The legal cases of three cardinals – Theodore McCarrick, George Pell and Philippe Barbarin – are a test of the Church’s attitude towards her own canon law. Will she actually use it? The alternative is to abandon her own justice system, subjecting her prelates to the vagaries of secular justice. Which might just mean no justice at all.
As Pope Francis marks his sixth anniversary, a pressing issue in the year ahead will be to defend the Church’s canonical processes, an unexpected turn for a pope who famously lacks enthusiasm for legal precision.
The case of Theodore McCarrick, the former cardinal now laicised, demonstrates that the Church’s own canon law does not require the secular justice system to operate. From start to finish, the McCarrick case was entirely handled within the Church and, until the formal trial at the Congregation for the Doctrine of the Faith, proceeded largely under the lay review board in the Archdiocese of New York. Indeed, in McCarrick’s case, it is unlikely that there will be any processes in either criminal or civil courts.
Cardinal George Pell has been convicted on what is widely believed – by many including this writer – to be a gross miscarriage of justice, the product of police and prosecutorial bias. Should Pell’s appeal fail, there will be enormous pressure for the Church’s canonical system to arrive at the same verdict. But what if the canonical process finds Pell not guilty, as would be likely? Will the Church abide by her own justice system?
The case of Cardinal Philippe Barbarin adds another twist. Cardinal Barbarin has long acknowledged that he mishandled a case of priestly abuse. Those facts are not in doubt. The relevant prosecutor declined to criminally prosecute, finding that there was not the necessary criminal intent. In a quirk of the French system, the criminal case was brought anyway, and a panel of judges convicted Barbarin while acquitting all his co-defendants. Barbarin intends to appeal the verdict, but has also said that he will resign as Archbishop of Lyons.
Should Barbarin’s future depend on the French criminal justice system? If he had been acquitted presumably he would not offer his resignation. So the decision to resign depends on the French courts, but not a Church canonical process.
It is likely that Barbarin quickly announced that he would resign because of the experience of Philip Wilson, the Archbishop of Adelaide. Convicted of not reporting sexual abuse last July, he announced that he would appeal and remain in office. Enormous pressure – in the Church and from wider Australian society – forced him to offer his resignation, which the Holy See quickly accepted. A few months later, Archbishop Wilson was acquitted on appeal, with the judge ruling that the original conviction was tainted by the current anti-clerical frenzy in Australia.
All of which poses a critical question for the Church. Does she have enough confidence in her own canon law to defend judgments which might be at variance with secular proceedings? Especially when it appears that justice has not been done – as has been demonstrated with Wilson, is certainly true with Pell and likely true with Barbarin?
The question extends beyond the most recent cases. In facing cases of misconduct – not only sexual – the practical abandonment of canonical processes in the 1960s onwards was a major factor in the current crises.
In 2010, dealing with the Irish abuse crisis, Benedict XVI made that point in the interview book Light of the World. “The Archbishop of Dublin [Diarmuid Martin] told me something very interesting about [the mishandling of sexual abuse cases],” Benedict said. “He said that ecclesiastical penal law functioned until the late 1950s; admittedly it was not perfect – there is much to criticise about it – but nevertheless it was applied. After the mid-60s, however, it was simply not applied any more … the prevailing mentality was that the Church must not be a Church of laws but, rather, a Church of love; she must not punish. Thus the awareness that punishment can be an act of love ceased to exist. This led to an odd darkening of the mind, even in very good people.”
The same diagnosis – that canon law was simply abandoned – was reached by the Irish government’s Murphy Commission report into abuse in the Archdiocese of Dublin.
It wasn’t until the mid-1990s that canonical punishments began to be applied again. This was for priestly misconduct though, not for failings in the oversight of bishops.
In 2016, Pope Francis implemented legislation to deal with cases of bishops who either were accused of sexual misconduct, or were negligent or malfeasant in handling such cases. In 2018, he said that he preferred not to use those measures.
In the case of Cardinal Barbarin those measures, if used, might have deposed him from office even with an acquittal at criminal law, as the canonical standards for conviction are much lower than criminal ones. Alternatively, a canonical process could have decided on a remedy short of resignation, even with a criminal conviction.
The Church fought for many centuries to keep clerics out of the jurisdiction of secular courts altogether. She no longer does that. The question now is whether clerics will be treated, de facto, by secular courts alone, and be kept out of the canonical justice system.
Fr Raymond J de Souza is a priest of the Archdiocese of Kingston, Ontario, and editor-in-chief of convivium.ca