From: Thomas P. Doyle, O.P., J.C.D.
To: Attorney Sylvia Demarest
Date: September 10, 1995

Case: Does v. Diocese of Dallas et al

Subject: Dallas Litigation

PRELIMINARY REMARKS

1. In preparation for this report I have reviewed relevant portions of the Code of Canon Law, the fundamental legal document of the Roman Catholic Church. The Code was formulated first in 1917 and remained in force until 1983 at which time the revised Code took effect. The norms of the 1917 Code apply to events in these cases which took place prior to November, 1983. Any and all references to the separate codifications of Church law will be made clear in the ensuing paragraphs of this report. The Code governs the actions, relationships and structures of the Roman Catholic Church throughout the world. Each bishop of a diocese is subject to the Code. The Code also regulates the relationships and lines of authority between bishops and the priests and lay people within their jurisdiction.

2. The purpose of the review of Canon Law is to determine whether there is any conflict between the regulations and norms contained in the Code and other Church law provisions, and the secular or civil law on matters related to the impropriety of sexually abusing, molesting or otherwise harassing children and/or young adolescents. This review will also seek to determine if there is any conflict between the requirements of Canon law concerning the reporting and investigation of suspected incidents of such sexual abuse and the civil law requirements for the same. Finally, the review will seek to determine if there is any conflict between the prescribed duties of the clergy and other Church officials as regards to protection of children and similar duties in civil law.

3. A careful examination of the Canon law of the Roman Catholic Church indicates that in fact, there is no conflict between Church law and practice and the civil law requirements concerning the sexual abuse of children. Canon law has long recognized that sexual contact with children is wrong and quite contrary to the basic principles of the Catholic Church and is also contrary to the obligations and very role of the priest. Sexual abuse of minors is deemed a crime in Canon law, which has its own section on crimes and penalties. Canon law also contains provisions which are ordered to the protection of the rights and welfare of children (among others) and these provisions call for the reporting and investigation of suspected incidents of child abuse. It may also be helpful to mention the fact that members of the Catholic Church, including and especially members in leadership positions such as priests and bishops, are obliged to follow and obey the civil laws of the country in which they live so long as these laws are not contrary to divine law which is understood to be the law of God.

4. I have also reviewed several depositions and other related files pertaining to the alleged abuse of the plaintiffs DOE by Robert Peebles, Rudolph Kos and William J. Hughes, Jr. all priests of the Diocese of Dallas at the time the alleged abuse took place. I have also reviewed information in the form of files, depositions, policy statements etc. pertaining to the Military Vicariate of the United States also and later known as the Archdiocese for the Military Services USA and documents, files and statements concerning the National Conference of Catholic Bishops-United States Catholic Conference (NCCB-USCC). I understand that there are additional depositions and documents that I have not had the opportunity to review due to the fact that discovery is on-going.

5. It is my understanding that this case is about the sexual molestation and/or exploitation of young boys and one young girl by priests incardinated (assigned) to the Roman Catholic Diocese of Dallas, Texas, one of whom was an active duty chaplain in the United States Army at the time of the alleged abuse. The other two priests, Kos and Hughes, were diocesan priests who were functioning within the Diocese of Dallas at the time of the alleged abuse.

THE INTER-RELATIONSHIP OF CHURCH BODIES IN THIS CASE

6. At the outset it appears that there is an inter-relationship between at least four recognized entities of the Roman Catholic Church and the events and/or actions which occurred as a result of the alleged sexual abuse of minor children by the three priests mentioned. These entities are the following: The Diocese of Dallas, the Military Vicariate of the United States, the Archdiocese of New York, the Servants of the Paraclete and the National Conference of Catholic Bishops-United States Catholic Conference. To wit:

a. The Diocese of Dallas: each of the priests was incardinated or officially assigned to the Diocese of Dallas at the time of the abuse. As such the Diocese of Dallas had primary authority over the priests and primary pastoral responsibility for the care of the victims of the abuse suffered at the hands of priests of the Diocese of Dallas.

b. The Military Vicariate: this entity is directly involved with respect to the case involving Robert Ray Peebles. Peebles was either a reserve or an active duty chaplain at the time of the abuse. As such, he remained a priest of the Diocese of Dallas but a significant amount of authority over him as regards the exercise of his pastoral or priestly duties had been assumed by the Military Vicariate. The Vicariate had been established as an ecclesiastical entity to foster, supervise and direct the work of chaplains ministering to military members, their families as well as the Veterans Administration. The Vicariate was and is recognized the United States Government, Department of Defense as the primary or fundamental endorsing or approving agent for priests who sought to be commissioned as military officers and thus exercise their ministry as military chaplains. By reason of Department of Defense Directive 1304.19 (Jan. 9, 1980, revised and issued again on Nov. 22, 1988)), the Military Vicariate was charged with implementing the requirements and criteria set forth. The Jan. 9, 1980 document states that the ecclesiastical endorsement of a chaplain certifies that the chaplain is, among other things, "recommended as being spiritually, morally, intellectually and emotionally qualified to represent the applicant's religious body to the chaplaincy of the Armed Forces."

By reason of this directive, the Vicariate had not only the authority but the responsibility of determining that individual candidates for the chaplaincy satisfied the requirements as set forth. The question for consideration is this: what type of investigation did the Vicariate conduct into the backgrounds of candidates for the chaplaincy prior to issuing the endorsement and what type of investigation took place concerning Peebles in particular?

c. The Archdiocese of New York: in 1981 and 1984, when the alleged abuse at the hands of Peebles took place, the Military Vicariate was headed by the Archbishop of New York who had been appointed Apostolic Administrator by the Vatican. Heretofore the Military Vicariate had been headed by a Military Vicar who had always been the same person as the Archbishop of New York or who was later known as Apostolic Administrator. The title "Apostolic Administrator" had been given the Archbishop of New York as regards the Vicariate as part of the transition process whereby the Vicariate would move from an ecclesiastical entity dependent on the Archdiocese of New York to a fully independent archdiocese with its own independent archbishop. The process was completed in 1985 when the Archbishop of New York (John O'Connor) ceased being Apostolic Administrator and full authority was invested in Archbishop Joseph T. Ryan, formerly Coadjutor archbishop of the Military ordinariate or Vicariate as it was also called, as Archbishop of the Archdiocese for the Military Services.

d. NCCB-USCC: A strict reading of the Code of Canon law indicates that there is no authority level between a diocesan bishop and the Pope. Yet the national bishops' conferences, instituted after Vatican II, do in fact, constitute a very real source of authority and influence over the diocesan bishops. The conferences are empowered by church law to legislate for the dioceses within their respective jurisdictions on a number of issues. The revised Code (1983) contained a number of areas which were specifically left to the conferences to decide. On an on-going basis the conferences study and vote on issues which can bind the entire country. In some instances the ultimate approval of the Holy See is required for such legislation, yet the fact remains that the conference has the power to make such policy decisions, the power to propose legislation for the bishops of the country and the power and resources to provide information, direction and suggested courses of action for individual bishops. The conferences, including the NCCB-USCC, can do for bishops of individual dioceses what these bishops could not do on their own.

This entity has assumed responsibility for the study of a number of issues that impact on the day to day life of Catholics in each diocese in the country including the Diocese of Dallas. As a corporate entity or conglomerate of the collective bishops of the US, the NCCB has, over the years, created policies and procedures and conducted studies in a variety of areas that impact on the individual dioceses. In many instances the NCCB has sought to influence the public policy of the federal government of the US and/or the secular governments of the several States in areas that it assumed some degree of competence or authority over. Some examples of this attempt at influencing public policy include studies and programs related to the U.S. policy of Nuclear Deterrence, the U.S. policy relating to immigration and illegal aliens, health care matters and practices followed in both Catholic sponsored and non-sectarian hospitals, the Right to Life Movement and legislation related to abortion, the Hispanic and Black Ministry Movements and various kinds of legislation concerning minorities and immigrants.

The NCCB also has funded and conducted numerous studies on the physical, emotional, spiritual and psychological state of the priesthood in the United States and is and has been cognizant of the various kinds of difficulties facing Catholic priests. It has given amounts of money to the Catholic sponsored and Catholic run health care facility specifically geared to treating priests with emotional, substance and psycho-sexual problems (the Paraclete Facilities).

Since the NCCB has sought to influence public policy in a number of areas directly related to Church matters and in keeping with Catholic theology and law, it can also be presumed to have a direct interest in the moral issues related to certain of the above mentioned issues (immigrants, nuclear war, abortion). The area of study concerning priests also impacts on and is related to civil law issues. These include the various civil law regulations and statutes which are connected with the sexual abuse of minor children (infants or young adolescents), a felony crime in each of the several States and the District of Columbia. The question is whether and how the NCCB-USCC used its information, resources and influence to assist the individual dioceses, including the Diocese of Dallas, in dealing with priests who had committed civil crimes related to child sexual abuse.

Traditionally the Catholic Church has advocated the obligations of the secular State towards the individual and common good. It has, as an international and national entity, assumed the right to speak out on various public issues which it has claimed are grounded in religious teaching and impact on the civic culture. On the national level the NCCB-USCC has invoked this claim in its efforts to influence public policy in a number of areas, including areas directly related to sexual morality such as abortion, sterilization, distribution of contraceptives etc. Sexual abuse of children is a felony crime in civil law and an ecclesiastical crime as well. The NCCB has established a pattern of proaction in similar issues. What action did it take or not take in the matter of the national issue of individual priests committing unlawful sex acts with minor children.

Finally, the NCCB-USCC possesses broad influence in the area of media communications. It controls a national news service which is available to religious and secular news papers throughout the country. It controls a closed-circuit television network and has a media or public relations staff. This media are has regularly been used to influence public policy, opinion and practice in areas which the Catholic Church claims to have competence over, including matters related to sexual morality. The question is, did the NCCB-USCC ever use this media power and if so, to what extent, to either explain openly the problem of sexual abuse of minors by priests or to warn the faithful about this problem.

In spite of claims that it is simply a pastoral advisory entity, the NCCB-USCC has vast resources, receives very significant funding to operate its bureaucracy from individual lay Catholics, Catholic organizations individual dioceses and maintains various kinds of offices or representatives in individual dioceses. The practice of the NCCB-USCC has demonstrated that it is, in fact, acting as a governing body by establishing policy and supervising the implementation of this policy over issues of national concern to the Catholic Church in the US as opposed to issues of merely local concern to the individual dioceses.

e) The Servants of the Paraclete: The Servants of the Paraclete is a religious institute approved of and affiliated with the Roman Catholic Church. Its mission is the care of priests with psychological and physical problems. The Servant's facilities are properly known as health care facilities. Priests and religious men from throughout the United States are sent, upon the recommendation of their bishops or religious superiors, to the Servants at one of their facilities for evaluation and treatment for a variety of problems. All of these are maladies that are highly sensitive and potentially embarrassing in nature, e.g., alcohol and drug abuse, sexual problems. Priests with less embarrassing or potentially damaging difficulties such as ordinary physical ailments, are generally treated at conventional health care facilities.

Priests sent to the Paraclete's are supported in their therapy by the religious institutions to which they belong, i.e., dioceses and religious communities. In a sense the Paraclete's depend on the religious superiors for their survival since it is these superiors who send priests to the Paraclete's and who pay their bills. The Paraclete's have also received an annual grant from the National Conference of Catholic Bishops. Often times the future of priests who complete therapy at the Paraclete's depends in great part on the findings of the health care providers while they are in treatment and upon the final recommendations and prognosis of these providers.

(In addition to the Paraclete facilities, several other facilities are used by Catholic dioceses and religious orders for the treatment of sex offenders: St. Luke Institute, Suitland Maryland, St. John Vianney Center in Downingtown PA and Southdown in Toronto, ONT, Canada. This is not an exhaustive list since there are possibly other such church related centers in the US and Canada. In addition, some priests and religious are sent to non-sectarian health care institutions.)

Although the bishops as individuals and as a corporate group do not have direct or official control over these church related institutions, there is a significant amount of "unofficial" control in that it is the bishops who provide priests/patients to these institutions and it is the bishops and religious superiors who pay the treatment fees. In the case of the Paracletes the situation is somewhat different in that the religious institution of the Paracletes depends on the approval of the church authorities for its existence as an officially recognized religious community.

CANONICAL ISSUES

7. Sexual Abuse By Priests

The sexual abuse of or contact with a minor under the age of 16 is a violation of a priest's obligation of celibacy. This obligation is clearly set forth in both the 1917 and 1983 Codes of Canon law (canons 132 and 277). Because sexual acting out with a minor by a cleric is particularly heinous, it has also been enumerated as a crime or delict in Canon Law. This crime is mentioned in the 1917 Code in Canon 2359, 2 and in the 1983 Code in Canon 1395. This is not the first time sex by clerics with minors is mentioned in the law of the Church. The Canon in the 1917 Code, repeated in the 1983 Code, was based on earlier specific legislation enacted by the Church. This legislation, specifically mentioned sex with minors because of its particularly reprehensible nature, goes back to the earliest days of the Church and is found repeatedly in collections of ecclesiastical laws.

The canons mentioned above state that clerics guilty of sex abuse of minors are to be punished with appropriate penalties not excluding dismissal from the clerical state.

In addition to the canons directly related to sexual abuse, there are other related offenses. One canon for instance, states that an offense is aggravated if the offender used his office or position to aid in the perpetration of the offense.

The Code does not mention homosexuality or homosexual acts specifically. However, it is clear that homosexual acts whether with age-appropriate persons or underage persons, are forbidden by the obligation of chastity. The 1917 Code stated that clerics who committed any crime against the sixth commandment, especially if they had care of souls, were to be punished with severe penalties.

A crime against the "sixth commandment" is, in ecclesiastical parlance, any act of a sexual nature with members of one's own or the opposite sex. This can include various forms of sexual intercourse, touches, embraces etc. The Canon in the 1917 Code stresses that the offense is particularly serious if committed by one who had the "care of souls." This too is canonical language or Church parlance and it refers directly to priests who have pastoral duties as pastors or assistant pastors.

In Sum: Sexual abuse or contact with adults and children is strictly forbidden by Church law. Sex with children is considered in Church law to be an especially grave offense.

8. Homosexuality

Homosexuality as such is generally considered to be a sexual orientation just as heterosexuality is an orientation. There are differing opinions among Catholic moral theologians as to whether this situation is a freely chosen state or one that the person has no control over. Suffice it to say at this point that the intelligentsia or intellectual establishment of the Catholic Church including the leadership, has not always been known to be completely up to date with the findings and developments of the positive sciences (medical, psychiatry etc.) Recent Catholic pronouncements however have agreed that the sexual orientation of homosexuality in itself is not wrong, however acting out sexually is wrong.

It is a fact that there are numerous members of the Catholic clergy who are homosexual in orientation. Some estimates range from between 25 to 40% of Catholic clergy. Like members of the laity, the clergy have not always made a clear distinction between homosexuality and pedophilia (or other sexual disorders for that matter). In the past it was common to refer to priests who had sexually abused male children as homosexuals when in fact "pedophiles" would have been the correct term. This confusion exists today. In much of the documentation I have read concerning sexual abuse cases, I am convinced that the use of the term "homosexual" when referring to actions with young boys actually meant pedophilia or at least pedophilic acts. Obviously not all homosexual priests are also pedophiles. Not all pedophiles are homosexuals in the common understanding of the term. A man who is sexually attracted to young boys may be a homosexual pedophile but not necessarily a homosexual in the sense that he is sexually attracted to males his own age. In sum, this discussion of the clinical nature and categorization of the disorders which prompt men to seek out either children or young adolescents for sexual gratification is actually within the competence of medical professionals. It is useful within the context at hand however, for purposes of clarification and accuracy in the discussion.

9. Supervisory Issues

The bishop of a diocese has nearly complete authority within his diocese. Canon law states that he is at once the legislator, judge and executive officer of the diocese. In the Church power is vested in persons and not in bodies as is the case in American secular government. The bishop is answerable directly to the Pope. Priests and others within a diocese are answerable directly to the bishop. There may be others with authority positions such as vicars, chancellors, board directors etc., but these all have delegated power. The bishop is a single authority of the diocese with power in his own name. The archbishop of the ecclesiastical province, in this case the archbishop of San Antonio, does not have canonically derived authority over the bishop of Dallas, however he does have a kind of unofficial persuasive power or moral authority over the bishops of other dioceses within the province.

The bishop has what amounts to absolute authority over the priests incardinated in his diocese. This means that he alone can decide if they can be ordained priests. He has the final word on assignments and can always overrule any recommendations given him by a personnel board or anyone else. The Code states that the bishop's primary duties are to see that the laws of the Church are obeyed by all and that abuses, particularly moral abuses, are to be prevented. The 1983 Code specifically states that bishops are to see that priests fulfill the obligations of their state (Canon 384).

Another way of looking at the bishop's supervisory duty is within the context of his obligations towards all the faithful. He is obliged to see that faith and morals are protected. In selecting priests for ordination and after ordination for assignment to parishes and other ministerial positions, the bishop is to first make sure that the candidate possess all of the requisite intellectual, spiritual and moral qualities. With regard to pastors and assistant pastors, the bishop has the obligation of seeing that the requisite qualities are present in those he appoints. These include "good moral character, learning, zeal, prudence." (Canon 454) In the recent past (since Vatican Council II) bishops have created clergy personnel boards or committees. These committees have functioned in various ways but basically, their task has been to evaluate needs of parishes and other ministerial positions, qualifications of candidates for these positions, and make recommendations to the bishops.

The bishop's duties are also mentioned in the section of the Code dealing with Catholic education. They are to watch that in any schools in their diocese nothing is done or taught which is contrary to faith and good morals (Canon 1381, 2).

Finally, it is most important to understand that the Catholic Church's governmental and judicial system is fundamentally different from that of a democratic society. Its governmental system is hierarchic with power descending from the top down, and vested in persons assigned/appointed to various offices. Power is not obtained by election to an office by the laity. There are no checks and balances. Legislation may be drawn up by consultative bodies but it takes force or has meaning only when enacted on or given such force by individuals with legislative power (the Pope and diocesan bishops). Even the decrees of ecumenical councils, e.g., Vatican II, are meaningless unless they are approved by the Pope.

At this juncture however, the influence of certain corporate bodies (especially the national bishops' conferences) cannot be discounted. The NCCB for instance, a corporate body comprised of the American bishops, can vote on legislation as allowed by Canon Law. It can also propose and vote on legislation not specifically contained in the Law, which legislation would in turn be approved by the Holy See for implementation in the dioceses of the United States. In effect then, although legislative power resides in individual office holders on one level, the corporate body of the NCCB in fact, possesses power to draw up and propose legislation.

Similarly the judicial system, contained in the Code of Canon Law, reflects the hierarchical nature of government. The bishop is the first judge of his diocese. He appoints judges and other judicial officials. He has the power to initiate judicial inquiries, investigations or trials.

One of the priests accused of sexual abuse was an active duty chaplain at the time that some of the abuse took place. As such he fell under the authority of his own bishop, the bishop of the Diocese of Dallas. He was also under the authority of the bishop (archbishop) of the Military Vicariate, later known as the Archdiocese for the Military Services. It is important to understand the precise nature of the rather unique situation of priests serving in the military.

In sum: The bishop has almost total authority over priests. He has a clear canonical obligation to assign only qualified priests to parish positions.

10. Priests serving in the military

Both diocesan and religious priests serve as chaplains in the U.S. military. While doing so they fall under the authority of three separate entities: the U.S. Military Service to which they are attached, their own diocese or religious community and the Archdiocese for the Military Services, formerly known as the Military Vicariate and Military ordinariate This is a unique situation which is repeated in certain other countries for military chaplains.

a. A chaplain is a military officer, commissioned, trained and subject to the same regulations as other officers. The military service determines his assignments, provides for his training, pays him etc. The religious entities have nothing to say about his assignments nor about where he may go while on duty (TDY for example, whereby a chaplain may be sent to Saudi Arabia, Bosnia, South America on temporary duty). As a chaplain he is subject to the same rules of behavior as other officers as well as to special rules that cover the military chaplaincy. He is also subject to his own denominational rules or norms, which for Catholic priest are contained in the Code of Canon Law. Because of his position as a chaplain, he is looked upon or regarded by the military authorities as a kind of moral leader, expected to set a good example by his lifestyle and behavior.

b. In order to become a military chaplain, a man must meet the minimum standards (age, physical health, weight etc.) demanded by the particular service. Before he can be commissioned he must first obtain the permission of his own religious superior (bishop or superior of his religious institute). This permission is known as an endorsement and is sent to the Archdiocese for the Military Services. The Archdiocese for the Military Services (hereinafter referred to as the AMS), acts as the final endorsing agency for a priest. The AMS is recognized by the Department of Defense as the official endorsing agency for Catholic priests who are prospective chaplains in the various military services. The guidelines covering endorsement, what it means and presumes, are found in DOD directives, especially number 1304.19 (Jan. 8, 1980 and Nov. 22, 1988). This endorsement, according to the government regulation, "shall certify that the applicant is....(c.) Recommended as being spiritually, morally, intellectually and emotionally qualified to represent the applicant's religious body in the chaplaincy of the Armed Services." (Jan. 8, 1980, n. 4, c.) The precise and detailed manner by which the AMS investigates or otherwise determines that these criteria are met is not set forth in the DOD directive. Presumably the AMS seeks information from the applicant's bishop or religious superior and presumably this information is complete and honest when provided. It is also understood that applicants must meet the fundamental requirements expected of all priests as found in the Code of Canon Law, which requirements include moral and spiritual fitness to exercise the duties of the priest. A priest who fails to meet his own denomination's requirements for fitness by that very fact, fails to meet the requirements of the DOD. Consequently an endorsement cannot be given.

c. After the AMS endorses a priest, the paperwork for his commission may commence. If he passes the physical etc., as well as the security check conducted by the military service, he may be commissioned as an officer. Endorsement alone does not guarantee that the military service will accept a candidate.

d. The priest has a unique relationship to the AMS. He is not assigned by them, nor do they take the place of his proper bishop. The AMS has the ecclesiastical authority to issue certain disciplinary regulations with regard to pastoral matters such as the administration of the sacraments. Chaplains are not incardinated into the AMS. The AMS has a certain amount of authority over a chaplain: they can remove his endorsement which means that he will have to leave the Catholic chaplaincy but not necessarily the military service although removal of an endorsement in practice usually means the end of a military career. The AMS can also suspend a priest for violation of Canon law. It can institute canonical disciplinary procedures just as the priest's proper bishop can do.

e. The AMS was originated as a Vicariate for military chaplains in 1917. A Vicariate is an ecclesiastical entity somewhat like a diocese in that it is set up to foster the spiritual care of people in a certain territory or of all people of a certain class, in this case, military personnel. The first military vicar was Bishop Patrick Hayes. When he became Archbishop of New York he also retained his position as military vicar. Subsequent to his death, the archbishops of New York were also appointed as military vicars and later called Military Ordinaries. The military ordinariate was a unique entity that served primarily as the endorsing agent and as a record keeping agency for military chaplains. In 1975 Archbishop Joseph Ryan was named coadjutor archbishop for the Military ordinariate. The proper bishop was still the archbishop of New York. After Cardinal Cooke died in 1983, Cardinal O'Connor was appointed Archbishop of New York. He was shortly thereafter appointed Apostolic Administrator of the Military Ordinariate as a first step in completely separating the latter entity from the Archdiocese of New York. He remained in this position until 1985. In 1985 all of the Military ordinariates and vicariates in the world were named as separate dioceses. On March 25, 1985 Archbishop Ryan was named the first completely independent archbishop of the new archdiocese for the military services. At that time the AMS became totally independent of the Archdiocese of New York.

f. Prior to its independence, although the Military Ordinariate (or Vicariate) was officially headed by the archbishop of New York, the day to day affairs were conducted by auxiliary bishops specifically named for it. In 1975 Archbishop Ryan was appointed coadjutor archbishop with the intention that he be the de facto functioning head of the military ordinariate.

g. In matters of day to day discipline, the military service has primary authority over chaplains. If they get in trouble while on active duty, transgress the law etc., they are subject to the Uniform Code of Military Justice. A military commander does not, as a matter of course, notify a priest's ecclesiastical superiors if the priest gets in trouble. If there is a question about the deportment of a priest or if a priest gets in some form of trouble, a commander will usually bring it to the attention of the priest's supervisor, the senior chaplain on the installation. The senior chaplain would then notify the senior chaplain in the major command and/or the chief of chaplains. The local senior chaplain might also notify the priest's endorsing agency, namely, the AMS.

h. If a chaplain is charged with a felony offense while on active duty, people in the chain of command will be notified according to the protocol for such notification. These would include the office of the Chief of Chaplains, the military body responsible for chaplains. (Since chaplains, though officers, are not allowed to hold command in the military, the ultimate special authority under which they fall is not a command as such. Rather the head chaplain is called "chief" rather than "commander."

I. If a chaplain gets in trouble, the information is passed on up the line from installation chaplain, to command chaplain to chief. Disciplinary action is not taken by the chaplains but by the line officer under whose authority the chapel section falls. He has no responsibility to notify or consult with the priest's civilian superior in such cases.

j. The chaplains on lower levels of authority would ordinarily defer to the chief of chaplains to notify a priest's civilian superior.

k. There are no direct lines of authority in the military chain of command between the military and the AMS. In other words, the AMS is not part of the military chain of command but is a civilian agency separate from the military and the DOD.

l. General Comments on the AMS or Vicariate: The AMS is an authentic "diocese" as generally defined by the Code of Canon Law. It is a unique ecclesiastical entity however because of the fact that it possesses no set territory and has as its subjects persons of a specific class (military active duty, dependents, residents of VA facilities). The jurisdiction of the AMS in matters of dispensations, marriage, baptism etc. extends to persons dwelling on military installations and all military persons anywhere.

Another factor that makes the AMS unique is the nature and scope of its authority over both the lay participants and the clergy. It has no clergy properly incardinated or officially attached to it. This limits the scope of disciplinary authority it has over the clergy. All priests related to the AMS as chaplains are incardinated into another diocese or religious institute somewhere.

For administrative purposes the AMS has a diocesan curia (Canon 469-494). The curia processes dispensations for sacramental purposes and provides other support activities for the chaplains. There is also a tribunal or court which deals exclusively with matrimonial matters (annulments). It also has an extensive sacramental records department which includes records of the reception of the sacraments of baptism, confirmation and first communion.

11. The Extent of a Priest's Obligations

A priest is bound by his obligations of celibacy and overall good conduct not only during those times when he is fulfilling some official duties within his parish but at all times....this includes when he is on vacation, days off etc. His primary ministry is to preach by good example. The bishop has authority over a priest at all times and in all places.

The priest is obliged to observe the law of celibacy. He is also obliged to avoid any situations that wold cause scandal, wonderment or possibly lead to inappropriate situations.

A priest is a priest at all times....24 hours a day and 7 days a week, when on "duty", on days off and/or on vacation.

12. The Duty to Report Allegations of Sexual Misconduct

Sexual misconduct by a priest with anyone but particularly with a child is an especially serious offense. Sexual misconduct with a child or minor is singled out by the Code of Canon Law (1917 and 1983) as a specific canonical crime. From this is can be deduced that it is particularly odious and particularly problematic for the church. It causes grave harm to the child, his parents and family and to the community in general (both Church community and secular community). Because of the extremely grave harm that an be caused a child, allegations of sexual abuse must not be dismissed without thorough investigation and must be reported by all who become aware of them. This obligation is especially onerous for other priests since they have a special obligation towards the laity and towards children.

Pastors are responsible for the spiritual and moral welfare of all in their charge. If serious harm is coming to someone because of the actions of an assistant priest for instance, it is the pastor's duty to do all he can to correct this harm. The Code does not make specific mention of possible harm from sexual abuse however the obligation to act may be deduced from other canons of a more general nature which deal with the pastor's obligations regarding the spiritual and moral welfare of the people (canons 464, 470). Pastors are to see that nothing is done against faith or morals in their parish, especially in the schools (Canon 469).

The 1917 Code was more specific than the 1983 Code about the pastor's supervisory role over his assistant pastors. Canon 476 states that the pastor is to "paternally instruct and direct them in the care of souls, watch over them and send each year a report to the bishop concerning their conduct."

Is there a specifically mentioned duty to report a canonical crime? The 1917 Code had provisions for liability with regard to canonical crimes. Canon 2209 states quite clearly that a person who, because of his office ("office" here refers to any official Church position, including pastor or bishop but also vicar etc.) failed to prevent an offense, sheltered an offender etc. shared in the responsibility for the offense itself. This liability also includes carelessness in supervision by a superior over a subject.

In sum: Pastors especially but other priests also have a canonical obligation to report allegations of sexual abuse of children by priests (or anyone for that matter) to Church officials.

13. Canonically Mandated Action in reference to a Report of an Offence

A Bishop has a grave moral and canonical obligation to safeguard the spiritual welfare of all those who are under his care. These include Catholics who have actual residence in a diocese as well as those who may be simply staying there temporarily. This obligation is mentioned in the Code (Canon 383) and in the many documents that deal with the office of Bishop. Much of the non-canonical information is contained in several important Vatican II decrees, the Dogmatic Constitution on the Church (Nov. 21, 1964), The Decree on the Pastoral Office of Bishops in the Church (Oct. 28, 1965) the Apostolic Letter implementing certain aspects of this decree, Ecclesiae Sanctae (Aug. 6, 1966) and the Directory on the Pastoral Office of Bishops (1974)

a. The other factor in assessing the bishop's obligation to investigate and take appropriate action when an accusation is made against a cleric is the nature of the bishop's relationship to a cleric. Because this is such a close and all-pervasive relationship, the bishop can hardly absolve himself of responsibility for what a cleric under his authority does whether the action takes place while the priest is actually performing ministerial duties such as performing the liturgy, or not. This issue is treated in the canons of both the 1917 Code but more clearly in the 1983 Code:

The diocesan bishop is to attend to the priests with special concern and listen to them as his assistants and advisers; he is to protect their rights and see to it that they correctly fulfill the obligations proper to their state and that means and institutions which they need are available to them to foster their spiritual and intellectual life... (Canon 384)

b. Thus in evaluating the bishops obligation to personally investigate and take action when an accusation of child molestation is made, we have two canonical imperatives at work: the first is the bishop's obligation to show concern for all of the faithful and the right to this according to the Code and the second is the bishop's obligation to see to it that the priests observe their obligations in regard to chastity. A third consideration is no less important and that is the obligation to investigate the allegation of a serious canonical crime.

c. In the Code there is a section dealing with penal law. There is a specific crime mentioned which deals with offenses by priests against the law of celibacy.

"Apart from the case mentioned in can. 1394 [attempted marriage], a cleric living in concubinage, and a cleric who continues in some other external sin against the sixth commandment of the Decalogue which causes scandal, is to be punished with suspension. To this end other penalties can progressively be added if after a warning he persists in the offense, until eventually he can be dismissed from the clerical state.
2. A cleric who has offended in other ways against the sixth commandment of the Decalogue, if the crime was committed by force, or by threats, or in public, or with a minor under the age of sixteen years, is to be punished with just penalties, not excluding dismissal from the clerical state if the case so warrants." (canons 1395)

N.B. By the sixth commandment of the Decalogue is meant the traditional sixth commandment, "Thou shalt not commit adultery" which is used in the law to include any sexual activity outside of marriage.

d. The Code, in the same section on penal law, contains canons which outline the manner with which an allegation is to be investigated. If there is reason to believe that a canonical crime was committed, there is also procedure to be followed for a judicial examination with the possible application of penalties.

e. If such a matter is reported to a confessor or a spiritual director, a problem arises with the issue of confidential/privileged communications. Priests are never allowed to divulge anything revealed to them in confession for any reason or under any circumstances (Canon 983). With a spiritual director/mentor, a person has a special and confidential relationship. Information revealed to such a person also falls under the umbrella of confidentiality and it would not be expected nor ethically proper to reveal such information to a third party. However, the appropriate action for the spiritual director would be to advise the person aggrieved to report such actions to the proper diocesan authorities. It would also be possible for the spiritual director to obtain the specific permission of the directee to disclose the information to third parties.

f. Ordinarily in sexual misconduct cases involving priests, the preliminary investigation of the incident should take place very quickly after the report is received. In the canons concerning the preliminary investigation (canons 1939-1946 of the 1917 Code and canons 1717-1728 of the 1983 Code), it says that if information about an offense comes forward from any source....report, rumor, complaint, public knowledge, an investigation is to take place. This investigation is initiated by the bishop and is to be documented. After the proofs have been examined (reports, interviews etc.) the accused is then to be confronted. Once he is confronted the decision on subsequent action is made. The bishop has a choice of judicial or administrative action.

g. Action on an offense can be either in the form of judicial action (a canonical trial) or administrative action. It can result in the imposition of a canonical penalty.

The canons do not mention a specific penalty for the commission of the crime of sexual abuse of minors. The gravity of the penalty depends on the gravity of the offence and attending circumstances, such as force etc. Transfer of a priest from one parish to another is not a penalty nor is it an acceptable administrative action in the light of a confirmed commission of an ecclesiastical crime.

The bishop is not obliged to impose a penalty but should do so only as a last resort after it is clear that the damage resulting from the crime has not been repaired, nor the offender reformed. In any event, the bishop is obliged to conduct an investigation according to the norms of the law and following the procedures outlined in the norms of the law, prior to making any decision.

If there is a question of mixed jurisdiction i.e., when two or more ecclesiastical jurisdictions are involved, in this case the Dallas Diocese, the Military Vicariate and the territorial diocese wherein Ft. Benning is located, especially since the victim spent time after the offense was reported, in the care of civilian diocesan priests of the local area the obligation to investigate can fall on all three bishops since all three have some form of jurisdiction over the victim, perpetrator and territory.

In sum: There is a process in Canon law for investigating complaints, including complaints of sex abuse, which is a canonical crime.

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