Combing the Canon

Pope Benedict XVI celebrates an evening vigil service in St. Peter's Square at the Vatican to mark the end of the Church's year of the priest, on June 10, 2010. A year that has been marred by revelations of hundreds of new cases of clerical abuse, cover-up and Vatican inaction to root out pedophile priests.Thousands of priest from around the world gathered in St. Peter's square in a major show of support for Pope Benedict XVI amid the clerical abuse scandal. During the ceremony Pope Benedict XVI strongly defended celibacy for priests but he didn't directly mention the clergy abuse scandal but he referred to what he called 'secondary scandals' that showed 'our own insufficiencies and sins.' PHOTO by Eric Vandeville/ABACAPRESS.COM Photo via Newscom

As we look into other defenses of the New York Times attack on Pope Benedict XVI, I want to acknowledge at the outset that we’re getting a bit more into the weeds. In fact, some of these discussions might be more technical or murky than we normally encourage. I still think it’s important to have the discussion because the public record is important. But if you are a normal person, you might just want to skip to the next post!

Okay, the second defense of the Times article that I’d like to highlight came in Commonweal magazine. This defense is much more substantive than some of the other defenses we’ve seen and it’s great in large part because it comes from Nicholas P. Cafardi, a prestigious canon lawyer and a professor of civil law at Duquesne who was quoted in the original article. He is on the U.S. bishops’ National Review Board for the Protection of Children and Young People:

It is rare when issues of canon law make the front page of the New York Times and even more rare when the secular media gets their canonical issues right. But the Times story of July 2, 2010, “Church Office Failed to Act on Abuse Scandal,” did just that. As the Times reported, it truly was a failure in the church’s canon-law system that exacerbated, if it did not help to cause, the clergy child sex-abuse crisis in the United States.

It’s worth noting that of all the critiques out there about the Times article, I haven’t seen any serious critic argue that the piece is flawed because it was wrong to state that the 1922 canon really did apply. In fact, that hasn’t really been an issue at all.

Most of the criticism has been with how the Times set up the article. To review briefly, that article asserted that it was wrong to say that the 2001 motu proprio from Pope John Paul II marked a major turning point in how the Church conceived of how to respond to the clergy sexual abuse crisis. The article also asserted that Benedict clearly had power to act but failed to do so and therefore, that his reputation on this matter is wrong.

So the criticism of the Times piece has largely been that these assertions are false.

I call them assertions rather than arguments because the actual reporting in the story contradicted the claims. If you wade through the 4,000 words, the 2001 edict comes off like a major turning point and Benedict comes off pretty much as his reputation indicates.

So what, exactly, did the Times get right in Cafardi’s view? Well, Cafardi is on the side that eventually prevailed — those who argued that the 1922 code should be applied. In fact, his own quotes in the Times story show that the issue wasn’t clear. It also shows, contra what the Times itself alleges, that the ruling did indeed “cut through a morass of bureaucracy and handle abuse cases directly.”

What he writes in Commonweal is fascinating, giving much more insight into how the 1922 code proponents prevailed over the perception that the 1983 Code of Canon Law should dictate how the Vatican handles these cases. But what he writes in Commonweal doesn’t support the Times central arguments, again. For instance, he writes:

But lurking in the unreferenced and uncatalogued canonical database (yes, canon law is much more difficult to research than civil law because it lacks many of the organizational databases that civil lawyers have at their disposal) was a document that could have easily solved the statute of limitations problem. It was called ‘Crimen Sollicitationis[.]‘

You can either say that something was “lurking in the unreferenced and uncatalogued canonical database” or, as the Times does, that Ratzinger was dragging his heels while focused on hurting poor people.

Cafardi goes on to say that the document was first published in 1922 but:

it was published only in the loosest sense. It never appeared in the Acts of the Apostolic See or in L’Osservatore Romano, or any other place where a canon lawyer would go looking for the law. The fact that the Holy Office had jurisdiction over those crimes was very important, because crimes in the Holy Office’s jurisdiction are unprescribable, that is, they have no statute of limitations. Yet that jurisdiction was also unknown!

And then he says that when it finally came to light, many canon lawyers thought it irrelevant since the 1983 Code had so re-ordered that area of law that it had been overruled.

Again, critics of the Times article aren’t saying that this is not a fascinating issue to explore. They’re saying that it is false to say, as the Times alleges, that the 2001 action by Pope John Paul II was not a major turning point in rationalizing the Church’s response to clergy sexual abuse. And they’re saying it’s false to say Benedict clearly had power to act and didn’t and that he was part of the problem in the Curia. As the Times reporting shows, this issue wasn’t clear at all. And this Commonweal defense only confirms that.

In fact, here’s how Cafardi ended his piece for Commonweal:

It is unfair to lay this contretemps at the current pope’s door. He is a theologian, not a canon lawyer, and, like other laymen (nonprofessionals) in the field of canon law, he has to rely on what the experts tell him.

So as far as defenses go, I don’t think this one responds to the actual criticism of the piece. Still, this is still one of the most helpful pieces I’ve read in a while and I encourage anyone who is actually interested in the larger issue to take a look.

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  • Peggy

    Fr Zuhlsdorf saw the NYT article as a hit job. Fr Z saw a deliberate error behind the framing of the story.

    http://wdtprs.com/blog/2010/07/the-key-purposeful-error-in-the-nytimes-new-attack-on-pope-benedict/

    I wouldn’t trust the NYT on anything related to the Roman Catholic Church, period. Track record and all that.

  • Julia

    Something good may come of this media coverage of canon law – the bad coverage as well as those trying to get it right.

    1) There may now be a serious push to put together some modern data bases for canon law after this fiasco. Lay people will still need a canon lawyer, but the system may be lass arcane and understandable even for the lawyers themselves. The practice of law in the US has been transformed by the advent of on-line searchable data bases of case law, statues and court files.

    There is currently a big project organizing the Vatican Archives financed by the US Knights of Columbus.

    2) And there may now be more lay awareness that there is in fact a set of canons (laws) that governs how the Catholic Church operates – it’s not as monarchical as people think.

    So even bad reporting may serve good ends.

  • Julia

    Here’s an analysis by George Weigel of the consequences of the faulty reporting on the situation – in the Denver Archdiocesan paper. The last lines are the most relevant to Get Religion’s focus:

    Charity does require us to acknowledge that, in most cases—not all, but most—getting-it-wrong is the result of ignorance rather than malice. Still, one significant difference between 2002 and 2010 has been that the malice of some newspapers and magazines has been clear to anyone with a critical eye.

    That unhappy fact underscores the necessity of reforming the Holy See’s communications operation, which has retreated from the advances made under John Paul II’s longtime spokesman, the Spanish layman Joaquin Navarro-Valls. As John Paul and Navarro-Valls demonstrated, the pope-press spokesman relationship works well when the spokesman is well-established in the confidence and confidences of the pontiff, and has ready access to the man he’s interpreting to the world. Building such a relationship with a spokesman may require a pope to alter his habitual patterns of work, but the effort seems worth it, judging by the results.

    The ingrained media defensiveness of the Roman Curia must also change: the attitude, entrenched over centuries, that the best story is no story. No, the best story is a good story that presents facts accurately and does so in such a way that the essentials of the Church’s evangelical message get communicated. That takes work, but again, the effort is worth it

    .

    http://www.archden.org/index.cfm/ID/4175

  • Martha

    Here’s something I’m wondering: suppose Cardinal Arinze (my personal favourite of the papabile) had been elected instead of Josef Ratzinger. Suppose we had a black African pope and Cardinal Ratzinger was currently retired to his little house back home with his brother.

    I imagine we’d still be seeing the “Pope is to blame!” headlines, but would we be seeing calls for Cardinal Ratzinger’s head on a platter as head of the CDF at the time, or would he be permitted to stew in obscurity and all the blame instead shoved onto the current occupant of Peter’s Chair?

    Or suppose Cardinal Ratzinger hadn’t been head of the CDF and was instead in charge of the Congregation for the Oriental Churches before he was elected Pope?

    My point is, how much of this is actual consideration of the facts and how much is using any stick to beat him? I’m not saying there should be no criticism; where the Church fell down badly should be pointed out and the tangles disentangled so that this doesn’t happen again. But I do think that there is the desire for one simple answer – there’s a Big Boss in charge and it’s all his fault – which, in this case, isn’t helpful.

  • Peggy

    I caught this article earlier today about pending canon law changes with norms for CDF to address priestly abuse for children and mentally impaired adults. It seemed like a good straight up informative article.

    The media always love the opportunity to say “Vatican cracks down…” This time it’s a very worthy “crack down”.

    http://www.bnd.com/2010/07/08/1322228/pope-targets-priests-who-abuse.html

  • http://www.pilgrimage.subcreators.com Lori Pieper

    Wait a minute – so Crimen Sollicitationis isn’t – as we’ve been told all these months – the smoking gun, the primary instrument by which the Vatican covered up sexual abuse by the clergy, the nefarious work of the former Inquisition, which imposed a secrecy so strict that prevented bishops from reporting crimes to civil authorities?

    NO! In reality, it was the key to reform, the document that would have put all power for completely re-writing the Church’s policy on sexual abuse right into Cardinal Ratzinger’s hands as head of the CDF, if ONLY HE WOULD HAVE KNOWN OF IT AND USED IT! And who could have prevented him if not some albino monk assassin or other??!! This, apparently, is what the NYT thinks. (OK, I’m exaggerating, but not by much).

    I do wish these people would make up their minds. It’s so hard to keep the conspiracy theories straight. It’s like reporters don’t even remember what was previously said. As soon as they come up with some new “truth” they just expect us to play along. (Oceania has ALWAYS been at war with Eastasia).

    Seriously, though, is Cafardi’s opinion that CS would have given the CDF power to take on cases without any statute of limitations anything but an isolated opinion of his own? Does any other canon lawyer say this?

    And what other miraculous powers does this strange document have?

    I’ve read some of the relevant portions of CS myself, as well as the analysis by Fr. Z, and a quite interesting article in a canon law review that’s also up at the Vatican web site. Not being a canon lawyer, I can’t give much of an opinion, but it seems the document envisioned the CDF /Holy Office having a rather limited role – of being the contact person at the Vatican for the particular types of cases mentioned, of serving as a court of appeal for a priest who wanted to appeal a verdict rendered by an ecclesiastical court, and of approving the penalty if it was one reserved to the Holy See. While someone might possibly have argued that the statute of limitations should be based on it, but in the tangle of regulations, especially after 1983, it isn’t surprising no one thought of it.

    But the key to reform – giving sweeping powers to Cardinal Ratzinger? I can’t see it myself. It clearly wouldn’t have given him to power to make new regulations, rewrite other parts of canon law, or go deeper into the causes and solutions to the problem of clergy sexual abuse. That’s clearly why the whole 2001 re-organization was needed. So trying to base an argument on this document doesn’t hold water.

  • http://www.pilgrimage.subcreators.com Lori Pieper

    I wrote the above rather intemperate wild-eyed post last night, and now after having more carefully examined the Times piece (I couldn’t stomach the whole thing at one go), it does seem that there is some solid canonical opinion in favor of Cafardi’s opinion.