The third-party reporting system is likely to efficiently ferry complaints to the nuncio. What the nuncio does after complaints are received is a matter beyond the bishops' control. But the credibility of this reform effort depends entirely on the credibility of the apostolic nuncio.
Recognizing that concern, the bishops will also vote on establishing a lay commission to receive and investigate complaints before they go to the nuncio. The commission will reportedly be called the "Special Commission for Review of Complaints Against Bishops for Violations of Episcopal Conduct."
The idea is that if the nuncio is given a full report by an independent investigative body, the Vatican will be more likely to act on concerns about bishops.
Sources close to the USCCB have told CNA the commission would consist of six lay Catholics, two bishops, and one priest, some with expertise in criminal investigations, canon law, psychology, civil law, and other relevant fields. One lay member would be a survivor of sexual abuse.
The commission is almost certain to be approved by the full body of bishops, who are in no position to eschew the appearance of lay oversight or involvement in addressing sexual misconduct.
Draft statutes say the commission would be independent, funded by contributions from U.S. dioceses, and staffed by an executive director. While there is not yet clarity about how the lay members will be appointed, it seems likely that, like the USCCB's National Review Board, members will be nominated by diocesan bishops and approved by the body of bishops.
Participation by bishops will be voluntary. In practice, most, if not all, bishops will agree to participate in funding the commission and commit to being open to any investigation it might make. The commission will publish an annual report of cooperating dioceses; even bishops who object will have very little choice but to participate.
But the commission will have no coercive authority; no subpoena power or statutory access to documents or personnel. The commission will have no way to know whether a bishop under investigation has responded honestly to its inquiries, whether relevant documents have been provided or instead hidden, whether facts have been reported fully or obscured.
In short, without the power to ensure it is being told the truth, there will be consistent questions about the value of the commission's investigations, and the veracity of its conclusions. And even if the commission is largely accepted, the bishops know they cannot control what will happen when reports are filed with nuncio.
As they learned this summer, it is impossible for American bishops to pressure the Vatican, or the pope, to do anything, even if they publicly call on him to investigate an alleged serial predator in their midst.
Will they help?
Will the "Code of Conduct," the third-party reporting system, and the independent commission make a change in the life of the Church? Only time will tell.
On the one hand, the changes could be seen to represent a commitment to cultural change; a reminder to all bishops that sexual immorality among clerics is, or should be, unacceptable. And they will give whistleblowers a pathway for raising important concerns, and a forum in which they can, at least possibly, be evaluated.
On the other hand, the measures the bishops are considering lack any force or authority. This is not the bishops' fault- the episcopal conference, as an institution, is not empowered to make normative change, or to undertake authoritative investigations.
Still, norms and agreements emanating from the bishops' conference can transform culture- but only slowly, and only to a certain, and limited, extent.
For that reason, some observers have suggested the changes most urgently needed right now must be made at the loci of real power- at the Holy See, and at the diocesan level.
A point of repeated discussion among bishops and commentators this summer is the fact that canon law does not explicitly penalize sexual relationships between clerics and other adults, even those that involve coercion or force.
This leaves bishops unsure of what to do when a priest is involved in a homosexual or heterosexual relationship, and, for some bishops, this lacuna in the law seems to imply that sexual relationships involving clerics and other adults are not issues of major importance.
Bishops will not consistently penalize priests involved in homosexual or heterosexual relationships unless canon law explicitly forbids those relationships. And bishops who would like to do so do not have legal tools available that enable them to act. Nor do they have the guidance of the law directing them to address that kind of sexual misconduct as a penal matter.
Absent legal norms, bishops tend to treat most sexual misconduct as a sign of a psychological malady, rather than a moral failing. This approach, many canonists say, has had disastrous effects.
Similarly, the Holy See is unlikely to take seriously sexual immorality among bishops that does not constitute a delict, a canonical crime.
For that reason, many canonists have suggested that the U.S. bishops should petition for amendments to the Church's penal law that established a system of graduated penalties for celibate priests and bishops involved in sexual relationships. They say that without that system, and those penalties, entire categories of serious sexual misconduct go too easily unaddressed, creating a climate in which sexual abuse is also more likely to occur.
It is uncertain whether the Holy See would amend penal law in that way. But some bishops have told CNA they feel the effort is a worthwhile one, if the Church intends to take seriously coercive sexual misconduct involving priests, bishops, seminarians, and other adults. It is is unlikely, but the bishops could petition for this change during their meeting next week.
There are two changes that bishops could easily make at the diocesan level, even as individuals, that many commentators say would significantly change the culture of the Church with regard to clerical sexual immorality and episcopal negligence.
The first would be to require that all allegations of clerical sexual immorality be evaluated by the diocesan review board- not only those involving minors.
This would ensure that lay experts advise the bishop on every single case that could fester into something criminal, and, in many cases, ensure that problematic situations are stopped before they get out of hand. It would also help the review to evaluate patterns- and if the bishop himself were involved in sexual immorality involving priests or seminarians- it is likely that the review would begin to suspect that.
The second local change would be to significantly expand the role of the diocesan promoter of justice. The "promoter of justice" in canon law, acts analogously to a public prosecutor. However, the function is usually filled by a chancery canon lawyer who carries the title as a third or fourth job, and only in a perfunctory way.
Promoters of justice don't generally expect to have to do anything in the diocese unless a penal trial takes place, which is a rare occasion.
But if a bishop wanted to be held accountable within his diocese, he could refashion the role of the promoter of justice to resemble an ombudsman, or a civil district attorney. A well-funded and well-staffed office for a promoter of justice could include oversight of the diocesan safe environment program and review board, involvement in personnel decisions, and a mediation role for whistleblowers and others involved in conflicts at the parish level.
A bishop could establish a promoter of justice who was empowered to keep authority figures, including himself, accountable to the norms of canon law and diocesan policy. The promoter could, if the bishop wished, even be supervised by the diocesan pastoral or finance council, in order to ensure independence. He could be required even to issue an annual report about the cases and issues he'd taken up each year.
Establishing a promoter in that way would be an unusual step for a bishop, but these are unusual times. Canon law says that the promoter of justice is "bound by office to provide for the public good." At this moment, when trust is waning, such an office seems like it could be an extremely valuable step.
A long road
Next week, Catholics will look to DiNardo, and to the bishops' conference he leads, for some signal that serious reforms are coming to the governance structure of the Catholic Church, and that the U.S. bishops might somehow be able to regain the trust of their people. The road to restored credibility, if it is to come at all, will be long and painful.
As the meeting begins, it remains to be seen whether the bishops will deliver on their promises of bold and courageous leadership. Catholics will be watching, hoping that this time, bishops who say "never again" will mean it.