It will not have passed unnoticed by Buffalo’s presbyterate that the diocesan announcement does not indicate what specific canonical crime the accused priests are alleged to have committed. There has also been no indication that the priests were given the opportunity to defend themselves before action was taken against them.
In fact, at least two priests at the party told reporters that they had no opportunity to tell their sides of the story before Malone announced his decision.
Well beyond Buffalo, many priests will also note with alarm the apparently coercive use of psychological evaluations and treatment as a punishment, a praxis forbidden by canon law but explicitly noted as a “disciplinary” measure in this case.
Priests will also ask whether due process, a clear explanation of the charges against them, and protection of their reputations during a canonical proceeding were afforded to the priests suspended in Buffalo. Diocesan clerics, even those disgusted by the apparent behavior of the Buffalo priests, might find themselves wondering whether they should expect similar treatment if accusations are someday leveled against them.
While bishops face public pressure, as Malone does, to “get tough” on misconduct, canonists have warned already about the risk that the canonical rights of accused clerics might be soon tossed over the side of Peter’s Barque.
That concern will sound familiar to observers who remember the years following the clerical sexual abuse scandal of 2002, a period in which, by many accounts, the rights of priests were sometimes forfeit to the need of bishops to “crack down” on clerical sexual misconduct. It is commonly held among priests and experts that in that period priests were sometimes censured unjustly, without any real opportunity to defend themselves.
Will assuaging the public and the media, priests may soon begin to ask again, come at the cost of their rights?
Some observers will suggest concerns of that kind are a waste of time: the quibbles of lawyers who are scandalously focused on the rights of obviously malfeasant priests, those corrupting innocent seminarians, rather than with the integrity of the Church’s mission.
That reaction is certainly understandable. But canon lawyers are likely to note that the Church’s canonical tradition is the source of most western understandings of the rule of law: understandings predicated on the idea that just societies depend on procedural justice for legitimacy, even in cases where accused parties seem very obviously guilty. The Church has known for centuries that without affording the apparatuses of justice to the guilty, the innocent will have very little chance of vindication.
Of course, that’s the issue that puts Malone in a tough spot. And he is not alone. Bishops in the United States do have to demonstrate, to the satisfaction of ordinary Catholics, that they will take seriously complaints of obvious clerical wrongdoing, especially complaints manifested by seminarians, in the aftermath of the scandal that began with Theodore McCarrick. But if they do not also protect and respect the canonical rights afforded to clerics, they will likely lose whatever trust they have among their closest collaborators, their priests. Losing that trust will compound their problems.
There is another problem with enacting ad hoc disciplinary measures outside the established procedural norms of Church law: they tend to be short-lived. The aftermath of 2002 taught that lesson well. Some bishops, after the “Long Lent of 2002,” began responding to allegations of misconduct hastily, without sufficient regard for canonical processes. This assuaged Catholics, to some extent, but it fostered resentment and mistrust among priests. In response to that resentment, some bishops began to slip into old habits, out of the public eye, and grew more lax about clergy discipline, especially regarding the kinds of offenses, like the ones in Buffalo, which are not specifically enumerated in the Church’s penal law. That laxity might have allowed misconduct to begin festering anew.
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In short, a knee-jerk approach to discipline usually creates a pendulum effect, with very little long-term benefit.
So what bishops might do, in light of those lessons, to address obvious occasions of clerical misconduct?
Some canonists have advocated for at least possible solution in recent months: actual canonical legislation, at the diocesan level, that establishes a framework of specific delicts—canonical crimes—related to sexual misconduct, and a system of gradated penalties that correspond to them. In the present law of the Church, all but the most egregious sexual delicts are defined nebulously, and bishops usually have very little idea how to handle them.
But many canonists argue that bishops could make their own lives easier by using their legislative prerogatives to establish clear canonical processes to use when situations like the one in Buffalo emerge. They could, in short, create particular laws that enshrine their plans for addressing these matters, and they could ensure that they follow those laws when it becomes necessary. This would tell priests what to expect if they act imprudently or immorally, and it could ensure that their rights are protected.
By some accounts, the very knowledge that such law existed would boost morale among many priests, make seminarians and others more likely to report misconduct, ensure the protection of rights, and put bad actors on notice that misconduct once ignored could lead to real consequences.
At their June meeting, bishops will discuss national solutions to the sexual abuse crises the Church is facing. But bishops needn’t wait for that meeting to establish local solutions to problems they will likely face in months to come. Buffalo, and the situation of Bishop Malone, is a reminder that thoughtful proactivity will likely better ensure justice than will hasty reactions made when problems have already hit the press.