioceses in this country, priests reported for sexual misconduct with children were transferred not only once but often several times. In some cases bishops sent priests away to study, sent them on retreats, sent them to psychiatrists or sent them to special rehabilitation centers. In other documented instances priests would be deemed by the bishops as unsuitable for ministry in the home diocese yet recommended for ministry in another diocese. In short, there is sufficient evidence of rampant recidivism to presume that Church leaders knew or should have known that transfers do not solve the problem.
f. With the media exposure of the Gilbert Gauthe case (Lafayette LA) in 1984-1985 all of this changed. What changed was not the Church officials’ knowledge of the problem of sexual abuse but the widespread public awareness of this problem as well as the widespread acceptance of the problem to be true and not simply secular press “Catholic bashing.” Child victims were believed where before they were not. Many adults came forward alleging that they had been abused in their youth by priests and religious brothers. Cases of sexual abuse popped up all over the United States. The media exposure and the threat of lawsuits forced Church officials to take a radically different approach to the issue.
g. Whether or not there has been a conscious and organized cover-up of this problem is a question worthy of research. There seems to be little doubt that on a diocese by diocese basis, regular strategies were utilized to make sure that sexual abuse cases never became public. Transfer of priests with little or no public explanation, reassignment of priests with sexual problems with no advance warning to parishes, assertions that internal investigations had found no evidence of wrong-doing and public denials of problems are all factors that have been part of the problem over the past several years. There is little evidence that I know of that Church officials followed State reporting statutes and reported incidents of child abuse to civil authorities.
h. One aspect concerning Church documentation is worthy of mention here. That is the language found in documents. Language referring to sexual problems of priests is generally guarded to be almost Code-like. Sexual problems may be cryptically referred to as “moral problems” or simply as “problems.” Pedophilia has been commonly referred to by some as “homosexuality.” Two Latin phrases that often crop up are offenses or problems “de sexto” meaning problems with the Sixth commandment (“Thou shall not commit adultery”, a catch-all phrase for any kind of sexual problem or crime) and actions “in re turpi”. The latter refers to particularly offensive, including unnatural, acts.
i. An additional observation on the traditional method of dealing with sexual abuse by clergy concerns the issue of control. The Church is hierarchical in nature. Power rests with individuals and is generally not subject to checks and balances. Church leaders have been accustomed to enjoying unquestioned power among Catholics and in the civil community as well. I believe that this notion of power and authority, traditionally fostered by the Catholic belief that bishops are descended from the Apostles, are the official teachers of the Church and responsible for all that happens in the Church, has prompted bishops and others Church leaders to think that they could control the problem of sexual abuse of children and others by the clergy. There has been the feeling that somehow the Church was above the civil law, a belief supported partially in Canon law by the fact that in the 1917 Code it was forbidden to take a cleric before a civil court. Church law held that problems with clerics should ordinarily be handled from within, using the Church’s own canonical system. Unfortunately the system has not adequately responded to this problem.
j. Although there have been hundreds of allegations of sexual abuse by priests made to the Church over the past decade at least, I am not aware of a single instance when an allegation has been completely pursued and satisfactorily settled using the Canon law system of due process. I know that in many, many instances evidence obtained through civil litigation has demonstrated that not even the canonical regulations concerning proper investigation of complaints were followed.
k. Perhaps one of the reasons for the failure of the Canon law system to deal with this problem is the fact that plaintiffs before the Church tribunals and before Church authorities allege not only that priests have sexually abused persons, but that Church authorities failed to act on reports of abuse. There is a conflict of interest when an allegation or charge is made against the central authorities of a diocese because the responsible person is the bishop, and the bishop is also the “first judge” (in Canon law terms) of the diocese. In short, the bishop would be placed in a position of judging himself. Secondarily, officials of a diocese who would be able to handle such a canonical process are also part of the diocesan governing structure. Again, there is a conflict of interest here and historically there has been a reluctance on the part of such officials to pursue cases against the very system by which they are employed.
l. Regarding the Dallas diocese in particular, and the method with which it has handled accusations of clergy sexual abuse, it is known from the documentation that at least by September, 1966, the diocese had knowledge of the suspected abuse of a student from St. Pius X church by Fr. Patrick Lynch. Furthermore, recent news reports refer to alleged abuse by another area priest, Msgr. Hoover, dating back to 1957.
m. Many of the recent civil litigations concerning clerical sexual abuse shown that the bishops in numerous dioceses throughout the country were put on notice as far back as the early sixties and in some cases before that, about sexual abuse of young people by priests. The Paraclete Fathers have indicated that by 1976 they had begun to treat a large number of priests for sexual problems. All of this amounts to sufficient information for the body of bishops to have begun to take decisive steps to deal with this problem. It also discounts any claims that there was no corporate awareness of the existence of a problem prior to the mid eighties.
18. The Diocese and the National Bishops Conference (NCCB)
The National Conference of Catholic Bishops (NCCB) is an organization made up of all of the bishops in the United States. Similar bishops’ conferences exist in all countries of the world.
The American episcopal conference has its remote beginnings in 1919 when the American bishops first met in Washington to create an organization with the goal of achieving an effective Catholic voice in national affairs. The National Catholic Welfare Council, as it was to become known, existed until the formation of the National Conference of Catholic Bishops in 1966. It was a non-legislative organ that was primarily concerned with relationships between the Catholic Church and the civil society as well as certain challenges to Catholic teaching such as birth control, racism etc. The NCWC issued statements and pastoral letters but did not enact any legislation. At the time of its existence until Vatican II, the NCWC was part of a highly centralized universal Church. Decisions and legislation came from Rome with only some consultation made on the part of national hierarchies.
The idea of a national conference of bishops was first mentioned in the Vatican II decree on the liturgy in 1965 which called for the establishment of various kinds of territorial bodies of bishops. When it was established as an official conference of bishops, the NCCB differed from the NCWC and other prior group in that it was officially recognized in Canon Law and given certain legislative powers. When the new Code was promulgated in 1983, there was a section contained therein containing the fundamental canons or laws governing national/territorial episcopal conferences.
a. THE PURPOSE OF THE NCCB/USCC
The Code of Canon Law gives the general purpose of an episcopal conference. It further states that each conference is to draw up its own statutes which are to be reviewed by the Holy See. The Holy See itself officially erects or creates the entity known as the episcopal conference and gives it official, canonical identity (Canon 449). Once erected, an episcopal conference enjoys a juridic personality.
Why do conferences exist:
The conference of bishops, a permanent institution, is a grouping of bishops…whereby, according to the norm of law, they jointly exercise certain pastoral functions on behalf of the Christian faithful of their territory in view of promoting that greater good which the Church offers mankind, especially through forms and programs of the apostolate which are fittingly adapted to the circumstances of the time and place. (c. 447)
In order to accomplish this goal, conferences are to hold plenary meetings and may issue statements, letters, provide information to individual bishops.
Episcopal conferences also have legislative authority. Canon 455 states that a conference has the power to issue general decrees (laws) in two cases:
1. when the general law (The Code), prescribes it or when the Holy See allows all conferences or particular conferences to issue decrees
2. when the Holy See allows a conference to issue a decree upon the request of the conference or by order of the Holy See.
General decrees must be passed by a 2/3 majority in a plenary session. The cases prescribed by the general law consist of certain canons of the Code which state that the application of the law is left to the episcopal conference. Properly speaking these are called “executory decrees” which means that they are precise determinations on how to observe laws.
The Code of Canon Law of 1983 contained at least 29 cases in which the episcopal conference was authorized to issue executorial decrees on the specific application of a law. In addition to these 29, there were 53 other instances in which the conference was given power to issue decrees which further specified certain laws. Some of these related to liturgical issues, preaching, Church property, reception of the sacraments and procedural laws. Some examples are as follows:
a. setting up a program of priestly formation with the approval of the Holy See (Canon 242)
b. specifying clerical garb for an area (Canon 284)
c. cooperating in drafting lists of potential candidates for bishop (Canon 377)
The episcopal conference can also enact decrees or laws for its own territory in addition to the executorial decrees allowed by the Code. To do so they must first receive a mandate or the permission from the Holy See. It is also feasible and possible for the Holy See to instruct the conference to enact legislation for a specific need. When the conference seeks permission to enact a decree, the process usually begins with a proposal for a bishop or group of bishops. The proposal is then studied by various committees and finally placed before the body of bishops in plenary session. If they vote favorably the issue is sent to the Holy See for its approval or disapproval. If it approves, the conference then moves to enact the decree which requires a 2/3 majority vote at a plenary session. The method of promulgating and applying the decree is left to the conference.
The NCCB/USCC has its own mission statement which is part of its handbook. This statement was adopted at the 1981 general meeting:
The National Conference of Catholic Bishops and the United States Catholic Conference are a permanent institute composed of the Catholic bishops of the United States of America in and through which the bishops exercise in a communal or collegial manner the pastoral mission entrusted to them by the Lord Jesus of sanctification, teaching and leadership, especially by devising forms and methods of apostolate suitably adapted to the circumstances and the times. Such exercise is intended to offer appropriate assistance to each bishop in fulfilling his particular ministry in the local Church, to effect a commonality of ministry addressed to the people of the United States of America and foster and express communion with the Church in other nations within the Church universal, under the leadership of its chief pastor, the Pope. The National Conference of Catholic bishops deals principally with matters connected with the internal life of the Church. The United States Catholic Conference deals principally with affairs involving the general public, including social concerns, education and communications, on the national level and in support of efforts at the regional and diocesan levels. (National Conference of Catholic Bishops/United States Catholic Conference Handbook, February 1989, p.1)
b. WHAT THE NCCB/USCC IS NOT
The NCCB/USCC is a relatively new political and canonical entity in the Catholic Church. It is still the subject of debate and some tension as was shown when the Holy See published its “Working Paper on the Theological and Juridical Status of Episcopal Conferences” in 1988. This paper prompted a good deal of discussion among theologians, Canon lawyers and bishops in various countries including the U.S. At the risk of being simplistic, it may be said that the “bottom line” of the debate/discussion is power. The document is seen by some as expressing a wish of the Holy See to limit the influence and power of the episcopal conferences and prevent them from usurping power that the Holy See properly believes to be its own. Proponents of episcopal conferences appeal to the principle of subsidiarity and the theology of the local Church in opting for more independence on the part of episcopal conferences and more freedom to make decisions effecting their own dioceses.
Although the NCCB/USCC is not the executive headquarters for the Catholic Church in the United States, its history since the Vatican Council indicates that in many ways it does exercise authority, direction and influence. The conference can accomplish legislatively what the individual bishop cannot accomplish, e.g., enacting legislation that will bind the entire country with the approval of the Holy See.
c. THE ACTIVITIES OF THE NCCB/USCC
The NCCB has its offices in Washington DC. The principal officers are all diocesan bishops and do not have offices there. In practice, the day to day affairs of the conference are directed by the general secretariat. This department oversees the plans for the general meetings and supervises the activities of the various committees and offices of the NCCB/USCC. The general secretary is an elected official with a full-time position. The other resident department is the office of the general counsel.
The work of the conference is carried on by 44 committees, all of which are made up of bishops. Some of these are standing committees and some are ad hoc committees. These committees meet periodically to discuss business, prepare reports and statements etc. Most of the committees have a staff officer who holds a full time position at the national headquarters and has a staff under him.
The standing committees of the NCCB deal primarily with internal Church matters. The names of some of the committees indicate this: budget and finance, personnel, Catholic missions, Black Catholics, Boundaries of dioceses, canonical affairs, Church in Latin America, Doctrine, Hispanic affairs, laity, liturgy, pastoral research and practices, priestly formation, priestly life and ministry, selection of bishops.
The ad hoc committees are established to meet temporary needs and problems but are not permanent committees.
The conference, through the USCC, conducts lobbying activities with the U.S. government.
d. PRONOUNCEMENTS OF THE NCCB/USCC
The USCC has its own publications office which publishes various documents of the conference and related documents. It also has its own period publication, Origins which contains various statements of bishops, conference committees etc.
The NCCB regularly issues statements and pastoral letters on a variety of topics. These statements and letters are proposed by a bishop, researched and prepared in committees and voted on by the general membership. The statements are non-legislative and non-judicial in nature. They are not binding on the bishops, however as the handbook states: “Decisions of the conference are normally devoid of juridical binding force. Nonetheless, when passed by a majority of the members who have deliberative vote in the conference, they should, as a rule, be observed by all members as an expression of collegial responsibility and in a spirit of unity and charity with their brother bishops.” (Statutes, art. XII)
Since its existence in 1966, the conference has issued over 100 major statements on a variety of issues, some of which have been purely ecclesiastical in nature, others relating to moral matters and others political in nature. In addition to its public statements, which are made in the name of the bishops of the United States, the conference, usually through its president, regularly issues statements or sends letters which are made public and which indicate something of the conference views on this or that matter. Some examples of the various statements, pastoral letters etc. are the following:
1. Statements related to secular political issues
Peace and Vietnam (1966)
Statement on Race Relations and Poverty (1966)
Resolution on Peace (1967)
Statement on the National Race Crisis (1968)
Statement in Protest of U.S. Government Programs against the Right to Life (1969)
Resolution on Welfare Reform (1970)
The Reform of Correctional Institutions (1973)
Resolution Against Capital Punishment (1974)
U.S.-Panama Relations (1976)
Statement on the Middle East (1978)
The Challenge of Peace (1983)
Economic Justice for All (1989)
2. Statements Related to Church Issues
Statement on Penance and Abstinence (1966)
Statement on Clerical celibacy (1967)
Ecumenism (1970)
Catholic Press (1970)
To Teach as Jesus Did (1972)
Statement on Ecclesiastical Archives (1974)
The conference, primarily through its staff offices and various committees, also can and does issue various materials as aids or clarifications for bishops and dioceses throughout the country. This material does not have the force of law or doctrine but exists as opinion or information.
e. FUNDING
The NCCB/USCC is funded by the American bishops. It does not receive funds from the Holy See. Article XIV of the bylaws of the USCC refers to financial matters: In the determination of diocesan quotas or of special assessments in individual dioceses, or special collections not prescribed by the Holy See, all diocesan bishops and equivalent to them in law and only they shall have a deliberative vote.”
The conference in general is funded by monies collected from the various U.S. dioceses. Each diocese is assessed a kind of tax, based on the number of Catholics in the diocese and other factors. Staff offices and the general offices are funded through the conference.
The NCCB/USCC also takes up special collections throughout the dioceses. These are collections taken up in each parish on certain Sundays of the year. The proceeds are sent to the conference. Some of these include the annual collection for communications, the Campaign for Human development
f. RELATIONS WITH INDIVIDUAL DIOCESES AND BISHOPS
The NCCB/USCC remains a powerful organization with the resources and the moral authority to have a profound impact on the activities of each bishop and on matters in each individual diocese.
In practice the conference leadership has become involved in various controversies which have occurred in the American Church. This involvement might not have engendered an official statement, but nevertheless there was some involvement, at least on an ad hoc basis. Some examples of such issues have been the controversy surrounding the New York Times advertisement in 1984 favoring the right to choice in abortion and signed by over 100 Catholic priests and religious. The Holy See moved in immediately and the matter was mediated in a sense by conference leadership. The conference leadership also became involved with the Apostolic visitation of the Archbishop of Seattle in the 1980’s, with the controversy surrounding former Sister Agnes Mansour (Michigan).
The officers of the conference (president, vice-president, general secretary, secretary, treasurer) have consultative input into the candidates for bishop which are proposed by the Papal Pro-nuncio for various dioceses. When a list of candidates is prepared by the Pro-nuncio to be submitted to Rome for appointment by the Holy See, it is sent to these officers for their individual opinions.
The NCCB-USCC and its officers do not constitute the body to whom an individual bishop owes accountability in the sense that the bishop can be removed or transferred only by the Holy See. Nevertheless the conference can exercise considerable influence over an individual bishop and over the Holy See as well if an individual bishop’s actions are called into question. On the other hand, the NCCB-USCC is accountable to the Holy See for its very existence and to the American bishops for its support and on-going credibility. Given its mission statement and the purpose of its existence, certain things are expected of it by individual bishops, including various kinds of assistance and advice in matters of importance. The conference in fact has assumed a moral leadership role in various issues relating to the Catholic Church in the U.S. The many statements related to secular political activities points to this as well as the statements concerning certain internal controversies. In short, the NCCB exercises a strong moral or persuasive authority and has the capability of accumulating and disseminating vast amounts of information to bishops as well as the ability of providing various kinds of assistance to bishops.
19. The NCCB and the Problem of Sexual Abuse by Priests
The problem of sexual abuse of minors by priests received widespread publicity in 1984 and thereafter, due to the case of a priest in Lafayette LA. The NCCB-USCC claims that it had no knowledge of the problem of such sexual molestation by priests prior to 1982.
In 1985 the NCCB was urged to initiate some form of action in the form of research into all aspects of the sexual abuse problem as well as the creation of a crisis intervention team. A document privately prepared by myself, F. Ray Mouton and Fr. Michael Peterson was offered to the NCCB in May, 1985. Several bishops who were attending the June 1985 meeting were given copies in hopes that the document would prompt some form of organized action on the part of the NCCB. Nothing happened.
Since 1985 the issue has been discussed in executive sessions and administrative board meetings of the NCCB several times. The conference has issued private memos to bishops and their legal counsels and in 1993 established an ad hoc committee to study the problem. This committee has produced a handbook of topics related top the issue of sexual abuse by the clergy. The handbook contains much of what was in the above-mentioned 1985 report.
This returns us to the competence of the NCCB in matters of interest to the individual dioceses. There are two distinct levels, both of which have already been alluded to or mentioned in this report:
-the legislative level: the NCCB can enact legislation for the dioceses as provided for in the Code and if not so provided, by a majority (2/3) vote of the members and the approval of the Holy See.
-the consultative or advisory level: the NCCB can enact advisory guidelines and policy directives which, though not canonically binding, can be utilized or implemented by the dioceses. It has done this in numerous areas of concern to the American church and to the dioceses. There is nothing that would have prevented the NCCB from taking such action, mandating research, strongly suggesting policy and programs etc. concerning the sexual abuse of minors by clerics long before the first reported directive went out from the General Counsel’s office in 1988.
-There was sufficient information available to the NCCB by the 1970s to have justified concentrated study of this issue and subsequent, concrete direction for the individual bishops.
20. The archives and the secret archives required by Canon law
The Code of Canon Law states a requirement that every diocese have an archive in which are kept the instruments and writings which pertain to the spiritual and temporal affairs of the diocese. (cc. 486-488).
Furthermore there is to be a secret archive in every diocese where more sensitive materials are kept (cc. 489-490). The canons specify very few specific items that must be kept in the secret archives. These include internal forum matrimonial dispensations (c. 1082), secret marriages (c. 1133), dispensations from impediments to orders (cc. 1047-1048), decrees of dismissal from religious life (c. 700) and documents relating to the loss of the clerical state by dismissal, invalidity of orders or dispensation (cc. 290-293). Also the records of canonical penal trials involving matters of morals are to be kept in the secret archive.
The canons do not give specific examples of documents that are to be kept in the ordinary archives. Also, there is no specific mention in the canons of personnel files, although it is commonly known that every diocese keeps a personnel file on all clerics who are either incardinated in the diocese or on loan to the diocese. Often these files contain a wide variety of information: biographical and academic information, records of assignments, letters sent about clerics (with both good and bad information), medical and psychiatric records.
Matters involving penal procedures are to be kept in the secret archive. When an allegation of an offense is made known to an ordinary, he is obliged by the law to conduct a preliminary investigation either personally or through another (c. 1717). Canon 1719 refers to the acts of the investigation which are to be kept in the secret archives. This Canon presumes that a written record of the investigation is made and retained.
There are two fora or places for the exchange of information in Church law: the external forum concerning matters about which a record may be kept, and the internal forum, about matters of conscience about which no records are kept with the exception of decisions and decrees of the Apostolic Penitentiary in Rome. The most common place for the internal forum is sacramental confession. No records are ever kept of sacramental confessions. All matters for which there is a record, whether this is considered a confidential record or not, are matters for the external forum. Records of all canonical trials, penal procedures and investigations are matter of the external forum. Matters in the external forum are not subject to the seal of the confessional.
Judicial matters such as penal investigations are not matters of the internal forum by the very fact that a record of the investigation is mandated by the law. Similarly, the contents of a personnel file are not presumed to be matters of the internal forum.
The communications between religious superiors and their subjects and bishops and their clergy are not presumed to be internal forum matter unless it is a question of communications received in the course of sacramental confession or spiritual direction or a communication which is explicitly understood to be in the non-sacramental internal forum.
Documents contained in the general archives are not to be removed unless there is permission to do so from the bishop or from both the moderator of the curia and the chancellor. Then they are only to be removed for a short period of time. (Canon 488)
All documents in the archives are to be retained and not destroyed. Certain documents from the secret archives are to be destroyed however. These are the documents relating to criminal cases, that is, cases involving the allegation of the commission of a canonical crime. The documents that are to be destroyed are those which pertain to a person accused of a crime who has died or documents pertaining to a criminal case, ten years after the case has been closed. Even when the documentation is destroyed, a summary of the cases is to be retained along with the sentence of the tribunal if the case was subjected to a complete canonical trial. (Canon 489)
The above canons refer to the revised Code of Canon Law (1983). Similar legislation existed in the prior Code (1917) which went out of force upon the promulgation of the new Code.
21. Recurring Issues and Questions
The civil law makes use of the term “standard of care” in reference to institutions and their members. This is an excellent description of what the Canon law refers to when it speaks about the qualifications expected in a priest prior to ordination and after ordination, required for assignment to pastoral duties. If in fact there was and is a standard of care, i.e., the moral and spiritual welfare of the people, this standard was not met by the repeated transfer of priests accused of sexual abuse from one parish to another.
There is not, to my knowledge, any standard or rule in Canon law that states that the reputation of the institutional Church is to be preserved at all costs. There is no policy that requires that suspected criminal activity be prevented from public disclosure or that priests suspected of criminal (criminal in the canonical and civil law sense) not be subjected to proper investigation and due process if to do so would result in an embarrassment to the Church. Whatever the motivations of diocesan officials, it is simply incredible that an ecclesiastical crime as serious as sexual abuse of children not be thoroughly investigated and perpetrators disciplined in each and every case. It is even more incredible that priests known to have sexually abused minors (or others for that matter) allowed to continue in pastoral ministry while there is even a suspicion of their sexual proclivities.
What kind of notice constitutes sufficient notice to investigate a complaint? The Church law does not stipulate nor restrict the source of information. If information about a suspected incident, i.e., a sexual offense, is forthcoming, the investigation should take place. This stage is not a trial. It is not required anywhere in Church law or practice that there be two or more accusers, two or more witnesses or first hand knowledge of an offense before an inquiry can start.
In dioceses throughout the country, when cases of sexual abuse by priests have surfaced, recurring problems have occurred:
a. Problems with Church records. Incomplete records are produced. In some cases the existence of records is denied and such records are produced only after repeated demands. In some cases officials have even stated that the Church does not keep records or does not keep personnel records.
b. Inadequate supervision. Priests accused of sexual molestation are often found to have had suspicions raised against them early in their careers and in some cases even in the seminary. After reports of sexual acting out have been made in many cases there is no supervision and priests have been simply transferred from one parish to another.
c. Reporting to civil authorities. It is rare that allegations of sexual abuse of minors is reported to civil authorities.
d. Inadequate treatment of victims. Often victims have not been believed, have been coerced into not making complaints, have been urged to remain silent. In too many instances victims have received little or no pastoral attention from Church officials.
22. Sexual Abuse by Clerics: Historical Awareness of the Problem
It is often alleged by Catholic church authorities that the problem of sexual abuse of young boys and girls by the clergy is a new problem, so new that they (the authorities) are only now beginning to realize how serious it is and only know beginning to figure out how to deal with it.
Sexual abuse of minors and other sexual misconduct by Catholic clerics is not a new problem. Evidence for this is found in historical sources. The church has not published historical studies on the problem of sexual abuse of minors by the clergy for obvious reasons. It is a crime that has been held as odious by societies throughout the ages. Because of its odious nature and the negative impact that admission of its existence would have on the church’s reputation, instances of sexual abuse of minors by the clergy are generally hidden. Nevertheless, the historical sources reveal a constant concern throughout the ages of Christian history.
The Christian Penitential Books of the 6th to 11th centuries contain occasional mention of punishments inflicted on clerics for homosexual crimes. The gravity of the punishments, which escalated with the rank of the cleric (less for minor clerics, more for priests and bishops) indicate that the crime itself was deemed particularly hideous by the church at the time.
Gratian the monk composed the most important single historical source for western Canon law, the Decretum, published in 1140. It is a systematic compilation of Canon law sources including the writings of the early church fathers, scripture, regulations, norms, canons from previous church councils, synods and popes. It also contains numerous references to the civil legislation of the Christian Roman emperors. In one section Gratian tends to side with the Roman law which inflicted the punishment of death on men who had sex with boys. In another he advocates the imposition of excommunication upon clerics who so sinned. Gratian referred to the evil of stuprum pueri or the impurities with boys, in several canons, including several which reference clerics.
One of the most important single works is the Book of Gomorrah of St. Peter Damien. Written in the mid 9th century (possibly in 1048), this book is a carefully planned discussion of the problem of homosexuality among the clergy. The story of Peter Damien’s exposition, the response of the pope at the time and the subsequent attempts at minimalizing Damien’s writings is a stark reminder that history repeats itself.
Sexual abuse of a minor is a specific crime mentioned in the 1917 Code and in the 1983. It has been mentioned over the centuries in the law of the church for a reason: it exists, is a serious problem and has been acknowledged by church to be such. It is not something new that only cropped up with the publicity of the 1984-85 situation in Lafayette LA. Because of the nature of sexual abuse of minors, the institutional church has attempted to keep the matter under wraps. It has consistently failed to provide adequate pastoral care and concern for the victims of such abuse and it has consistently failed to take responsible steps in dealing with individual priest-abusers.
The history of this problem would strongly suggest that the primary value for the institutional church has been its public image, its public security and the avoidance of any public knowledge of the extent of the problem
23. The Susceptibility of the Victims of Sexual Abuse by Priests
A recurring question: how could the victims and their families have allowed such abuse to both begin and continue? This question is asked with regard to the plaintiffs in these cases and in nearly all cases. The answer lies in the concept of “religious duress.” In the cases at hand, the victims all came from devout Catholic families…families who were close to the church in that they were practicing Catholics and involved in the day to day life of their church through involvement in their parishes. These families believed that the priest held an exalted position in their lives. They had been taught that the priest occupied a position between them and salvation, between them and the spiritual security offered by the church to those who remain loyal and obedient to its way of life. Such people are taught not to question the wisdom and decisions of a priest, not to question his lifestyle and to presume only the purest motives of his actions. In many cases, such Catholics also believed it a serious sin to question the authority of a priest or to speak ill or gossip about a priest.
It was a common hope of devout and dedicated Catholics families that one or more of their children enter religious life and/or the priesthood. For this reason the attentions of a priest toward a child were often believed to be honest and pure and that such attentions might lead to the great honor for the child himself or herself choosing to follow a religious vocation. For this reason, among others, parents often allowed their children to be alone with priests, to accompany them on trips, to stay with them in their quarters. The bottom line is that parents had been taught to place unquestioning trust in their priests. The idea of a priest sexually abusing or otherwise harming a child would have been, and in the cases of these families herein concerned, was, totally alien.
The victims themselves (this case included) were bound by the power of the priest. It was beyond the imagination of a young boy or girl that a priest, who was a friend, confidant, mentor and spiritual father, would do or attempt something evil or wrong. On the one hand the church taught the virtues of purity and surrounded expressions of sexuality with sin. Young boys and girls at the beginnings of puberty received these messages from their church through the priests and often reacted to their awakening sexuality with fear, shame, wonder and often guilt. To many, when a priest made advances, these were often totally disbelieved by the victim. Once the situation developed, many priest perpetrators continued to use their power by gradually inducing into the victims the believe that no one would believe them if they disclosed what was happening. In fact, prior to the widespread media attention to such abuse in the eighties, rarely would parents, church authorities or others believe a young person who mentioned the fact that a priest was doing strange things to them. The victims, in a very real sense, were caught between a “rock and a hard place.”
The result of sexual abuse by members of the clergy has had a variety of effects on the victims. The psychological and emotional impact is the subject for medical experts. There is also however, a severe spiritual impact. The event or events of abuse have caused numerous victims to not only abandon the institutional church but to look upon it with disdain, fear and even hatred. Many are or were unable to make an emotional and intellectual distinction between the priest, the institutional authorities, and the church itself. The persons of the priests, bishops etc. were the church. The church was the source of spiritual security. Faith in God was intimately bound up with faith in and loyalty to the church. It was the church, through the priests, who forgave sins. Now it was the forgiver who was causing the sins. Many victims felt and feel that they have been robbed of their faith and of their spiritual security. They cannot go to the church for relief because the focal point of their trust, the priest, has betrayed them. He has led them into what was and often is still perceived to be the worst kind of sins, sins of the flesh.
In short, the spiritual impact of sexual abuse is profound. In all possibility this impact is related to the psychological and emotional impact and to the patterns of self destructive behavior often found in many victims of clergy sexual abuse.
The concept of religious duress is also directly related to the manipulation of the victims and their families. This manipulation occurs at the hands of church officials whose ultimate aim is to convince them not to press charges, not to go public etc., in order to avoid causing scandal or harm to the church. The same dynamic which was active in the seduction is also active in trying to downplay the events. This manipulation almost always includes the victims and their families but can and does extend to law enforcement officials and others whose intervention could either cause problems for the institution or not. Such manipulation was especially evident in the case of the victims of Robert Peebles, William Hughes and Rudy Kos.
24. Fr. Robert Ray Peebles
a. Fr. Peebles was ordained on April 30, 1977. Prior to ordination he had received two evaluations from pastors of parishes wherein he had served as a temporary deacon. Both of these evaluations contained significant negative material, though none of this material was sexual in nature. One of them expressed concern for Peeble’s drinking. There appears to have been no significant follow-up with Peebles regarding this material and he was ordained to the priesthood.
b. Peebles’ history of sexual molestations while a priest began in 1979 at least when he was suspected of taking indecent liberties with a young boy of the parish to which he was assigned as assistant pastor. Reports of this were made to Fr. Scott who in turn relayed the information to Msgr. Rehkemper. There was no investigation of the reports nor confrontation with Peebles. Nevertheless the fact of the reports/rumors were known to diocesan officials. Although these reports came by way of rumor, the diocese, through the bishop, had a obligation in Canon Law to investigate the rumors. No such investigation took place. Peebles agreed to undergo counseling in order to escape prosecution.
c. In spite of there having been at least rumors of inappropriate sexual actions with boys, the bishop appointed Peebles the diocesan director of Boy Scouts on June 29, 1981. During this same year Peebles recurring sexual activities with another minor started (Doe IV). Peebles continued with this minor and took him to the Galilee Retreat House in NJ in May, 1982. At this retreat house, during an orientation course sponsored by the Military Vicariate for incoming chaplains, Peebles abused Doe IV. It is reported that the boy, Doe IV, stayed in Peebles room at the Galilee Retreat House. How Peebles got away with having the boy with him during the retreat is not known. The fact of the boy’s presence should have been questioned and either the boy sent home or even more important, Peebles’ very act of bringing the boy thoroughly investigated. The very fact that this boy was present should have caused those in charge of the retreat to ask some very serious and pointed questions about Peebles. None were asked and if they were, nothing was done and Doe IV was sexually assaulted by Peebles while Peebles was on a retreat with other incoming chaplains under the direction of priests of the Military Vicariate.
d. In spite of the fact that the diocese possessed uninvestigated rumors about Peebles and illicit sexual activity, it approved of his entrance into the military chaplaincy of the US Army. The diocese was the key factor in Peebles’ endorsement as a chaplain for it had the power to indicate the existence of the rumors which probably would have caused the Military Vicariate to withhold the required endorsement for military duty (reserve or active). Peebles was endorsed by his bishop and the Military Vicariate for the inactive reserves in January, 1981 and subsequent to this he began to see a counselor, Dr. McCandlish. In February, 1982 he was endorsed by the Military Vicariate for active duty. Had the diocese disclosed the fact of his counseling and the suspicion of sexual abuse to the Military Vicariate, or had the Military Vicariate conducted a more detailed investigation into Peebles suitability (given the Vicariate’s awareness at the time of such problems with other chaplains), the endorsement would not have been granted.
e. Peebles was apprehended at Ft. Benning GA for sexually abusing Doe I. Due to pressure from the diocese, the family of the victim urged the military not to prosecute. The diocese itself, through the bishop and the judicial vicar, placed pressure on the military authorities not to proceed with prosecution.
f. Two months after the Ft. Benning incident Peebles was made an assistant pastor and one year later a pastor at a Dallas Diocesan parish. One year after being appointed pastor be was identified as having sexually abused minors. He resigned from the pastorate on Aug. 27, 1986 and was sent to St. Luke Institute for evaluation. The bishop subsequently decided that Peebles would not attend St. Luke’s for therapy.
g. On Nov. 21, 1986 Peebles was suspended and on Nov. 26, 1986 he initially petitioned the Pope to be laicized. The decree of laicization was finally granted on Dec. 6, 1989.
h. Subsequent to his suspension and de facto departure from the priesthood, the diocese loaned him $11,000.00 per year for law school tuition and continued his monthly stipend of $800.00 per month for living expenses.
I. Subsequent to the Ft. Benning assault on Doe I, which was without doubt a true sexual assault, Peebles was assigned to another pastoral post. No warning was given to the pastor or to the people. Canon Law stipulates that an associate pastor or pastor not be assigned unless it is proven that he is morally and spiritually fit. The bishop had a duty to the people of the parish and to the diocese in this regard. Nevertheless, acting not on certainty of Peebles’ capacity to properly function, they assigned him. He was in therapy and had admitted the abuse prior to his appointment. The assignment involved a true risk to Peebles and to the parishioners.
j. In sum, the rumors about Peebles should have been properly investigated in 1980 but they were not. The military and military vicariate should have been advised that these rumors existed and had not been investigated. No such information was given and no questions were asked by the Vicariate about prior drinking or sexual problems. After the Ft. Benning incident the diocese concentrated its efforts at damage control by convincing the parents that prosecution would be harmful to the victim and promising strict control of Peebles and therapy. Instead it appointed Peebles to another pastoral position. This appointment and the appointment as pastor were both uncalled for and directly contrary to the standard of care to which the diocese is called to with regard to the appointment of priests to pastoral (or any) positions.
k. The concept of religious duress is application to the case of Peebles. The family of the victim was convinced that it would be best for them and for all not to press charges and not to have Peebles subjected to a court martial. Church officials quickly intervened with the family, promising that Peebles would receive help, had suffered much because of the events, and should not be subjected to court martial. The military officials all the way up to the secretary of the Army were convinced by church officials of the diocese of Dallas, that a court martial would cause more harm than good.
The evidence of pressure placed on the victim’s family points to the fact that the church officials repeatedly stressed that pursuing a court martial would be harmful to the victim in that he would have to testify. This pressure was insistent and placed by the psychologist involved who also had a dual relationship with the diocese, the judicial vicar, the pastor and possibly others. Letters were sent to military officials involved from diocesan officials. These letters stressed their concern for the victim and promised that Peebles would receive treatment and be supervised. Without going over each and every document regarding the process whereby the family itself asked the Army to allow Peebles to resign, it can be said that all of it points to the conclusion and presumption that the diocese was primarily concerned about its image, possible negative backlash from a prosecution and not necessarily the impact on the victim nor on the future activities of Peebles.
l. Ironically, after being accused of and confessing to what amounts to a felony crime and facing the possibility of a lengthy term in prison, Peebles was re-assigned as an assistant pastor at St. Augustine’s parish in the Dallas diocese on May 21, 1984, not two months after the events of March 18. This assignment was made not only with the knowledge of what had happened to the victim at Ft. Benning but also with the knowledge that Peebles had been tentatively identified as a child abuser as early as 1981 and this was known to diocesan officials. Even more ironically, Peebles was appointed pastor of the same parish on June 3, 1985. Prior to the assignment as assistant the pastor and people of the parish were never informed of Peebles’ background. Finally, by August, 1986 it became known that Peebles had acted out again with teenage boys.
m. Although the events surrounding the alleged molestation at Ft. Benning appear to dominate the Peebles case, it is more important to focus on the circumstances that preceded this event. These circumstances lead to the conclusion that the diocese had sufficient information about Peebles to have taken adequate steps to see that the abuse of Doe I at least, never took place.
-There were two negative reports about his deportment and attitudes as a deacon intern prior to ordination to the priesthood
-There was notice of a possible drinking problem prior to ordination to the priesthood.
-Fr. Scott had communicated to Msgr. Rehkemper rumors about sexual abuse as early as 1980
-Peebles was referred to Dr. McClandish for counseling in Feb. 1981 without however informing the doctor of the rumors about sexual abuse. Peebles told Dr. McCandlish about an inclination to inappropriate sexual activity.
-Peebles was confronted by the parents of a boy while at St. Mark’s in early 1981
25. Fr William Hughes
a. William Hughes was ordained a priest for the Dallas diocese on April 29, 1982. Very shortly thereafter he was assigned as an assistant pastor in a Dallas parish. It was in his capacity as assistant pastor that he first met, became friends with and eventually sexually abused the plaintiff, Jane Doe.
b. The documentation clearly shows that Jane Doe and her family were devout Roman Catholics. They held the priest in the highest esteem. Although the defendant became a fixture in their home and spent inordinate amounts of time with the plaintiff the parents could not bring themselves to believe that a priest would be romantically interested in their daughter. The parents had seen the two together more than once in situations that would cause alarm in most parents, yet they shrugged it off based on their conviction that a priest would not do those kinds of things. It was not until a number of love letters were found by the girl’s mother in July, 1984, that they began to believe that something was indeed wrong.
c. The documentation shows that the defendant Hughes would never have been able to establish the relationship with Jane Doe had he not been a priest and totally trusted by the family and by Jane Doe herself. The unfolding of events indicate a pattern of seduction aimed at taking advantage of the plaintiff. Hughes was a priest moving in on a devout Catholic family. No one would believe that he had designs on the minor plaintiff and nobody did until it was too late.
d. The diocese, through its officials, made their first major mistake when the mother of the plaintiff disclosed the love letters to Fr. Cloherty (vocations director) in July, 1984. Fr. Cloherty reacted with alarm but suggested that the letters be destroyed. By this time knowledge of the alleged abuse was known by Fr. Cloherty, Mrs. Rehkemper and the bishop. There is no evidence to indicate that anything was done about it. Since the plaintiff was 14 at the time the disclosure by the mother constituted a valid report of a possible canonical crime (sex with a minor, Canon 1395, 2). This should have triggered the investigation mandated by Canon 1719 but it did not. There is no evidence to indicate that the meeting between Hughes, Fr. Cloherty and the Doe family, which occurred around this time, was part of the investigation nor is there any reason to believe that Msgr. Rehkemper had mandated this meeting nor any reason to believe that the bishop was at all aware of what was going on.
Furthermore, Hughes was assigned to All Saints parish at which parish Rudy Kos had also been assigned. By the time Hughes had been reported to diocesan officials as an alleged abuser in July, 1984, the diocese had also been put on notice about alleged sexual abuse of at least three other clerics: Peebles, Kos and permanent deacon Narciso Custodio who was arrested in June, 1984. In spite of this awareness of the problem of sexual abuse of young people by clerics, and the very pointed reports about Hughes, he went on to be reassigned, placed on the personnel board and even made a parish director of youth groups. Allied with this apparent neglect by diocesan officials, there is also the question as to why no one at the parish asked any questions about the constant presence of the victim at the rectory during the time period prior to the report of the abuse.
e. In August, 1984 Fr. Hughes was reassigned to another parish and made the youth group director. The vicar general was aware of the allegations and their seriousness yet this reassignment took place anyway. In light of the allegations, it is inexcusable that this happened. The duty of the diocesan officials to protect the welfare, spiritual and moral, of all of the faithful combined with the duty of assigning to pastoral positions only properly qualified priests, was clearly breached with this reassignment.
f. In September, 1984, Jane Doe’s mother met with the Bishop and Msgr. Rehkemper. This was a meeting she sought out and not one that was initiated by the highest diocesan officials. From the description of this meeting by the girl’s mother, it appears that it was to little avail. The bishop and his vicar general appeared to have not believed the story nor did they appear to have instituted any kind of follow-up either with the plaintiff’s family, the plaintiff or with Fr. Hughes.
g. In May, 1988, Hughes was reassigned to another parish and made a resident so that he could attend school. In Feb. 1989 he was appointed as a member to the Priest personnel Board of the Diocese. Both actions indicate that there had been no credence given to the Doe family concerns or if there was credence given, that the actions of the diocese in so assigning Hughes were irresponsible.
h. Finally, in July, 1990, the family met with the new bishop and told him the story. It is not known what action the bishop took at the time but it is known that Hughes petitioned for and was granted a leave of absence on July 17, 1990.
I. There seems to be little doubt that the diocese failed to act when the initial report of the abuse was made in 1984. The defendant Hughes was still a risk to young people and to the plaintiff in that he was simply reassigned. Also, there is little if any evidence that any adequate pastoral care was extended to the plaintiff or her family. Granted, the diocese paid for some counseling session for the plaintiff with the defendant Dr. McNamara in 1990, but the documentation indicates that when the subject of providing counseling was first brought up with Msgr. Rehkemper he suggested that the Doe family insurance pay for it.
26. Rudolph Kos
Special Canon Law Concerns
In the case of Rudy Kos there are some Canon law concerns which are unique to his case. These concerns pertain to the fact that he may well have been ordained “illicitly’ that is, illegally in that certain canons were not observed. His ordination however, is to be presumed to have been valid.
Canon law contain numerous provisions aimed at protecting the common good, that is, the good of the faithful. Among these provisions are those related to the ordination of men to the priesthood. The provisions refer to certain circumstances or barriers to ordination. These are circumstances in the candidates life which could prevent him from properly performing the duties of a priest.
The 1917 Code was in force at the time of Kos’ ordination, therefore all references are to that code. Canon 973 states that the bishop must have positive proof of the candidates suitability which means, according to the commentators, that he not just possess an absence of negative factors but positive proof of capability, moral and spiritual suitability etc. The bishop alone is the judge of a candidate’s suitability for orders. Usually the bishop relies heavily upon the recommendations of the seminary and of other advisors, but he alone is responsible.
Among the prerequisites are a good moral character (Canon 974). Also, a married man cannot be ordained but this was presumably taken care of by the annulment granted in 1976. At this juncture it might be pointed out that the validity of the annulment could also be called into question if it was in fact based on false evidence or if the rights of the respondent were not adequately protected. Although the acts of the annulment are not present in the documentation reviewed, there is a statement in the report on Kos from St. Luke Institute to the effect that Kos told the interviewer there that a reason for his divorce was the wife’s inability to have children. The wife on the other hand states in a deposition that the marriage was never sexually consummated, that Kos had a problem with boys to whom he was sexually attracted, that this problem had become evident while he was in the military and that her willingness to complete written questionnaires concerning her marriage was never taken up by the tribunal.
Canon 984 refers to irregularities for ordination. These are circumstances in the candidates life that constitute an impediment. There are two mentioned in the Canon which apply to this case: the irregularity of insanity and the irregularity of infamy of law.
The use of the word “insanity’ in the code is a technical or legal use. It is a broad term that refers to a mental illness with which the candidate is afflicted. Labeling of the various types of mental illnesses changes and is the subject of medical science and not the law. If an illness is such that it would prevent a candidate from properly exercising his orders than it constitutes an irregularity. The compulsion to have sex with minors is and has been generally considered a form of emotional or mental illness and would fall under the umbrella of this Canon. Consequently it appears that the diocese had some reason to believe that Kos’ suitability should have been studied.
The other irregularity, infamy of law, is a unique canonical term. In short, it is a penalty which is automatically incurred at the time a person commits one of the crimes specifically set forth in the Code. One of these is the crime of impurity with minors (Canon 2359).
a. Rudy Kos was married in the Catholic church in 1966 and received a civil divorce in 1971. In 1975 he expressed an interest in becoming a priest of the Dallas diocese and on Feb. 17, 1976 he received a church annulment from the Dallas tribunal for his marriage. This annulment was necessary for Kos to ever be ordained as a Catholic priest. As part of the annulment process the diocese was obliged to contact Kos former wife which they did by phone on Dec. 19, 1975. Although the diocesan representative, Fr. Duesman, was asked to send questionnaires to the ex-wife so that she could respond in writing, no questionnaires were ever sent. The documentation contains references to the ex-wife, Kathy’s, deposition in which she states that she advised the priest that Kos should not be ordained because he had a problem with boys.
b. The documentation contains a note from Fr. Duesman to the effect that he had called Kathy, that she had implied that the petitioner had problems and that the service ( military) chaplain knew about the problem (in reference to the alleged abuse by Kos of a military officer’s son and report of an FBI investigation). Duesman ended by writing “something is fishy. Perhaps should get petitioner to level with me.” There is no further indication in the documentation that the diocesan officials ever contacted Kathy about her allegations concerning Kos nor were her statements to Fr. Duesman ever taken into consideration in the process leading up to Kos’ ordination.
c. There significant warning signs present prior to Kos’ ordination to indicate that he never should have been ordained. These lead one to the conclusion that the diocese violated its obligations in Canon law to the community by failing to properly screen Kos. Perhaps the two most egregious errors were the failure to take into consideration the information provided by Kos’ former wife and, the failure to give proper attention to the disclosure of improper sexual advances on Kos’ part to by a seminarian to Msgr. Rehkemper in March or April of 1981.
d. The documentation contains reference to almost constant sexual abuse or attempts at sexual abuse by Kos from prior to his ordination, through the time when he was an assistant pastor, then a pastor, up to an including the time when he was in supposed therapy with the Paraclete Fathers.
e. While Kos was an assistant pastor his inappropriate activities were observed by the pastor (Fr. Clayton) and these were reported to Msgr. Rehkemper. The documentation indicates that Rehkemper spoke with Kos in January, 1986 about having boys stay overnight in the rectory. Kos was apparently told not to do this yet in June, 1986 Fr. Clayton again spoke with Rehkemper about Kos having boys overnight in the rectory.
f. In spite of what a reasonable person would consider to be serious danger signals, Kos was appointed a pastor at Ennis TX on May 22, 1988. The pastor at St. Luke’s had already put the diocese on notice but no adequate investigation took place. It appears that Msgr. Rehkemper simply talked to Kos and believed his version of the story and the abuse went on and on. Knowing these things Kos was still assigned by the bishop as a pastor with no supervision.
g. There were more reports and accusations and Kos was recommended by Rehkemper to see a psychiatrist, a Dr. Jaeckle). Dr. J. Was not provided any background material by the diocese and relied only on Kos’ statements and input. Involved in Kos’ activities at this point is Fr. Williams who lived with Kos at the Ennis parish. Fr. Williams had documented Kos activities and had reported the same to Msgr. Rehkemper. Fr. Williams persisted in his pressure on Msgr. Rehkemper to take some definitive action.
h. In April, 1992 Fr. Williams and Msgr. Rehkemper met with Dr. Keller, an expert on pedophilia. Dr. Keller’s recommendation was that Kos be immediately removed from contact with boys. Shortly thereafter Kos went to St. Luke Institute for an evaluation. The evaluation reflects the recommendation by St. Luke that addition testing take place but there is no indication that this was ever accomplished. Kos returned to Texas and went back to his parish. It was not until October, 1992 that Kos was sent to the Paraclete facility for care. Kos was finally suspended by the bishop on Nov. 29, 1993.
I. One thing that is remarkable in this case is the absence of any evidence that the diocesan officials sought out any of the victims of Kos to determine from them what had happened.
j. In sum it can safely be said that the officials of the Dallas diocese consistently failed in regard to Rudy Kos. They failed to properly investigate reports that he had a problem prior to his ordination. After he was ordained they failed to properly investigate reports of inappropriate activities with boys. They failed to act on detailed reports given by at least two priests who observed the activities of Fr. Kos. They failed to provide Dr. Jaeckle with adequate information upon which to evaluate Kos and they failed to take action when Dr. Keller advised that he not have any contact with boys.
k. There appears to be no rational excuse for this succession of negligent acts by the diocese. The diocese had already been dealing with the problem of Fr. Peebles so it cannot claim ignorance of the problem of sex abuse of children by priests on that score alone. The diocese had more than sufficient notice about Kos from the time before his ordination to the effect that he was a potential problem.
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An examination of the Canon Law in matters
concerning the sexual abuse of children.
Prepared in support of the plaintiffs in the
Rudy Kos case, Dallas, Texas 1995
Written by Thomas Doyle
