Canon Lawyer Explains Church Tribunals

By Kathleen A. Shaw - Friday, December 6, 2002
Worcester Telegram & Gazette

The Rev. Thomas Doyle, a canon lawyer who first alerted the American bishops to the growing sexual abuse scandal during the 1980s when he worked at the Vatican Embassy in Washington, said the new tribunals being set up to try priests accused of sexual misconduct can be positive in some respects but negative in others.

Rev. Doyle, now an Air Force chaplain in Germany, said he favors giving due process to accused priests, but said they may not be getting all they expect. Because the tribunals are secret, the priests may never know who their accusers are, he said.

"Accused clerics will not know their accusers unless the accusers consent. This leaves the door wide open for egregious abuses," the canon lawyer said.
In tribunals, victims or witnesses do not testify as in civil courts. They give testimony before a notary.

He said many people do not understand how the tribunals work.

"Canon law does not set itself up as a substitute for civil law nor is it in any way presumed to be above civil law," he said. Canon law, the legal system of the Catholic church, does not apply to any civil or criminal action brought against a priest accused of abuse or a diocese named in a civil suit, he said.

"The canon law system determines if penalties are to be applied to clerics accused of sexual abuse which are in addition to any civil law penalties imposed," Rev. Doyle said.

Rev. Doyle said there may be people within the Vatican bureaucracy, and other churchmen, who believe priests should be "judged by church courts alone and exempted from civil and criminal prosecution." He said this is not the Vatican's official position.

The church judicial process is unlike what Americans are used to experiencing, he said.

"It is not a process that involves a jury, nor does it necessarily take place in a courtroom," he said. The case is usually processed and decided by a panel of three judges, although there can be five in some cases, he said.

"In general, the panel of judges can include one lay (male or female) member who fulfills the usual qualifications to be a canonical judge," he said. In the cases involving priests, however, all court officials -- judge, notary and advocate -- must be priests.

A church trial is conducted "mostly through presentation of documentation," Rev. Doyle said. "Testimony from witnesses for the defense and for the accuser is taken by judges or others appointed by the judge and is witnessed by a notary," he said.
The presiding judge can accept or reject testimony not pertinent or considered to be credible, much as in civil cases, Rev. Doyle said. Testimony from expert witnesses such as psychologists and physicians is allowed, he said.

"Once the presiding judge believes that all possible evidence has been gathered, he publishes the testimonies and other materials in the case for review by the advocates," he said.

After the case is closed, advocates for the accused and for the church prepare final statements called briefs, which they present to each other for review and possible rebuttals. The rebuttals, called rejoinders, are presented and each side has another chance to reply.

"The judges decide by a secret vote. A majority is required to convict," he said. The decision must be based on "moral certitude," which in civil law is equivalent to "guilt beyond a reasonable doubt," Rev. Doyle said. "The final decision is not based on preponderance or amount of evidence, but quality of evidence," he said.

The canon lawyer said sexual abuse is defined in the new norms adopted by the American bishops as violation of the Sixth Commandment, which, according to the way Catholics number the Ten Commandments, is the commandment against adultery. The Catholic church does not restrict these sins only to adultery.

"There is no definitive list of precisely what types of behavior constitute offenses against the Sixth Commandment," he said.

The bishops also changed the way they will form boards to review sexual abuse allegations. Members are appointed solely by the bishops and they must be "practicing Catholics." Rev. Doyle said there are many experts in the field of sexual abuse who are not Catholic and their expertise will not be heard.

Rev. Doyle, long a critic of the church's response to these cases, said he disagrees with the bishops placing the statute of limitations at 10 years from a victim's 18th birthday. He said church leaders fail to understand that it can take many years for a victim to come forward and describe their abuse.

"They were seriously impeded by pathological bond to their abuser and to the institution that caused such a degree of duress that they were paralyzed from disclosing," he said. "This duress is grounded in the fear that the abuse victim was the only one as well as the fear that to speak ill of a priest would result in grave spiritual punishment."

Rev. Doyle said positives of the new system for handling these cases include assurance of due process for the priests and emphasis on canonical process for resolving the cases. He called this an improvement over the past when there was no process.

He is concerned that the entire process is "totally clericalized" and believes "clericalization of the problem has been the fundamental reason for the church's failure."

(c)2002 Worcester Telegram & Gazette Corp.