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 The
Church: The Scandals’ Unmentioned Victim
TFP Analysis of the May 3, 2003
Agreement between Bishop Thomas J. O’Brien (and the Phoenix
Diocese) and Maricopa County Attorney Rick Romley
The sexual abuse scandals, reported
with an unnecessary abundance of lewd details, continue to
fuel the media blitz against the Church and the subversive
agenda of dissident pressure groups.
Taking advantage of the legitimate
indignation provoked by the numerous cases of child sexual
abuse, old dissident groups have emerged from the shadows
and new ones have formed. Their ensuing agitation does not
particularly help the quest for a balanced solution that would
favor the psychological, spiritual and social recovery of
the victims and prevent the crimes from being repeated. Instead,
such groups toil feverishly to shake the very foundations
of the Church as an institution.
The Seal of Confession comes
under attack in many states
One of the many sad fruits of this subversive
work is the rash of bills introduced in many state legislatures
trying to abolish the Seal of Confession in cases of child
sexual abuse.1 These bills threaten in one way or another
that sacred trust formed between a repentant sinner and Holy
Mother Church, in the person of the priest. While Cardinals
Keeler and McCarrick, and priests in various states rallied
to defend the Seal,2 dissident pressure groups stridently
demanded its abolition and cheered the lawmakers’ efforts.3
The storm unleashed upon the Church
also gave rise to the convening of more than a dozen grand
juries and in-depth investigations by state attorney generals
and district attorneys. In New Hampshire and Arizona, these
investigations led to the signing of agreements between the
dioceses of Manchester and Phoenix and their respective State
governments.
Our March-April issue of Crusade Magazine,
sent to all 48,000 priests in the country in addition to its
85,000 regular readers, dealt extensively with the attacks
being made on the Seal of Confession. This analysis focuses,
therefore, on the threat to Church doctrine and fundamental
freedoms posed by the agreement between Bishop Thomas J. O’Brien
and Maricopa County Attorney Rick Romley (the “Agreement”),
the more unacceptable of the two signed agreements.
The Agreement binds the Diocese,
not just the Bishop, forever
The Phoenix Agreement was signed on
May 3, 2003. Mr. Romley announced it publicly on June 2.
The Agreement is open-ended. It has
no stated expiration date. There is no clause indicating it
will terminate upon the replacement of Bishop O’Brien,
or any other achievable goal. Within the logic of this unending
state supervision, the Agreement binds not just the bishop
in whose 22-year tenure most of the crimes under investigation
occurred, but the Diocese itself. As Mr. Romley sees it: “I’ve
got the hammer over his head forever. He signed on behalf
of the church.”4
Thus, the Diocese of Phoenix, not just
Bishop O’Brien, is improperly left in a state of perpetual
uncertainty.
The State of Arizona pressures
the Church
In signing the Agreement, Bishop O’Brien
acknowledges his past lapses: 5
“I acknowledge that I allowed
Roman Catholic priests under my supervision to work with minors
after becoming aware of allegations of sexual misconduct.
I further acknowledge that priests who had allegations of
sexual misconduct made against them were transferred to ministries
without full disclosure to their superiors or to the community
in which they were assigned. I apologize and express regret
for any misconduct, hardship or harm caused to the victims
of sexual misconduct by Roman Catholic priests assigned to
the Diocese.”6
In exchange for this acknowledgment
and certain obligations, Bishop O’Brien avoids criminal
prosecution for himself and the diocese of Phoenix:
“This Agreement is executed upon the conclusion that
the public interest would be best served by settling the matter
without criminal prosecution of Thomas J. O'Brien or the Diocese.
….
“The State of Arizona agrees not to initiate criminal
charges against Thomas J. O'Brien or the Diocese arising out
of information relating to the subject matter of this investigation
for acts occurring on or before the date of the execution
of this Agreement.”7
Thus, independent of any intrinsic
merit or demerit they may have, the institutional and pastoral
measures, which the Bishop of Phoenix binds himself in the
Agreement to implement, do not stem from the free exercise
of episcopal authority, but from the pressures brought to
bear by civil authority in the course of its criminal investigation
and the threat of prosecution.8
Unacceptable State interference
in Church government
By holding the Diocese corporately
responsible for certain actions or omissions, as opposed to
just the Bishop, or just certain individuals directly involved
with specific acts or omissions, the State of Arizona positions
itself to negotiate with the Diocese for structural change.
However, these institutional and pastoral
measures, which the Diocese pledges in the Agreement to implement
and keep in place, amount to unacceptable state interference
in Church governance.
In fact, the state of Arizona gives
the Diocese an assurance in the Agreement that if certain
diocesan decision-making changes are made, the Diocese will
be in compliance with certain laws.
“The following terms, representations, and conditions
will insure that the Diocese complies with all applicable
laws relating to criminal sexual misconduct by its agents,
representatives, or employees. The following terms, representations,
and conditions will contribute to the well-being of the community
at large by…. assuring compliance by the Diocese with
all applicable laws relating to sexual misconduct.”
One can argue that compliance with
these Arizona laws is also possible without the institutional
and pastoral measures spelled out in the Agreement. Nevertheless,
pursuing alternatives, including those completely within the
realm of the Church’s doctrine and tradition, may lead
to criminal proceedings against the Diocese.
“In the event of any material
breach of this Agreement, by Thomas J. O'Brien or the Diocese,
as first determined by the Maricopa County Superior Court
after notice and a hearing, this Agreement shall be rendered
null and void and the State of Arizona shall have the right
to pursue any and all remedies provided by law including,
but not limited to, initiation of criminal proceedings. If
Thomas J. O'Brien or the Diocese breaches this Agreement and
the State files criminal charges, Thomas J. O'Brien and the
Diocese agree that any applicable period of limitation is
tolled from the effective date of this Agreement until the
date on which the Agreement is rendered null and void.”
Improper State involvement in
Church administration
Among other measures, the Agreement
stipulates that:
“Certain administrative duties have been delegated by
Thomas J. O'Brien to the Moderator of the Curia, which shall
include the responsibility for dealing with issues that arise
relating to the revision, enforcement and application of the
sexual misconduct policy.”
“The Diocese has created and
appointed the position of Youth Protection Advocate. That
person shall be responsible for the implementation and enforcement
of the policy on sexual misconduct by Diocesan personnel….
The decisions of the Youth Protection Advocate to report allegations
of child sexual abuse to Child Protective Services or law
enforcement is to be made by the Youth Protection Advocate
independently and not subject to the consent of Thomas J.
O'Brien, or any other Diocesan personnel.
“With input from the Maricopa
County Attorney's Office, a special counsel will be employed
within sixty (60) days of the signing of this Agreement. This
attorney shall be counsel for the Youth Protection Advocate.
This special counsel's advice will not be subject to approval
by anyone within the Diocese including, but not limited to,
Thomas J. O'Brien or any other priest.
“The Diocese's Policy on Sexual
Misconduct is to be reviewed and modified. The Maricopa County
Attorney's Office and the public shall be offered the opportunity
to provide input prior to any adoption and/or revision of
such policy.” It is important to highlight that the State
of Arizona clearly oversteps the constitutional line in these
four points. The same can be said about other measures spelled
out in the Agreement. The State is far too intimately involved
in matters directly related to Church affairs and governance.
The Agreement’s ideological
underpinnings become clear
The last of the four measures mentioned
above reveals the Agreement’s ideological underpinnings.
Not only must the county attorney’s office be consulted
on the review and modification of the Diocese’s Policy
on Sexual Misconduct, but “the public” as well.
It is somewhat disconcerting to see
the Maricopa County Attorney making it his business to use
the power of the state of Arizona to guarantee that “the
public” will be heard on the internal reforms of a Catholic
diocese. Why “the public’s” input is needed
to ensure diocesan compliance with Arizona child abuse laws
is not clear.
This unacceptable interference of the
state in Church affairs is in total harmony, however, with
the erroneous principles held by the radical pressure groups
taking advantage of the sexual abuse crisis to push for the
establishment of a “democratic” Church. Counting
with significant assistance from liberal elements in the media,
these pressure groups demand lay participation in Church government.9
It is from the perspective of a “democratic”
Church with its accompanying surrender of the plenitude of
episcopal authority that the other measures forced on the
Phoenix diocese take on their full meaning.
Thus, while the office of Moderator
of the Curia exists in Canon Law,10 its establishment in the
Phoenix Diocese stems from pressure brought to bear by the
state of Arizona. The agreement is clear that the Bishop must
delegate administrative power to the Moderator of the Curia
in everything related “to the revision, enforcement and
application of the sexual misconduct policy.”
The idea that further episcopal authority
is being surrendered, or rather usurped, is emphasized all
the more with the appointment of a Youth Protection Advocate
whose decisions will be independent, “and not subject
to the consent of Thomas J. O'Brien, or any other Diocesan
personnel.”
The same applies to the hiring “with
input from the Maricopa County Attorney's Office” of
Special Counsel to assist the Youth Protection Advocate. As
the agreement spells out, “This special counsel's advice
will not be subject to approval by anyone within the Diocese
including, but not limited to, Thomas J. O'Brien or any other
priest.”
A “private” agreement
that binds the Church Herself
Whatever may have been the intent of
the parties involved, an analysis of the Phoenix Agreement
shows that there was objective coercion and the curtailing
of the authority of a Catholic bishop in the exercise of his
ministry.
Not only does Bishop O’Brien’s
episcopal authority become subject to external control from
a lay, civil authority, but he agrees to positions in his
diocese with the exercise of an authority independent of and
in detriment to his own.
However, can a bishop surrender part
of the episcopal authority entrusted to him by God and the
laws of the Church? Can he divest himself of some episcopal
authority so that criminal proceedings are not brought against
him and the diocese? Would this not mutilate that authority
which is intrinsic to the office of bishop itself? Would such
surrender not involve delicate theological and canonical problems
on the fullness of a bishop’s power to teach, sanctify
and govern the flock, as instituted by Our Lord Jesus Christ?11
Some theologians and commentators are
beginning to focus on these important questions. For example,
America editor Fr. Thomas Reese states: “This is an unprecedented
kind of an agreement because the bishop agrees to allow specific
people in the diocese to make decisions in areas where he
normally would have the final say.”12
Patrick J. Schiltz, dean of the law
school at the University of St. Thomas in Minneapolis, also
comments: “A bishop of the Roman Catholic Church does
not have the power to permanently redefine the powers of a
bishop. He can agree himself not to do something, but he can’t
bind his successors to do something that is contrary to Roman
Catholic canon law.”13
Likewise, the Phoenix agreement raises
serious constitutional issues related to the First Amendment
and the Establishment Clause. Douglas W. Kmiec, dean of the
Catholic University law school in Washington, for example,
comments: “A specific plea agreement would not necessarily
raise a constitutional problem. But an agreement that carries
beyond Bishop O’Brien, that applies generally to the
office of bishop in that diocese…is starting to edge
toward the constitutional line if not going beyond it.”14
Some reformists see the Phoenix agreement
as an historical turnaround. David Gibson, author of the forthcoming
book The Coming Catholic Church, for example, writes in The
New York Times:
“What is truly revolutionary,
however, are the structural reforms the agreement requires….
“This remarkable statement marks
a small but significant shift in the balance of power between
church and state – a battle that has existed since the
Middle Ages… The famous turning point in the struggle
came in 1076, when Pope Gregory VII excommunicated the Holy
Roman emperor, Henry IV… This incident set the course
of church-state relations – and the dynamic between clergy
and laity – for the next 1,000 years….
“Catholic dioceses in many respects
remain one of the last redoubts of absolute monarchy in the
modern world, run by bishops who…preside ‘in place
of God over the flock…as teachers for doctrine, priests
for sacred worship, and ministers for governing.’ This
three-fold mission effectively gave each bishop, who is answerable
only to the Roman pontiff, the last word on everything from
liturgy to finances. Until this week.
“With this week’s plea agreement,
it is a government prosecutor, not the Vatican, that is requiring
a bishop to share authority in the realm of governance….
“[S]haring power on administrative
matters does not entail any reworking of Catholic theology
or doctrine.”15
Conclusion
In the wake of the December 10, 2002
agreement between the Diocese of Manchester and New Hampshire’s
Attorney General, the Phoenix agreement – as to some
extent the New Hampshire one – constitutes, in our opinion,
a dangerous precedent for the Catholic Church in the United
States, and indirectly for the universal Church.
We believe the Phoenix Agreement can
easily become a “model” to be emulated by other
civil authorities challenging episcopal authority and fundamental
rights of the Catholic Church.16
Our apprehension is augmented seeing
how Bishop O’Brien’s plea-bargain furthers the pretensions
of dissident Church groups who, with powerful support from
the secular media, clamor for the bishops’ “accountability”
to the laity and the establishment of a “democratic”
Church.17
The Phoenix Agreement should be a
wake-up call for American Catholics. Together with the attempts
being pursued in many state legislatures to abolish the Seal
of Confession, the Phoenix “model” is a clear warning
to Catholics: The subversive pressure being brought to bear
against the Church by liberal elements in the media and radical
dissident groups to undermine Her hierarchical form of government
and clear moral teaching is beginning to take on some of the
characteristics of religious persecution. This is totally
unacceptable.
Horrific as the sexual abuse scandals
and the criminal complicity of some bishops may be, it is
never justifiable to make of the Church Herself one more victim.
The Church is innocent and unchangeable. No power on earth
has the right to tamper with Her divinely instituted hierarchical
form of government.
June 13, 2003
TFP Committee
on American Issues
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