Pope's move to oust bishops negligent on sexual abuse gets mixed reviews

by Joshua J. McElwee

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Pope Francis' move to grant several Vatican offices authority to initiate removal of Catholic bishops negligent in their response to clergy sexual abuse has drawn mixed reviews from canon lawyers and survivors' advocates, who say the pontiff's action may not go far enough in stemming the abuse crisis.

The experts are expressing confusion over why the pontiff chose not to go forward with a proposal from his Pontifical Commission for the Protection of Minors for a new tribunal tasked specifically with judging bishops in their handling of sexual abuse and instead directed four existing Vatican congregations to take on the work.

In one example, a canon lawyer at the Catholic University of America tweeted that the pope had promised the creation of that new tribunal more than a year ago.

With Saturday's publication of the motu proprio Come una madre amorevole ("Like a loving mother"), that tribunal "seems to get [a] first class funeral," Kurt Martens continued.

"Everyone seems to be excited about the new [motu proprio], but there is really no change," he said in a later conversation with NCR. "That which was already done is now put in a text format."

Francis' new law, announced Saturday but taking effect Sept. 5, specifies that a bishop's negligence in response to clergy sexual abuse constitutes a "grave cause" under the Code of Canon Law and can lead to his removal from office.

The law also empowers the four Vatican dicasteries to investigate bishops who fail in protecting children and to initiate processes for their removal, pending final papal approval.

Boston Cardinal Sean O'Malley, the head of the pontifical commission, told NCR in an emailed statement Sunday that the new law communicates "a sense of urgency and clarity that was not there before."

"If the dicasteries were hesitant or confused about their role, they no longer have that excuse," said O'Malley. "And because it has to do with accountability all the eyes of the world will be upon them."

"I am sure that we will be making recommendations for greater procedural clarity but the Holy Father's intent could not be any more clear," said the cardinal. "Bishops must be held responsible for their actions or inaction."

Yet, Martens and other canon lawyers say that canon law already had provisions allowing the pope to remove bishops and that the new law is a relatively small measure that merely specifies what was happening in the past.

The section in the current Code on removal from ecclesiastical office, for example, states that a bishop or other church leader can be removed from office "by a decree issued legitimately by competent authority" for "grave causes."

As Dominican Fr. Pius Pietrzyk, who studies canon law at the Pontifical University of St. Thomas Aquinas in Rome and serves on the board of the U.S. government's non-profit Legal Services Corporation, tweeted: "The option was always there in the law, this [motu proprio] just makes it clearer."

The proposal for a new tribunal to judge bishops on their handling of sexual abuse was first announced by O'Malley's pontifical commission in June 2015. The original idea had been to create a new section within the Vatican's Congregation for the Doctrine of the Faith specifically charged with judging prelates.

The idea had however languished in the meantime, with one report from March indicating that the congregation had at that time not even been consulted or informed about the proposal.

According to a statement Saturday from chief Vatican spokesman Jesuit Fr. Federico Lombardi, Francis' new law effectively cuts the doctrinal congregation out of the conversation about bishops' negligence in sexual abuse matters.

The doctrinal congregation will not be involved with the new law "because it is not a matter of crimes of abuse but of negligence of office," the spokesman said.

The new measure, comprised of five short articles, allows "the competent congregation of the Roman Curia" to begin investigations of local bishops, eparchs, or heads of religious communities when the congregation suspects a leader's negligence has caused "physical, moral, spiritual or patrimonial" harm.

Lombardi said that four Vatican congregations would be given the investigatory power: for Bishops, for the Evangelization of Peoples, for the Oriental Churches, and for Institutes of Consecrated Life and Societies of Apostolic Life.

"The diocesan bishop or the eparch or whoever has the responsibility for a particular church, even if temporarily ... can be legitimately removed from his position if he has by negligence, placed or omitted acts caused serious harm to others, whether their physical persons or the community as a whole," the new law states.

"The diocesan bishop or eparch can be removed only if he has objectively been lacking in a very grave manner the diligence that is required of his pastoral office," it continues, specifying: "In the case of abuse against minors or vulnerable adults it is sufficient that the lacking of diligence be grave."

The law states that "if it becomes necessary to remove the bishop" the congregation involved in the matter can either proceed "to give, in the shortest time possible, the decree or removal" or "to exhort the bishop fraternally to present his resignation within 15 days."

"If the bishop does give his response in that time, the congregation can release the decree of removal," it states.

All decisions by Vatican congregations, the law states, "must be subjected to the specific approval of the Roman Pontiff." The pope, it continues, will be assisted in making his decision "by a special association of legal experts of the designated need."

The U.S. based Survivors Network of those Abused by Priests has issued two separate statements saying they are "highly skeptical" of the new measure.

In a statement Sunday they said that while the original plan was to have one specific agency handle bishops who are negligent in sexual abuse matters, "now, instead, it’s supposedly going to be existing agencies ... none of which has ever taken real action, or even showed interest in complicit bishops."

"It’s just like the U.S. bishops’ 'Dallas Charter,'" said the group, referring to the "Charter for the Protection of Children and Young People" that the U.S. bishops signed in 2002 following intense reporting on the sexual abuse crisis in the Boston archdiocese.

"When bishops talked about it, they used clear and tough language," said SNAP. "But when they wrote it, they got all legalistic and watered it down considerably."

"Similarly, when Francis talked about holding complicit bishops responsible, he used clear and tough language," they continued. "But when he finally wrote something, he backed off his own strong words considerably."

Mitchell Garabedian, a lawyer in Boston who has been representing clergy sexual abuse victims for decades and was portrayed by Stanley Tucci in the recent film Spotlight, was likewise skeptical.

The new law, he said, "is fundamentally flawed because the Catholic Church will once again be investigating itself with regard to clergy sexual abuse."

"History has shown us that the Catholic Church is incapable of objectively investigating itself in clergy sexual abuse cases," said Garabedian. "The fox is once again guarding the hen house and children are at risk."

One canon lawyer, however, said that the new law is of "huge significance."

"Traditionally, the bishop in his diocese has been, almost literally, a law unto himself," said Ed Condon, a freelance canon lawyer writing in a column Saturday for the UK's Catholic Herald.

"Recovering the dignity and authority of that office from encroaching centralization towards Rome was a key theme of the reforms of Vatican Council II," said Condon.

"While the reasons he has done so are obvious and compelling, Pope Francis, for all his emphasis on synodality, has, for good or for ill, just dealt a major blow to the independence of the average diocesan bishop."

[Joshua J. McElwee is NCR Vatican correspondent. His email address is jmcelwee@ncronline.org. Follow him on Twitter: @joshjmac.]

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