Inasmuch as we do not yet know why some dioceses at some points in time had much higher percentages of priests abusing, do we

This document expresses the view of the writer alone, and not that of Voice of the Faithful

The Rights of Priests

In beginning to examine the ethical rights of priests, we need to acknowledge that in light of the publication of the Report on the Crisis in the Catholic Church in the United States by The National Review Board for the Protection of Children and Young People, the Report reproaches the bishops for protecting the rights of the priests more than the rights of the victims. Hopefully, in this paper we will see that rightly understood the rights of priests should not jeopardize the rights of the laity, particularly, children and especially those who are victims or survivors.

This paper is an attempt to prompt Roman Catholic ethicists and their colleagues in the Protestant churches to bring their expertise to bear reflectively and normatively on the lives of the Church, particularly in the area of the exercise of leadership. Already Richard Gula[1] and Karen Lebacqz,[2] and now Edward Vacek, Stephen Pope and Lisa Sowle Cahill have been working toward this end. Following in Gula and Lebacqz’s footsteps, Joseph Kotva, a Mennonite minister who had worked on virtue ethics[3] and I edited a book, Practice What You Preach: Virtues, Ethics and Power in the Lives of Pastoral Ministers and their Congregations,[4] which held twenty six essays by Christian ethicists from about a dozen denominations reflecting on the need to develop more ethically accountable lives of service and leadership. Interestingly, though all the contributors were well-known, most of them had never written on ethical issues internal to Church life.

In the book, the writers offered ethical guidance for both individual church leaders and their communities and dealt with issues such as disillusionment and deference in clerical life, admissions’ policies to seminaries, candidacy programs, pastoral assignments, staff salaries, liturgical celebrations, and the practices of collegiality and subsidiarity. After the book, I began to recognize how vast the terrain of church leadership ethics could be and investigated very different topics: a specific case regarding the intervention of the Congregation for the Doctrine of the Faith regarding the Sisters of Charity of Australia and their sponsorship of a project concerning the care of injecting drug-users there;[5] the way candidates who apply to some religious orders of priests, like the Society of Jesus, are required to undergo HIV testing as a prerequisite for admissions;[6] the way Jesuits advance fellow members along the way to priesthood and final vows, using a device infelicitously entitled, “informatios;”[7] and finally, in the case of religious receiving therapy, the way some propose “a family model” or some other structure that expands the confidentiality between a religious and her or his therapist to include the superior.[8]

In each of these practices, regarding admissions, evaluation and counseling we find a certain tendency among religious and clergy to establish procedures that cut against the basic standards set in other professions. Here then we ought to be concerned with some of the novel and ethically compromised formative practices that are used on seminarians and young religious.

I am, then, particularly grateful to have been invited to Boston College where the Church of the 21^st Century initiative is in its second year. Here among the many issues engaged are those about the role of ethics in the life of the Church. For instance, this semester a class of fifteen students are in a course entitled the “Church and Ethics: Historical and Contemporary Questions.” This week, for instance, we are reading the Galileo case, next week the witch trials, then Church conduct during the Holocaust, and, finally the investigations of Fr. Jacques Dupuis and then Sr. Jeannine Grammick and Fr. Robert Nugent. All along the way we try to consider the topics, cases, values, and virtues relevant for the professional ethical training of those in training for lay, religious and clerical leadership.

Last month, an interdepartmental committee hosted a two day conference entitled: Toward an Ecclesial Professional Ethics. Examining the ethical training of lay, priestly and episcopal leadership, were not only historians, theologians, sociologists, journalists, and ethicists, but also those in organizational management. These specialists provided their insights regarding professional ethical training in corporate structures. A variety of management specialists raised questions, developed scenarios and proposed methodological devices to understand better crises and changes in an institution like the Church. Episcopal, clerical, and lay leaders, like Archbishop John Quinn, Monsignor Dennis Sheehan, Commonweal’s editor Paul Baumann, and VOTF President James Post (also a professor of management) were invited to respond to them. It was a conversation of people of diverse but complementary competencies embodying, as Saint Ignatius urges us to be, a contemporary university thinking with and for the Church.

At the conference a case was made that clergy and bishops lack professional training in ethics.[9] Those who study at seminaries, divinity schools, or schools of theology, rarely receive the type of ethical training that those at other professional schools receive. Students at business, medical, or law schools take ethics courses that address the ethical issues relevant to their particular profession. Thus, they are taught the responsibilities and rights specific to their profession: matters of representation, confidentiality, whistle-blowing, client expectations, privileges, promotions, evaluations, conflicts of interest, professional boundaries, etc.

This type of ethical training is generally not found at most seminaries, divinity schools or schools of theology, even though many students take two, three or four courses of Christian ethics. Divinity students and seminarians generally do not study the ethical demands, responsibilities, rights, obligations and privileges specific to their vocation; rather, they study the ethical norms and relevant circumstances regarding the laity’s sexual relations and the attendant reproductive issues, the social ethics of governments and businesses, and the medical ethics of physicians and nurses. That is, those in ministry are taught how to govern and make morally accountable the members of their congregations. But generally speaking they are not taught by what ethical reasoning, insights, or norms, they should govern themselves ethically. Thus a priest knows much, much more about birth control and in vitro fertilization than he knows about the demands of confidentiality, the principle of subsidarity or the right treatment of employees.[10]

On this point we can find the same insight regarding training in canon law: when seminarians study canon law, they learn more about whether a married couple can get an annulment than the rights and responsibilities incumbent on their own state in life. Ask a priest what he should do if his vicar says to him, “An accusation has been filed against you; I deem it credible; you have two-hours to leave the rectory.” Few would know what rights belong to him; but tell him that you want to marry a person who while belonging to another Christian denomination married a person in a non-Christian wedding but subsequently entered that denomination and then they both sought the blessing of a minister (of yet another denomination) and he will be able to explain to you whether and if so why your fiancé needs to file for an annulment. We learn a lot about how to govern others; but not about what pertains to ourselves.

At that conference was raised the question of what it would mean to issue professional standards and to raise professional consciousness about ethics and ministry. Toward this end, Frank Butler of FADICA produced a professional covenant for church ministers, BC’s sociologist Patricia Chang called for the flourishment of communities of ethical discourse, and the moral theologian Richard Gula gave a variety of examples of recent positive developments of a new awareness of the need for professional ethical training and standards for clergy, religious and lay ministers. The conference organizers, Jean Bartunek, Mary Ann Hinsdale and Frank Sullivan provided a groundbreaking conference.

This paper follows very much from that conference. As that conference was about the ethical responsibilities of church leaders, this is about the ethical rights of the clergy. Precisely, it builds on a very provocative paper by the canonist John Beal entitled, “Turning pro: Theologico-Canonical Hurdles on the way to a Professional ethics for Church leaders.” Using an earlier essay by James Provost,[11] Beal noted three unresolved tensions that stand as obstacles to talking about professional ethical responsibilities or rights for clergy. These tensions are: status versus function, bureaucracy versus professionalism, and private versus public.

The first, status versus function differentiates the primary self-understanding of the clergy: is the priest’s primary way of understanding himself as the status of being a priest or the function of serving the People of God. In a wonderful new book, Evolving Visions of the Priesthood Dean Hoge and Jacqueline Wenger returned to a question regarding not the primacy of the status question but the degree that it is perceived as central to a priest’s self-understanding. Thus, they asked clergy is there a new status or permanent character conferred by ordination. When they first asked that question in 1970, only 52% of those 26-35 said yes, while 88% of those 56-65 said yes. But now, more than thirty years later, 68% of those once young priests now between 56-65 answered yes, while an enormous 95% of those 26-35 years of age said yes. That is, thirty years ago, the younger the clergy was, the less inclined they were to be concerned for the status question; today the younger the clergy is, the more inclined they are.[12] Hoge’s studies do not tell us whether the primary identity of clergy is status or function, but Beal argues that since status privileges the clergy as living in a distinct world, “[a] professional ethic cannot be effective in a system that values standard over function.”[13]

The second tension correlates with the first. The tension between status and function breaks off into the separate worlds akin to either bureaucracy or professionalism. Both Provost and Beal see these worlds as the preferred ambit in which the clergy with their differentiating self-understandings work. Those with status prefer the world of the bureaucrat much as a bishop is comfortable with say, the Roman curia. Those in the world of function prefer the world of the professional where the norms of conduct are posted and expectations regarding communications are exceedingly clear.

Curiously here we also see a differentiation in that those who see their priesthood as service are also more likely to be those who want reform of clerical culture and greater clarity in the overall life of the Church and toward that end they turn to the professional as expressed in canon law. Those who see their priesthood in the status they enjoy are comfortable with bureaucracy and prefer not the law as much as the executive or administrative judgment of the ordinary. These tensions have been going on for decades, though sometimes they are more pronounced. Provost notes, for instance, the anonymous work from 1888, The Rights of the Clergy Vindicated, Or a Plea for Canon Law in the United States.[14]

Here in terms of the issues going on today about the removal of priests and whether to turn to administrative claims or to canonical procedures, we see the same differentiating lines emerge. Status and bureaucracy priests favor Episcopal exercise of administrative power to resolve matters. Function and professional priests favor canonical procedures.

These dividing lines are applicable not only to the clergy but to the laity’s relationship with the clergy. Thus, it ought not to be surprising that one of the champions of the rights of accused priests to receive due process and juridical appeal is Voice of the Faithful, particularly in the work of Catherine Henningsen. Her work at SALTpublishing and her address at Fordham last October are clear calls for professional procedures. She cites the many instances in which priests are being removed “the most underreported aspect of the pedophilic crisis” and labels it “the second wave of abuse on the part of many bishops.” She follows step by step the normative procedures that bishops should follow, that clergy should expect, and that the laity ought to oversee. Her work like that of canonists John McIntyre, Robert Kaslyn and others ought to help us to see how specific interests in the crisis converge. Her work also highlights the natural affinity between VOTF and those free-standing priests organizations, like the Boston Priests Forum and New York’s Voice of the Ordained that look to guarantee the rights of priests accused. Moreover, we ought not to be surprised to see that among those most critical of Henningsen are also priests, but these are those who are comfortable with bureaucracy and who deflect her work as hypocritical for they basically see her and others criticizing the church leadership again.[15]

The final tension between these two groupings of priests is their interests between private and public. Interestingly, the status priests find the distinction between the private and the public very vague. The function priests want it clear and defined. Beal quotes Provost precisely on this and it serves as a way of summarizing the way these two groupings, by looking at the concerns of the one grouping as opposed to the other. “The celibacy issue is an obvious point of conflict that has been a major occasion for recent sociological studies about priests. But questions of clerical dress and personal living quarters have also been points of conflict between what priests consider their professional autonomy and what they perceive to be bureaucratic efforts to control their private lives.”[16]

I believe that Beal’s distinctions are helpful, but they are not enough. First they are at best indicators: no one priest belongs exclusively to one camp as opposed to the other. More importantly, however, the only way we can move forward is not only by recognizing and appreciating the differences among clergy, we also need to see how we can bridge this divide. After all, the Catholic way of proceeding is not an either/or mode of proceeding. We do not argue between grace or works, tradition or scripture, conscience or magisterium. We somehow recognize that we can only have a good theology that appreciates both grace and works, Scripture and tradition, conscience and magisterium. In the same way we need to think of status and function, and bureaucracy and professionalism, as all belonging to priestly identity and priestly forms of conduct, though each of us may prefer one more than the other. I say this not only because I think it is theologically compelling, but because I think that some seminarians, religious and clergy younger than my generation (as well as a few older than ours) are as interested in reforming us as we are interested in reforming the episcopacy. Though I think that those younger who are interested in status constitute a minority and that their influence on the laity is as influential as they allow themselves to be influenced by the laity, still I think that they are the ones who are being ordained at this time in history and so I offer these rights now, not to extend further the divide, but to offer a context in which both sides can discuss.

Thus I propose the rights of priests, not as a manifesto, not as a confrontational proposal, and not as a rally for those like me who generally speaking prefer function over status and professional standards over bureaucratic ones. Rather this is a modest proposal to both sides of the aisle, as well as those who try to bridge those aisles. Hopefully it may occasion us to find common ground upon which we can find agreement, rather than disagreement.

Still, I am sure that priests who prefer status and bureaucratic standards would prefer other language and other proposals, but I can only make my proposal at this point in my thinking by using what I find important for the Church and its members.

But still, a word about language. First, my work is moral theology and not canon law. The canon lawyer, Ladislas Orsy, has written recently about the relationship between these two fields and notes that moral theology differs from canon law in terms of purpose, nature and goal. But he argues that moral theology has a priority over canon law in this: moral theologians investigate the nature of the human person, society and the common good and examine the virtues, values and norms that are constitutive of the person, society and the common good.[17] Moral theologians hope to see these virtues, values and norms as formative of the canonical precepts and prohibitions that canonists eventually articulate for the good of the Church and its members. Thus I use the word rights as other moral theologians and Christian social ethicists do, proposing them and hoping that they may be eventually articulated into canonical precepts. But, I have no competency to develop them canonically.

Second I use rights language not as something born from the Enlightenment. Rather, following Brian Tierney I believe that the idea of rights originates with the late eleventh and twelfth century decretal formulas by which theologians and canonists tried to articulate the rights of popes, bishops, clergy and other church members, not as inimical to the life of the Church but as constitutive of the Church.[18] Therefore, I do not see rights as some sort of voluntaristic assertions of power over and against others; rather, I see rights language as springing from a community of faith looking to see how best its members can protect the good of the whole Church and its specific members.

Here then I am interested in rights specific to the clergy. That is, as the Code establishes in canon 204, all the Christian Faithful have the right to a good reputation and to due process. Though I am evidently interested in both these goods, I am not going to develop these since they belong to laity and clergy alike. Similarly I am not going to discuss the civil rights of clergy, which belong to all citizens, but this particular point deserves comment.

In Book II of the Code of Canon Law, we find the obligations and rights of all the Christian Faithful (204-223). Then these rights are broken down first into the rights and obligations of the laity (224-231) and then issues regarding the clergy. Within that latter section we come to the obligations and rights of clergy (273-289). In the first canon under the rights and obligations of clergy we find, “Clerics are bound by a special obligation to show reverence and obedience to the Supreme Pontiff and their own ordinary. (273)” This special reverence and obedience is a canonical one and basically does not impinge on the civil rights of priests. Thus, regarding this particular canon, the canonist John Lynch writes in The New Commentary on the Code of Canon Law this interesting observation. “Areas that are not directly concerned with the government of the diocese are not inherently within the ambit of Episcopal jurisdiction. In civil matters the cleric enjoys all the liberties of every other citizen. Canon 285.3, however, limits his right to hold public office. He may join any political party, unless it is condemned by the Church; he may vote for any candidate he deems fit. On a debatable political issue, such as a specific constitutional amendment, he may sign petitions and take a position that is at variance with that of the bishop.”[19] Lynch’s interpretation here is very pertinent to many civil debates occurring in our society today.

Still, rather than looking at the rights of all the faithful or the civil rights of clergy or the private rights of clergy, I turn to the rights of the clergy per se. Within the code we find three: the right of association,[20] the right to a vacation, and the right to fitting and decent remuneration.[21]

Instead of these three canonical rights, I propose four “moral” ones:

The right to respectfully share in the Episcopal ministry of the local ordinary

The right of association

The right to exercise their ministry.

The right to fair treatment

I propose these rights as modes of helping the Church to further understand the way priests today should live and serve in the Church.

The first right, the right to respectfully share in the Episcopal ministry of the local ordinary, echoes a right discussed in the revision of the code of canon law, “the right of cooperating with the bishop in the exercise of his ministry.”[22] I believe this right was implicitly invoked by priests in their recent actions addressing their local ordinaries. For instance, there was the letter on December 9, 2002 of fifty-eight Boston priests calling for the resignation of Cardinal Bernard Law. The letter of October 1, 2003 by the priests of Rockville Centre called for a meeting with Bishop William Murphy over “widespread dissatisfaction” with his leadership. The priests of Chicago wrote an open letter to the hierarchy about the tone and content of Church leaders’ remarks about gay and lesbian persons, a letter subsequently adopted by priests from Rochester, New York. Then, there was the letter of last August signed by over 160 priests in Milwaukee calling for a married clergy. Amazing actions inasmuch as many cannot remember during the 1980s or 1990s any other letters written by groups of priests. Thus, it seems relevant for a Catholic moral theologian to ask: Do priests have a right to do this?

Admittedly, in each instance the letters are admonitory at best, yet they are concerned to influence the bishop and/or the bishops’ conference. As the priests in Rockville Centre noted in their letter, as “your brother priests” “we believe that (we) may have a special role.” Do they? Thinking of these actions we can turn to John Lynch’s commentary on the rights of priests and find the repeated assertion that the “cleric shares in the episcopal ministry.” [23]

Interestingly, Lynch roots his claim precisely in canon 273 which specifically talks about the special obligation to show reverence and obedience. Lynch finds this connection in Vatican II’s Decree on the Ministry and Life of Priests: 7 (Presbyterorum Ordinis) “Priestly obedience, inspired through and through by the spirit of cooperation, is based on the sharing of the Episcopal ministry which is conferred by the sacrament of order and the canonical mission.” This is found again in The Bishops’ Pastoral Office: 28 (Christus Dominus) “All priests, whether diocesan or religious, share and exercise with the bishop the one priesthood of Christ.” Lumen Gentium 28 also declares: “The Bishop is to regard his priests, who are his co-workers, as sons and friends, just as Christ called his disciples not longer servants but friends.” Lynch concludes: “It should be noted, in sum, that the special obedience that the cleric owes his bishop is based on his sharing in the Episcopal ministry through the sacrament of orders and the bond of incardination.”[24]

The foundation for the right is found not only in the Code, its commentary, and conciliar documents. It is also found in the rite of ordination. The sacramental theologian Don LaSalle recently noted: The first question the bishop asks the ordinand is:

"Are you resolved, with the help of the Holy Spirit, to discharge without fail the office of priesthood in the presbyteral order as a conscientious fellow worker with the bishops in caring for the Lord's flock?"

Then, in the prayer of consecration we hear the bishop say:

"Lord, grant also to us such fellow workers,

for we are weak and our need is greater.

Almighty Father, grant to this servant of yours the dignity of the priesthood.

Renew within him the Spirit of holiness.

As a co-worker with the order of bishops

may he be faithful to the ministry

that he receives from you, Lord God,

and be to others a model of right conduct.[25]

LaSalle comments: “There is a stress on cooperation and communion between priest and bishop, bishop and priest, in service of that communion among all people that comes from the proclamation of the gospel. It seems to me that rights of priests serve that communion, and act as a safeguard of the durability of the communion between priest and bishop, priest and people. When those rights are not respected, a sense of communitas is threatened, and the proclamation of the gospel is impeded. A more lively sense of the human weakness and need (on the part of the bishop and us all) and the bonds of communion described in the prayer could lead to a greater respect for those rights.”[26]

In sum, a variety of foundational texts recognize the priest as having a share in the exercise of Episcopal authority. In order to convey this as a right I suggest the sharing to be always “respectful.”

When we hear repeated attempts by clergy to meet with their ordinary, we become aware of the fact that this right is not adequately recognized. In fact, when we consider the phenomena of public letters by clerics, we ought to see this not so much as an indication of that right being exercised, but rather, as LaSalle suggests, expressing frustration that the presumed right has been ignored. Priests are “going public” because in many instances the right has been long bypassed. Returning to the right would foster community, the life of the diocese, and the credibility of Episcopal leadership.

Second, the right of sharing in the ministry of the bishop leads to fostering right relations among the clergy through association. Thus, Canon 275.1 states, “Since clerics all work for the same purpose, namely, the building up of the Body of Christ, they are to be united among themselves by a bond of brotherhood and prayer and strive for cooperation among themselves according to the prescripts of particular law.” Immediately after this paragraph, the Code adds, “Clerics are to acknowledge and promote the mission which the laity, each for his or her part, exercises in the Church and in the world.” Thus, the associations among the clergy are intimately tied not to separating the clergy from the laity but to promoting their involvement as well. In fact, in the earlier draft of the Code, the clergy were called to recognize the laity’s mission; in the promulgated code they are called to promote it.[27]

Though canon 215 defined the right of all the Christian Faithful to form associations, that is, both lay and clergy, canon 278 establishes it as the first canonical right for priests. The Code reads: “Secular clerics have the right to associate with others to pursue purposes in keeping with the clerical state.” Lynch writes: “The right of secular clerics to form associations is acknowledged for the first time in canon law. Although canon 215 declares that the Christian faithful—which certainly includes clerics—are at liberty to establish organizations, special notice is taken of the clerical right to do so because of its importance and to remove any doubts about it.”[28]

Lynch refers here to Pope John XXIII’s encyclical, Pacem in Terris (24) which upholds the natural right to assemble and says that people “have also the right to give the societies of which they are members the form they consider most suitable for the aim they have in view.” The Pope also adds, “It is most necessary that a wide variety of societies or intermediate bodies be established equal to the task of accomplishing what the individual cannot by himself efficiently achieve. These societies…are to be regarded as an indispensable means in safeguarding the dignity and liberty of the human person, without harm to his sense of responsibility.” Lynch then notes, “In presenting the intermediate draft of the decree, the commission rejected a proposal that associations of priests be placed under the diocesan bishop or the conference of bishops. These associations pertain to the personal life of priests and the exercise of their legitimate liberty.”[29]

Throughout the country in the past few years we have seen free standing priests associations emerge, for example, The Boston Priests Forum or New York’s Voice of the Ordained. The Code validates these groups, as does the natural law, moral theology, papal encyclicals, and international law. The recent innovations by priests to form local movements are congruent with good thinking with the church. Thus these organizations do not replace presbyteral councils but represent a few of what Pope John XXIII referred to as the “wide varieties” that are necessary for good flourishment.

The third right is the right to exercise ministry. Here certainly there is an obligation to exercise ministry, but there is the need to reflect on the issue of the individual priest exercising his particular judgment in ministry. Here we can think of pastors, for instance, who must discern whether this particular couple are actually ready to get married in the Church. Or there are instances where the appropriate place for a child’s baptism is something that pastors must discern.

The question of the exercise of ministry was raised recently by the Boston Priest Forum regarding preaching. They wanted to reflect on what is at stake when while the chancery is engaged in defending a particular value, a pastor wonders whether he ought to raise in his sermon another possibly competitive value. To what degree is he called to exercise his ministry as expressing his particular vocation?

This is not an easy topic. I wrote to several canonists asking for their comments. One wrote: “Priests do not really have a right to preach. They preach in virtue of a faculty that can be restricted or revoked by a competent authority. At times they have an obligation to preach…and that entails the right to fulfill the obligation. Even then, however, they preach in the name of the church which can circumscribe the content of what they preach.”[30] Another canonist responded: “The Code does not get into topics for preaching other than to provide a definition of a homily in canon 767. Canon 762 talks about the right of the people to hear the Word of God and any homiletics professor will spend years describing what that means.”[31]

In the USCCB document on Sunday homilies Fulfilled in Your Hearing, we find the bishops calling the pastor to listen to the Scriptures and to the Congregation and to respond to that listening. Is there something that happens existentially in that listening that could prompt the pastor to hear the needs of the laity of his parish in some other way than what a statement from the chancery may convey? Could there also be times when the laity believe that something beyond what the chancery has articulated needs to be recognized? And if the cleric, in all this listening, is also obliged “to foster peace and harmony based on justice” as canon 287 states, could he find himself eventually needing to at least presume that he has an obligation to his conscience as a priest to respond as a preacher of the Word to the congregation he serves?

This is not advocacy for rebel priests. Rather it recognizes both the context in which a cleric exercises his ministry and the process by which he comes to articulate the sermon and other forms of ministry. I admit that this is the least finished of the four rights, but what I am looking to express is that though by his faculties a priest exercises his ministry at the bishop’s pleasure, there seems to be another claim on the priest that comes not from the bishop directly but from the people whom the priest serves. Somehow if the priest is to truly promote peace and justice and communio, it seems that in order to discern how to do so, he needs to rely on something in addition to the bishops’ particular will. A priest’s preaching, like the exercise of his ministry that he shares with the bishop and with the laity, calls for a conscientious integrity to witness to the Gospel as he sees it expressed in his midst.

Finally, the fourth right is to fair treatment. Here we conclude as we began, by noting the Report on the Crisis in the Catholic Church in the United States by The National Review Board for the Protection of Children and Young People. There we find the zero tolerance policy discussed.

The ten lay authors note that the policy, “was deemed necessary because some bishops and religious superiors in their assessment of sexual abuse of minors by priests under their authority badly underestimated the seriousness of the misconduct and harm to victim, and allowed wrongdoers to continue in positions of ministry, from which they went on to harm others.” They conclude: “To prevent any recurrence of such situations, the Charter and Essential Norms remove any further discretion on the part of bishops and religious superiors in this regard.”

But what then is the net effect on an offending priest? Here the Report notes: “Accordingly, the zero-tolerance policy applies without regard to any assessment of the degree of culpability of an offending priest based upon such factors as (i) the nature of the sexual act (e.g., the improper touching of a fully clothed teenager versus the sodomization of a child), (ii) the frequency of abuse (e.g., an isolated event versus a protracted history), or (iii) efforts to address the problem (e.g., successful treatment of a problem that had led to an act of abuse years ago versus untreated problems that manifested themselves more recently.) The policy also applies with equal force to a priest who reports himself as having engaged in an act of abuse in an effort to obtain help with his problem.”

Fair treatment usually observes some form of due proportionality. And though the Review Board acknowledges objections from a variety of observers about the fairness and effectiveness of the policy and though they write “the zero-tolerance policy may seem to be too blunt an instrument for universal application,” nonetheless, they believe “that for the immediate future the zero-tolerance policy is essential to the restoration of the trust of the laity in the leadership of the Church, provided that it is appropriately applied. In assessing individual cases in order to determine whether the priest engaged in an act of sexual abuse of a minor, the bishops must consult with the diocesan lay review board, so that they might strive for individualized justice in light of their developing experience and expertise.” The Report’s caveat with regard to appropriate procedures and diocesan lay review could serve then as a witness to the fair treatment of priests, but that witness needs to be guaranteed by the National Review Committee as it endorses the zero-tolerance policy. Inasmuch as they recognize disparity regarding the role of these review boards as well as the application of appropriate procedures, they need to witness to priests’ rights as well as to the rights of the laity, especially children.

Finally, they acknowledge “that any discussion of the Charter’s zero-tolerance provision would be incomplete without noting that there is no equivalent policy of zero tolerance for bishops or provincials who allowed a predator priest to remain in or return to ministry despite knowledge of the risks. In fact, in the minds of some priests, the impression was created that the Dallas Charter and the Essential norms were the bishops’ attempt to deflect criticism from themselves and onto individual priests… Priests, who now stand uneasily under a sword of Damocles, with their every action scrutinized, understandably may ask why the bishops do not face such consequences if they fail to abide by the Charter. This distinction has deteriorated the relationship between priests and bishop.” The Report concludes its section, stating that the bishops “must show that they are willing to accept responsibility and consequences for poor leadership.”[32] In a similar way, then, the National Review Board has a responsibility to see through their work that in fairness those who were responsible for the harm of children must be made to be held accountable.[33]

Let us conclude on a hopeful note. When we read the Report, there is the impression that the writers were talking to two constituencies: the bishops and the laity. Regarding priests, they were more talking about them than talking to them. This has been in large measure a common way that judges, reporters, advocates and others have proceeded. Everyone tries to engage the bishops in order to talk about priests.

I propose these four rights—one about participatory leadership, another about right to associate, a third about ministerial vocation, the fourth about fairness—with the hope that these may further encourage the voice of the clergy. Throughout these recent years, the voice of the clergy, when it does occasionally, though not at all often enough, address either the harm and shame attached to the abuse of children or the rights of the laity and bishops, has done so most frequently in the place that they are called to be: the parish pulpit. I suggest that if priests begin to recognize the rights due them—especially at a time when many find themselves as the Report states demoralized—they might in turn be more vocal from that pulpit in recognizing the rights of others and in fostering the communio that the Church so desperately needs. Healing grace always accompanies restorative justice.

James F. Keenan, S.J.