THE VATICAN, THE BISHOPS, AND THE STATE RELIGIOUS FREEDOM RESTORATION ACTS:
Why the Dallas Agreement and Vatican Norms Are Insufficient To Ensure Clergy Child Abuse Will Be Properly Reported

You may be wondering what the future looks like for victims of clergy abuse, now that the Catholic Church has had time to consider the issues three times - here in Dallas, at the Vatican, and then again here in Washington, DC.

What will happen, in the future, when a child is sexually abused by a priest, and the bishop finds out? It's a very good question. Unfortunately, the transcendent moral answer for which the victims hoped is miles away from the technical, legal answers particular bishops will likely give according to the Vatican and U.S. guidelines.

First, the Vatican's Norms require a trial of the priest within the Church - but what role, exactly, will it play? And will it run contemporaneous with, before, or even after, a possible criminal trial?

Second, the Dallas Agreement requires the bishop to notify the authorities - but when, exactly? And what about the conflict between the Norms and the Agreement on this point? The Norms require reporting only when state law requires it; the Agreement requires reporting in all instances. Will the bishops apply one or the other, or will victims receive different treatment in different Archdioceses, or even different treatment depending on the Church's assessment of the case?

With these questions all unanswered, a number of different scenarios are possible when allegations of abuse are raised. Sadly, none of these scenarios may fully vindicate the victim. Remember, the soul of the law is interpretation - and the Norms and Agreement are open to the kind of interpretation that could thwart their purported purpose of getting victims justice.

Finally, no matter how the Agreement and Norms are interpreted, they have a glaring gap: They do not provide for any penalty for bishops who know of abuse but do not act immediately, allowing it to continue for a period of time.

That is particularly egregious, given that one of the most shocking aspects of the clergy abuse scandal was prominent bishops' failure to act immediately (or, say, within a decade) upon credible allegations of abuse.

Here's the best-case scenario: The bishop, of his own volition, calls the authorities as soon as he learns of the allegation of abuse, and reports the perpetrator - whether state law forces him to or not. Outside proceedings begin. Meanwhile, the bishop institutes independent but contemporaneous intra-Church proceedings to try the priest. The two proceedings are conducted in parallel, with each reaching its own resolution.

But here's another scenario, which is much less appealing, yet still consistent with the Norms and arguably even the Agreement:

Rather than going to the civil authorities immediately, the bishop who is privy to abuse allegations begins a secret trial within the Church - which includes a determination as to whether the perpetrator is guilty, and whether the report of the act by the victim is within the relevant statute of limitations.

At the same time, the bishop checks the state's reporting statute. If it does not require reporting by clergy (and many states do not), he sits tight and says nothing to the authorities, following the Vatican's Norms. But suppose it does require clergy reporting? Surprisingly, the bishop still may choose not to report the abuse, using other tactics gained through the state legislatures to avoid the reporting requirement.

The Bishop may inquire - with the aid of counsel, if he is smart - whether his state is one of the eleven in which a Religious Freedom Restoration Act provides a potential defense to the reporting requirement. If so, he may still decide to sit tight. (As my last column explained, RFRAs provide a broad defense to the enforcement of virtually any statute that affects religious individuals and institutions.)

He may also read up - again, with counsel's aid - on whether there are penalties, within the reporting statute or otherwise, for non-reporting. (Some states lack them). Silence and inaction generally are not crimes - or even torts - unless the state makes clear by statute that they are. If it has not, the bishop may have yet another reason for deciding to sit tight, as he reads the Vatican's Norms only to require reporting where there is an enforceable—rather than a hortatory—reporting requirement.

Eventually, the Church proceeding (which can travel from here to the Vatican and back again) terminates. If the priest is found guilty and his crime within the statute of limitations, the bishop may report it. But what if this is not the case? Then the bishop may still continue to sit tight - on the ground that there is nothing to report. Even if he does report after a Church acquittal, that acquittal surely will be waved as evidence to try to convince prosecutors to back off.

In this worst-case scenario, the Church's acquittal (or determination that the statute of limitations has run) effectively blocks, or at least impedes, a secular criminal trial, as evidence grows cold, memories dim, and witnesses disappear. Unless the child victim tells someone outside the Church of the abuse, and that someone goes to the authorities, the authorities may never know of it. In short, the Norms and the Agreement put victims in no better position than they were in before.

Failing to Truly Help Abuse Victims, and Failing to Punish Clergy Who Remain Silent

The Church should have shifted the focus from the priests to the children; lobbied for statutes mandating clergy abuse reporting and extending relevant statute of limitations; and voluntarily reporting to civil authorities all past, current, and future abuse allegations of which it became aware.

In addition, the Church should have clearly denounced the bishops who aided and abetted the reckless endangerment of hundreds of children, whether by their silence or by active cover-ups of abuse.

Instead, the Church is plainly poised to exploit the intricacies of reporting statutes, the fact that some such statutes do not apply to clergy; the lack of penalties in some statutes for non-reporting; and the RFRAs that can provide a defense for clergy non-reporting.

The Church has acted, in short, more like a legal authority than a moral one. It was not obliged to use every possible legal argument (and means of evasion) available to it. Indeed, it was morally obligated to forswear some of them. But it chose not to.

Its decision is doubly disappointing because the Church found itself at a crucial juncture in history, when it could have been the model for other churches also facing these problems. Clergy abuse lawsuits have been instituted against clergy in many other denominations. Had the Catholic Church produced a clear-cut, honorable set of rules that could have served as a model for children's welfare (and not clergy protection), it could have been a shining example.

As it is, a model of a truly exemplary set of clergy abuse rules has yet to be designed. Sadly, the Vatican Norms make it crystal clear that we - as a society deeply and rightly concerned about the welfare of our children - cannot simply rely on the goodness of the clergy to bring pedophiles to the attention of authorities and justice.

What Are Victims and Their Supporters To Do in the Face of the Church's Insufficient Response?

Now that the Church has let victims down, what can they - and we who are concerned for their welfare, and seek to prevent further abuse - do? One answer is to go to state legislatures. It is necessary to fix the many deficiencies in the abuse reporting laws, lengthen statutes of limitations, and abolish, or at least cut back the reach of, state RFRAs.

It should be simple enough for our laws to say that a member of the clergy must report abuse immediately, whenever he or she hears of it, with no exceptions and no waiting period for an internal Church trial to conclude.

In particular, legislators need to be embarrassed into publicly justifying why they do not adopt the simple, just rule - immediate, automatic reporting of clergy abuse allegations as soon as they are made - that the Vatican Norms declined to endorse. Children's groups, civil liberties groups, and average citizens need to clamor for more accountability by all churches on this, and other related issues.

Meanwhile, more than ever, state RFRAs should not be passed without searching scrutiny by the legislature, beforehand, to determine not whether but how they will impede clergy abuse prosecution and civil litigation. And the eleven existing state RFRAs need to be repealed or at least amended to exclude all laws that affect the health, safety, and welfare of children.

Law enforcement has in place structures for dealing with sex abuse victims that could be extended to assist clergy abuse victims, including confidential hot lines, outreach, special social workers to work with the victims (in this case, ones trained in dealing with children, teen-agers, and adults who were child victims), and doctors trained to handle the physical examinations with respect for the dignity of the victim. The victims and their supporters need to push for these services in every jurisdiction.

The situation is dire: The Church refuses to be accountable. Prosecutors are just beginning to embrace their responsibility, with the media following too slowly behind. Legislators still have not learned that religious lobbyists too often do not have the public good in mind. The Norms and Agreement are insufficient. And the intricacies of the laws on the books - from reporting statutes to RFRAs - virtually invite evasion.

The burden of securing justice for now will have to fall on the shoulders of the victims as well as all those who sympathize with their plight. It is ironic, it is tragic, but it is a fact.