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Rev. John Coughlin
St. John's University School of Law
JURIST Guest Columnist

The United States Catholic Bishops meet this week in Washington, D.C., to once again consider the issue of the sexual abuse of minors by clergy. When they last assembled at the Dallas meeting in June, the bishops were clearly under enormous pressure from the media and victims groups. The result was a so-called 奴ero-tolerance policy that permanently removes priests from ministry for all past, present or future sex abuse cases.

Law hastily framed runs the risk of abrogating any semblance of fundamental fairness and justice. Recently, the Vatican declined to grant approval (recognitio) to the Dallas policy even on an experimental basis (ad experimentum). A mixed commission of representatives from Rome and the American bishops has been meeting to suggest revisions in anticipation of this week痴 Washington meeting. It is perhaps ironic that the Vatican found itself in the position of raising questions about the Dallas policy, which seems to violate quite elementary principles of American justice. However, these same basic principles are shared by the Church痴 canon law. Consistent with these principles, the revised policy needs to accomplish three objectives.

First, the policy must re-establish the rule of law for sexual abuse cases in the Catholic dioceses throughout the United States. As the following story illustrates, the restoration of the rule of law is important for all concerned, but especially for those who have been abused. After several years of weekly counseling sessions, a woman in her late twenties was finally able to forgive her father, who had sexually abused her over the course of the years when she was a young girl. She nonetheless found it even more difficult to forgive her mother, who had known about the continuing abuse and taken no steps to stop it. All too often persons abused by clergy report that their complaints to bishops and other diocesan officials were met with varying degrees of denial, arrogance and incompetence. Although some bishops handled cases well, it now seems apparent that the crisis has been caused at least in part by episcopal failure to observe the substantive and procedural provisions of the rule of law established by the Church.

Substantively, the Church痴 canon law has, of course, always considered the sexual abuse of a minor to be a grave crime and grievous sin. Under the present Code of Canon Law, sexual contact with a minor constitutes one of three sexual offences for which a man may be permanently removed from the clerical state, the other two grounds being coerced sex and continued open concubinage with a woman. Permanent removal from the clerical state constitutes one of the most serious penalties contemplated by canon law. Procedurally, canon law affords both an administrative process for the investigation of an allegation of abuse and a tribunal hearing to determine guilt or innocence and impose a penalty. If bishops had fulfilled the duty to follow the canonical rule of law especially in the cases involving clergy who are serial child abusers, the Church would probably not now be in crisis. To be sure, honoring the rule of law would have communicated to victims, clergy and all concerned that church authorities were taking appropriate steps to protect children. An important aspect of responding to past episcopal negligence must entail that the bishops re-commit to the rule of law.

Second, the new policy must strike the proper balance between the rights of victims and the accused. Victims of sexual abuse by clergy have every right to expect that the Church will take action to correct the injustice and prevent future harm. The rights of victims, however, are not the only considerations in a policy that restores justice. The zero-tolerance policy represents an overreaction pursuant to which any priest with a credible allegation against him at any time is to be banned from public ministry for life. In the months following Dallas, it has not been uncommon for a priest with a single allegation against him, which was placed in his diocesan personnel file twenty or more years ago, to be summarily dismissed from an active and fruitful ministry. Following years of faithful service, the priest suddenly finds himself deprived of his life痴 work and with his reputation irreparably damaged. Placed on indefinite administrative leave without adequate notice or opportunity to be heard, he receives de facto the same penalty as a serial child abuser.

The implementation of the zero-tolerance approach has in certain instances stunned priests and their parishioners and caused attorneys for the accused to raise questions about a lack of fundamental due process. The due process concerns for the rights of the accused include, inter alia, the following issues: the lack of notice of the precise nature of the allegation; the imposition of indefinite administrative leave with no legal recourse; the vagueness of the definition of the offense of sexual abuse in the Dallas policy; the disregard of the statute of limitations which special canon law has established as ten years running from the victim痴 eighteenth year; the denial of the opportunity to be heard and offer a defense; the absence of proportionality in penalties; and the retroactive application of law. Few if any American or canon lawyers would dispute that these issues pertain to the fundamental human rights of an accused person. Since the implementation of the zero tolerance policy in June, approximately three hundred priests have been removed from active ministry. This represents less than one percent of the total priest population in the United States. Each one of these cases is fact specific. The cases range from the quite small number of horrendously disordered priests who perpetrated years of unchecked abuses to the priest now in his late seventies with an otherwise exemplary record of service who in his twenties is alleged to have had a sexual encounter with a seventeen year old. The revised policy needs to permit some flexibility and discretion in the way in which cases are resolved. The protection of individual rights as well as the common good depends on this kind of intelligent approach.

Third, the new policy should ideally promote healing and forgiveness. What can account for this year痴 extraordinary media attention, coverage unequaled in American religious history, to cases of sexual abuse by Catholic clergymen? For example, the records of the Archdiocese of New York reveal that fewer than thirty priests have been accused of the sexual abuse of a minor over the last forty years. During the last ten years, the Department of Education for New York City reports that in the public schools there were 242 allegations of sexual misconduct with students by teachers. Perhaps, the greater public scrutiny of the Catholic Church derives in part from its mission in society. People continue to look to the Church for an authentic spirituality that proclaims the real possibilities for redemption. Even one case of the sexual abuse of a minor by a priest and cover-up by a bishop betrays the mission. No law or policy can eradicate sin from the fallen nature of the human situation, including that of the human beings who comprise the Church. Just policy, however, can dispose injured individuals and communities to enter the long process of healing and forgiveness. The Catholic Church must now teach by example. This week in Washington, the bishops have the opportunity to design a revised policy that recognizes the human situation, responds in accord with fundamental principles of justice, testifies to the possibility of redemption, and thus promotes the divine mission of healing and reconciliation.

Rev. John J. Coughlin, OFM, is an associate professor at St. John's University School of Law in New York, where he teaches Administrative Law, Canon Law, Family Law and Professional Responsibility.

November 11, 2002


JURIST Guest Columnist Rev. John Coughlin is an Associate Professor at St.John's University School of Law in New York. He was ordained a Roman Catholic priest in 1983, and served as an Associate Pastor of St. Stephen's Church in Manhattan. Subsequent to law school graduation and admission to the New York State Bar in 1987, he was a law clerk to the Hon. Frank X. Altimari of the United States Court of Appeals for the Second Circuit. Following the successful completion of his license in canon law in 1990, he was appointed General Counsel to St. Bonaventure University in Olean, New York. During this time he also defended his doctoral dissertation in canon law, summa cum laude, at the Jesuit sponsored Gregorian University in Rome. The dissertation was a comparative study of administrative law in the tribunals of the Roma Curia and the United States federal courts.

From 1993 to 1996, Father Coughlin served as Legal and Canonical Counsel to the Holy Name Province of Franciscan Friars in New York. Appointed by His Eminence John Cardinal O'Connor, Father Coughlin served as Professor of Canon Law and Spiritual Director at St. Joseph's Seminary in Yonkers, New York from 1994 to 2001. Additionally, he has served the Archdiocese of New York as a Judge in the Appeals Tribunal, Vicar for Canonical and Legal Aspects of Health Care, and as a member of the Boards of Directors of several Catholic hospitals and educational institutions. During the summer of 1998, Father Coughlin was a member of the delegation to the Holy See to the United Nations treaty conference which established the International Criminal Court. He has published journal articles in fields of comparative law, administrative law, constitutional law, domestic relations, professional responsibility, canon law, and law and theology. Father Coughlin first joined the faculty at St. John's University School of Law as an adjunct professor in 1995, and was appointed to the fulltime faculty as an Assistant Professor in 1999, the same year that the School of Law's students honored him as "Professor of the Year".