Confusion in the canon

Associated Press/Darren Hauck, file

Roman Catholic priests kissed the altar of the Cathedral of St. John the Evangelist during the dedication of the renovated church in Milwaukee, in this Feb. 9, 2002, file photo. Widespread allegations of sexual abuse by priests have raised questions about canon law and interpretation.

By Richard N. Ostling ~ The Associated Press

Canon law is an obscure field, even for most Roman Catholics. Yet a look at this body of church rules helps explain how American bishops have handled priests who prey on underage youths.

Experts generally agree that canon law treats sex between clergy and adult women as a more serious offense than the molesting of minors. It also emphasizes restoring wrongdoers to active priesthood over removing them from the clergy. And some canonists even complain that the system grants abusers more protection than their victims.

Some background: "The Code of Canon Law" is the compilation of church rules and regulations. It sets the policies for Catholic bishops as they run dioceses, and for superiors of religious orders.

The current code was issued by Pope John Paul II in 1983 but was mostly completed in the 1970s when clergy sex abuse scandals were rarely mentioned.

National media exposure of the problem didn't begin until 1985 -- the same year the Canon Law Society of America, the organization of U.S. specialists in the field, published its exhaustive commentary on the new code. The commentary doesn't have any binding power over the bishops, but it reflects the consensus view among experts and shapes the way bishops and their advisers understand church law.

Commentary on crimes

The code's canon 1395:2 specifies that sex between priests and minors is an ecclesiastical crime. Yet the 1985 code commentary stated that an initial charge of molesting "is not viewed as seriously" as "concubinage" (cohabiting with a woman) or "attempted marriage" (a priest's civil marriage, which the church does not recognize).

The distinction is apparent because a priest involved with an adult woman is penalized with suspension, while one who molests a minor faces lesser and undefined "just penalties," the commentary says.

The Canon Law Society produced a revised commentary in 2000 that says this about molestation: "Somewhat surprisingly, the code does not seem to view such delicts (offenses) as seriously as other violations of clerical continence."

The Rev. Thomas J. Green of the Catholic University of America wrote the commentary on sex abuse for the 1985 and 2000 editions. He thinks the canon seems to distinguish between a priest's "ongoing relationship" with a woman and "what could be an individual act. The seriousness of the breach might be more clear."

The Rev. Thomas P. Doyle, a canonist who has advised hundreds of Catholics taking molestation claims to civil court, says that canonical thinking on sex abuse is misguided.

"Even occasional acts of sex with a minor are far more devastating than habitual sexual contact with a consenting adult of either gender," he says. Canon law thinking shows "more concern for the clerical establishment than for the victim."

Monsignor Kenneth Lasch, a canon lawyer for the Paterson, N.J., Diocese, agrees. He believes the commentary downplays the damage clergy abuse does to the Catholic community.

Lasch says he's also "alarmed by the accent on the future of the minister rather than concern for the victim," referring to this passage in Green's 1985 commentary:

"While the well-being and future ministry of the offending cleric are key considerations, due cognizance also has to be taken of the damage done to the community and individuals within it."

The 2000 commentary shifts the emphasis somewhat.

It still says the priest's "dignity, well-being and future ministerial options are key legal-pastoral considerations." But it now states that bishops must "seriously consider" the damage to vulnerable individuals and "legitimate community outrage."

Green says both commentaries reflect canon law's emphasis on restoration of errant priests and that "any penalties are seen as a last resort."

Canon 1341 tells bishops to first apply "fraternal correction or reproof" and "methods of pastoral care" with wrongdoers in the clergy. Penalties should be applied only if the offender cannot be "reformed" or other circumstances make this necessary.

Green worries that bishops may currently be "overreacting," and neglecting their canonical duty to help restore priests -- a "troubling" climate that could undermine clergy morale and recruiting of future priests.

Green also says the code has deficiencies that need to be studied. For instance, it does not address the Megan's Law-type question of which parishioners should be informed about past molesting when a priest is reassigned.

But canonical flaws aren't quickly remedied. The church first codified its legislation in 1917, and it was another 66 years before John Paul ratified the current text.

"This code isn't going to be revised in our lifetime," Lasch says, so the U.S. Conference of Catholic Bishops must "come up with legislation that is much more stringent and clear" on their own.

Monsignor Francis Maniscalco, the bishops' spokesman, said the prelates would need Vatican approval for any policies that affect canon law, though they could agree on a "protocol" to be followed by all American dioceses.

It's unclear whether that would require Vatican ratification, although the topic seems likely to come up next week when the pope and American cardinals meet in Rome.

The Vatican has already agreed to other requests from the U.S. bishops.

The Americans won approval to temporarily strengthen two canon law provisions, raising minors' age of consent from 16 to 18 and extending the statute of limitations in abuse cases till the victim is 28. The pope applied both changes worldwide last year.

Since 1989, the U.S. bishops have sought Vatican approval for a third change, allowing them to remove abusers from the priesthood without cumbersome appeals to Rome. Those discussions are ongoing, Maniscalco said, but bishops can perpetually suspend priests even if they can't be defrocked easily.

Canon law "never stopped a bishop from taking a man off the job and keeping him off the job if necessary," he said.