"They've Summoned Up a Thundercloud": "Command and Coercion" in 2016

You know, I was really hoping my 2012 Command and Coercion: Clerical Immunity, Scandal, and the Sex Abuse Crisis in the Roman Catholic Church could become irrelevant to the news. But, as John Allen reports at Crux, my thesis remains depressingly relevant:

Given what a cancer the clerical sexual abuse scandals have been for the Catholic Church, one would imagine the Vatican would want new bishops to get a state-of-the-art presentation on best practices in terms of preventing such meltdowns in the future.

The Vatican has been running just such a training course since 2001 for newly appointed bishops around the world, and almost 30 percent of the Catholic prelates in the world today have taken it.

It’s more than a bit surprising, therefore, to discover that at least last year, the Pontifical Commission for the Protection of Minors, the body created by Pope Francis to identify “best practices” in the fight against child abuse, was not involved in the training.

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The presentation was entrusted to French Monsignor Tony Anatrella, a consulter to the Pontifical Council for the Family and the Pontifical Council for Health Care Workers, who’s based at the Collège des Bernardins in Paris. He’s a psychotherapist controversial for his views on homosexuality and “gender theory.”

Although his presentation was long on therapeutic analysis, Anatrella did a credible job of slogging through components of the Code of Canon Law governing clergy accused of sexual crime with a minor.

In other ways, however, his presentation seemed seriously wanting. For instance, Anatrella argued that bishops have no duty to report allegations to the police, which he says is up to victims and their families. It’s a legalistic take on a critical issue, one which has brought only trouble for the Church and its leaders. Why, one wonders, was it part of a training session?

Most basically, canonical procedures kick in only after abuse has been alleged. Presumably the goal ought to be to stop those crimes from happening, and in that regard it’s striking that Anatrella devoted just a few paragraphs to abuse prevention, using abstract language without concrete examples.

Let's not bury the lede: The instructor of the Vatican training course on sexual abuse is teaching bishops that "bishops have no duty to report allegations to the police, which he says is up to victims and their families."

From the Guardian:

A document that spells out how senior clergy members ought to deal with allegations of abuse, which was recently released by the Vatican, emphasised that, though they must be aware of local laws, bishops’ only duty was to address such allegations internally.

“According to the state of civil laws of each country where reporting is obligatory, it is not necessarily the duty of the bishop to report suspects to authorities, the police or state prosecutors in the moment when they are made aware of crimes or sinful deeds,” the training document states.

Even in the age of Pope Francis, it seems, the twin imperatives of "command and coercion"--a phrase I plucked from the writings of John Henry Newman, where they were used approvingly to describe the Church's duty to suppress even truthful information where necessary to maintain faith in the Church's authority--and of clerical independence from secular law, the dubious cause in which Thomas Becket died, and which was perpetuated in canon law to at least 1984, though there is reason to believe it remains substantially undisturbed, still hold sway.

So, clearly the scandal is far from over. Which means, damn it, that I can't leave it behind. You have to understand, writing the article had the exhilarating impetus of having stumbled across something that had not been, until I wrote about it, explored in legal historical writing. Just about all of the legal historians of clerical immunity--"benefit of clergy" as it is commonly called, through "benefit of the forum," or "privilegium fori" is more accurate, describe its rise and fall from the perspective of secular law's willingness to honor it, not the Church's insistence on it, and its use of canon law to enforce it. Even the great R.H. Helmholz and Leona C. Gabel tell the story that way. So, C&C was satisfying to write--I found a small piece of the puzzle of why good men could become complicit in terrible deeds.

But that's done. Now, if I pursue it further, it'll be working out the ramifications of the canon law process, and mostly a hard slog through the unpleasantness of violated lives and vows. But how can one let it go, when, the story continues, continues seemingly along the lines I wrote on?

So, I'm dusting off C & C, and additional research materials I received after its publication, and seeing if I can re-work it into a more expanded treatment.

How I wish it wasn't needed.

The Universe Bends a Little More Toward Justice: Bishop Finn "Resigns"

From The National Catholic Reporter:

Bishop Robert Finn, the Catholic prelate in the U.S. heartland who became a symbol internationally of the church's failures in addressing the sexual abuse crisis, has resigned. He was the first bishop criminally convicted of mishandling an abusive priest yet remained in office for another two and a half years.
The Vatican announced Finn's resignation as head of the diocese of St. Joseph-Kansas City, Mo., in a note in its daily news bulletin Tuesday.

While the note did not provide any reason for the move, it is rare for bishops in the Catholic church to resign without cause before they reach the traditional retirement age of 75.

Finn, who is 62 and had led the diocese since 2005, was neither assigned a new diocese nor as yet given a new leadership role in the church.

Other than for reasons of health, only one other bishop among the some 200 U.S. Catholic dioceses and eparchies has resigned his role in such a manner in at least the past decade.

The hell-busted old public defender who will ever be a part of my psyche takes no joy in the conviction of anyone, let alone a man who dedicated his life to serving God to the best of his ability.

But it had to be.

I do not feel schadenfreude that the bishop was given the sack--albeit the ermine lined, velvet sack, allowing him to resign.

But that too had to be.

In 2011, I published Command and Coercion: Clerical Immunity, Scandal, and the Sex Abuse Crisis in the Roman Catholic Church (the final paper, subscription required; working paper available here). In it, I argued, I think convincingly, that the key to understanding the massive international cover up by the Church hierarchy, from top to bottom, of sexual abuse of children by priests is the doctrine that the Church is not subject to the secular state, and that its clergy, broadly defined, are immune from secular punishment. This doctrine has its jurisprudential roots in St. Augustine's City of God, became binding on state as well as Church in the wake of the murder of Thomas Becket at Canterbury Cathedral, and survived for centuries as benefit of clergy, or, more formally, privilegium fori. While the immunity's recognition withered in secular law, it found its way into the 1917 Pio-Benedictine Code of Canon Law. In other words, the Church still taught that its clerics were immune from secular jurisdiction for crimes including raper and murder.

Since the publication of "Command and Coercion" a rather good book along similar lines has appeared--Potiphar's Wife: The Vatican's Secret and Child Sexual Abuse, by barrister and canonist Kieran Tapsell. Actually, I'm quite glad to see his book come out, for some of the reasons given by Fr. Tom Doyle in his perceptive review. Tapsell is lighter on the history than is my own work, but is, I think, a little more adroit with the impact of the 1983 Code of Canon Law. So, far from feeling displaced by his work, I think it complements my own, and does some of the work that I, as an amateur canonist, could not do as confidently. Tapsell brings an Australian perspective to the story, as well, and reminds us that this is not an exclusively American, or even Western story, but one that engulfed the Church around the world.

The hierarchy has, prior to Bishop Finn's forced resignation, been immune from consequences. That it took over 2 years from his criminal conviction for the Pope to act is to Francis's discredit--but act he did, at last.

The wall of clericalism has been breached. One must hope that the work of Fr. Tom Doyle, of all the good people at SNAP, and Bishop Accountability, and lawyers like Jeffrey Anderson, will continue. This is not the end, but it may be the end of the beginning.

The Ambiguous Legacy of Thomas Becket

On December 29, 1170, in the late afternoon (and thus after the main meal of the day but shortly before vespers), four knights entered Canterbury Cathedral. Impelled, as far as history knows, by the angry words of King Henry II, “Will no one rid me of this turbulent priest,” they had come to confront Archbishop Thomas Becket, and win King Henry’s favor by forcing the long-simmering dispute between Becket and his King to some final resolution. When the Archbishop refused their conflicting demands, and reacted with scorn to their insults, the knights withdrew, only to arm themselves and follow Becket into the Cathedral for vespers. As the traditional account has it:

The bell for vespers began to sound, and the archbishop, with his cross borne in front of him, made his way in as usual into the cathedral. Hardly had he reached the ascent to the choir than the noise of armed men and the shout of the knights announced that the pursuers were at hand. “Where is the archbishop, where is the traitor?” resounded through the hollow aisles, mingling strangely with the recitation of the psalms in the choir. Becket, hearing this, turned back a few steps, and calmly awaited their approach in the corner of the northern transept before the little altar of S Benedict. “Here,” he cried, “is the archbishop—no traitor, but a priest of God.” Awed by his demeanor, and perhaps by the sanctity of the place, no one dared strike. A parley began. They sought to lash their failing courage into action by words. A hasty and insulting epithet gave Fitz Urse the opportunity he wanted. A blow aimed at the archbishop’s head only knocked his skull-cap to the ground, but it was enough to loose the bandogs of hell. A stroke from Tracy cut off the tonsured back of [Becket’s] skull, another from Brito brought him to his knees. In a minute all was over. The archbishop lay prone in his blood before the altar step, his brains scattered savagely on the floor, while his murderers slunk back through the dark and silent aisles with the chill of remorse already at their hearts, like Othello from the couch of Desdemona.

In the more prosaic retelling of modern historians, the story is dramatic enough: Only one witness remained with Becket as the knights tried to forcibly remove him from the Cathedral. As that survivor recounted, Becket resisted. It “was in the ensuing melee that he [Becket] received a blow on the head. As the blood flowed the four knights fell upon him with their swords.” When the knights had finished their “butcher’s job” as W.L. Warren aptly calls it, Becket lay dead on the floor of the Cathedral.

The result of this brutal murder in the most hallowed space in the English Church was almost as dramatic as the deed itself. Becket’s courage in the face of death, as well as the personal asceticism he had adopted upon his appointment as Archbishop fused into an idealized vision of Becket as martyr and saint; as Warren phrases it:
The dramatic transition from magnificent courtier to clerical martyr, heightened and fixed in the mind by the discovery on the corpse of a lice-ridden hairshirt, established him as a copybook examplar of the drama of conversion. His courage and steadfastness unto death marked him out as a martyr in an age uncommonly short of martyrs, and swept him on a wave of popular acclaim to an unusually swift canonization in March 1173.

So strong was the feeling in favor of Thomas Becket that the King, though denying that he had sought Becket’s death, performed a dramatic penance at his tomb:
The king dismounted outside Canterbury and entered the city barefoot, in plain woolen garments. Prostrate and weeping before the tomb of the murdered archbishop, he received physical punishment from the monks and other clerics, then spent the night there in prayer and fasting. In the morning he heard mass and then went on his way to London.

The resulting cultus of St. Thomas has lived in literature, stage and film. Pilgrimages to Canterbury in honor of St. Thomas form the frame of Chaucer’s Canterbury Tales. But glossed over in most hagiography and popular depictions of the Becket story is the nature of the conflict between Becket and Henry—a conflict which prefigures the crisis in moral authority roiling the Roman Catholic Church at the present day. As Batrtlett summarizes in very capsule form, there were, essentially, three areas of dispute between Henry and Becket, “quarrels over the property of the church of Canterbury, the details of royal taxation and the extent that clerks could be treated differently from lay people in the law courts.” Bartlett’s correct but rather overly discreet phrasing may mislead the reader; what he, Warren and Wakeman accept as the most serious dispute between Becket and Henry II was Becket’s attempted creation of a parallel court system, in which individuals who had often only minimal connection to the Church could nonetheless claim exemption from the secular law, and be subject to the milder (and originally minimal) punishments applicable under canon law. Such individuals could be accused of crimes ranging from theft to rape and, frequently, even murder.

Becket’s cause, seeking to regularize a practice that had evolved during the weaker (and rather chaotic) reign of Henry’s predecessor King Stephen, was essentially successful, and canon law for many years ran along a parallel track to the secular law.
Becket’s view of ecclesiastical sovereignty prevailed in another way, too. From his time into the Twentieth Century, the relationship between Church and State changed from a united Christendom, to a divided and Reformed Christian Europe, to what many now call post-Christian Europe. Throughout that time, the Catholic Church defended its own separate canon law courts, and created an ideological-cum-theological justification for such courts being the principal, and, ideally the only, forum to take cognizance of criminal complaints against the clergy. In the sexual abuse scandals from the second half of the Twentieth Century into the present, defenders of the Church routinely take as a given the notion that such matters should be diverted to private adjudication in private, absent the secular authorities’ awareness of the underlying crime.

Throughout the succeeding centuries, even where such parallel courts were forced to give way to secular jurisdiction, the Roman Catholic Church continued to hold out ecclesiastical sovereignty as a model to be preserved, applied and, where limited, restored to the maximum extent possible. Only in the Twentieth Century did the Church grudgingly begin to come to terms with democratic theory; only in the years leading up to, and especially in the wake of, Vatican II did the Church begin to find some value in democratic society. That half-accomplished rapprochement did not extend to acceptance of secular government’s right to protect its citizenry against predation by clergy. Seeking to understand why this is the case, and the costs to the Church of this theological understanding, is critical in determining what steps secular government can take and ought to take, with respect to the crisis.

One salient factor in this continued existence of a parallel jurisdiction, not recognized by the secular government as having cognizance of criminal misconduct, is the tradition of ecclesiastical sovereignty championed by Becket, and justified in the Nineteenth Century by Cardinal John Henry Newman. Becket’s struggle for, and Newman’s defense of ecclesiastical sovereignty echo not just the tactics but the very language employed by the Church’s defenders in the sexual abuse scandal. The newly beatified convert from Anglicanism and the murdered Archbishop have never been more relevant.

More here.