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
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
- Bills were introduced in New Hampshire, Louisiana, Kentucky, Connecticut, Maryland, Hawaii, Kansas, and Rhode Island.
- Both Cardinal McCarrick of Washington and Cardinal Keeler of Baltimore “promised to go to jail rather than obey a law requiring them to break the seal of the sacrament” (Jerry Filteau, “Confessional seal under attack in several states,” Catholic News Service, 3/7/03).
- David Clohessy, national director of Survivors Network of those Abused by Priests (“SNAP”) is quoted saying: “If an exception is to be made to the clergy-penitent privilege, I think this is a smart and good one to make.” (Charles Wolfe, “Bill Seeks to Reveal Abuse Confessions: Clergy-Penitent Privilege at Stake,” The Cincinnati Enquirer, 1/11/03).
- Alan Cooperman, “Bishop Avoids Charges: Phoenix Prelate Gives Up Power In Sex Abuse Cases,” The Washington Post, 6/3/03.
- This analysis does not deal with the intent or interpretation of the parties, but rather the text of the Agreement as signed, and its natural meaning. The various explanations given by Bishop O’Brien, including his letter to Phoenix Catholics read in all of the churches of his diocese on Sunday, June 8, 2003, may shed light on his intentions, but do not alter the terms of the Agreement as signed. This is all the more so since the press is widely reporting on the vigorous challenge to his explanations by County Attorney Rick Romley (Cf. Thomas J. O’Brien, “Open Letter from Bishop to the Valley,” Arizona Republic, 6/8/03; Howard Fischer, “Bishop Says He Did No Wrong,” Arizona Daily Sun, 6/4/03; Michael Rezendes, “With Deal and Concessions, Arizona Bishop Avoids Prosecution,” The Boston Globe, 6/3/03; Alan Cooperman, “Bishop Avoids Charges: Phoenix Prelate Gives Up Power In Sex Abuse Cases,” The Washington Post, 6/3/03; “Text from O’Brien’s News Conference” [Bishop O’Brien’s written statement read June 2, 2003], The Arizona Republic, 6/2/03; Joseph A. Reaves, “Romley, O’Brien Clash Over Substance of Deal: Bishop Denies He’s Admitting Cover-up,” The Arizona Republic, 6/3/03; Howard Fischer, “Romley Says Agreement With O’Brien was Voluntary,” Arizona Daily Sun, 6/5/03; Joseph A. Reaves, “O’Brien Won’t Surrender Power,” The Arizona Republic, 6/4/03; and Joseph A. Reaves, “Sides Will Try to Interpret O’Brien Deal,” The Arizona Republic, 6/5/03).
- This statement signed by Bishop O’Brien is available on The Arizona Republic’s website at http://www.azcentral.com/news/articles/0603church-bishopstatement.html
- Quotes from the Agreement are from the electronic version available on The Arizona Republic’s website at http://www.azcentral.com/news/articles/0602agreement-ON.html.
- “In an interview with Capitol Media Services, the bishop said he agreed to the 14-point settlement with Romley to finally end the year-long investigation. ‘That’s a long time to be under scrutiny.’” (Howard Fischer, “Bishop says he did no wrong,” Arizona Daily Sun, 6/4/2003).
- Cf. TFP Committee on American Issues, I Have Weathered Other Storms (York, Pennsylvania: Western Hemisphere Cultural Society, 2002), Chapters 3, 8-10, and Appendix C.
- Canon 473 § 2 states: “Whenever it is expedient, he [the Diocesan Bishop] can appoint a moderator of the curia, who ought to be a priest, and whose task it is, under the authority of the bishop, to coordinate the exercise of administrative responsibilities and to see to it that the other members of the curia duly fulfill the office entrusted to them.” (Our emphasis.)
- Canon 375 §1 states: “Through the Holy Spirit who has been given to them, bishops are the successors of the apostles by divine institution; they are constituted pastors within the Church so that they are teachers of doctrine, priests of sacred worship and ministers of governance.”
- Joseph A. Reaves, “Romley, O’Brien Clash Over Substance of Deal: Bishop Denies He’s Admitting Cover-up,” The Arizona Republic, 6/3/03.
- Alan Cooperman, “Bishop Avoids Charges: Phoenix Prelate Gives Up Power In Sex Abuse Cases,” The Washington Post, 6/3/03. The Arizona Republic also quotes Dr. Schiltz: “The bishop sold the church down the river to save his own hide. The bishop is the No. 1 bad guy here.” (Dennis Wagner, “O’Brien Deal Blurs Line Between Church, State,” The Arizona Republic, 6/4/03).
- Ibid. “The Rev. Donald Cozzens of John Carroll University in Cleveland said the agreement also may be nullified by Vatican authorities, who may not approve of the bishop relinquishing any of his authority.” (Michael Clancy, “Immunity Deal Not a ‘Model,” The Arizona Republic, 6/4/03).
- David Gibson, “The Bishop and the Prosecutor,” The New York Times, 6/7/03.
- “The Rev. Richard McBrien, Notre Dame University theologian, said he wouldn’t be surprised if the [Phoenix] agreement was copied elsewhere, depending upon how it worked out.” (Michael Clancy, “Immunity Deal Not a ‘Model,” The Arizona Republic, 6/4/03).
- Cf. David Gibson, “The Bishop and the Prosecutor,” The New York Times, 6/7/03.