The Abuse of Minors in the Catholic Church: Dismantling the Culture of Cover Ups 9780367433451

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The Abuse of Minors in the Catholic Church

This book offers an academically rigorous examination of the biological, psychological, social, and ecclesiastical processes that allowed sexual abuse in the Catholic Church to happen and then be covered up. The collected essays provide a means to better assess systemic wrongdoing in religious institutions, so that they can be more effectively held to account. An international team of contributors apply a necessarily multidisciplinary approach to this difficult subject. Chapters look closely at the sexual abuse of minors by Roman Catholic clerics, explaining the complexity of this issue that cannot be reduced to simple misconduct, sexual deviation, or a management failure alone. The book will help the reader to better understand the social, organizational, and cultural processes in the Church over recent decades, as well as the intricate world of beliefs, moral rules, and behaviors. It concludes with some strategies for change at the individual and corporate levels that will better ensure safeguarding within the Catholic Church and its affiliate institutions. This multifaceted study gives a nuanced analysis of this huge organizational failure and offers recommendations for effective ways of preventing it in the future. As such, it will be of keen interest to scholars of religious studies, sociology of religion, psychology, psychiatry, legal studies, ethics, anthropology, cultural studies, history, and theology. Anthony J. Blasi is a retired professor of sociology at Tennessee State University, U.S.A. He is the author of many books in religion including Sociologies of Religion: National Traditions (2015) and Sociology of Religion in America: A History of a Secular Fascination with Religion (2014). Lluis Oviedo is Full Professor for Theological Anthropology and Fundamental Theology at the Pontifical University Antonianum of Rome, Italy. He is also an invited professor at the Instituto Teologico de Murcia, Spain, and Co-Editor of the Encyclopedia of Sciences and Religions (2013).

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Gender and Orthodox Christianity Edited by Helena Kupari and Elena Vuola Music, Branding, and Consumer Culture in Church Hillsong in Focus Tom Wagner Transformational Embodiment in Asian Religions Subtle Bodies, Spatial Bodies Edited by George Pati and Katherine Zubko Media and the Science-Religion Conflict Thomas Aechtner Freethought and Atheism in Central and Eastern Europe The Development of Secularity and Non-Religion Edited by Tomáš Bubík, Atko Remmel and David Václavík Holocaust Memory and Britain’s Religious-Secular Landscape Politics, Sacrality, and Diversity David Tollerton An Ethology of Religion and Art Belief as Behavior Bryan Rennie The Abuse of Minors in the Catholic Church Dismantling the Culture of Cover Ups Edited by Anthony J. Blasi and Lluis Oviedo For more information about this series, please visit: www.routledge.com/ religion/series/SE0669

The Abuse of Minors in the Catholic Church Dismantling the Culture of Cover Ups Edited by Anthony J. Blasi and Lluis Oviedo

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 selection and editorial matter, Anthony J. Blasi and Lluis Oviedo; individual chapters, the contributors The right of Anthony J. Blasi and Lluis Oviedo to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Blasi, Anthony J., editor. | Oviedo, Lluis, editor. Title: The abuse of minors in the Catholic Church : dismantling the culture of cover ups / edited by Anthony J. Blasi and Lluis Oviedo. Description: Abingdon, Oxon ; New York, NY : Routledge, 2020. | Series: Routledge studies in religion | Includes bibliographical references and index. Identifiers: LCCN 2020003535 (print) | LCCN 2020003536 (ebook) | ISBN 9780367433451 (hardback) | ISBN 9781003002567 (ebook) Subjects: LCSH: Catholic Church-Sexual behavior. | Child sexual abuse-Catholic Church. | Child sexual abuse by clergy. | Catholic Church-Psychology. | Child sexual abuse—Prevention. Classification: LCC BX1912.9 .A285 2020 (print) | LCC BX1912.9 (ebook) | DDC 261.8/3272088282—dc23 LC record available at https://lccn.loc.gov/2020003535 LC ebook record available at https://lccn.loc.gov/2020003536 ISBN: 978-0-367-43345-1 (hbk) ISBN: 978-1-00-300256-7 (ebk) Typeset in Sabon by Apex CoVantage, LLC

Contents

List of figuresvii Acknowledgmentsviii List of contributorsix Introduction

1

1 Sexual abuse of young boys in the Roman Catholic Church: an insider clinician’s academic perspective

7

JAY R. FEIERMAN

2 Clerical abuses of minors and cultural context: which link?

48

JAVIER ELZO

3 Does faulty theology play a role in the abuse crisis?

69

LLUIS OVIEDO

4 Social networks and sexual abuse in the Catholic Church: when priests become pirates

100

ANTHONY J. POGORELC

5 From causes toward stratagems and theological considerations

126

ANTHONY J. BLASI

6 Canonical response to the sexual abuse crisis in the United States

163

PATRICIA M. DUGAN

7 Tort liability and representations of religious authority in clergy sex abuse litigation NICOLÁS ZAMBRANA-TÉVAR

182

vi  Contents 8 Sexual abuse of minors and clerical homosexuality: comments on a puzzling correlation

218

DOMINIKUS KRASCHL

9 Conclusion: trying to learn some lessons and correct past mistakes

240

ANTHONY J. BLASI AND LLUIS OVIEDO

Index244

Figures

1.1 Beauty pageant contestants. 1.2 The Four Attraction Quadrants (A, B, C, and D) based on the perceived features of someone toward whom one’s SELF (as an adult) feels sexual attraction. 1.3 Placement on the Attraction Quadrant graph of males with different sexual orientations.

9 12 17

Acknowledgments

We wish to express our gratitude to Vicky Wong Ying Wuen for the photo in Figure 1.1, and the Antonianum for permission to reprint the figures that appear as Figure 1.2 and 1.3, as well as a portion of a previous article by Jay R. Feierman in Chapter 1.

Contributors

Anthony J. Blasi is a sociologist and theologian who retired from Tennessee State University (Nashville, USA) in 2012. He earned an M.A. and Ph.D. in sociology at the University of Notre Dame (Indiana, USA), an M.A. in biblical studies at the University of St. Michael’s College (Toronto, Canada), an S.T.L. at Regis College (Toronto, Canada), and a Th.D. in moral theology conjointly at Regis College and the University of Toronto (Canada). He has served as President of the Association for the Sociology of Religion, and editor of the Review of Religious Research. His recent books include Transition from Vowed to Lay Ministry in American Catholicism (with Joseph F. Zimmerman), Toward a Sociological Theory of Religion and Health (edited), Sociologies of Religion: National Traditions (edited with Giuseppe Giordan), Sociology of Religion in America: A History of a Secular Fascination with Religion, and Social Science and the Christian Scriptures: Sociological Introductions and New Translation (3 vols.). Patricia M. Dugan, J.D., J.C.L., practices civil and canon law from her offices in Philadelphia, PA. She earned her doctorate in civil law from Villanova University in Pennsylvania, U.S.A. and her license in canon law from the Pontifical University of Saint Thomas Aquinas in Rome, Italy. Her work in civil law concentrates in wills and estates, and elder law. Her work in canon law includes advocacy in penal law, parish mergers, and religious institutes. Doctor Dugan has published many books through Gratianus Publishing, and lectured at numerous conferences and seminars. Jay R. Feierman retired as Clinical Professor of Psychiatry at University of New Mexico in 2006, when his interests changed from the evolution of psychiatric disorders to the evolution of religion. He has degrees in zoology, medicine, and board certification in psychiatry. Between 1976 and 1995, he consulted for a program in New Mexico for celibacy issues in priests and religious brothers. In 1989, he was a visiting scholar at the Max Planck Human Ethology and Chronobiology Groups in Andechs, Germany, developing a testable, nocturnal theory of schizophrenia. In 2009, he edited The Biology of Religious Behavior and in 2020, co-edited

x  Contributors with Lluis Oviedo, The Evolution of Religion, Religiosity and Theology. He has a number of articles and book chapters on various aspects of religion’s evolution. He has published on the behavioral biology of believing, the transitivity of the verb to believe, religion-specific beliefs, and interreligious conflicts. Dominikus Kraschl holds a PhD in theology as well as in philosophy. From 2012 to 2018, he was Assistant Professor for Philosophy at the Faculty of Catholic Theology at the University of Würzburg (Germany). At present, he holds the Chair of Philosophy at the Chur School of Theology (Switzerland). His research interests include, among others, philosophy of religion, analytic metaphysics, and fundamental theology. He recently published a lengthy study on religious epistemology: Indirekte Gotteserfahrung. Ihre Natur und Bedeutung für die theologische Erkenntnislehre (Indirect Experience of God. Its Nature and Relevance for Theological Epistemology), Freiburg: Herder 2017. Lluis Oviedo, born in Spain, is Full Professor of Theological Anthropology (Antonianum University, Rome); and Invited Professor in the Theological Institute of Murcia (Spain) for questions of religion, society, and culture. He has published the books: Secularization as a Problem; Altruism and Charity; The Christian Faith and the New Social Challenges; and is CoEditor with A. Runehov of the Encyclopedia of Sciences and Religions; and with Jay R. Feierman The Evolution of Religion, Religiosity and Theology. Currently, he edits the Springer Series New Approaches to the Scientific Study of Religion, and the bibliographic bulletin ESSSAT News & Reviews. His research focuses on new scientific study of religion and its theological impact, Christian and scientific anthropologies, and issues about secularization and religious social dynamics. Anthony J. Pogorelc is a sociologist and research scholar in residence at St. Mary’s University (San Antonio, Texas, USA). A Sulpician priest, he has been engaged in in priestly formation in seminaries in Washington, D.C. and Menlo Park, California, and is currently the Coordinator of Pastoral Formation at Assumption Seminary (San Antonio). He earned a M.Div. at the University of St. Michael’s College (Toronto, Canada), an S.T.L. at St. Mary’s Seminary and University (Baltimore, Maryland, USA), and a M.S. and Ph.D. in sociology at Purdue University (W. Lafayette, USA). He has been a research fellow at the Lifecycle Institute and then at the Institute for Policy Research at the Catholic University of America. He has written in the areas of social movements, organizations, professional ministers, and young adults. Nicolás Zambrana-Tévar has an LLM in international business law from the London School of Economics and a PhD in international investment law from the University of Navarra, where he was also executive director for international programs and assistant professor. Since 2014, he teaches

Contributors xi international commercial law and dispute resolution at KIMEP University (Almaty, Kazakhstan). Prior to going into academia, he worked in Madrid for Freshfields Bruckhaus Deringer and Garrigues Abogados. He has been a guest lecturer and presented papers in a number of academic institutions in Europe, Latin America, and Asia. He has also been a visiting researcher at the Institut für Internationales und Ausländisches Privaterecht of the University of Cologne and a member of several research groups on Business & Human Rights, focusing on tort litigation against transnational corporations. He is also the translator of “Religion and the American Constitutional Experiment” (John Witte and Joel A. Nichols, OUP, 2016). His most recent publication is “Reassessing the Immunity and Accountability of the Holy See in Clergy Sex Abuse Litigation,” Journal of Church and State 62 (1, Winter 2020).

Introduction

Roman Catholic priests abusing minors—it is embarrassing for Catholics and for any person who has trusted that institution. The high-profile cases that result in huge financial settlements involve children and early adolescents; these instances are few enough to be attributed to the inevitable failings of human nature. Their incidence is not unlike what occurs in families. However, the majority of cases, which statistically reflect negatively on about 5% of clergy in most affected areas, involve usually male victims between 11 and 18 years of age, and this is more embarrassing because it suggests something about the institutional Church rather than inevitable individual failings. And then there is the cover-up of both kinds of abuse. Some years ago, civil authorities were occasionally involved in keeping everything quiet, but at that time and years later, fellow priests of the perpetrators, and bishops as well, did their best to maintain secrecy about the abuses. Once Church authorities lost credibility in their strict assertions about sexual ethics, especially with regard to contraception and later homosexuality, secular authorities, fellow priests, and the faithful in general were no longer willing to hush things up. Anger over abusers could be mitigated more easily by their awareness of human weakness, but anger over ecclesiastical authorities could not be lessened. Indeed, bishops’ and religious order officials’ moralizing assertions about contraception and homosexuality exacerbated the anger there was over the cover-ups plotted by those same Church officials. The response by the hierarchy changed, after the denunciations multiplied, the media placed its focus on that problem, and many lawyers devised ways to get big money. A new generation of bishops and superiors replaced those who retired or died, to assume a new mentality and strategies. There has been some dispute about how sincere the officials’ new response has been, but it is safe to say efforts to “crack down” on the sexual abuse of minors by clergy and male religious is sincere at present. There is “zero tolerance,” reporting systems, review boards, criminal screening of employees, educational programs, and the like. Yet the new approach comprises a program of response for the most part, rather than one of prevention. Unless the system of policing remains tight, the problem will arise again. Here and there it has done so already.

2  Introduction Bishops’ conferences have commissioned studies, for example those in the United States and Germany, in an effort to understand the nature and extent of the abuse problem. The researchers, following what insights the hierarchy had, conceptualized their inquiries largely in psychological and moral terms. Consequently, when following up on the studies, the major attempt at prevention has been to screen seminary entrants for tendencies that have been traditionally viewed as sinful. Combined with a traditional effort to isolate seminarians from females, the focus centered on seminarians’ sexuality. The priesthood would be open to men of good character who are heterosexual but do not associate too much with women, but not to men who might “commit matrimony” or be attracted to other men. Unfortunately, the consensus among experts is that there are no methods for screening people who might abuse minors, and a propensity to abuse minors is something different from either wanting to marry or having a same-sex attraction. One aspect of the ecclesiastical response to the abuse problem has been to revise the Church’s investigative procedures as outlined in canon law. The Code of Canon Law had just been revised when the abuse problem came to the fore. It was only first codified in 1917, and the revision was made in response to changes brought about by the Second Vatican Council. Those changes had not been formulated with the abuse problem in mind, and consequently further revision became necessary. Who would decide what denunciations were credible? Who would advise the party making such decisions? Who would conduct a trial? What would any penalty or other response be? How would an attempt at a cover-up be handled? What rights should an accused have? What is the relationship between the confidentiality of the confessional and the acquisition of relevant information? The ability of the organizational Catholic Church to reduce or prevent the abuse of minors by clergy faces a number of limitations. Its procedures are not conceived of as items in an organizational handbook, but as laws, analogous to the governmental structures of the former Papal States. Those structures consisted of tribunal and papal decisions, taken as precedents and only codified, as noted earlier, in 1917. Such a method of legislation, if one may use that term, is slow; it is also ineffective insofar as there is no full-time legislature to take all legitimate interests into account. To cite the obvious, the concerns of higher clergy will receive attention more effectively than those of the lower clergy and the laity. The training of personnel (clergy) continued a program drawn up in the 16th century and only minimally modernized. The requirement of celibacy, adopted for reasons entirely extraneous to the conduct of ministry, rendered the seminary as an institution an apparatus for keeping potential entrants into the priesthood away from women, and leading clergy into often lonely lives. All this not only had the weight of tradition behind it, but it was usually and with few exceptions the only kind of formation that the higher clergy and their advisors knew. The purpose of the present volume is to review the problem and its context from the neutral grounds of science, theology, and legal studies. Science

Introduction 3 includes the psychological concepts that the Church-sponsored studies used, but the knowledge base built up by other sciences as well. It takes up biological matters behind what psychology studies, as well as emergent phenomena that sociology typically studies. Theology takes up the central insights of scripture, historically summarized in ancient creeds and traditions, and seeks to make them understandable in contemporary cultural contexts. Thus, it involves a distinction between original insights (tradition as content) and derivative explanations that developed over the centuries (tradition as process). Legal studies include both the secular and the ecclesiastical. Secular law describes both criminal prosecution and matters of civil equity. Ecclesiastical law, too, has a criminal or penal aspect as well as matters of civil procedure; the former is most relevant in the present context. The book tries to fill a gap in the attempts to come to terms with the recent crisis experienced in the Catholic Church after revelations of massive misconduct and abuses of minors by its clergy. Indeed, very few studies have tried to offer an in-depth analysis of the causes, factors, and circumstances that could explain such a colossal failure at many levels. The authors who have been invited to supply their analyses are academic specialists in their own fields and therefore offer very specialized and accurate contributions to shed light on that very dark side of contemporary Church history. Since the phenomenon is multifaceted and involves several issues, it requires a multidisciplinary treatment: from sociology, psychology, psychiatry, legal studies, anthropology, history, and theology. Only a team of specialists in each field, committed to finding out the factors that determined such a development, can offer an adequate approach and clarify such an enigmatic and destructive process. A general impression that motivates this project is that available attempts at explaining the ongoing crisis have often been too simple and reductive. When we look more closely at the abuse of minors crisis, we become more and more aware of its complexity, which cannot be reduced to simple misconduct, a problem of sexual deviance, or a management failure. There is much more involved in the crisis, and this becomes indeed a case of study that can help to better understand social, organizational, and cultural processes in past decades, and even to explore the intricate world of beliefs, moral rules, and behaviors that could allow and conceal such abuses. We intend to examine an entire stage in contemporary Church structure and process, from the perspective of what went wrong and needs to be tackled. The reader will find that the various contributors do not conceptualize the problem in identical ways. Their essays strain to be accurate, and there has been little dialogue among some of the authors, but each begins with a unique focus that gives direction to unique perspectives. In some respects, each is describing a mountain from a different angle. Each also begins with a disciplinary background of sensitizing concepts that identify configurations in the same data. Consequently, some are quite critical of the large databases that the studies commissioned by the bishops produced; some of them find

4

Introduction

them more satisfactory. Some give little credence to conclusions proposed in the popular press, others take them more seriously. While we recommend reading the volume in its entirety, the reader should be forewarned that there are areas of both consensus and difference to be explored. The entire effort has been complicated by a backdrop of tradition, dissatisfaction with tradition, loyalties, feelings of betrayal, a common Church experience, and the conflicts of Church politics. In one case, a would-be contributor completed an excellent study of abuse victims in minor seminaries who went on to be ordained. The research found that not one of these victims later became an abuser, thereby lending doubt to the widely held belief that abuse victims become abusers. The author of the prospective chapter, however, was a member of a small religious order that was soon to be dominated by “conservatives” who would not want one of their own to be associated with this volume, in which other chapters would be “too liberal.” We mention the problem in hopes that readers would set what we call a “backdrop” aside, so that understanding could precede conviction. Chapter 1, “Sexual abuse of young boys in the Roman Catholic Church: an insider clinician’s academic perspective,” takes up the biological backdrop of abuse. It makes the case that viewing the problem as one of homosexuality is a misleading oversimplification. Psychiatrist Jay R. Feierman reviews age and gender attractions as well as sexual orientations, and in the process he reveals the multiple realities that need to be grasped. In noting that celibacy attracts sexual outliers—including homosexuals who may have little interest in minors—his findings cast doubt on the wisdom of numerous Church policies that are now in place. As someone who has participated in the treatment of numerous clergy and religious who had been referred by bishops and superiors, he has “seen it all” and had access to an important and specialized database that he summarized prior to its being destroyed out of privacy concerns. He makes recommendations from a risk-management perspective. In Chapter 2, “Clerical abuses of minors and cultural context: which link?,” Javier Elzo looks to sexuality as a theme in environing cultures. For a time, cultural contexts in some elite circles in secular society and in the ecclesiastical setting could have supplied justifications for abusive behavior. Such an environment appears to have been real, though circumscribed, and to have come and gone. Changes in Church organization and internal culture are proposed as preventive measures. Lluis Oviedo’s chapter, Chapter 3, “Does faulty theology play a role in the abuse crisis?” poses an important question. Surprisingly, the theology in question is not principally focused on sexual morality but a flawed Christian anthropology, a naïve ecclesiology, and a resultant relaxed attitude toward individuals and culture. Because of its theology and its theological history, the Roman Catholic Church is marked by over-confidence and, perhaps, an unwillingness to abandon notions of great competence in its conduct of internal matters.

Introduction 5 So far, the contributions have come in turn from psychiatry, cultural sociology, and theology. These should not be seen as compartmentalized endeavors. Feierman’s study of the biological grounding of sexual interests and behavior, and Elzo’s cultural study, are made with a thorough knowledge of the institutional Church in mind. The relationship between science and religion is never absent from Oviedo’s analyses. In Chapter 4, “Social networks and sexual abuse in the Catholic Church: when priests become pirates,” Anthony J. Pogorelc conducts a classic sociological study of deviance, but he follows up the theological failing identified by Oviedo. The governing elite of the Church were too confident and, in a sense, too competent. The informal side of the organization has not really been taken into account. In Chapter 5, “From causes toward stratagems and theological considerations,” Anthony Blasi wears two hats. For most of the chapter, it is a matter of sociological analysis of the causes of abuse and pairing them with practical remedies. It is noteworthy that “causes” is in the plural; identifying one cause and acting to counter it will not suffice because the causes work in concert. Celibacy, patriarchy, clericalism, and intrusive monarchical governance converge in an emergent result. Remedies need to respond to all of these. Church responses have not addressed these causes. In the course of examining the causal structure, Blasi reviews and criticizes the research conducted for the “John Jay College” reports and certain causal claims made in them. Because theological inhibitions would preclude two recommendations, pertaining to the ordination of women and acceptance of homosexual activity, Blasi changes hats to make theological investigations of Church statements on these topics, finding the scholarship behind the official statements lacking grounding in tradition. In Chapter 6, “Canonical response to the sexual abuse crisis in the United States,” Patricia M. Dugan finds that the Penal Law of the Code and Particular Law, as well as the Administrative Process and Penal Process, have clashed or been ignored. Many processes are impeded by the discretionary aspect built into both the relevant Code and Particular Law. Certain insufficiencies in changes made in the Church legal system are identified. In Chapter 7 Nicolas Zambrana-Tévar, a legal expert with an international projection, deals with the issue of liability or the legal responsibility that can be attributed to direct superiors in many organizations. This is an important point, since its application has determined the extent of legal action against Catholic priests, who usually could not cover the required compensations to the victims and their lawyers, but their bishops and the respective dioceses could. Zambrana offers a broad panoramic view including many Western countries to show how plural the application of liability has been and the way to understand religious authority—something that reflects different legal cultures—to analyze the measures applied lately to tackle that crisis and to avoid future cases.

6  Introduction Chapter 8, “Sexual abuse and clerical homosexuality: comments on a puzzling correlation,” by Dominikus Kraschl, differs in many respects from the other chapters. The data from major reports are taken with less criticism, with due notice provided of different readings of statistics. The focus is also quite different. Rather than ask what caused 5% or so of clergy and male religious to abuse minors, the question becomes why are so many of the abuses same-sex? If homosexuality, however defined, is “the” cause, one would expect far more abuse to take place since estimates of the prevalence of homosexuality in the clergy generally exceed 5% by far. So the high proportion of abuses that are same-sex needs to be explained in some other way. Kraschl reviews a variety of explanations, finding none of them satisfactory. Taken in its entirety, this collection offers a multidisciplinary view that can help to understand better what went wrong in the crisis and how it has been addressed after it created a broad awareness in the Church that it was simply mismanaged, and measures at damage contention did not work. This deep awareness has given place to a search for preventive measures and for an exploration of alternatives aimed at improving Church governance and the life of Catholic communities and their ministers. After this outcry, the general impression is that Catholics agree on a “never again” feeling. Those who have collaborated in this book want their analyses and reflections to address that widespread feeling, and they hope they have contributed to preventing such abuses and ones of a similar seriousness and magnitude from happening again. We are very grateful to Routledge and its Humanities editor, Joshua Wells, for supporting this project and helping us in all the necessary steps that made this book possible. AJB and LO December 2019

1 Sexual abuse of young boys in the Roman Catholic Church An insider clinician’s academic perspective Jay R. Feierman Introduction The chapter will first lay a foundation regarding what is known scientifically about the development and later expression of both average and variant male age attractions and sexual orientations. Second, the chapter will focus on the age attractions and sexual orientations of a subset of priests and religious brothers that, when acted out, have been responsible for almost all of the current sexual abuse scandals of the Roman Catholic Church. These men have interest in and arousal to peri-pubescent boys. They are (homosexual) pederasts. The main aim of the chapter is to dispel misinformation about these issues. The chapter will conclude with some recommendations for reducing the chances of these sorts of behaviors resurfacing in the longterm to supplement what the Church is already doing, the long-term effects of which are unknown. Priests and religious brothers are putative religious celibates, a term that will be used to cover both celibacy (one can’t get married) and chastity (sex only with one’s lawfully wedded wife). Diocesan priests are required to be celibate and chaste. Religious order priests and religious brothers, who do not marry, take a vow of chastity. Many of the earliest Christian clerics were married (Kowalski 2004). Clerical “marital continence” (you cannot have sexual intercourse with your lawfully wedded wife) crept in incrementally over the first millennium. Mandatory celibacy for Latin Rite clerics was finally instituted in the 12th century (Phipps 2004). Rationales for celibacy include the “gift” (Selin 2016), apostolic origins (Cochini 1990), an alternative to marriage (Boswell 1989, 9), children of clerics inheriting church property (Heid 2000), and Jewish ritual Purity Laws once mass began being celebrated daily: “The semen-emitter himself suffers a one-day uncleanliness” (Maccoby 1999, 64). One of the controversies surrounding the sexual abuse of peri-pubescent boys, on whom this chapter will concentrate, is whether or not these unmarried men of the cloth are homosexual. Statements such as these make the claim: “almost all the priests who abuse children are homosexual” (Donohue 2004), “this scandal is about a form of homosexuality” (Groeschel

8  Jay R. Feierman 2002), and “80 percent of cases of abuse in the church environment affected male adolescents, not children . . . and it was also ‘statistically proven’ that there is a link between abuse and homosexuality”(Brandmüller 2019). If children means pre-pubertal in Cardinal Brandmüller’s remarks, all of these statements are true. However, it is not so simple (Feierman 2010a, 2010b). In this chapter, child or children will always mean pre-pubertal; adolescent will always mean from peri-pubertal (ages 11–14) to just postpubertal (ages 15–17). The term male will always refer to all ages and man only to an adult male. “Boy” and “girl” will refer to biological sex, not to gender.

Lovemaps Men have romantic love feelings only for someone whose physical and behavioral features match their “lovemap,” defined as “a developmental representation or template in your mind/brain, and is dependent on input through the special senses. It depicts your idealized lover and what, as a pair, you do together in the idealized, romantic, erotic, and sexualized relationship” (Money 1986, xvi). Men are also capable of feeling lust and being sexual with individuals toward whom there are no romantic love feelings, as long as the other individual has some features of their idealized lovemap. The majority of men’s lovemaps contain someone of nubile age, feminine gender, and the ideal 0.7 waist to hip ratio (Singh et al. 2010), as seen in the two beauty pageant contestants in Figure 1.1. For a minority of men, many of whom will be the subject of this chapter, their lovemap is different. The lovemap differentiates romantic from parental love (Fisher 2005; Money 1986). Pedophiles claim to distinguish love of a child, the actual meaning of “pedophilia,” from pedosexual behavior (Sandfort 1981). Love is complex because of the differences between parental and romantic love. Anyone who is not a pedophile and who has experienced both knows the difference.

Observations and measurements of adult male human sexuality Interest (viewing time) and arousal (physiological) are observable and measurable. Viewing time of erotic images correlates positively with results from the gold standard, penile plethysmography (Laws and Gress 2010), which directly measures sexual arousal (penile circumference). In the to-bediscussed population of priests and religious brothers studied by the author, a less specific alternative to the penile plethysmograph was used—sympathetic nervous system arousal. The amount of sympathetic arousal to specific types of stimuli can be measured and quantified (Adamson et al. 1972; Davis and Buchwald 1957; Roland and Crawford 2011).

Sexual abuse of young boys in the Church 9

Figure 1.1  Beauty pageant contestants. Source: Photo courtesy of Vicky Wong Ying Wuen (Singapore).

The organization of the male fetus’s brain in the third trimester of pregnancy Male (XY) embryos start out in utero with their brains feminized and unmasculinized. In the majority of males, during the third trimester of pregnancy, under the influence of steroid sex hormones, the organizing processes

10  Jay R. Feierman of masculinization add to the brain what will eventually become masculine adult features. The organizing processes of defeminization remove from the brain what would have remained as feminine adult features. By contrast, the shape of the external genitals sexually differentiates as female or male in the first trimester of pregnancy. When there is concordance between the sexual differentiation of the genitals and the brain, the adult is cis-gendered. When there is discordance, the adult is trans-gendered (see Balthazart 2012; Diamond 1995, 2009; Morris and Breedlove 2004; Swift-Gallant 2018).

Male age and gender preferences Age and gender preferences are present when an adolescent boy or man knows, in the absence of immediate sensory stimuli, what age and gender features of another person causes interest and arousal in him. Preferences are unobservable, unmeasurable, and undetectable through interviews and psychological tests.

Mood and “social releasers” As applied to human sexuality, “mood” can be defined as “a specific readiness to act” (Eibl-Eibesfeldt 1975, 1989), recognized by a reduced threshold to respond to specific social releasers, which are any bodily features or behavior patterns of another person that elicit a specific response in the perceiver (Immelmann and Beer 1989). Adolescent boys and men have many moods, only a few of which, like romantic or sexual, lower the threshold for interest in and arousal to another person’s age and gender features. If an adolescent boy or man is in another mood that has priority, the age and gender features of other person might be ignored.

Untangling sex (male and female) from gender (masculine and feminine) Sex A feature is male or female if it is present in one biological sex (i.e., a bornwith penis or vagina) and not in the other. One’s sex (male or female) is determined by having an XX (female) or XY (male) set of sex chromosomes. Since the embryo’s default is female, the presence of SRY genes on the Y chromosome initiate the development of maleness (She and Yang 2017). Gender A feature is masculine or feminine if it is present in both biological sexes (male and female) but it is sex-skewed and present in one biological sex

Sexual abuse of young boys in the Church 11 more than the other as the result of biological or cultural influences. Sex is biologically fixed. Gender is not.

Male age interest and arousal A male’s (pre-, peri-, or post-pubertal) age interest and arousal can be observed and measured when the male views still images or moving videos of other persons of different ages whose other features are at least similar to those in his lovemap. There are dimensional terms for the ages of other persons that create primary and persistent interest and arousal: pedophilia for pre-pubertal children with no secondary sexual characteristics; hebephilia to peri-pubescent children, roughly age 11 to 14; ephebephilia for pubescent adolescents, roughly ages 15 to 17; teliophilia (a term rarely used) for post-pubertal adults, where the sex-specific specific terms gynephilia and androphilia are usually used. A homosexual hebephile is also called a pederast. It is not known how variant age interests and attractions develop at the level of the whole person. The following quotation is from a published autobiography of a pedophile: I believe I was born a pedophile, because I have had feelings of sexual attraction towards children and love for them for as long as I can remember. . . . Just as homosexuals and heterosexuals discover their sexual orientation, I discovered my age orientation as I grew, and I have been aware of it from a young age. (Silva 1990, 464)

Male gender interest and arousal A male’s (feminine or masculine) gender interest in and arousal to sexskewed features can be observed and measured when the male views still images or moving videos of other persons whose other features are at least similar to those in his lovemap.

Conceptualizing male age and gender interest and arousal together Figure 1.2 shows age and gender features together on the same graph. The age features are on the horizontal masculinization X axis and the gender features are on the vertical defeminization Y axis. A male’s “SELF” is in the center where the two axes intersect. The X and Y axes are represented as arrows with the tips of the arrows at the top (north) of the Y axis and the right (east) side of the X axis. A male fetus’s brain becomes more organizationally masculinized or defeminized closer to the tips of the two arrows.

12  Jay R. Feierman

Figure 1.2 The Four Attraction Quadrants (A, B, C, and D) based on the perceived features of someone toward whom one’s SELF (as an adult) feels sexual attraction. See text for details. Taken with permission from previous writing of the author in Antonianum LXXXV (3,4): 617–49, 451–77, 2010a, 2010b. Source: Adapted from Feierman 1990, 1992, 1994 and influenced by Weinrich 1987.

It will be helpful to the male or female reader in understanding the rest of this chapter to put your SELF in the center of Figure 1.2. By seeing what age and gender features create a primary and persistent preference in you, it will put you in Quadrant A, B, C, or D. Except for the approximately 1% of males who are asexual (Bogaert 2004; Prause and Graham 2007), all human males (and females) have primary age and gender preferences whether they act on them or not.

Sexual abuse of young boys in the Church 13

Male sexual interests and arousal After some trial and error experimentation to work out uncertainties, which is common in adolescence and early adulthood, the sum total of features of other persons that generate a male’s sexual interest and arousal becomes stable. The features cannot be changed by psychological therapy or through prayer, both of which have been tried in so called “reparative therapy” with no long-term success (Freund 1977; Spizer 2012). In both adolescent and adult male heterosexual and homosexual relationships destined to become sexual, after an initial period of mutually reciprocating and reinforcing courtship (Grammer 1995; Moore 1985; Perper 1985; Weinrich 1987), when the relationship becomes physically intimate there is mutual interest, arousal, and approach-behavior toward the expected genitalia of the other person. In pederasts, the preliminary courtship phase is better characterized as manipulative “grooming,” about which much has been written in the child sexual abuse literature (e.g., Finkelhor 1984).

The development of sexual orientation and behavior To understand how some priests and religious brothers develop interest and arousal to peri-pubescent boys, it is helpful to understand how homosexual, as contrasted to heterosexual, orientation and behavior develop, independent of the development of age interest and arousal. Male heterosexual development About 95% of adolescent boys have an evolved, persistent, and sustained interest and arousal to the fixed anatomical features and facultatively expressed flirtatious (“proceptive”) courtship behaviors of heterosexual, adolescent girls (Grammer 1995; Moore 1985; Perper 1985). The girls’ newly acquired sinusoidal-shaped and soft-edged bodies and their facultatively expressed proceptive behaviors are evolved social releasers that can attract targeted heterosexual males. Proceptive behavioral displays of not recently pair-bonded adolescent girls are (sometimes almost irresistibly) expressed and narrowly directed at specific higher “mate value” (Regan 2008) males, making “female choice” (Kirkpatrick 1982) different than just volitional intentional behavior. This response of adolescent girls to high mate-value adolescent boys causes the boys, as well as young adult males, to be highly competitive with one another for social status, resource accrual ability, and eventually possession of high-value resources, all of which are positive correlates of male mate value for females of any age. For most (i.e., heterosexual) not recently pair-bonded adolescent boys, a flirting adolescent girl directing her proceptive behavioral courtship displays at him will, if he is in the right mood and there are no prohibitions, result in him approaching her. For most adolescent boys, the high-testosterone-activated

14  Jay R. Feierman behavior pulling him in her direction does not result from rational motivation, especially if the adolescent girl has all or most of the features in his lovemap. In humans, the rules for this heterosexual mating game are found in what Geoff Miller (2001) calls the mating mind (see also Grammer 1995; Perper 1985; Symons 1979). Heterosexual human courtship is a species-universal (i.e., present cross-culturally) set of complementary male and female behaviors, like a combination lock, with the males having all the evolved right turns and the females having all the evolved left turns. In playing the mating game, males are very vulnerable with their eyes, which is why all of the left turns are all visual. Which verbally mediated right turns are used by males depends on whether the courtship is for a short- or long-term relationship. In the end, the correct sequence of reciprocal moves “open the lock.” Just like natural selection does not need to create the mood to have babies, only the mood to have sex, natural selection also does not need to create an initial sexual interest in and arousal to female genitalia by heterosexual males for babies to be produced. For heterosexual adolescent boys, natural selection only needs to create interest in and arousal to the outwardly visible social releasers of nubile-age and feminine-gender age mates. Eventually, if the male’s interest and arousal are given the female-choice go-ahead, after some period of time, the result is physical intimacy. During physical intimacy, if the experience is between adolescents and is both emotionally and physically satisfying, the shape of the genitals of the person with whom each are engaging has a reinforcing, confirming effect on their sexual orientation. Although genitalia of opposite sex heterosexuals are not known to be primary social releasers for either sex, their anatomical novelty, complementarity, and reciprocal knowledge of their pleasure-producing functions for both persons can lead, if not constrained, to sexually stimulating interactions of various body parts. Courtship and eventually copulation between male and female heterosexuals are not individually learned behaviors. Both males and females acquired the knowledge of what to do and how to do it from the so-called “innate schoolmarm” (Lorenz 1981, 8–10). Male homosexual development This information is relevant to both the pederasts and some of the peripubescent boys with whom they have been sexual. Psycho-sexual developmental is very different for homosexual boys. In their peri-pubertal stage, a persistent and sustained sexual interest and arousal to masculine gender features develops. The penis becomes more than an irrelevantly shaped but pleasurable when rubbed homing device, which it is for heterosexual boys. The flaccid or erect penis, especially the uniquely shaped (and sometimes hidden) glans, becomes a social releaser for approach behavior in homosexual boys.

Sexual abuse of young boys in the Church 15 Compared to heterosexual courtship, homosexual courtship is different (Weinrich 1987). When two homosexuals interact, given that their brains have both male and female features, one or both of them could have just the right or just the left turns that “opens the lock.” As a result, gaze behavior, which males and females both have, is used extensively. Most males actively search for other males who signal initial interest with reciprocal (often held longer than usual) gazes. Sometimes, this leads to long-term relationships very similar to long-term heterosexual relationships. In today’s digital world, homosexual mobile apps like Grindr, which know users’ physical location and features, and what type of short-term sex each are looking for, have largely taken the place of what used to be called “cruising” for very short-term, sex-only relationships. This high degree of sexual promiscuity occurs because homosexual males are not constrained by the more-reluctant heterosexual females (Symons 1979). On average, homosexual boys have interpersonal sexual relationships at younger ages than heterosexual boys. Saghir and Robins (1973) found that by age 14, 78% of the homosexual boys they studied reported having a romantic homosexual attachment, 60% had engaged in mutual masturbation, and 50% had engaged in oral-genital behavior. Sorensen (1973) found that by age 19, 11% of all (i.e., not just homosexual) adolescent boys they studied claimed they had some homosexual experience prior to age 13. For adolescent boys admitting to having had homosexual experiences, they claimed their age at their first homosexual experience was as follows: ages six to ten (16%), ages 11 to 12 (56%), and ages 13 to 17 (28%). When asked the age of the first male with whom they were sexual, 29% said a younger boy, 27% a boy of the same age, 32% an older boy, and 12% an adult man.

The three male sex orientations Sexual orientation can be indirectly measured by self-report on the Kinsey scale—a seven-point Likert scale going from “O” (exclusively heterosexual) to “6” (exclusively homosexual) with “3” being bi-sexual. The distribution on the Kinsey scale is bimodal, but heavy skewed toward the lower heterosexual end (Kinsey et al. 1949, 642). The three male sexual orientations can be recognized by a persistent, sustained, and measurable interest in and arousal to someone of any age who was born with a: (1) penis = male homosexuality; (2) penis or labia, clitoris, and vagina = male bisexuality; and (3) labia, clitoris, and vagina = male heterosexuality. This way of determining male sexual orientation gives very different information than someone’s self-report of their sexual preferences. Men deceive, especially when they have interest in and arousal to other than adult women. There is one exception to the three male sexual orientations, men with the rare and unusual paraphilia—gynandromorphophilia. Men with this rare proclivity have an interest in and are aroused by outwardly feminine

16  Jay R. Feierman kathoeys (Thailand term) who, when working as prostitutes, are known to have fully functioning and rentable penises. When viewing sexually explicit videos, gynandrophilic men are aroused (using a penile plethysmograph) by lesbian and heterosexual couples, not by gay male couples, and most by kathoeys sexually interacting with men, women, or other kathoeys (Hsu et al. 2015). The kathoey prostitutes are an unusual kind of transwoman. Not all kathoeys are prostitutes, and not all want or have fully functioning male genitals. Heterosexual gynephile men (i.e., men with interest and arousal to adult women) can easily show interest in and arousal to the nubile age and outward feminine gender features of kathoeys, many of whom, with their pretty faces, high heels, and miniskirts in Bangkok, are indistinguishable from XX females. Kathoeys are important in that they demonstrate that initial male interest and arousal are to gender, not sexual features, with only a presumption of what genital shapes are beneath the clothing.

Semantic confusion over the word “homosexual” The homosexualities (notice the plural) are complex. This chapter uses the term “homosexuals” for males with interest in and arousal to select other males with (born with) penises, whether the dyad is boy-boy, boy-man, or man-man. To justify this terminology, John Boswell (1980, 28–9) has pointed out that in modern European and American culture, “teenage girls are ubiquitously standards of feminine beauty,” and “if the term ‘homosexual’ has any significance at all, it clearly includes relationships between men and boys no less than between men and men or boys and boys.” However, this chapter’s terminology is not universal. Nicholas Groth, author of many trade books on child sexual abuse, conceptualizes homosexual orientation as a personality attribute (Groth and Gary 1982). Milton Diamond (2010), an academic expert on gender and sexuality, conceptualizes homosexual as an adjective to describe a behavior and not people. Neither Groth’s nor Diamond’s terminology work for evaluating applicants to seminary or religious life. Groth also limits the use of the word homosexual for men who in this chapter are called “homosexual androphiles” (men sexually interested in and aroused by other masculine adult men). Swift-Gallant (2018) uses androphile for any man sexually attracted to another male with a penis, regardless of the other male’s age. How these terms should be defined becomes much more complicated when applied to transsexual persons. These are semantic and not conceptual differences.

Superimposing the male sexual orientations on Figure 1.2 When two of the three male sexual orientations (bisexuals omitted) are superimposed on the age- and gender-feature preference graph in Figure 1.2, one gets Figure 1.3.

Sexual abuse of young boys in the Church 17

Figure 1.3 Placement on the Attraction Quadrant graph of males with different sexual orientations. 1 = heterosexual teliophiles, 2 = heterosexual ephebophiles, 3 = heterosexual hebephiles, 4 = heterosexual pedophiles, 5 = homosexual teliophiles, 6 = homosexual ephebophiles, 7 = homosexual hebephiles, and 8 = homosexual pedophiles. Areas are only roughly related to prevalence in the general population and are not drawn to scale. Taken with permission from previous writing of the author in Antonianum LXXXV (3,4): 617–49, 451–77, 2010a, 2010b. Source: Adapted from Feierman 1990, 1992, 1994 and influenced by Weinrich 1987.

The placement of the various combinations of age interests and hetero- or homo-sexual orientations in Figure 1.3 is a first-order approximation subject to revision. It considered all source data from the literature as well as unique in-house data on priests and religious brothers using what was called the Videotape-Computer-Psychophysiological Interaction System (VCPPIS).

18  Jay R. Feierman

The Videotape-Computer-Psychophysiological Interaction System (VCPPIS) The VCPPIS was a one-of-a-kind, proprietary instrument that was designed and built for the Servants of the Paraclete religious order in New Mexico in early 1982 by electrical engineer/computer scientist Dana Reddington. A then state-of-the-art Apple II computer controlled a Sony industrial Betamax video player. The computer also received physiologically measured sympathetic nervous system arousal data. Sympathetic arousal data were collected by recording finger galvanic skin response (GSR), heart rate, and temperature, expressed as the reciprocal (1/temp). Compared to boredom, sympathetic autonomic arousal causes one’s fingers to get sweatier and colder and one’s heart rate to increase. Once a week for ten weeks, several hundred priests and religious brothers in an evaluation and treatment program in New Mexico viewed a series of ten different 30-minute silent videotapes. Each videotape contained six, fiveminute segments. Three of the five-minute segments contained individuals from one of the four age categories and one of the two gender categories. The other three segments contained persons of different age and gender categories. Neither the still images nor moving videos were hard-core pornography or showed underage nudity or genitalia. The author made all ten Betamax videotapes. The still images came from the underwear sections of Sears Roebuck and JC Penney mail-order clothing catalogs. The videos were short segments of various television program edits where persons of only one age and gender were seen. The computer-generated data printouts often looked like the top of a picket fence over the 30-minute test period. Five minutes of three upward sloping lines of GSR, heart rate and the inverse of finger temperature indicated increasing interest and arousal. All three measures of sympathetic arousal almost always changed in the same direction. When an occasional (< 5%) outlier didn’t, usually for technical electrode reasons, the segment was not used for analysis. If a particular five-minute segment that showed increasing arousal was followed by a five-minute segment of individuals of a different or the same age and gender, one of two things occurred. A rapid downward sloping of the three lines within the first 15–30 seconds, where the three lines stayed at a low level and never turned upward during the five minutes, was interpreted as boredom. If the three lines just slowly decreased from the previous fiveminute segment, that was interpreted as less sympathetic arousal. Only after analyzing the trend between the two segments on a particular 30-minute videotape could a determination be made of the viewer’s primary and possibly secondary age and gender interest and arousal on that particular videotape. Final analysis for each priest or religious brother considered all ten videotapes.

Sexual abuse of young boys in the Church 19 Other than for the first few seconds of the 30-minute videotapes, there were no five-minute segments of “neutral” pictures or videos of such things as landscapes that were used as baseline sympathetic arousal. The system was only measuring relative sympathetic arousal between five-minute segments that differed by age and gender features. Sexual orientation was not measured directly, as no genitals were shown. Rather, sexual orientation was inferred by what the viewer deductively concluded the genitals would have looked like if the clothing were removed. The results of each session were shown to and discussed with the priest or brother by the system operator immediately after the 30-minute session. The author documented all of the results for later aggregate analysis. There are many weaknesses in the data obtained by the VCPPIS. It was a one-of-a-kind, proprietary instrument. The results obtained were not validated against the gold standard—the penile plethysmograph—given the priest and religious brother population that was being evaluated. The VCPPIS and the ten, 30-minute Betamax videotapes were discarded in 1995, as the technology had become obsolete and the program in which they were being used closed. Apart from some aggregate data analysis preserved on a few PowerPoint slides, all of the records of individual priests and brothers were destroyed (shredded) in 1995. Nevertheless, even with these limitations, some the data that were preserved are worthy of consideration. They are the only data, to the author’s knowledge, that physiologically measured the age and gender interest and arousal of priests and religious brothers.

Primary and secondary sexual interest and arousal of pederasts Primary and secondary interest (attention time to visual stimuli) and arousal (penile plethysmograph differences) between juveniles and adults can be measured. There are a number such studies: Blanchard et al. (2009a, 2009b), Freund (1967, 1989), Freund and Watson (1992), and Quinsey et al. (1996). Although the methods and the designation as pedophile, hebephile or just child sex offender differed among the following studies, a reasonable conclusion from them is that many homosexual pederasts claim to be heterosexual, were married, or are married at the time of their offense. Pederasts and other child sexual offenders claiming to be heterosexual Groth and Birnbaum (1978) found that of 175 convicted sex offenders against children (sex not specified), all self-reported to be heterosexual. McGeorge (1964) found that in 200 male sexual offenders against boys, 84% claimed that they were heterosexual (gynephiles). Rossman (1976),

20  Jay R. Feierman in an international sample of over 1,000 non-incarcerated men mostly recruited from underage boy mailing lists, found that the majority claimed to be heterosexual or bisexual. Nora Harlow (personal communication 2010), a published child sex abuse researcher, reported that in unpublished collateral data she had on a national (U.S.A.) sample of 4,000 men who had sexually offended against boys, 70% answered the Kinsey scale as heterosexual and 9% as bisexual. Pederasts and other child sexual offenders who are married Toobert et al. (1959) found that 43% of incarcerated pedophiles were married and 23% of the children were male. Kingston et al. (2007) found that 28.6% of convicted pedophiles were or had been married and 45.9% of the children were male. Langfeldt (2010), in an outpatient program for men who sexually offended against children, found that 43.6% of the men were married and half of the children with whom they were sexual were boys under age 16. Bisexuality Some of the homosexual men in the New Mexico program that the VCPPIS determined were in Quadrant B in Figure 1.3 self-reported that they were “bisexual.” Cross-over bisexual men, often married in the secular world, partition their sexual behavior between adult women—usually their wives—and peri-pubescent boys. The adult woman and peri-pubescent boy pattern of bi-sexuality also exists in the Far East (Saikaku 1990) and Middle East (Schmitt and Sofer 1992; Kugle 2010). For married and unmarried men in Muslim-majority countries, peri-pubescent boys are primarily sexual substitutes for the unavailability of sexually active, unmarried women As an example, Bisexuality may run rampant in every country between Greece and Afghanistan, but its purpose is historically non-gay. A man does not desire another man, Allah forbid. If anything, he desires a boy—a slim, hairless, effeminate youth. And he calls it sex education and birth control. When the boy becomes a man, he will turn his sexual sights to women and possibly boys, but not men. The tradition survives. (Reed 1992, 61) Similarly, in the West, “I am attracted to their young, youthful appearance, smooth bodies, no hair, things like that. I’ve also had sex with women but guys turn me off—it’s not natural” (Burgess et al. 1978, 15). A very unusual form of culturally normative inter-generational bisexuality is present in Oceania (Herdt 1981), where young boys engage in ritualized homosexual fellatio on unmarried adult males as children; and then,

Sexual abuse of young boys in the Church 21 almost all are heterosexual in their behavior as adults. Inter-generational male homosexuality, usually with a married man, was considered moral and was, under certain conditions, legal in ancient Greece (Dover 1978) and Rome (Williams 1999).

Categorizing homosexual androphiles (men sexually attracted to masculine adult men) What is the relevance of this information? One of the Church’s remedies for reducing the risk of priests and religious brothers being sexual with young boys is to not ordain or let into religious congregations applicants who are openly gay, admit they are gay, support the gay lifestyle, or have subtle behavioral and voice intonation features that give them away as being homosexual. Yet, Freund (1974), using the penile plethysmograph, found that men whose arousal pattern categorized them as homosexual androphiles showed no more sexual arousal to 6–8-year-old naked boys than to neutral landscapes. Although most young boys who have historically been the object of priests’ sexual behavior were somewhat older (10–14), both groups were physically immature males, which makes Freund’s data relevant. The differences between 6–8 and 10–14-year-old boys is a gradation. Pedophile and hebephile are not mutually exclusive kinds. Apart from inappropriate sexual behavior with young boys by pederasts, some homosexual androphiles have created other scandals within the Church when they are exposed in the lay media as being in known cruising areas, gay bars, gay baths, etc. (Gross 2013). Some homosexual androphiles can also cause havoc in all-male religious communities. Their easily executed promiscuous behaviors (Symons 1979) cause moral problems among religious men trying to be faithful to their vows (an insider informant, personal communication). This is not to say that all homosexual androphile priests are sexually promiscuous. And some heterosexual gynephile priests also break their vows. Categorizing homosexual androphiles Swift-Gallant (2018) proposed categorizing homosexual androphiles into two types: too much or too little androgen (a sex steroid) during the masculinization of the fetal brain in utero. She argues that the inconsistent findings in the sexology literature that look for androgen-related differences between homosexual androphiles and heterosexual gynephiles in adulthood could be due to mixing the two types of homosexual androphiles together, which cancels out differences. The two types of homosexual androphiles are not mutually exclusive kinds, as in two silos. Rather, they are exemplars that represent the two sides (i.e., the “tails”) of a distribution for in utero

22  Jay R. Feierman brain masculinization (see Figures 1.2 and 1.3). Swift-Gallant uses the term “androphilia” for sexual attraction to “males.” In this chapter, androphilia means interest in and arousal to adult masculine features (Donovan 2007; Dynes 1990; Schmidt 2010). There is a presumption for most adult men that clothed persons with adult masculine features have a penis and that clothed persons with adult feminine features have labia, a clitoris, and a vagina. Using the quadrant names in Figure 1.3, Swift-Gallant’s two types of homosexual androphiles would be called “Quadrant B Type” and “Quadrant D Type,” with “Quadrant C Type” in-between them. The following are paraphrased from Swift-Gallant (2018) using the terminology of this chapter: Quadrant B Type Homosexual Androphile: On average, their brain is more masculinized than the average heterosexual gynephile. They are more male-typical in height and body hair. They have more genderconforming “masculine” behavior in childhood as well as adulthood. They tend to have an increase in left-handedness, which is typical of heterosexual males. Their puberty tends to be earlier than all “other” homosexual males and even earlier than heterosexual gynephiles. When engaged in penetrating sex, they prefer being the [more dominant and inserting] “top” compared to Quadrant D homosexual males. “Top” is the category name used by Swift-Gallant, which, to fit into the rest of this chapter, I have called “Quadrant B Type.” • [Note that in Figure 1.3, Quadrant B contains homosexual ephebophiles, hebephiles, pedophiles, some homosexual androphiles, and all heterosexual males.] • Quadrant D Type Homosexual Androphile: On average, their brain is less masculinized than the average homosexual androphile. They tend to be shorter in height and have less body hair compared to heterosexuals and all “other” homosexual males. They have more gender non-conformity (“sissy”) behavior in childhood (Green 1987) as well as more effeminate behaviors in adulthood. They are the homosexuals who score higher on “femininity” on psychological tests compared to the more masculine in demeanor, homosexual androphiles in Quadrant B (Freund et al. 1974). They do not tend to have an increase in lefthandedness. They tend to have more elder brothers (i.e., the fraternal birth order effect). Their puberty tends to be between the times of heterosexual males and all “other” homosexual males. They tend to prefer being the [more submissive and receptive] “bottom” compared to Quadrant B homosexual androphiles. “Bottom” is the category name for this group used by Swift-Gallant. •

“Top” and “bottom” are linguistically entrenched in the English-speaking gay male community (Underwood 2012). “Tops” [Quadrant B] are

Sexual abuse of young boys in the Church 23 reported to have more masculine faces (Tskhay and Rule 2013) as well as larger penises than the [Quadrant D] “bottoms” (Grove et al. 2010), with the versatile homosexuals [Quadrant C] in-between (Moskowitz and Hart 2011). In a sample of San Francisco gay men, 21% preferred being a “top,” 37% a “bottom,” and 41% versatile (Wei and Raymond 2011).

Male homosexuality Prevalence No one knows the exact percentage of homosexual males in any population because pederasts and pedophiles almost never disclose true information in interviews or on surveys. They live life incognito, claiming to be heterosexual. By contrast, homosexual ephebophiles, when “out,” are accepted by and identify with the gay community. Sampling homosexuals in ways other than in gay bars and gay bathhouses will capture them. The gay community calls them “chicken hawks.” Somewhere between 3% and 10% of all males are homosexual, bisexual, or have engaged in homosexual behavior more than once. Those who enjoyed the first experience engage in it more than once and actively seek it out. The Kinsey et al. data (1949, 623), although old, show that between 1938 and 1947 in the United States, at least 37% of the male population between adolescence and old age admitted to having had some homosexual experience to the point of orgasm. Objective disorder or by-product of natural selection The “objective disorder” advocates (Grocholewski 2005 and others) believe the long-refuted psychoanalytic folk psychology that male homosexuals have arrested psychosexual development, even though there are several biological markers inconsistent with that belief (Green 1987; Cantor et al. 2002; Lalumière et al. 2000; Mustanski et al. 2005) but consistent with the more commonly held belief that it is a by-product of natural selection. Alloparental care “nest helper” is the commonly presumed other and primary function by which male homosexuality could have evolved through kin-selection (Playa et al. 2017). Adaptive theories of male homosexualities Male homosexual behavior is found in diverse species throughout the animal kingdom, as well as in all known human societies (Bagemihl 1999), suggesting it confers adaptiveness, meaning better-than-average survival and reproductive success of an individual, an individual’s kin or an individual’s in-group breeding population. Yet, male homosexuals leave less offspring

24  Jay R. Feierman than male heterosexuals (Bell and Weinberg 1978 and many others). The main mechanisms by which a trait that decreases individual fitness could evolve are called kin-selection and multi-level selection. There are several theories in the literature for male homosexuality having adaptiveness in and of itself, the most quoted is by E.O. Wilson (1988, 143): There is, I wish to suggest, a strong possibility that homosexuality is normal in a biological sense, that it is a distinctive beneficent behavior that evolved as an important element of early human social organization. Homosexuals may be the genetic carriers of some of mankind’s rare altruistic impulses. (Wilson 1988, 143) [Emphasis added] “Carriers of some of mankind’s rare altruistic impulses” needs more elaboration. Ronald Fisher (2000 [1930]), one of the founders of mathematical population genetics, developed what he called “a fundamental theorem of natural selection,” which is that the rate of fitness in any organism at any time is equal to its genetic variance in fitness at that time. This would require individual organisms in a specific environment to carry some lessthan-optimally fit recessive genes, which in a different environment or when in certain kinds of kin in the same environment, can increase fitness. This author previously has called persons who, in a specific environment, carry some less-than-optimally fit recessive genes “sacrificial altruists.” Recent replicated data suggest how male homosexuality could have evolved by increasing fitness in the homosexual male’s maternal relatives (Rahman et al. 2008; Camperio-Ciani et al. 2004). This same principle can also apply to men with variant age orientations. It is simply inevitable that some adult males in a population will be sexually attracted to individuals who are . . . more or less feminine and more or less young than can be found in the range of fertile females (Feierman 1990, 559). Figure 1.3 illustrates this principle.

How the social releasers for male homosexuality might have evolved All Quadrant B males in Figure 1.3 have varying age but similar gender interest and arousal. It is currently unknown why and by what mechanisms a minority of them have a sexual interest in, and arousal by, other males’ penises instead of external female genitalia. It might be related to poorly understood genetic factors (Ganna et al. 2019) that influence developmental timing. Perhaps there is a critical period (Scott 1978) during which time one’s lovemap is formed. Or, perhaps male genitalia are just more visible than female genitalia. Visual social releasers work on the basis of shape, color, size and movement. In homosexual adolescent boys, the shape of the penis causes interest

Sexual abuse of young boys in the Church 25 and arousal similar to how in heterosexual adolescent boys the sinusoidal shape of adolescent girls causes interest and arousal in them. Male homosexuals can be preoccupied with penises, sometimes, at least with homosexual androphiles, to the exclusion of the person whose penis it is (anonymous gay sex, “glory holes,” etc.). Many homosexual androphiles are also preoccupied with penis size. In one well-quoted study, only 7% of gay men said that their penis is smaller than average in size (Grove et al. 2010). Given that men have many opportunities to see other men nude in their life, the true number should be close to 50%. This is classical selfdeception (Trivers 1976, vi, 2000). As male genitals get smaller, homosexual pedophiles are more bisexual than homosexual hebephiles and ephebophiles (Freund and Langevin 1976; Silva 1990). Homosexual pedophiles are attracted and aroused as much by the feminine-like features of smallness, smoothness, softness, roundness and submissiveness of the pre-pubertal child as they are by the shape of the child’s genitals (see Silva 1990). The prepuce (foreskin) and shaft of a young boy’s small, uncircumcised penis and an adult woman’s elongated female clitoral hood not covered by the labia majora have a dimensional rather than a categorical difference, since they are homologous (common origin) as the genital tubercle at an earlier stage of embryonic development. This anatomical similarity might be helpful in understanding some aspects of pedophilia and bisexuality, especially in an age when shaving public hair has become fashionable in women. Similarly, men who show primary, plethysmograph penile arousal to prepubertal girls also have a secondary (less) sexual arousal to adult women (Blanchard et al. 2009a).

Seminary life in the U.S.A. Starting in the late 1960s, seminaries were said to have become “gay enclaves” by a former seminary rector (Cozzens 2000, 101) and Reno (2018). This “coming out” of gay seminarians does not mean that the percentage of homosexual androphiles was increasing in seminaries between the 1950s and the 1980s. It probably reflects the increasing openness of the gay culture in secular life, which allowed gay seminarians to form cliques and talk among themselves about their lives (Wolf 1989). None of the pederasts in the New Mexico program told the author that they identified with or became a part of the gay subculture in seminary. A few told the author that they despised listening to the effeminate “gay speak” (called “camp”) when groups of openly gay seminarians were together in small cliques.

Priests, religious brothers, and peri-pubescent boys The data sets to follow come from various sources. None are a random probability sampling of all priests and religious brothers either in one country

26  Jay R. Feierman or all countries. Most of the data come from countries north of the Equator plus Australia. When one study is corroborated by one or more others, it is reasonable to conclude that: (1) more boys than girls were sexually abused by priests and religious brothers, (2) a higher percentage of diocesan than religious order priests have been accused, and (3) the average age of the boys sexually abused is peri-pubertal, around 10–14 years of age. Sexual misconduct of clergy with parishioners is not exclusive to the Roman Catholic Church. There are data to suggest that the problem could even be more prevalent in some Protestant denominations (Thorburn et al. 2011) and Hasidic Jewish communities (Katzenstein and Fontes 2017). What is peculiarly Roman Catholic is the preponderance of homosexual behavior with peri-pubescent boys. Homosexual (loosely defined) pedophiles self-reported to Abel et al. (1987) that they had almost an order of magnitude more child victims than heterosexual pedophiles (150.2 versus 19.8). Based on self-reports of non-offenders, non-sexual offenders, and sexual offenders, Gebbhard et al. (1965) found that sexual offenses against children (both reported and nonreported) were much higher for boy children than for girl children. Freund and Watson (1992) claim that even with the higher probability of apprehension for homosexual pedophiles because they have more child victims, the proportion of pedophiles who are sexually attracted to little boys compared to little girls is still more than would be predicted by knowing the proportion of adult men in the general population who are sexually attracted to adult men versus adult women. The San Francisco Bay study In 1970, Bell and Weinberg (1978) found that almost 50% of the men selfidentifying only as “white homosexual male” (which could include homosexual ephebophiles) said that they had at least 500 different sexual partners during the course of their homosexual careers. Of these men, 75% said that none of their sexual partners were age 16 or younger when they were age 21 or older. However, 25% of them said that half or less of their sexual partners were age 16 or younger when they were age 21 or older (311). The John Jay report for the United States Conference of Catholic Bishops This report made up of several data sets by Terry et al. (2011) covers the sexual abuse of minors by Catholic priests in the United States between 1950 and 2010. Of priests active during that period, 4% were accused. They were 4.27% of diocesan priests and 2.7% of religious order priests. Sixty-seven percent of the priests had a ministerial relationship with the child or children (sex not specified). Of the sexual acts, 81% were with boys and 41% of the boys were 11–14 years old.

Sexual abuse of young boys in the Church 27 MHG study of the German Bishop’s Conference (2018) Of the priests serving in 27 German dioceses between 1946–2014, allegations were made against 4.4% of them. The rates were 5.1% of diocesan priests and 2.1% of religious order priests; 62.8% of the children were male. The mean age of all children (sex not specified) whose ages were known was between 10.6 and 12.0, based on two different data subsets with more than half of the children being age 13 or younger. The percentage of clerics who “had indications of a homosexual orientation” varied widely among the data subsets: 12%, 14%, 19%, and 72%. Seventy-five percent of the children affected were under the pastoral care of the accused priest. Pennsylvania Grand Jury report, 2018 This 800-page report has very little summary data. Most of it consists of case histories of individual priests. Credible allegations of over 300 priests from six dioceses are discussed. One thousand child victims were identified. Of significance to this chapter, “Most of the victims were boys.” Australian royal commission into institutional responses to child sexual abuse, 2017 Between 1980 and 2015, there were 4,444 claimants who alleged incidents of child sexual abuse associated with the Catholic Church. Of the claimants, 78% were male; their average age at the first alleged incident was 11.6. Of the accused adults, 90% were male, 30% were priests, and 32% were religious brothers. The rest were church employees. Between 1950 and 2010, 7% of priests had allegations against them. For St. John of God Brothers, it was 40.4%, and for The Christian Brothers, 22%. Ireland The Church acknowledges child sex abuse allegations against more than 1,300 clergy over the last 40 years, although just 75 can be named because of highly restrictive defamation and data-protection laws (O’Doherty 2018). Belgium There were 488 complaints concerning incidents of child sexual abuse in the Catholic Church that took place between 1950 and 1990 (Adriaenssens 2010). Of the 124 claimants who gave testimony, two thirds of them were male. New Mexico (U.S.A.) evaluation and treatment center About two thirds of the approximately 800 men in the New Mexico program were referred by bishops and heads of religious orders for problems

28  Jay R. Feierman with celibacy. The other third, which in some way were a non-celibacy “control group,” were in the program for a variety of non-celibacy problems (23% depression, 21% personality issues, 16% growth and development, 14% leaving or wanting to reenter ministry, 13% stress, 9% anxiety disorder, and 4% other). Priests (diocesan and religious order) constituted 87% and religious brothers made up the remaining 13% of the program’s residents. Out of all of the priests and religious brothers who went through one of the five-month modular programs between 1976 and 1992, Perri (1992) systematically sampled 395 consecutive men who received a full battery of psychological tests over a nine-year period. Within that selected sample of 395 men, 267 (68%) were homosexual and 128 (32%) were heterosexual. The assignment of age interests and sexual orientation were determined at the end of the five-month modules on the basis of the reason the man was in the program, the man’s self-report by the end of the program, physiological data from the VCPPIS starting in 1982, if available, and staff consensus. There was no statistically significant difference in the percentage of homosexual men in the program for a celibacy or a non-celibacy issue. Both were around 68%. More importantly, 41% percent of the all homosexuals (celibacy and non-celibacy reason-for-admission groups combined) had interest in and arousal to under-age boys. By contrast, only 15.6% of the heterosexual men had interest in and arousal to under-age girls. Perri’s data show that slightly more (not statistically significant because of low numbers) of the heterosexual men in the program had a primary interest and arousal to pre-pubertal rather than adolescent girls. This is supportive of the author’s long-held professional opinion that “celibacy attracts sexual outliers”; this includes homosexuals, including those with a sexual interest in and arousal toward (especially) underage boys. It is difficult to determine overall prevalence in the entire priesthood from these data, as percentages might vary depending upon geographical area and cultural context.

Additional data gathered by the author In early 1991, the author analyzed more data on approximately 95% of the men studied by Perri (1992). Between 1991 and 2014, the author gave a series of lectures at academic conferences on celibacy issues in priests using a few of the PowerPoint slides from the New Mexico program, which closed in 1995. As noted earlier, at the closure, all of the unpublished in-house VCPPIS research data on individual priests and religious brothers were destroyed (shredded) except for the few PowerPoint slides, as they only contained the aggregate data that follows. These are the most significant findings. The author put the 240 men with a celibacy issue into one group. The analysis, which was on one of the PowerPoint slides, was for the probability of the individual with whom the priest or religious brother sexually interacted with being a parishioner. If an adult

Sexual abuse of young boys in the Church 29 male, 26.7%; if an adult female, 64.8%; and if an underage minor of either sex, 97.2%. Of the 240 men in the celibacy-issue group, 62% were diocesan priests and 33% were religious order priests (i.e., a 2:1 ratio). The diocesan priests were significantly more likely to be sexually attracted to minors versus adults (p < .008 by a chi-square test) and to have sexually acted out with minors (p < .025 by a chi-square test) compared to religious order priests. There were no significant differences found between religious order priests and the religious order brothers.

Diocesan versus religious order priests Burke et al. (2004) found that of the 75,694 diocesan priests in ministry in the United States between 1950 and 2002, allegations of sexual abuse of minors were made against 3,265 (4.3%) of them. By contrast, similar allegations were made against 918 (2.7%) of the approximately 34,000 religious order priests during the same period. These data are independent of the ratio of diocesan to religious order priests in the community and are just looking at the percent of each group that had allegations against them for sexual abuse of minors.

Who gets admitted to seminary and religious life? The general consensus in the sexology literature is that most homosexual men are not overtly effeminate, but most overtly effeminate men are homosexual androphiles. In a large study of 912 gay and bisexual men, recruited from gay men’s meeting places in three large American cities, 27.2% of them considered themselves effeminate (Sandfort et al. 2007). Gay men, as a group, are statistically distinguishable from heterosexual gynephiles (“straight men”) at better than chance odds by effeminate behavioral mannerisms (Ambady et al. 1999; Hall and Kimura 1995) and speech intonations (Kachel et al. 2018; Pierrehumbert et al. 2004). The gay mens’ groups did not include (homosexual) pederasts and (homosexual) pedophiles, whose masculine behavior and voice intonations might have changed these results. Although there are not an official exclusion criteria for priesthood or male religious congregations based on a male candidate exhibiting excessive effeminate mannerisms or speech intonations, the Instructions on the Careful Selection and Training of Candidates for the State of Perfection and Sacred Orders from the Sacred Congregation for Religious (1961) warns that “very special investigation is needed for those students who . . . suffer from morbid or abnormal sexuality, especially sexual hyperesthesia or an erotic bent of nature . . . gifted with excessive sensitivity” (Grocholewski 2005). This is mainly a description of homosexual androphiles in Quadrant D in Figure 1.3. There is also the more recent, “[The] Church cannot admit to the seminary or to holy orders those who practice homosexuality, present

30  Jay R. Feierman deep-seated homosexual tendencies or support the so-called ‘gay culture’ ” (Grocholewski 2005). A statement given to a New York Times reporter by Harvard University Professor of Divinity Mark D. Jordan, who has studied the sexuality of Roman Catholic priests (Jordon 2000), is that “[A]n [exclusionary] criterion like this [Grocholewski 2005] may not ensure that you are getting the best candidates, though it might get you people who lie or are so confused they do not really know who they are” (Vitello 2010). In the Program of Priestly Formation (2006), a document put out by the United States Conference of Catholic Bishops, psychological assessments integral to the admissions procedure have some interesting restrictions. They “should be administered using methods that do not violate the applicant’s rights to privacy and confidentiality or do harm to the reputation of the applicant” (23). Applicants [to seminary] need have “a fully functioning psychosocial maturity commensurate with chronological age” (19) and to have “a knowledge of one’s sexuality and sexual desires” (38). This knowledge is not to happen as a result of discussions with other seminarians, as all are required to have “appropriate self-disclosure” (38, 39). Seminarians are told to confide about their sexuality with their spiritual directors in the internal forum and to discuss, “their history of personal relationships and . . . their temptations” (51). Two things are clear to the author in this document: There is a presumption that homosexuality (also called “same sex desire”) is the result of psychosocial immaturity, rather than its own ontological entity; and, “don’t ask and don’t tell” is the unwritten policy for seminarians in the U.S.A. There is a growing trend in seminaries in Western countries to introduce policies aimed at better knowing the sexual orientation of seminarians and to deal carefully with them in the formation process with their spiritual directors (confidential informant, this author). Unless there were actual data that showed that seminarians in the formation process are openly admitting their homosexuality in spiritual direction, this is just a policy. All of the pederasts in the New Mexico program examined by the author said they lied about their sexual orientation in their formative years and said that they were “heterosexual.” Many of them self-deceptively believed it (Trivers 1976, ix, 200). They did not think they were homosexual, as they had no sexual interest in or arousal by adult, masculine men. Therefore, they concluded that they must be heterosexual. The non-admission policy for homosexuals was reinforced more recently by Pope Francis in comments given to a Spanish missionary priest in the book, La fuerza de la vocación (Prado 2014). The pontiff is quoted [in translation] as saying, “In our societies, it even seems homosexuality is fashionable. And this mentality, in some way, also influences the life of the Church.” He went on to say that the Church had to be “demanding” in choosing candidates for the priesthood, and “the question of homosexuality is a very serious one” and that those responsible for training priests

Sexual abuse of young boys in the Church 31 must make sure candidates are “humanely and emotionally mature.” He then remarked, “For this reason, the Church urges that persons with this deep-rooted tendency not be accepted into ministry or consecrated life” (BBC 2018).

The clandestine pederast already in priesthood and religious life Hundreds of pederast priests and religious brothers were examined by the author in the New Mexico program over a 19-year period. All of these “boy lovers” (Brongersma 1986; Rossman 1976) were quite masculine in their body language, voice intonations, interests, hobbies, etc. The very masculine demeanor of pederasts is reviewed with primary source references by Brongersma (1986, 74). Some recent evidence suggests that child sexual offenders show prenatal and epigenetic alterations in their androgen [testosterone] system (Kruger et al. 2019). Many of the pederasts in the New Mexico program had a secondary (i.e., weaker than to peri-pubescent boys) physiologically measurable sympathetic arousal patterns to visual stimuli of feminine adolescent girls and adult women using the VCPPIS. If the sequence was pubescent boy and then either adolescent or adult women, the slopes of the arousal measurements went down slowly, compared to large, hairy, muscular and masculine men, where the slope rapidly went and stayed down for the entire fiveminute segment. Or conversely, if the sequence was adult women followed by pubescent boys, the slope of the sympathetic arousal measures went up significantly more steeply once only the age (from older to younger) but not the gender of the persons being viewed changed. The VCPPIS put preand peri-pubescent boys in the same “feminine” gender category as adult women, as the young boys had feminine features: small, smooth, soft and hairless bodies. Based on the detailed (over many hours) sexual histories taken by the author in the New Mexico program, very few of the pederasts had any type of physically intimate experiences (e.g., fondling to the point of mutual sexual arousal and orgasm) with adolescent girls on dates in high school beyond a sometimes perfunctory goodnight kiss if they dated at all. A few told the author that they did not understand what was so exciting about high school girls. Many of them said that they had engaged in mutual masturbation with other adolescent male friends in middle school and high school. A few told the author that as an adult prior to seminary or entering a religious order they had some sexual experiences with adult women to the point of orgasm. To a person, the few who had such an experience told the author the same thing: “It was sexually but not emotionally fulfilling.” None of them told the author that they had any type of anonymous orgasmic experience or an emotionally bonded homosexual relationship with

32  Jay R. Feierman masculine adult males when they were an adult male, a finding that was corroborated by the author in 2010 through email with the former New Mexico program director. However, psychiatrist Richard Fitzgibbons has been quoted as saying, “In fact, every priest whom I treated who was involved with children sexually had previously been involved in adult homosexual relationships” (Fitzgibbons and O’Leary 2011, 259). Dr. Fitzgibbons is Adjunct Professor at the John Paul II Institute for Studies on Marriage and Family at the Catholic University. As of December 2008, he is Consultant to the Congregation for Clergy at the Vatican according to the Catholic News Agency. Since 1988, he has been Director of the Comprehensive Counseling Center in West Conshohocken, Pennsylvania and has worked extensively (psychodynamic reparative therapy based on his 2011 co-authored article) with individuals suffering from “same sex attraction” (SSA) and priests accused of pedophilia.

Not in the gay subculture Gagon and Simon (1970) reported that the sexual offenders against young boys they studied rarely self-reported being members of the gay community. In the New Mexico program, none of the pederast priests and religious brothers told the author that they were in the openly gay subculture in post-ordination priesthood or religious life. They did not, for example, frequent gay bars and gay baths. A few told the author that they had tried going into a gay bar as an experiment, often at the urging of and accompanied by a gay priest friend, to see “if I am really gay.” They all reported to the author that they found the experience very uncomfortable and threatening, as they didn’t like the feeling that some of the more masculine-type adult men in the bar were “hitting on” or “coming on” to them.

Writings on the destructive aspects of “homosexuality” on the Church First, there is the 680-page tome The Homosexual Network, written by the late Fr. Enrique Rueda (1982). He wrote, “under the cover of celibacy” and as a part of “the homosexual movement,” homosexuals have “infiltrated” the Roman Catholic Church, which he saw as a very negative event. His book was not sanctioned by nor does it represent any official view of the Roman Catholic Church. Second, there is, “The gradual infiltration of homosexuals into the ranks of the clergy over the years” in the Homiletic and Pastoral Review (Clowes and Sonnier 2005). They recommend that all Roman Catholic clergy be required to sign a Profession of Faith condemning all homosexual acts or have their faculties suspended.

Sexual abuse of young boys in the Church 33 Third, Archbishop Carlo Maria Viganò (2018) released an 11-page statement on August 26, 2018. He wrote, The homosexual networks present in the Church must be eradicated. These homosexual networks . . . act under concealment of secrecy and lie with the power of octopus tentacles, and strangle innocent victims and priestly vocations, and are strangling the entire Church. (see also Martel 2019)

Homophobia There is a certain irony in that males who claim to be heterosexual but who endorse homophobic rhetoric have an increase in penile erection measured by a penile plethysmograph in response to male homoerotic stimuli compared to non-homophobic males also claiming to be heterosexual (Hudson and Ricketts 1980; Adams et al. 1996). In the Hudson and Rickets study, all the males tested showed sexual arousal to videos depicting heterosexual and lesbian sexual acts, but only the homophobic males exhibited sexual arousal to the homosexual act videos. Most important, in spite of what the penile plethysmograph showed, the homophobic males denied that they had sexual arousal to the homosexual video tapes. Robert Trivers (1976, vi, 2000) considers these specific data evidence of self-deception. Cheval et al. (2016) found that impulsive homophobic men who score high on homophobia had longer attention (viewing time) to male homosexual compared to male heterosexual acts. Viewing time almost always correlates positively with plethysmograph-measured sexual arousal. Jack Drescher (2004), an acknowledged psychiatric expert on homosexuality, explains that “strong anti-homosexual feelings may represent an effort to control perceptions of a gay-basher’s own sexual identity.” Jack Dresser, M.D. was the chairperson of the American Psychiatric Association’s Committee on Gay, Lesbian and Bisexual Concerns. We are only recently coming out of maximally homophobic times in the first half of the 20th century (Boswell 1980, 23). A suspicion has been repeatedly raised concerning some traditional sectors in the Catholic Church and their hidden motivations against homosexuality, since it could reveal a homophobic tendency or hiding a homosexual trend in disguise (Martel 2019). However, these are speculations. It is very difficult to get any direct evidence about those who are more committed against homosexuality in the clergy.

Vocations—marriage or the celibate priesthood Current research is trying to better understand the psychology of priest candidates and ordained clergy regarding their sexuality and how they live their vows, and to deal with the perceived problems. The broad consensus is that in most cases, celibate clergy manage to integrate and live

34  Jay R. Feierman in their choices in a mature and satisfied way. But there is a minority who do not and who even engage in sexual promiscuity or simple violation of their vows, or, in extreme cases, engage in immoral and illegal sexual behavior with young boys. To better understand the motivation of a pederast priest, many of these men appear to have chosen a celibate priestly life for all the wrong reasons. It is not that they were primarily called to the celibate priesthood. Rather, they knew they were not called to marriage and would not marry even if celibacy were made optional. The data to follow support this thesis. However, there is no implication that all of the priests and seminarians represented by these percentages are pederasts. Not called to marriage Although much of these data are from a few decades ago, the author could not find more current similar data. In the author’s opinion, it is very important data. There have been a number of studies in the United States over the years asking the question of priests and seminarians, “If celibacy were made optional, would you marry?” All studies on priests except one (Kennedy and Heckler 1972) only included priests age 35 or younger. In 1970, the average age of a priest in the United States was 35 (CARA 2012), and Kennedy and Heckler found that “the majority” of them (age not specified) would not marry if marriage was an option. In the age 35 or under studies, in response to the same question, the following percentages said “no”: Fichter (1968) 62%; Greeley (1972) 67%; Verdieck et al. (1988) 63% in 1970 and 75% in 1985. Potvin (1986) found that 67% of seminarians (age not specified) also answered “no.” Based on all these data sets, it is a reasonable conclusion that about two thirds of seminarians and priests under 35 years of age are not “called to marriage.” Although the late esteemed priest/sociologist/author Andrew Greely opined that “most priests are heterosexual” (1986, 129), he also found (Greeley 1972) that 40% of priests claimed that they never dated a girl in high school, even once. Called to the celibate priesthood or religious life Over a 19-year period, the author asked around 800 priests and religious brothers, “Why did you become a celibate priest or religious brother?” They gave many different answers. The next question was always, “What role did the requirement for celibacy play in your decision?” Other than a few openly gay priests who said they never had any interest in marrying a woman, the majority of priests and religious brothers replied with some variation of, “I never thought about that question before.” In the author’s professional opinion, self-deception (Trivers 1976, vi, 2000) again played a role in that answer.

Sexual abuse of young boys in the Church 35 There is another aspect of the relationship between homosexuality, priesthood, and religious life captured in the writing of Matthew Kelty, O.C.S.O., Monk of Gethsemane (1915–2011). It is the author’s presumption that he is talking about homosexual androphiles. He also uses the term “gay,” which has many meanings. A closeted homosexual androphile priest would probably not consider himself “gay.” It is virtually certain that there are other homosexual androphile priests with similar stories, but who cannot take the risk to tell their story (Wolf 1989). Appreciate that Matthew Kelty wrote this at age 79, when he was retired and had little to lose. Sometimes I wished I were more like others. I am aware of a difference, some insight into things, some capacity for the poetic and the spiritual which, if not exceptional—and it is not—is still strong enough to set me off from others. Nor do I hesitate to say that this has some relationship to homosexuality, for though I have never practiced it, I am well aware of an orientation that is certainly as much in that direction as the other. . . . There are as many kinds of men, there are many kinds of gay . . . being gay is a grace indeed in following the celibate way. How puzzled I am at Church, churchmen, who write off being gay as disordered, when it appears that being gay is perhaps the most appropriate setting for one who would be celibate. . . . The lonely life of so many diocesan priests hounds me. . . . A celibate priesthood, community, is a grace for the church, a sign of the Kingdom (where there will be no marriage, but all will be whole), and a joy for all in it. There are none more called to it, more capable of it, more created for it, than the people we call gay. . . . Bless them! (Kelty 1994, 54–5)

“The Catholic Church can never pay for its sins” On February 28, 2019, the author took part in a formal parliamentary-style debate at the Oxford Union. The motion debated was, “This house believes the Catholic Church can never pay for its sins.” Apart from the theological controversy over whether a Church can sin and if anyone other than Christ can pay for sins, four debaters argued for the motion and four, including the author, argued against it. Following the debate, 200 members of the Oxford Union and their guests voted. The motion was supported by approximately three quarters of those in attendance. Apart from the criminal nature of the sexual abuse of young boys, in legal terms, “sin” [which is a misnomer] translates to civil negligence, a tort. And where there is civil negligence and the plaintiffs prevail, a judgment would be issued against the defendants. Since Vatican II, “the Church” has meant the faithful—laity, ministerial clergy, and hierarchy. The laity and ministerial clergy not involved in the sexual abuse scandals are not who need to pay for the Church’s sins.

36  Jay R. Feierman To date, the vulnerable defendants have been negligent local bishops and heads of religious congregations, from whose dioceses and religious orders billions of (U.S.) dollars have been paid to plaintiffs, memorialized in public-record court judgments and non-public out-of-court settlements, usually with non-disclosure clauses. In their administrative and policy-making roles, the hierarchy within Vatican City are protected by sovereign immunity from monetary judgments issued outside of Vatican City. Yet, they are morally culpable and need to answer to a power higher than a black-robed judge sitting behind a bench. They could pay for their sins by incurring a non-monetary cost to themselves—a collective penance. The cost would be doing what is not in their own best interest, which is the continuation of the all-male hierarchical status quo, but doing what is in the best interest of the yet-to-be abused young boys of the future. Even if the Church has done a lot to improve things in the short-term and has implemented protocols and measures to discourage sexually abusive behavior in the near future, in this author’s opinion, more needs to be done to reduce sexual abuse of young boys over the long-term.

What has the Catholic Church done to effectively respond to sexual abuse by Church personnel, 2002 The main self-initiated new policies in the United States, called “The Safe Environment Program,” are as follows: (1): Background checks are conducted on Church personnel who have contact with children; (2) All dioceses/eparchies have Codes of Conduct spelling out what is acceptable behavior; (3) All dioceses/eparchies have Victim Assistance Coordinators; (4) All dioceses/eparchies have Safe Environment Coordinators; (5) Bishops are meeting with victims; (6) Dioceses/eparchies have Healing Masses, retreats for victim/survivors, and other reconciliation events; (7) There is a Zero Tolerance policy on abusers since 2002; (8) Dioceses/eparchies require intensive background screening as well as psychological testing for those wishing to enter the seminary. In addition to these new Church policies in the U.S.A., an invitation-only conference was held in Vatican City, April 2–5, 2003 on “The Abuse of Children and Young People by Catholic Priests and Religious” that led to the (very difficult to obtain) Vatican publication, Sexual Abuse in the Catholic Church: Scientific and Legal Perspectives (Hanson et al. 2004). In this author’s opinion, the most significant statement in the whole book is from the Editor’s Introduction: “Abolishing celibacy would certainly not solve the problem we are discussing in this book” (12).

Risk management For any particular applicant to seminary or religious life, neither the applicant nor the evaluators can predict with any degree of scientific certainty the

Sexual abuse of young boys in the Church 37 risk of the particular applicant interpersonally acting out his sexual behavior the rest of his adult life. All source data suggest that on average, around 50% of married men in the industrialized, educated, and wealthy nations admit to breaking their marital vows. Given that marriage is as sacramental a vow as ordination, the author can guess that the celibate clergy could follow a similar pattern of infidelity as married Catholics in their own environment; however, this is very hard to verify. In the author’s professional opinion, the problem of priests and religious brothers sexually abusing young boys will never be completely eliminated as long as celibacy is mandatory. Mandatory celibacy attracts homosexuals to the priesthood and religious life out of proportion to their prevalence in the general population. And, it is not the homosexual androphiles who are the problem. Gay men who self-identify as homosexual androphiles respond no more to male children as measured by a penile plethysmograph than heterosexual gynephiles respond to female children on the penile plethysmograph (Freund et al. 1989). As more homosexual androphiles enter the openly gay lifestyle outside of the church, they are almost certainly making up an increasingly smaller percentage of seminary and religious order applicants. However, for other scholars studying this problem, data reveal that sexual abuse of minors is not an exclusive problem of the Catholic Church. It has been uncovered in other religious bodies in U.S.A., like the Brooklyn Jews and Southern Baptists, besides many more in other religions in other world areas. According to the interpretation of those data emerging in the last years, celibacy does not play a large role when using those other religious organizations as control groups. Mandatory celibacy only changes the proportion of underage persons who are sexually abused that are young boys. As an interesting hypothetical thought experiment, the reader should consider the following scenario. If 81% of the children and adolescents sexually abused by priests and religious brothers were female, which is what one would expect if the celibate priesthood and religious life did act like a magnet and attract so many homosexuals, would anyone be saying the following: “Almost all the priests who abuse children are heterosexual” and “this scandal is about a form of heterosexuality” and “80 percent of the cases of abuse in the Church environment affected female adolescents, not children . . . and it was also ‘statistically proven’ that there is a link between abuse and heterosexuality”? What’s good for the goose is good for the gander (Ray 2017 [1678]). From a risk-management perspective, the solution is obvious. Do what is necessary to reduce the likelihood of men interested in and aroused by peri-pubescent boys from entering seminary or religious life. That cannot be done unless all applicants for seminary or religious life have their sexual interest and arousal examined physiologically. Since that will never happen, there needs to be a “Plan B” that would simply “dilute” the prevalence of pederasts among priests. The problems with religious brothers north of the

38  Jay R. Feierman Equator will take care of itself in a few decades through the death of old brothers and paucity of new ones entering (Palacios et al. 2015).

The author’s risk-management recommendations The following are the author’s three recommendations for reducing the sexual abuse of young boys by priests and religious brothers in the Roman Catholic Church: 1 Allow diocesan priests to marry. 2 Allow women to become priests. 3 Allow married persons and women into the Church hierarchy, where policy is made. These three recommendations would almost certainly reduce the number of young boys being sexually abused by priests and religious brothers. It might not have any effect on reducing the frequency of clergy having sexual relations with any other category of parishioner. Given that sexual abuse of pubescent boys is 81% of the Church’s current public relations problem, these recommendations are a specific remedy for this problem only. Only the Holy Father could implement these three recommendations. There is a glimmer of hope in that “the camel’s nose might be entering the tent” in the Amazon. In this area of the world with a severe shortage of priests, there is a hotly contested (as to be expected) discussion among the Synod of Bishops about ordaining “elderly” married men (Gallagher and John 2019). The author’s three recommendations are a moral remedy—doing what is right—given that a legal remedy imposed from outside of the Holy See cannot happen. The current Church’s policies will create a temporary lull, but the sexual abuse of young boys by priests is well-documented over the past 2,000 years. Pope Francis is quoted as having realistically said, “[T]he problem of abuse will continue. It’s a human problem” (Winfield 2019). Yes, but sexual abuse of young boys by priests is more than a human problem. It is a specific problem associated with required celibacy that could be mitigated if the author’s three recommendations were implemented.

Summary As long as there is mandatory celibacy for all clerics and religious brothers, homosexual ephebophiles, hebephiles and pedophiles, the cause of 81% of the Church’s sexual abuse problems, and who appear very masculine in every way, will tell interviewers for seminaries and religious life that they are “heterosexual.” They are indistinguishable by current screening methods from heterosexual gynephiles.

Sexual abuse of young boys in the Church 39 As has been going on for centuries (Boswell 1980; Doyle et al. 2006; Jordan 2000; Quinn 1989), and will continue for centuries unless truly effective remedies are instituted, these high-risk men for the sexual abuse of young boys will remain in the Church with the stillness of ambush predators, hiding from sight behind the cloak of celibacy. So, can the Roman Catholic Church ever pay for its sins? The author has argued, “Yes,” and gave three simple recommendations how. The real question is, “Will they?”

Acknowledgment The author thanks Vicky Wong Ying Wuen (Singapore) for permission to use the photo in Figure 1.1 of two 2003 kathoey beauty pageant winners in Pattaya, Thailand.

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Sexual abuse of young boys in the Church 45 Pierrehumbert, J.B., T. Bent, B. Munson, A.R. Bradlow, J. Bailey, and J. Michael. “The Influence of Sexual Orientation on Vowel Production.” Journal Acoustical Society of America 116:4(2004): 1905–8. Playa, E., L. Vinicius, and P. Vasey. “Need for Alloparental Care and Attitudes Towards Homosexuals in 58 Countries: Implications for the Kin-Selection Hypothesis.” Evolutionary Psychological Science 3:4(2017): 345–52. doi.org/10.1007/ s40806-017-0105-9. Potvin, R.H. Seminarians in the Eighties: A National Survey. Washington, DC: National Catholic Education Association, 1986. Prado, F. La Fuerza de la Vocación. Buenos Aires: Editorial Clarentiana, 2014. Prause, N., and C.A. Graham. “Asexuality: Classification and Characterization.” Archives of Sexual Behavior 36(2007): 341–56. Program of Priestly Formation, 5th Edition. Washington, DC: United States Conference of Catholic Bishops, 2006. Quinn, P.A. Better Than the Sons of Kings: Boys and Monks in the Early Middle Ages. New York: Peter Lang, 1989. Quinsey, V.L., M. Ketsetzis, C. Earls, and A. Karamanoukian. “Viewing Time as a Measure of Sexual Interest.” Ethology and Sociobiology 17:(1996): 341–54. Rahman, Q., A. Collins, M. Morrison, J.C. Orrells, K. Cadinouche, S. Greenfield, and S. Begun. “Maternal Inheritance and Familial Fecundity Factors in Male Homosexuality.” Archives of Sexual Behavior 37(2008): 962–9. Ray, J. 2017. A Collection of English Proverbs. Auckland, NZ: Andesite Press, 2017 [1678]. Reed, D. “The Persian Boy Today.” In Sexuality and Eroticism Among Males in Moslem Societies, ed. A. Schmitt and J. Sofer. New York: Harrington Park Press, 1992, 61–6. Regan, P.C. “Minimum Mate Selection Standards as a Function of Perceived Mate Value, Relationship Context and Gender.” Journal of Psychology and Human Sexuality 10:1(2008): 53–73. doi.org/10.1300/J056v10n01_04. Reno, R.R. “Catholicism After 2018.” First Things. New York, 2018. www.firstth ings.com/article/2018/10/catholicism-after-2018. Reynolds, J. “Pope Francis Faces Twin Battle in Church Split Over Sexual Abuse.” BBC News Online, 2018. www.bbc.com/news/world-europe-45340721. Roland, D.L., and S.B. Crawford. “Idiosyncratic Heart Rate Responses in Men During Sexual Arousal.” Journal of Sexual Medicine 8(2011): 1383–9. doi:10.1111/j.1743-6109.2011.02210.x. Rossman, P. Sexual Experience Between Men and Boys: Exploring the Pederast Underground. New York: Association Press, 1976. Rueda, E. The Homosexual Network: Private Lives and Public Policy. Old Greenwich, CT: Devin Adair Company, 1982. Saghir, M.T., and E. Robins. Male Homosexuality: A Comprehensive Investigation. Baltimore: Williams & Wilkins, 1973. Saikaku, I. The Great Mirror of Male Love. Translated with an introduction by P.G. Schalow [A complete translation of Nanshokuōkagami, 1687.]. Stanford, CA: Stanford University Press, 1990. Sandfort, T.G.M. The Sexual Aspect of Paedophile Relations: The Experience of Twenty-Five Boys. Amsterdam: Pan, Spartacus, 1981.

46  Jay R. Feierman Sandfort, T.G.M., R.M. Melendez, and R.M. Diaz. “Gender Nonconformity, Homophobia, and Mental Distress in Latino Gay and Bisexual Men.” Journal of Sex Research 44:2(2007): 181–9. Schmidt, J. Migrating Genders: Westernisation, Migration, and Samoan Fa’afafine. Farnham: Ashgate Publishing, 2010, 47. Schmitt, A., and J. Sofer (eds.). Sexuality and Eroticism Among Males in Moslem Societies. New York: Harrington Park Press, 1992. Scott, J.P. (ed.). Critical Periods. Stroudsburg, PA: Howden, Hutchinson & Ross, 1978. Selin, G. Priestly Celibacy: Theological Foundations. Washington, DC: Catholic University of American Press, 2016. She, Z., and W. Yang. “Sry and SoxE Genes: How They Participate in Male Sex Determination and Gonadal Development.” Seminars in Cell and Developmental Biology 63(March 2017): 13–22. doi:10.1016/j.semcdb.2016.07.032. Silva, D. “Pedophilia: An Autobiography.” In Pedophilia: Biosocial Dimensions, ed. J.R. Feierman. New York: Springer-Verlag, 1990, 464–87. Singh, D., B.J. Dixon, T.S. Jessop, B. Morgan, and A.F. Dixon. “Cross-Cultural Consensus for Waist-Hip Ratio and Women’s Attractiveness.” Evolution and Human Behavior 31(2010): 176–81. Sorensen, R.C. Adolescent Sexuality in Contemporary America: Personal Values and Sexual Behavior Ages Thirteen to Nineteen. New York: World Publishing, 1973. Spizer, R.L. 2012. “Spizer Reassess His 2003 Study of Reparative Therapy.” Archives of Sexual Behavior 41:6(2012): 1335–6. doi:10.1007/s10508-012-0032-6. Swift-Gallant, A. “Individual Differences in the Biological Basis of Androphilia in Mice and Men.” Hormones and Behavior 111(May 2018): 23–30. doi:10.1016/j. yhbeh.2018.12.006. Symons, D. The Evolution of Human Sexuality. New York: Oxford University Press, 1979. Terry, K.J., M.L. Smith, K. Schuth, J.R. Kelley, B. Vollman, and C. Massey. Report to the United States Conference of Catholic Bishops: The Cause and Context of Sexual Abuse of Minors by Catholic Priests in the United States, 1950–2010. The John Jay Report. New York: John Jay College of Criminal Justice of the City University of New York, 2011. www.usccb.org/issues-and-action/child-andyouth-protection/upload/The-Causes-and-Context-of-Sexual-Abuse-of-Minorsby-Catholic-Priests-in-the-United-States-1950-2010.pdf. Thoburn, J., R. Baker, and M. Dal Maso. Clergy Sexual Misconduct: A Systems Approach to Prevention, Intervention and Oversight. Carefree, AZ: Gentle Path Press, 2011. Toobert, S., K.F. Barteime, and E.S. Jones. “Some Factors Related to Pedophilia.” International Journal of Social Psychiatry 4(1959): 272–9. doi. org/10.1177/002076405900400404. Trivers, R.L. “Foreword.” In The Selfish Gene, ed. R. Dawkins. Oxford: Oxford University Press, 1976, v–vii. Trivers, R.L. “The Elements of a Scientific Theory of Self-Deception.” Annals of the New York Academy of Sciences 907(April 2000): 114–31. Tskhay, K.O., and N.O. Rule. “Active Identification of a Preference for Insertive Versus Receptive Intercourse from Static Facial Cues of Gay Men.” Archives of Sexual Behavior 42:7(2013): 1217–22.

Sexual abuse of young boys in the Church 47 Underwood, S.G. Gay Men and Anal Eroticism: Tops, Bottoms and Versatiles. Abingdon-on-Thames, UK: Routledge, 2012. Verdieck, M.J., J.J. Shields, and R. Hogue. “Role Commitment Processes Revisited: American Catholic Priests 1970 and 1985.” Journal for the Scientific Study of Religion 27:4(1988): 524–35. doi:10.2307/1386947. Viganò, C.M. Testimony by His Excellency Carlo Maria Viganò, Titular Archbishop of Ulpiana, Apostolic Nuncio, 2018. [Official English Translation by Diane Montagna]. https://assets.documentcloud.org/documents/4784141/TESTIMONYXC MVX-XENGLISH-CORRECTED-FINAL-VERSION.pdf. Vitello, P. “Would-Be Priests Face Sexual Hurdles.” New York Times, May 31, 2010. Wei, C., and H.F. Raymond. “Preference for and Maintenance of Anal Sex Roles Among Men Who Have Sex with Men: Sociodemographic and Behavioral Correlates.” Archives of Sexual Behavior 40:4(2011): 829–34. Weinrich, J.D. Sexual Landscapes: Why We Are What We Are, Why We Love Whom We Love. New York: Charles Scribner’s Sons, 1987. What Has the Catholic Church Done to Effectively Respond to Sexual Abuse by Church Personnel. Washington, DC: United States Conference of Catholic Bishops, 2002. www.usccb.org/issues-and-action/child-and-youth-protection/upload/ What-has-the-Catholic-Church-done-to-effectively-respond-to-sexual-abuse-bychurch-personnel.pdf. Williams, C.A. Roman Homosexuality: Ideologies of Masculinity in Classical Antiquity. Oxford: Oxford University Press, 1999. Wilson, E.O. Human Nature. Cambridge, MA: Harvard University Press, 1988. Winfield, N. “Pope Lowers Expectations for Next Month’s Sex Abuse Summit.” Associated Press (AP) News, 2, January 28, 2019. www.apnews.com/1d82a0177 f0b417c9c8496c1b39787f7. Wolf, J.G. Gay Priests. San Francisco: Harper & Row, 1989.

2 Clerical abuses of minors and cultural context Which link? Javier Elzo

The hypothesis that a period of complacency was followed by one in which children received greater protection is too bold and needs more nuance in the first instance. A preliminary distinction has to be introduced: between a remote context, marked by a general cultural trend that invited sexual exploration and sexual life in a more pleasant or less repressed way; and a more proximate context, related to a subculture that defended sex with minors as a right. Most available documentation chronicles the European setting, especially France, Germany and, to a minor degree, the Netherlands, while the U.S.A. and the U.K. scarcely knew an intellectual movement trying to legitimate those abuses. This situation requires differentiating the analysis and the arguments geographically: what could have a greater weight in Continental Europe could be absent elsewhere. There are several pending issues in the consideration of the thesis about the cultural context influence on sexual abuse of minors that are far from being settled. It is uncertain to what extent cultural climate—the broad and the narrow—could in any way influence the many cases of abuses taking place, at minimum, in Continental Western Europe. It is possible the influence was too fuzzy and general to be significant, or it could possibly represent at most a symptom of great tolerance and slow legal action against the abuses. However, one thing seems to be quite certain: a huge mentality change took place in some nations from mid-1980s on and justified a new social mood against any kind of abuse of minors, especially those at the hands of Catholic clergy, even if the wave expanded and involved more and more other religious and social sectors. That shift could be similar to the new sensitivity regarding women and social minorities. It is quite clear that in the last few decades we witnessed to a “cultural evolution” in some contexts that radically changed moral standards and values for the better, leading toward a greater sensitivity and protection on those most vulnerable. To discuss the issue at stake, we cannot ignore the point advanced by emeritus Pope Benedict XVI, who in a recent and engaging reflection on that crisis states: It could be said that in the 20 years from 1960 to 1980, the hitherto binding standards regarding sexuality collapsed entirely, and a normlessness

Abuses of minors and cultural context 49 arose that has by now been the subject of laborious attempts at interception. . . . Part of the physiognomy of the Revolution of 68 was that pedophilia was now also diagnosed as allowed and appropriate. (Benedict XVI 2019) The pope’s point is that this cultural environment could play a significant role in the developments we now regret, together with other factors, but he considers this one the first, and that this wave included an attempt to render pedophilia more tolerable. Before going into the main issue, it is convenient to state the priorities when addressing the sexual abuse at the hands of Catholic clergy on children and adolescents in recent times. Several major issues inform and orient the present research in the following order. In the first place, I would point to two priorities that appear unquestionable to me. The most urgent and most important issue is to help the victims, on the one hand, and to do whatever is necessary to avoid these abuses from happening again. Immediately afterward, and in large part related to the former issues, to detect, set aside, and refer the abusers to authorities. Next, it seems important to ask ourselves, a crucial question among others: how could this situation happen and how did we arrive at it? Only when the real problem is understood, however dramatic, can we face it in a nuanced way and reduce the risk that that big scourge could happen again in the future. This point meets some resistance because understanding might be equivalent to, if not justifying at least, to underestimating the seriousness of the problem, while trying to contextualize clerical sexual abuse. The following pages will develop the argument through different steps. First, I offer a summary about available data provided by four studies that can be seen as among the most complete and reliable until now. Next, the analysis focuses on several studies that extensively document the extent of the movement that, since the 1960s, aimed at legitimating pedophilia and sexual relationships with underage people. Then, two aspects, quite important although secondary, are left for further consideration. On the one hand, an issue that can become painful, particularly for the Church, priests and believers alike, concerns how public and published information has been treated in the media about this issue. On the other, it would be needed to relate pedophilia in the clergy to pedophilia in society in general, and in some subpopulations. Once more, in addressing this issue, we risk facing suspicions of whitewashing and underestimating the seriousness of clerical sexual abuse of minors when those abuses are immersed in the figures reflecting the same negative behavior in society as a whole.

1. A quick mention of four major research reports on minor’s sexual abuses by Catholic clergy There are not many serious studies conducted on the subject that concerns us. The present paragraph limits itself to four of them, in a very summarily

50  Javier Elzo way; those studies are published and available to everybody for consultation, offering more extensive information. The first one is signed by Richard Sipe and colleagues (Sipe 2003; Doyle et al. 2006), based on information collected over 25 years on about 3,000 priests, which is considered the reference study on sexuality in the clergy. In fact, his statistics served as a guide for the journalistic investigation, which had a global impact, on sexual abuse by the clergy in Boston in 2001 (that work by the journalistic team of The Boston Globe was taken to the cinema in the movie Spotlight, Oscar winner for Best Movie in 2015). Richard Sipe concludes that child molesters represent only 6% of the clergy. His study provides additional data on sexuality in the clergy, that I will not refer to here. Another fundamental reference, perhaps the most important although still incomplete, is the one made in Australia by the Royal Commission on Institutional Responses to Child Sexual Abuse.1 It was presented on February 6, 2017 in 18 volumes, most, if not all, with more than a hundred pages. The Commission indicated that they had detected 4,444 acts of abuse within the Catholic Church between 1980 and 2015. About 7% of Australian priests would be presumed perpetrators of abusing minors. Let us note that Recommendation 16.18 of the report reads as follows: “The Catholic Bishops Conference of Australia must ask the Holy See to consider introducing voluntary celibacy for diocesan clergy.” More than a year later, on October 22, 2018, with more information but still not all (missing, particularly the most difficult to obtain, those from family origin), the prime minister of Australia, Scott Morrison, apologized publicly to the thousands of victims of sexual abuse in the country. Various investigations revealed that for decades, nearly 10,000 children were sexually abused in official and public institutions in Australia, including those in churches. In August 2018, we learned about the Pennsylvania Grand Jury Report of more than 1,300 pages about sexual abuse committed in six of the state’s eight dioceses.2 The report identifies 301 predatory priests, with name and surname, and more than 1,000 children who suffered abuses (some quite chilling), but believes that there are many more children victims who have not reported on, or whose reports were lost. Thousands were reported over 60 years. The report points to superiors who did not know, but should have known, how to protect children. The Church leaders preferred to mainly protect the abusers and their institution. The Grand Jury acknowledges that it has changed a lot in the last fifteen years. We agreed to listen to each of the six dioceses we have investigated. . . . Five bishops sent us statements and the sixth, the Bishop of Erie (Lawrence T. Persico), came personally. His testimony impressed us because it was direct and meaningful. But, for decades, Monseigneur, auxiliary bishops, bishops, archbishops, cardinals were protected, many, including some whose names

Abuses of minors and cultural context 51 are in the report, were promoted. Until these changes, we believe it is too early to close the chapter of sexual scandal in the Catholic Church. The hierarchy of the Catholic Church in the United States, in a press release the Vatican, have accepted most of the findings in the report, although some bishops as well as independent experts have questioned some details. Let us conclude, finally, with the German Report (2018).3 Under the direction of Harald Dressing, a psychiatrist who has been an expert on sexual abuse for 30 years, the report was conducted with researchers from the universities of Giessen, Mannheim and Heidelberg, at the request of the German Episcopal Conference. Dressing pointed out to the German bishops, in the presentation of the study, that he was shocked by the magnitude of the abuses committed by the Catholic clergy since the end of the Second World War. The report records 3,677 children and adolescents who had been sexually abused by 1,670 clergy people. “This is just the tip of an iceberg whose size we do not know,” admitted the psychiatrist. Based on the 38,000 religious personnel files available to researchers, they estimate that 5.1% of German priests and 1% of deacons committed such abuses. But, once again, these are only estimates of the magnitude, with many lacunae. The report also mentions files destroyed in two dioceses and cases of “manipulation.” The commission also points to divergent levels of collaboration, with only ten of the 27 dioceses providing data dating from 1946. The other 17 focused on the 2000s. After five years of work, this study was presented on September 25, 2018 to the Episcopal Conference members, but it does not provide the official conclusions presented to the German Catholic bishops, who have decided, after learning from it, to deepen the study and to determine which decisions to adopt. The report highlights “the structural specificities of the Catholic institution that promote sexual abuse and hinder prevention.” With reference to the cover-up, it points to clericalism, the desire to “protect the institution in the first place,” and the secrecy of the confessional. Cardinal Reinhard Marx, president of the German Episcopal Conference, took note and declared that “our desire is to see the systemic causes of such abuses, such as clericalism or the desire to get away from the facts.” Rainer Maria Woelki, Bishop of Bonn, announced the launch of an “independent and comprehensive” study aimed at “shedding light on individual and institutional failures” within his diocese. “We can only regain trust if we are honest and sincere,” he said.

2. Trying to reconstruct a cultural context: attempts at legitimizing sexual relationships with minors in Europe The present section gathers documentary evidence and references that could justify the aforementioned hypothesis: inside the big wave of sexual liberation and self-expression, a particular cultural movement tried since the

52  Javier Elzo 1960s until the 1980s, and even beyond, to legitimate sexual relationships with minors, mostly in France and Germany. To what extent that intellectual context could influence or play a role in the long season of sexual abuse at the hands of Catholic clergy is a different issue that needs special treatment. As has been noted in the introductory remarks, the alleged cultural context can assume either a broader or a narrower dimension. The very large cultural movement that proclaimed sexual freedom and the right to enjoy the body and relationships can be considered a general matrix that led to several other expressions, like those related to feminism and gay or LGBT rights. Inside that matrix, a subcultural niche aimed at defending sexual expression with minors could rise. The following analysis assumes the broader context as a background that cannot be ignored, but will focus more on the narrow case of the subculture that sought to legitimize sex with minors. Many sources provide extensive information and documentary evidence regarding the attempts in those years to justify that sexual behavior. The main sources are the books by Pierre Verdrager, L’enfant interdit: Comment la pédophilie est devenue scandaleuse (2013), and by Anne-Claude Ambroise-Rendu, Histoire de la pédophilie: XIXe-XXIe siècles (2014). Both were published at about the same time and, to some extent, overlap. Their aim was to report extensively on the French intellectual milieu, before, during, and after the years that were marked by the “sexual revolution” and with a special emphasis on the 1970s. Then, for the French case, the anonymous entry in the French Wikipedia “Apologie de la pédophilie” is equally well documented,4 with references to the Dutch ambient too; and then a shorter document by Maia Mazaurette, “1977–2017: comment notre morale sexuelle a basculé sur la pédophilie” (Mazaurette 2017). For the German case the sources are more scattered. An extensive dossier was published in the weekly popular left-wing magazine Der Spiegel in 2010, under the title (in the English version) “The Sexual Revolution and Children: How the Left Took Things Too Far”5 by Jan Fleischhauer and Wiebke Hollersen. Then, there is the very informative extensive report published in 2013, “Die Padophilie Debatte bei den Grunen in programmatischen und gesellschaftlichen Kontext,” by the Gottingen Institut fur Demokratieforschung. Even if the study focuses on the left-wing and ecologist party “The Greens,” the data are not restricted to that case. Furthermore, the journalist Nina Apin has published several studies on that issue, found easily on the web. As can be expected, there is a great deal of documents, and most of these sources display a great many testimonies from the end of the 1960s until end of the 1980s, describing in detail the positions, arguments, and discussions that took place in those decades trying to justify sexual relationships with minors and to press for a legislation change, since the apologists deemed the status quo too restrictive and repressive. The same sources expose with detail the later cultural shift that took place during the 1980s and led to a

Abuses of minors and cultural context 53 different mentality in the intellectual milieu. It is best to distinguish in the following exposition between the two stages in the process and their main arguments: before and after that radical change. a. The attempts to legitimize sexual relations with minors The mentioned works are mostly of a historical nature and offer an exposé on that cultural movement, never representing a majority in academia or elsewhere, but neither a niche counter-culture. Indeed, too many important names in the field of philosophy, literature, and humanities were enlisted in the attempts to change the moral and cultural stand. It is impossible to reproduce or even to review in a few pages the content of all those welldocumented texts. In what follows, several examples and their main arguments are reported as a reminder about a mentality that now would appear as completely out of touch with our current cultural sensitivity. Taking Verdrager’s book as a guide (2013), the author exposes how pedophilia was justified and what reasons some French elites were adducing in the 1970s and part of the 1980s and how, today, in sharp contrast, pedophilia is considered one of the worst scourges to be conceived. Even if it was broadly known that some authors (Michel Foucault) and celebrities (Gandhi and Daniel Cohn-Bendit) already claimed that they had kept relationships with children, the reading is hard to digest, among other reasons, because in those years the topic gained the weight granted by these books and documents. Looking at the main arguments that those sources report, possibly one among the most recurrent was given by some French intellectuals shortly after 1968. They maintained that the child should be considered as an adult, even for sexual purposes. To think otherwise would mean to keep the repression and the dominion at the hands of adults toward children. Particular emphasis was placed on the repression that parents exerted within the family. Indeed, in those years and well into the 80s, the family as an institution suffered many attacks, and it was even “reputed as the privileged place of domination” (Verdrager 2013, 49) to the point that some voices defended “the death of family,” a title that a famous book by David Cooper carried. Cooper described the family as a “children’s Gulag” (Cooper 1971). In that sense, parents could even be seen as potential killers. Verdrager quoted a work by Tony Duvert, who writes: In West Germany, nine thousand children are killed every year by their own parents. Equivalent figures have been found in other countries in Europe or the USA. . . . These are not deaths due to traffic accidents but deaths caused by mistreatment carried out by father and mother on their tender children. (Duvert 1974, 108)

54  Javier Elzo And, from that point, Verdrager goes on to say, the pedophile, some thought, represented an opportunity for children: he was the one who could rescue him from family chains, even to save his life . . . because they, at least, loved children, which is precisely what the term pedophile means. (Verdrager 2013, 52) In addition to the family abuse argument, there were other arguments favoring pedophilia. One extremely important argument, as Verdrager reminds us, that served for such justification, responds to a psychoanalytic reading. Verdrager writes: Psychoanalysis was a fundamental reference in the scientific justification of pedophilia, not only because it had theorized (since before Freud) the presence of sexuality in children, but also because it had foreseen criticism or rejection of this theory disqualifying it as “resistance.” Réné Schérer (a philosopher in vogue and who published texts in support of pedophilia) considered that Freud owed the idea that children were the first object of desire of adults. And, even if Freud advocated the repression of such a drive in the name of the prohibition of archaic incest, which Schérer deeply lamented, “it had to be admitted that a great discovery had been made.” Consequently, “if society rejected pedophilia, it was because it ‘resisted’ children’s sexuality and was dominated by taboos.” (Schrérer 1981, 63; Verdrager 2013, 53 f.) Certainly not all psychoanalysts of that time supported such a point of view. Verdrager cites, as an example, the case of Françoise Dolto, a Catholic psychoanalyst and an expert in childhood who rejected pedophilia. However, adds Verdrager, Dolto signed a petition addressed to the Parliament requesting the decriminalization of consensual sexual relations between adults and children under 15 years, as well as a revision of the Criminal Code in that regard. I will come back later to the question of child consent and the legal age for such consent. But, and before pointing out to other arguments— more or less scientific—aimed at legitimizing pedophilia, it is useful to refer to an statement by the philosopher Michel Foucault in those years. François de Singly, professor of sociology at Paris-Descartes University and a specialist in the sociology of the family, childhood, and adolescence, in a short and substantial prologue to Verdrager’s book, reviews an idea by Michel Foucault, one of the central figures of the French intelligentsia in those years, who affirmed in a debate that “to suppose that a child is incapable of explaining what happened and incapable of giving his consent are two abuses that are intolerable, quite unacceptable” (Verdrager 2013, 11). It is worth noting that the term abuse in the 1970s and 1980s was understood

Abuses of minors and cultural context 55 as abuse by adults who were unable to recognize the “rights” of children as children, even in their sexual life with adults. Such understanding clearly deviates from the meaning currently given to the term abuse, which is used to describe how adults use children to satisfy their sexual desires (see also Mazaurette 2017; Urra 2007). In addition to the psychoanalytic argument, an anthropological argument described how, in other cultures, pedophilia was not only allowed but welcomed. Thus, in some cultures it was reminded that the practice of sodomy helped the sodomized minor acquire the adult’s strength. Apparently this practice was common among some Buddhist monks and Japanese Samurai (Verdrager 2013, 58 ff.), and indeed it has been spotted in several other religious and cultural settings. The basic anthropological argument would come to the conclusion that sexual relations between adults and children existed and were broadly accepted in other societies, and hence, their current rejection in our Western cultural framework became something contingent and arbitrary, and such a short-term view could change as with many other cultural changes that take place through history. This amounts to a form of cultural relativism, often present in social sciences in the last decades, although a serious analysis invites looking at the basic reasoning (and social forces) that sustain it. Furthermore, several authors appealed to the human or social sciences to justify pedophilia, for instance to what can be called as the “historical argument.” Several voices reported on cases like those present in ancient Greece, an argument quite frequent in that discussion. Gérard Bach-Ignasse, “the best reference—according to Verdrager—to analyze the link between the pedophile cause and the social sciences,” offers a socio-historical analysis of what happened in Ancient Greece: What seems to have changed the most since Ancient Greece is the relationship with children. Yes, the Greek world before our era valued the relationship of an adult man with a young boy; this idea emerges because they considered such a sexual relationship more equal than the relationship with a woman. The woman in the Greek society is always a subordinate; the young boy, on the contrary, is called to become a man with all his power, and this situation marks him from his childhood. The relationship with an adult man is for him an initiatory rite that is socially useful. Nowadays, if pedophilia is forbidden in most Western societies, it is because the child is considered not capable of discernment in his choices, unlike adults. That is—concludes Bach-Ignasse—a fiction. (Bach-Ignasse 1984, 39; Verdrager 2013, 58 f.) However, opinions like those expressed here did not mean that pedophile behavior was broadly accepted by the whole or by the majority of the French—or by the same token the German—population, and in fact it was

56  Javier Elzo criticized, also intellectually. In the end it became extremely minimized. Not so the criticism toward the traditional family, but that is another issue. A symptomatic event in those years, and perhaps signaling the apex in the described movement, was the letter signed by many French intellectuals in January 1977, on the occasion of the opening of a trial in a French court (Courd’assisses des Ivelines) on three men accused of assaults without violence on three minors in 1973, and who had been detained for three years. A collective of 60 people drafted a statement, published by Le Monde on January 26, 1977. The letter was signed among others by such prominent intellectuals as Louis Aragon, Roland Barthes, Simone de Beauvoir, Patrice Chéreau, Gilles et Fanny Deleuze, Jean-Pierre Faye, André Glucksmann, Guy Hocquenghem, docteur Bernard Kouchner, Jack Lang, JeanFrançois Lyotard, Jean-Paul Sartre, and Philippe Sollers. It stated that “such a prolonged provisional detention was scandalous”; and that (the accused) “risked a serious penalty of criminal imprisonment, either for having sex with minors, boys and girls, or for having favored and photographed their sexual games (jeux sexuels).” They specified that the sexual relations were without violence and consensual, as the minors said to the investigating judge, “although justice currently denies all right to consent.” They added that: the French law contradicts itself when it recognizes the capacity of discernment for a child of thirteen or fourteen years who can be judged and condemned, while that law denies this capacity in regard to their emotional and sexual life. And they concluded their statement with these words: “Three years of imprisonment for hugs and kisses is enough, we would not understand that on January 29 Dejager, Gallien and Burckhardt (the accused adults) would not rediscover freedom.” It is worthwhile to recall some circumstances in this case. On the one hand, the French law at that time did not favor pedophilia at all; indeed, pedophilia was legally prosecuted in France and the law was restrictive when it came to granting value to sexual consent in minors, but, that law provoked, in the described time, a lively reaction among front-line personalities that formed part of the sociocultural establishment in France in the decade after May 1968. In other words, pedophilia, understood as sexual behavior with minors and not just a tendency (without violence and with minors’ consent), although legally condemned, was accepted by a significant sector of the French intellectual population. It is noteworthy that the argument put forward in the letter affirms a capacity for consent on the part of minors, but, more than that, nothing in the statement suggests a moral condemnation of sexual relations between adults and minors if they have been carried out without violence and under consent. This document is very far from the assessments that can currently

Abuses of minors and cultural context 57 be read in the press these days about such sexual relations. Understanding this change in social attitude seems fundamental to understanding the different attitudes toward pedophilia throughout history. b. Changing minds and hearts: the new mood against pedophilia Going a step further, the quoted sources describe again in great detail how the mood changed and even how the displayed arguments supporting sex with minors did backfire and ended provoking the opposite to what was expected: a huge reaction against sex with minors. The main reason that led to the rejection of that movement, taking a relatively short time in the French society, was the growing reflection made about the infantile condition. A child was endowed with a specific identity, and it was no longer deemed just a potential adult. As a consequence, it also became a subject of rights as a child, although with its own peculiarities—something that prevented a mere similarity to the adults’ rights. Briefly stated, the child retained in the new cultural climate the same rights as an adult as long as he or she is a person, in the same sense as an adult, but, given its fragility as a child, he or she required more protection. A child, as a child, given its size and given that he/she was in a natural maturing process (psychological, intellectual, volitional, etc.) did not have the same abilities as an adult, both to take decisions and to defend itself against possible aggressions or abuses of all kinds. This meant that concerning the rights of the child—and all minors—two dimensions arise that would be sometimes hard to articulate: their rights as persons, and hence the respect they deserve, with the limitations that are considered and justified to their free will; and their right to protection—a specific protection to be promoted in behalf of children and minors. Deepening the argument, the child-adult relationship was not considered as symmetrical, but clearly an asymmetric relationship in which the adult has a net ascendancy and power over the child, both within the family, as in the school, leisure, and other settings. It applied also to sexual relationships. When a child or a minor has sexual relations with an adult, even supposedly consented to, a symmetrical relationship between two adults is missed; it is clearly asymmetric. Particularly when the adult surpasses the child in many years, let alone when the adult has some ascendancy over the child or minor, as happens in a family, school, or in leisure and work places. Obviously, the particular gravity of the sexual relationship between a priest or religious with the child or minor, whom he meets in the framework of his pastoral action, also belongs to the same category and adds further gravity. The assumption of such a double dimension, whereas the child and the minor are subject of rights on the one hand, and in need of protection on the other, decidedly contributed to the definitive defeat of the subcultural case for free sexual relationships with minors, although it was not the only

58  Javier Elzo factor. In the explanation of social phenomena, it is almost impossible to determine with accuracy the weight that some factor or variable exerts, as it happens in the experimental sciences in the laboratory. The social-scientific gaze recognizes a multiplicity of factors or variables involved in a general process. A different strand was the discussion regarding the rights to be protected in children. It is well known that various conventions have been written and agreed to concerning the rights of child throughout the 20th century. Some were already fixed during the 19th century, focusing on the work of children and minors in industry as a result of the Industrial Revolution and the exodus of much of the rural populations to large cities and their suburbs, a phenomenon that is still visible in areas and countries in our days. Indeed, child labor exploitation was quite frequent during the 19th century and it persists in many developing regions until our days. Verdrager quotes several texts of declarations, agreements, etc., not only French, of the first two decades of the 20th century, telling about the working conditions of children and minors in industry, of children’s night work, on the minimum age required to be able to access work, also in agriculture, etc. It points out that in the Declaration of the Rights of Children by the UN from the year 1959, where “there was no reference to sexual abuse.” However, it was included in the year 1989 in the “International Convention on the Rights of Children,” in whose articles “sexual violence” is mentioned (articles 19 and 34). Later, the European community, in 2003, adopted the framework decision on the sexual exploitation of children in the European Union. And Verdrager continues: In the recent period, the anti-pedophilia legislation has not ceased to reinforce, even when the term pedophilia is absent from the French penal code. . . . Some have requested that pedophilia, sometimes judged as the “worst of perversions, the greatest assault on human dignity (Sellier 2003, 12),” be considered a crime against humanity; others have called for life imprisonment; the confinement in internment camps; surgical or medicinal castration (anti-androgens), or the restoration of the death penalty. (Verdrager 2013, 151) In everyday language, in familial or nearby areas, then beyond what can be published as “politically correct” in recent years, the epithets to judge sexual abuse in minors are located at the pinnacle of horror, as the most abominable and rejectable. In addition, at present, it is unthinkable to read in a public medium the slightest hint of legitimation, justification, or underestimation of pedophile behavior, as happened in some rather small circles no more than 30 years ago in France and other countries. Exaggerating somewhat (but following the reasoning that some analysts suggest) we can follow a process moving from the late 1960s and the

Abuses of minors and cultural context 59 beginning of the 1990s to our days, revealing a clash between two sacralities: a waning and another growing. The waning corresponds to the priestly sacrality that understood the priest as a mediator between heaven and earth, able to forgive the sins committed here and thus opening the door to heaven beyond the present life; and perhaps more important, to free us from hell. At the same time, the figure of the child was placed on the pedestal of the emerging society, although perhaps many would rather say on the pedestal of the politically correct discourse in new societies. What had happened? Well, we were witnessing another collapse with all its consequences. This collapse took place in the traditional family, with a Mediterranean, Roman and Catholic matrix, in addition to protecting everyone (even the famulos, hence the family name) toward another family model, liberal, of a secular and individualistic model. That is why we have gone from a patriarchal family in the rural world, centered around the grandfather, and in the modern society around the father, (always men) to a family, centered either in the progenitors (seen as a psychological complement, as an individualistic prosthesis in words of Lipovetsky), or in the children (sometimes when the model fails or for, cruel paradox, as a last attempt to save it). Thus, the child becomes (if things go fairly well) the family’s king, completely overthrowing the king of old, the father. As Bobineau writes, The child-king is the center of affection and concern of the family, which consumes more and more time. Desired, because the parents are projected in him: he will realize what his parents could not achieve. Therefore, it became untouchable, eminently valuable, brief, sacred. But its legitimacy does not come from above, but from below, from individualist democratic societies. (Le Monde, 09/25/18) And a dethroned king cannot violate the new king, hence the conflict of sacredness, as Bobineau says. Add to that the reading that can be done, in the secular age, of the behavior of a father, seen as a “spiritual father” who abused the child in the Christian era, with a Church that tried to impose, among other things, its own moral code, even obsessively regarding sexual morality, in that sexual pleasure was, singularly, an object of suspicion. c. The question regarding reach and extent of the described cultural dynamics Even if there is abundant literature describing the rise and fall of propedophilic movements in central Europe—mostly in France, Germany, and Netherlands—the extent and real influence in the abuse of minors by Catholic clergy is not clear, hence the accuracy attributed to diagnostics blaming such intellectual movements.

60  Javier Elzo Before moving to the central issue at stake, it is interesting to refer to a later article published by Verdrager (2017) in which he rethinks his own production, limits, achievements, and the general meaning of his research. It is quite revealing how he comes back to his essay on childhood and abuses to remark that his study could be understood as a case for cultural relativism, as was a general currency in many social sciences since the 1980s. What he showed, rather, was how in the case of abuses to minors, the relativism thesis found a decided limit, something that could not be relativized, despite the efforts at the hands of a group of public intellectuals. I will divide the argument in different parts, as a way to proceed in a clearer way before too complex an issue. First of all, several authorized contacted voices at a personal level clearly defend the thesis that those intellectual games played in France and Germany were of very little impact elsewhere, and that even for the thousands of cases of clerical abuses registered in Continental Europe, they would have a minor impact if any at all. Indeed, that intellectual world could not be farer to the Catholic milieu both in France and in Germany. The first issue regards the extension of that intellectual attempt to legitimize pedophilic behavior. According to some opinions, it did not change in any way—both at the stage of legitimizing attempts or at the stage of full condemnation—the general cultural and the legal action in the United States nor United Kingdom. The evidence regarding similar attempts in the U.S.A. is rather scarce. Perhaps Mary Eberstadt (2009) is one of the few who has offered evidence in several published pieces that could be taken as similar to what took place in France and Germany. She quotes several cases, like in two essays she wrote in 1996 and 2001 in Weekly Standard, using a profusion of long quotations she showed how, according to many people, “the moral dumbing-down of both pedophilia (sexual attraction to children) and ephebophilia (sexual attraction to teenagers) was making slow but steady progress in sophisticated society.” This point was more related to people with a higher education and in academic areas. Thus, Eberstadt writes that in the year 1998, a remarkable study was published under the patronage of the American Psychological Association that said: Three researchers took issue with “the common belief that child sexual abuse causes intense harm, regardless of gender” (Rind et al. 1998). The authors further criticized the use of conventional terms such as victim and perpetrator and recommended that “a willing encounter with positive reactions” be labeled “simply adult-child sex.” For good measure, they also compared consensual adult-child sex to “masturbation, homosexuality, fellatio, cunnilingus, and sexual promiscuity” behaviors the APA once considered pathological but does no more. The clear implication was that “adult-child” sex would someday become as normalized in therapeutic circles as had these predecessors.

Abuses of minors and cultural context 61 It is quite surprising to find such texts at that time in the U.S.A., when the tide has clearly receded in the European areas where it started. Beyond this very niche phenomenon, such as the creation of some societies to vindicate pedophilia such as NAMBLA (North-American Man-Boy Association), launched in 1978, would be among the few indices allegedly justifying such behaviour, but with minimal impact in the general culture. Eberstadt points in her analysis to how much things changed after the first waves of massive denounces against Catholic priests, and how these facts grossly revealed the horror associated to that practice and increased the sensitivity toward minors and against perpetrators. Then, it is important to assess to what extent the described cultural dynamics could influence the extension of that practice, and then its committed persecution at various levels. Here, too, some distinctions need to be granted. The first one is between a general influence of the new sexual culture entailed in the post-1968 revolution, and the more strict issue of pro-pedophilic writing. In both cases, the real influence is hard to assess, but in broad strokes it can be safely stated that the first broad cultural trend could clearly play a role, i.e., the general relaxed mood in sexual practice that was felt in the 1970s and after could, if not encourage, at least allow for a relaxed approach to sex with minors as a consequence of the feeling that everything goes and that there was place for plural sexual expressions. This takes us to the second question: Did the writings of the French and German intellectuals really play any role in the Catholic clergy who abused during those years? Hardly. To the few cases I personally know, they were absolutely strange and unaware of those developments; there was a great abyss between the quoted sources and the average priest abuser, even in France or Germany. Indeed, they belonged to two very distant cultures. It is very difficult to try to justify such an attitude with the reported data. The only thing we can note is a kind of symmetry or perhaps an “isomorphism” in those unrelated phenomena: the intellectual vindication of pedophilia by left-wing and mostly anti-clerical intellectuals, and the sexual practice of the denounced priests in those years. Obviously, such a point can be understood in several ways. There was with high probability no relationship of cause and effect between the two tendencies. However, it was highly symptomatic and it could be understood as something related to both tendencies; after all, one was explicit and the other implicit. One knew public light and the other kept hidden and underground; but both reflected a common pattern. This was probably more than just a coincidence, and I would dare even to speak about a “strange convergence.” The main question is still what portion of the variance in sexual abuses to minors the sexual revolution can be responsible for. In good measure it depends on the assumed perspective and the available data. To some extent, the available data for several countries reveal that a huge amount of cases took place even before the 1960s, but emerged only after extensive research decades later. In that case, it seems hard to assess whether the

62  Javier Elzo sexual revolution from the mid-1960s on played a large role, or whether we witnessed an anthropological constant that would project its shadows for several centuries. A different issue concerns the big shift that took place later and triggered a greater conscience to defend children and minors. In this case, the data clearly point to a huge change in the practices aimed at preventing such behaviours and at protecting children and early teens. In many cases, the investigations undertaken in the course of enforcement measures assumed a retrospective character and highlight cases taking place some or even several decades earlier. The discussion here needs to account for different arguments. Indeed, some reluctant voices would not give too much weight to that cultural change. Figures clearly point to an exponential increase of denunciations and judicial cases moved against abusing priests from the middle of the 1990s and still more in the new millennium. However, the described cultural change could become just accidental and secondary, at least in U.S.A. The main reason of the growth in cases was simply the opportunistic moves by attorneys and lawyers who spotted an easy target, and one with very good assets, to exploit in the existing legal framework, resulting in a greater number of cases being revealed in newspapers and other sources. That triggered a self-nourishing cycle of journalistic denunciations that inflamed public opinion, creating an atmosphere of moral panic that at the same time became very instrumental in lawyers looking for huge compensations and extra-judicial settlements. However, it is hard to imagine all that without the cultural change taking place since the 1980s to defend children more than in the past, to which the denunciations and judicial cases clearly contributed. At the same time as the sexual revolution, we witnessed a communication revolution. This revolution could have played at least as large a part as the sexual revolution. It allowed lawyers—especially in U.S.A., where the legal system favored that practice—to make contact with lots of plaintiffs very easily and lure them into making allegations with their name almost always kept out of the press, and then getting very large monetary settlements, almost all of which have been out-of-court settlements that the media knew next to nothing about. This process is well documented, but again it was nourished by the strong moral conscience that was arising in those years against such abuses. Something similar could be spotted in the legal cases based on denunciations about sexual harassment of women at the hand of powerful and affluent men. Again, without a mentality change in the perception of such misbehavior and the public opinion supporting the case, probably those cases would have had a very short reach. In summary, the newly relaxed atmosphere that developed in many Western countries from the mid-1960s on could have played a general and remote role in a surge of sexual abuses against underage people. However, the specific attempts to legitimate that behavior at the hands of an intellectual niche in some European countries had probably only a minor or

Abuses of minors and cultural context 63 even null effect; it could be seen at most as a convergence or isomorphism between two very distant and distinct cultural settings. The moral panic consequence of denunciations and a new mood toward children and other vulnerable social segments was playing a big role in the prosecution of perpetrators and in campaigns to reveal the many cases that took place in former decades. Such dynamics in the interplay between cultural trends, moral attitudes, communication campaigns, and legal action could have taken different expressions among different countries, and could have revealed different patterns in United States and in Continental Europe. It is still to be settled, resorting to archival data, to what extent such behaviors were more or less widespread before and after 1968. The only certainty is that in most countries, they were much more spotted, denounced, and legally prosecuted after 1990, and then it is still to be assessed to what extent the new moral stand and repressive measures have managed to drastically diminish the number of abuses of underage people in Western societies, and especially in the Catholic Church, as seems to be the case according with some testimonies (Introvigne and Marchesini 2014).

Looking to the future: some crucial issues from a sociological insight Without any spirit of completeness, impossible in any event, given the number of problems raised around that issue, beyond clericalism with its power drift for so many centuries, beyond ecclesiocentrism and the old idea that dirty laundry must be washed in silence at home, I want to underline here, even in a schematic way, some of the issues that, from now on, should be addressed. • It will be necessary to elucidate to what extent, and in what contexts, there is a correlation between the abuse of minors and celibacy. The very serious Australian research of 2018 advocates voluntary celibacy in the Catholic Church. It is not the only one. But I am inclined to think that what is essential is not in celibacy or living as a couple, but in how sexuality is lived, both in celibacy and in the couple. Also, if it takes place in a climate of symmetry or power in the couple. • Also, it would be necessary to enter, for example, into the discussion of the different readings that have been done about the relationship between homosexuality and the abuse of minors, from a complete equating (“homosexuality leads to pedophilia,” claimed by many) to the clear distinction that we now find ourselves, fortunately. But the issue of homosexuality is far, far away from being resolved in the Catholic Church. For example, Pope Francis has reminded us with some insistence that homosexuals should be excluded from priesthood. It is convenient to recall, too, how the AIDS plague modified many behaviors, and criminalized, for example, homosexual relationships. The Catholic hierarchy is still in that frame of mind.

64  Javier Elzo • The difficult departure from that state of Christianity when the “ordo clericalis” dominated ethics and even civil governance cannot be overlooked. In that context I place conflicts within the Church—conflicts that always existed. Yesterday it was Pope Benedict; today, Francis. This question is made explicit in pamphlet documents such as those by the nuncio Viganò, and in some very ideological websites and social networks, but, only tangentially, is it related to the abuse of minors. One should not forget the power of the Roman Curia, an issue that I addressed in my book on power in the Church. • I believe it is fundamental, basic, radical (in the sense of going to the root) to be aware of the bad relationship the Catholic Church and religion have entertained with sex and, especially, sex as pleasure. In this order of things, the dissociation between the sexual freedom culture (among adults) in today’s society, as opposed to the rigorism present in the official Church, might be an explanatory factor, among others, of an explosion of abuse of minors by the clergy during the past decades. This is one of the explanations suggested by the sociologist of religion JeanLouis Schlegel when asking “how to explain the extent of pedophilia in priests in the second half of the twentieth century.” He adds, in the face of growing sexual freedom, the Church opposes its rigorous sexual morality as the only admissible according to faith and reason . . . the church runs the risk of imposing, from the outset, to its faithful, too heavy demands, which press them, and let them to feel guilty, and to force them to lie and deceive.

Although decades ago it was the case, I would add, since virtually nobody pays any attention to such demands nowadays. Who is paying attention in the Western world to Humanae Vitae, for example? • In a very eroticized world, in which, in the last few years, every hint of paternalism has been rejected as male supremacism, in which a neoPuritanism appears to be aimed at certain relationships, the containment of the libido appears as an impossible mission for ordinary mortals. Be celibate or married men. “Legend has it,” writes, again, Schlegel, that St. Anthony, already retired in the desert in the fourth century, was tormented in imagination by the demons of lust. For today priests, the ‘demons of lust’ are everywhere, in the flesh and on the street, as well as in the virtual images of their computer. The priests are exposed to exhibitions of freedom of love, clothing, eroticism and the innumerable images that transmit it.

This is an example of contextualization that I wanted to quote based on a sociologist studying religions with a great baggage behind him. Schlegel points, too, at the convenience of leaving celibacy as a voluntary option

Abuses of minors and cultural context 65

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•

•

(Schlegel 2018). I repeat that this is also my option, although I am not convinced that, without further ado, it resolves the clerical pedophilia nor is it necessarily related to it. The Church staff is masculine, obviously. However, I do not see this aspect underlined enough, and I also think that is crucial. That brings us to another question, absolutely key in the Catholic Church: the situation of women. Personally, I would support the double hypothesis of a strong correlation between clerical abuse of children and teenage boys and the situation of women in the Church on the one hand, and the attitude of the Church (obviously male, distant, and fearful) with the woman of flesh and bone, woman who appears, very frequently as a virgin, in the saints’ catalogue. There are few women, mothers of families, canonized. We are here in a neuralgic point of the subject. It is impossible to avoid it, in my opinion. In this order of things, very recently, I was personally scandalized and irritated to read (in Religion Digital 05/11/18) that, in the Synod of October 2018, the six religious women and superiors of their congregations or their associations could not vote, while the male religious superiors present did. I read that Father Sosa, General of the Jesuits, or Father Artime, Rector Major of the Salesians (to name only two of the religious leaders present at the Synod), were able to vote and, on the other hand, the nuns could not do so. I have not seen any denial of this information, and I would have liked to confirm it and emphasize it. We have traveled, I repeat, at least in the opulent West, from a patriarchal family centered on the father, to another in which the child is the king of the family, completely overthrowing the king of the past—the father. And the king is inviolable, sacred, some will say. Hence, one can read in the secular era of the behavior of the cleric, “spiritual father,” who abused the child in the era of Christianity, in a Church that sought to impose morality on society. A priest friend who has read my previous texts on the abuse of minors sends me this reflection: “Have you heard of a pedophile who is a Christian? But it does emphasize ‘the pedophile is a priest.’ ” I think he is right. The abuser priest is the dethroned and reviled king, perhaps more for being a priest than an abuser. I think the issue of cover-up should be analyzed in more detail. There is no doubt that there has been guilty concealment in the Church, even carried out in good faith, with terrible consequences for children. Decades ago, the defamation or revelation of negative things was condemned, and not only before abuses by the clergy. I also think that today, we hardly know anything about pedophilia in the bosom of families. In other words, please understand me well, without trying to fan the flames of the fire. I say only that the subject of concealment demands deepening. For the moment, I prefer to leave it there. But, to affirm, as it seems certain, that cases of abuse occur primarily in the bosom of the closest surroundings, such as the family (in what

66  Javier Elzo seems to be agreement among specialists of sexual abuse in children and minors, although I have not studied this subject, that seems to me, although also important, secondary) should not serve as an excuse to address with rigor and vigor abuse by the clergy, which is what I deal with in these pages. • I also argue, as the document Perdón of some Spanish Church institutions says, that the so-called “zero tolerance” is valid only against crimes, not against people in whom there is always some possibility of redemption (“reeducation and social reintegration,” as said in the Spanish Constitution, article 25b) that we have to try to implement. The principle of “hate sin, but love the sinner,” unfortunately, has lost its validity. That is why, together with the resilience of the victims, we also want to think about the reconstruction of the executioners. Remember the communiqué of the bishops of France that concludes, “with respect to priests who have committed acts of pedophilia or priests with weaknesses, the bishops wish to establish specific measures of reception and accompaniment.” We must also think about what way to provide priests who have abused minors with all the necessary precautions and the appropriate sanctions. • I am fully aware that there are many issues to be addressed. For example, the consequences for the Catholic Church that the magnitude and extent of sexual abuse by clergy has come to light. What, at the outset, will serve, if a good measure is taken and changed, to purify the Church. Limiting myself to the sociological (not so at odds with the theological and moral), there will be consequences within the Church itself, in its internal organization and, I want to believe, in its understanding of sex and of sexual relationships. • I want to reiterate what I consider most important and urgent at this moment: to compensate as far as possible the damage caused to children and minors (children and minors when they were abused), to remove the mantle of silence covering their abusers who should receive the corresponding sanction, and to do what is necessary so that such cases do not recur. What demands, peremptorily, to know how, by reason of what contexts, attitudes, internal organization of the Church, etc., such a plague has been able to nest and develop in the Catholic Church. Here, too, there are no shortcuts. • The consequences of this state of affairs for the Church will depend, mainly, on how the problem is faced. At first, where we are now, in addition to what I indicated previously as the most urgent and most necessary, we need to know the magnitude, dimensions, and details of what happened in the whole Church. It is the “seeing” of the old scheme “see, judge, and act”; I point to it, although aware of its limitations. The policy of the ostrich—that of not wanting to know what has happened, what is happening, looking the other way—will only make the shock and the credibility of the Church sink even more. Immediately

Abuses of minors and cultural context 67 afterward we have to ask ourselves, “How could we have arrived at this?” Moving forward a little more, just a little bit, because the commissions set in motion in several countries will do it with more depth and authority than I, I would underline here these notes: • Insist in the essential need to create independent commissions that help to better discern what has happened, similar to the John-Jay Report, where such commissions are still absent. • I also suggest in-depth studies in small groups of priests to analyze the sexual dimension of their lives, like focus groups. It would not be necessary to add (but it must be done, given the prevailing morbidness, and more) that, if this work is to have scientific validity, the anonymity of the priests involved in the investigation and the tenor of their answers must be absolutely confidential. • While the need to consult the victims is evident, an attitude of seeking truth requires also calling independent experts in human sciences: psychologists, psychiatrists, sexologists, anthropologists, neurobiologists, sociologists. • As the Church in France and a newspaper (not exactly complacent with the Church) in Spain (El País) have done, I think that the Spanish Episcopal Conference and perhaps, also, the different bishoprics, should create something like mailboxes that the possible victims, or those who had knowledge of sexual abuse, could report them. • I think it is important that jurists are involved. For the sexual abuse of minors also has a criminal dimension that must be respected and addressed in its own field and specificity. • I believe, in justice, an attitude of help and respect be maintained for the clergy, whose role, dedication and honesty is, unjustly, put in doubt at present by more than a few people. • I believe that the hierarchy of the church must maintain an attitude of serenity, consideration, and determination. For a few years the church will have to endure and overcome being the object of criticism, often fierce and, in some cases, unjust. It should be remembered that it was arrogant for centuries and that history is not erased in one or two generations. The magnitude of the cases of abuse is very serious. Although there is the temptation to say that it is not unique to the Church and that it occurs in other areas also at least as profusely as in the clerical establishment (an issue to be elucidated by competent and independent staff), I believe that temptation must be left aside. Each stick must hold its candle. And that of the Catholic Church is, at present, that of abuse by its clergy. And every effort needs to be undertaken to address and overcome that. If this is done, in addition to responding to a lacerating internal problem, the Church will have shown society a path to address the issue of pedophilia in areas other than theirs. With that it can even come out strengthened.

68  Javier Elzo

Notes 1 www.childabuseroyalcommission.gov.au/ 2 www.attorneygeneral.gov/report/ 3 www.dw.com/en/german-catholic-priests-abused-thousands-of-children/a45459734 4 https://fr.wikipedia.org/wiki/Apologie_de_la_p%C3%A9dophilie 5 www.spiegel.de/international/zeitgeist/the-sexual-revolution-and-children-howthe-left-took-things-too-far-a-702679.html

References Ambroise-Rendu, Anne-Claude. Histoire de la pédophilie: XIXe-XXIe siècles. Paris: Fayard, 2014. Bach-Ignasse, Gérard. “Le miroir de nos pratiques.” Homophonies 47(September 1984). Benedict XVI. The Church and the Scandal of Sexual Abuse, 2019. www.corriere. it/english/19_aprile_11/benedict-xvi-the-church-and-the-scandal-of-sexual-abuse8e40d438-5b9c-11e9-ba57-a3df5eacbd16.shtml?refresh_ce-cp. Cooper, David G. The Death of the Family. London: Penguin, 1971. Doyle, Thomas P., A.W. Richard Sipe, and Patrick J. Wall. Sex, Priests, and Secret Codes: The Catholic Church’s 2,000 Year Paper Trail of Sexual Abuse. Los Angeles: Volt Press, 2006. Duvert, Tony. Le Bon sexe illustré. Paris: Minuit, 1974. Eberstadt, Mary. “How Pedophilia Lost Its Cool.” First Things, 2009. www.firstth ings.com/article/2009/12/how-pedophilia-lost-its-cool. Fleischhauer, Jan, and Wiebke Hollersen. The Sexual Revolution and Children: How the Left Took Things Too Far, 2010. www.spiegel.de/international/zeitgeist/thesexual-revolution-and-children-how-the-left-took-things-too-far-a-702679.html. Gottingen Institut fur Demokratieforschung. Die Padophilie Debatte bei den Grunen in programmatischen und gesellschaftlichen Kontext. 2013. www.spiegel.de/inter national/zeitgeist/the-sexual-revolution-and-children-how-the-left-took-thingstoo-far-a-702679.html. Introvigne, Massimo, and Roberto Marchesini. Pedofilia: Una battaglia che la Chiesa sta vincendo. Milano: Sugarco, 2014. Mazaurette, Maïa. “1977–2017: Comment notre morale sexuelle a basculé sur la pédophilie.” Le Monde, July 1, 2017. Rind, B., P. Tromovitch, and R. Bauserman. “A Meta-Analytic Examination of Assumed Properties of Child Sexual Abuse Using College Samples.” Psychological Bulletin 124:1(July 1998): 22–53. Schlegel, Jean-Louis. Le Monde, September 18, 2018. Schrérer, René. “A propos de la pédophilie.” In Actualités sexologiques, 2ème serie, ed. Robert Gellman. Paris: Masson, 1981. Sellier, Homayra. Innocence-en-danger.com. Internet, le paradis des pédophiles. Paris: Plon, 2003. Sipe, A.W. Richard. Celibacy in Crisis: A Secret World Revisited. London: Routledge, 2003. Urra, Javier. SOS . . . Víctima de abusos sexuales. Madrid: Ed Pirámide, 2007. Verdrager, Pierre. L’enfant interdit: Comment la pédophilie est devenue scandaleuse. Paris: Armand Colin, 2013. Verdrager, Pierre. “Mes ratés de terrain.” Sociologies, 2017. https://journals.open edition.org/sociologies/6157.

3 Does faulty theology play a role in the abuse crisis? Lluis Oviedo

Trying to discern what went wrong during the long sexual abuses crisis is not an easy task when so many issues are involved and a large number of external and internal factors could influence the attitudes and very flawed institutional responses we have discovered and would like to understand better. To some extent, the task is rather historical, and historians, applying their research methods, should analyze the many circumstances that converged in that negative process, the causes and agents, at the micro and the macro levels. Church historians are indeed quite used to examining other failed or negative episodes in a forensic way in this institution and—as with any other history—try to learn what went wrong and to prevent similar episodes in the future. A traditional historiographic debate is concerned with the role played by ideas or what is called “intellectual history.” It is far from clear what role the ideological dimension plays in the unfolding of history and whether ideas are central or whether they are just some supplement regarding a broad set of causes (Andersen 2011). We can call them ideologies, cultural frameworks, or collective imaginaries; in any case, many historians believe such broadly shared ideas help to frame whatever happens and drive decisions, in one direction or the other. The traditional historiographic discussion still asks to what extent ideas precede and drive the development of historical events, or to what extent ideas come later to justify, explain, or make sense of processes often developing beyond any prevision or foreseeable projection. In any case, an accurate historical explanation needs to take into account which ideas could contribute to some social process and a development that later was deemed as wrongheaded. In a sort of “reverse engineering,” the history of ideas tries to identify what beliefs or views could trigger a process now under examination, justify it, or even encourage a deeply rooted and rotted policy. That becomes very complex when trying to identify the ideological level in the abuse by clergy scandal. Indeed, a hard-to-discern point is to what extent we can isolate external cultural ideas and the internal organizational culture. It is relatively easy to describe the second one: its basic components are traditional doctrines that develop through theological reflection, but then find practical applications at a level that just reflects

70  Lluis Oviedo the general principles or ideas. The point is that in the Catholic milieu, very often theological views are deeply entrenched with broadly shared cultural ideas, as has happened in cases of nationalist trends or some other political ideologies; and just in minor cases, this internal culture has become countercultural or alternative and clearly contrasting with the dominant culture, as in the case described in the well-known first type of Richard Niebuhr typology in Christ and Culture (1951), the “Christ against culture.” The present chapter aims first to clarify the ground after exposing some models in social science that try to describe the role that ideas play in social and historical processes. Once acquainted with those inputs we will be better able to spot what internal ideas, based on theological developments, could contribute to the very ineffective or “distracted” treatment of the abuse crisis, provided that we might identify such faulty developments. The analysis will focus on anthropological theological views and on ecclesiology or Church representation, and it will leave aside any analysis of developments in moral theology that can be seen as a consequence of anthropological issues. In any case, the theological ideas under analysis were never isolated, but colluded with external ideological trends and cultural fashions, as has always been the case in Church history; those cultural trends could support or explain that state of ideological and practical complacency and a botched approach regarding the big troubles the Catholic Church has experienced. This is by no means an excuse, but we need to take into account that theological ideas can rarely be completely detached from its intellectual and broad cultural environment, and this is part of the issue at stake: to what extent was theology too easy-going with its own cultural environment?

1. Why are ideas so important when trying to explain social developments? By way of introduction, it is convenient to summarize some models to better represent the way ideas usually relate to attitudes and general history. The aim is to raise some awareness concerning the importance that ideas and theories can play when trying to analyze and explain flawed past processes and decisions. To that end, I suggest briefly reviewing the models of “social imaginaries,” the complex relationship between structure and semantics in social systems (Luhmann), and a combination of two recent theoretical strands: the scientific study of beliefs with their many functions and the cultural evolutionary model trying to assess the extent cultural features play in broad social adaptive or maladaptive processes. a. The study of social imaginaries The first model at hand is the well-established one of “social imaginaries.” The main inspiration comes from the Greek social philosopher Cornelius

Faulty theology’s role in abuse crisis 71 Castoriadis and his famous work The Imaginary Institution of Society (1997). As for many other social scientists working in the 1970s, societies are symbolically mediated, and not just structures and functions, so meaning plays a big role in them. Recognizing the role that symbolic systems play entails assuming some degree of indeterminacy and their creative capacity. The interesting thing is that Castoriadis introduces in that schema not just rational perceptions and practical representations, but “imaginary” elements, or views about what is not yet really existing but opening or projecting toward new horizons or future expected states, transcending particular representations, to express a socially shared character. It is important to retain the central function played by those “imaginaries” or symbolic instances that allow us to obtain a coherent view of our own reality and social world, something that to some extent is chosen and can change. Such a construction is a source of meaning for individuals and groups, defining the “real.” It provides a foundation for values and assists decisions. Castoriadis recognizes history as a creative force in building those symbolic systems and moving beyond structural conditions (Castoriadis 1997). Obviously, religion plays an important role in this model and has been for a long historical period the main provider of imaginary symbols and meaning embedded in social institutions. Those imaginaries themselves have changed through history and have been adapted to new needs or conditions, depending upon context and social demands, but nourishing at the same time expectations and inspiring behaviors. It is worth remembering how the Catholic philosopher Charles Taylor has applied that schema to describe the deep changes that happened in modernity and how a new moral world emerged detached from the religiously connected universe (Taylor 2007). However, for our aims, the use of “social imaginaries” is restricted to providing an explanation of how broadly shared collective representations of Christian faith inside the Catholic institution could move in the wrong direction, and not the one that Castoriadis could foresee favoring social change and overcoming unjust institutional formations. b. Social structure and semantics The second model at hand is inspired in Niklas Luhmann’s social systems theory. The main thesis in his earlier development is that semantics or ideas follow social change and reflect that development. This is to say that things change at the level of structures, and hence social systems differentiate following patterns of functionality or adaptation. After that, culture learns to designate or to understand things in a different way than beforehand, accompanying the process and justifying what has changed. However, in a mature stage of his thought, Luhmann accords semantics a more active role as a mode of communication that opens new possibilities. At this juncture, ideas and cultural representations allow for new developments at the

72  Lluis Oviedo social or structural level. With this revised model, Luhmann leaves room for indefinite possibilities for organizing social communication and hence varying social systems (Andersen 2011). Such dynamics have been closely followed in the case of the deep transformations of lived religion as a social subsystem in the West during the 17th and 18th centuries—changes that clearly showed a rich and fruitful interaction between the structural and semantic levels (Luhmann 1989). When trying to apply this model to our subject of study, the issue is to what extent such a program might capture the complex entrenchment between ecclesial organization, with all its complexities, and dominant ideas or ways to represent the Church, its management, and Christian life. The later development in Luhmann’s effort to assess the extent of ideas in the organizational level in many existing social bodies reflect the complexity and richness that such interaction manifests, describing the role that ideas play in societal dynamics (Andersen 2011; Stäheli 2003). c. The study of beliefs and cultural evolution The third and more recent theoretical development worth exploring takes advantage of a double and complementary research program: the study of the believing processes and the growing field of cultural evolution. Both appear as clearly useful when trying to better discern the role of ideas in social processes. Studying beliefs reveals many aspects that have been neglected in cognitive psychology and epistemology. In big strokes, that program has shown the unavoidable functions that beliefs play in orienting personal life, providing meaning, and driving decisions (Seitz and Angel 2014). In any case, beliefs are seen not just as an individual process, even if quite complex at that individual level, but deeply ingrained with cultural frames, shared values, and deeply rooted convictions in the social fabric. Beliefs are not static cognitive entities, but dynamic processes that have their own dynamics. They are acquired, become stable, often undergo crises and rethinking, and eventually go extinct. They clearly influence many vital aspects and, depending on whether they are merely factual or relate to higher values, they determine everyday aspects like deciding how to dress because of the expected weather, or they assist in providing and restoring meaning before life struggles and trials and when having to take difficult and decisive choices. Cultural evolution reflects a broad program that tries to account for transmission of non-genetically encoded information that favors adaptation in every living species, and still more in humans. Individuals and institutions learn through cultural means to deal with their environment and to adapt to changing contexts after applying all the available and useful information they can gather (Mesoudi et al. 2006; Boyd and Richerson 2005). This process knows progress and setbacks, adaptations and maladaptations. It is not clear and certain whether a social organization will be able to adapt to

Faulty theology’s role in abuse crisis 73 a shifting environment applying the cultural means to which it can resort. Culture constantly changes and works in a way similar to, but not exactly the same as, biological evolution: exploring possible forms or expressions, trying them in a spontaneous way, and assessing in many forms what works and what does not work. Now, summing up the process of belief and cultural evolution, we can arrive at a theoretical model in which beliefs are deeply connected with cultural frameworks, and all those evolve by adapting or not to new social conditions. Indeed, it is quite well known how often cultural evolution leads to maladaptation, and the beliefs that were nourished in a cultural breeding ground are later seen as faulty since they were leading to negative outcomes that would eventually threaten the survival of the entire social body that carries the beliefs (Boyd 2007). In the prospected theoretical models, ideas, concepts, beliefs, and imaginaries play a central role in social processes. All these models and theories, when applied, showed how the level of ideas and representations discloses new possibilities or becomes a creative force that encourages change and overcomes unsatisfying structures. However, these proposals can be read in a less positive way to reveal instances of ideological encroachment and perverting processes; they could be unable to spot their own failures and to correct them, except when internal events precipitate or external factors force a dramatic change of awareness. The field in which ideas and social structures interact is very rich and complex, and we can hardly afford to provide a model able to reflect in an approximate way how these levels combine. The interesting discussion on hermeneutics and critical thought, taking place several decades ago, is quite revealing in this context too (Habermas and Gadamer 1971). While traditions play a central role in the way we approach reality and know ourselves, and they work as warranted means or models tested through many generations, sometimes these same traditions become means to ensure the power of a minority and the submission of many, discouraging any attempt to change things and move to a different model or social configuration. The suggested theoretical frameworks may appear too abstract and detached from the real problems we try to analyze and address, when things went so wrong and it is hard to discern whether ideas played a role at all, or whether a series of rather petrified organizational styles or a dysfunctional internal culture were all we need to explain such disastrous management. The point is that it is worth trying an alternative thesis and to test it, pointing to ideas, beliefs, theological concepts, and the like as factors that have contributed to a faulty process or evolution.

2. Trying to identify theological flaws in the past decades that could explain the disaster There are many ways to address the issue of the possible errors or flaws in the theological developments that could influence those convulsed years

74  Lluis Oviedo between the 1970s and the new millennium. Since many approaches concur in the attempt to provide sound explanations on the ideological causes that triggered that crisis, a broad guide is needed to organize the several available suggestions and to add new insights or hypotheses. A first approach distinguishes between two opposed views, but both equally limited: The first one attributes the problems to a general failed ecclesial model inspired in the Second Vatican Council and its attempt to renew the Church. The second moves in the other way, and sees in intrinsic traditional mental structures and traditions the true culprit. In this case, the favorite topic is clericalism. The second approach will expose theological problems that could favor an internal culture unable to address that problem. In this case, a further distinction will be made between formal issues, or the limits of current theological method, and contents or interpretations in Catholic theology that could be linked to those negative outcomes. In any case, this last approach is more tentative and hypothetical, subtle and hard to assess in historical and critical terms. 2.1.  A tale of two traditions and their favourite culprits As just introduced, a previous step needs to deal with two main theories or visions on whom to blame for the disaster. The candidates are clearly, for the traditional side, the modernizing process after the Second Vatican Council; and for the renewal side, several traditions that rendered completely unfitting the Church before such a big challenge. A first approach can be described as maximalist and has been applied by some Catholic sectors. From this perspective, the scandal revealed by the many abuses committed by Catholic clergy would be a symptom of a malaise and a general failure of the Church model that arose with the Second Vatican Council (1965) and caused a major change in ways of thinking—an almost tectonic movement in an institution rather used to very stable and reliable structures and values. According to this claim, the entire model nurtured in that Council, the entire idea of a modernizing Church that could adapt to contemporary times and that needed an updated mind, will have been revealed as deeply flawed and a big historical failure. Applying the criteria exposed in the former paragraph, the conciliar cultural evolution would become clearly maladaptive, despite the appealing appearances and good intentions of those promoting that model. It would not be the first time that good intentions result in bad outcomes, or the unintended consequences of a seemingly positive program end with a general catastrophe and disappointment. The just-described analysis is too easy and, in my opinion, it does not care about the high complexity of social and ideological processes that could influence an outcome. Even if it is tempting to associate some developments arising in that period and mentality with some aspects of the abuses, such as a culture of sexual liberation and greater tolerance in that moral field, there

Faulty theology’s role in abuse crisis 75 are reasons that lead us to reject a description that blames an entire theology and Church model for such a disastrous development. The problem lies in a lack of nuance and the inability to discern positive and negative features in a very broad reforming movement perceived as badly needed in very changing and demanding times. It appears as inaccurate to attribute all the blame to a general relatively new Church model and pastoral style that was moving through trial, error, and correction, and exploring new pastoral territories and practices, beyond the routine and traditional fixed patterns. The criticism against this first proposal starts with comparing data. Even if the figures on sexual abuses are less available for former Church periods, it is absolutely wrong to say that clergy in the previous times, i.e., before 1965, did not abuse minors or indulge in behavior that today would be seen as quite incorrect in their way of treating minors, even if in such cases we cannot speak properly about full abuses. Probably an increment in these cases can be registered after the 1970s, but it is far from clear that the Church in former periods was much less afflicted by such misbehaviour from Catholic clergy or consecrated men. Then, as far as I know, the ecclesial praxis or the way these cases were dealt with by Church authorities before the 1960s did not experience a substantial change compared with the praxis in the transition years, now under critical scrutiny. To be sure, it was unconceivable that a bishop or some other ecclesial authority, a religious superior, could denounce to the civil authorities or the police an abuse taking place in their dioceses or religious provinces during the 1950s or 1960s, and it is clear that many cases were happening in those years in many countries. The covering-up strategy was exactly the same in the pre- and post-Vatican Council times, and hence in that case we cannot attribute a responsibility to the new ecclesial culture. To state it clearly, it is surely a mistake to attribute to the ecclesiology and to the new mentality nurtured during the Second Vatican Council and its long reception, the faults related to abuses and to its botched management. It is very hard to determine now—and we surely need more historical research to deal with that issue—to what extent the new mentality that promoted the Council could worsen things or was preventing a more firm reaction, but, in any case, we cannot claim from the data at hand that that plague was mainly caused by the Council and its new internal culture, or by its renewed theology. The second story moves in the opposite direction. For this group, the main cause of the crisis would be found in deeply encrusted traditions in the Catholic Church that even the Second Vatican Council was unable to change or to remove. These voices identify mostly clericalism as the favorite culprit and the main cause for that disgrace. This is not an easy term to define, since this is a point that draws huge attention and triggers passionate discussions. In broad strokes, clericalism is a view of the Church in which the clerical estate plays the main role and becomes quite insensitive to the demands and expectation of the laity, and where clergy becomes too powerful and

76  Lluis Oviedo protected, to the point of feeling unpunishable and beyond any critical scrutiny or accountability.1 Surely linked to this tendency appears the emphasis on celibacy as a compulsory condition deeply rooted in an old tradition and the clergy masculine condition, as suspected elements contributing to the abusive attitude. However, this is a different story, even if related with clerical style, and again more a practical than a theological issue. However, a serious analysis of the ideological causes should not ignore whether the received theology of celibacy might nourish a mentality less sensitive toward potential victims, or to what extent that theology and the derived spirituality was too self-centred and less centred on those who should be served. The abuse of minors crisis would have exposed some dysfunctional aspects in the way the Church has arranged its staff along many centuries, but only now have these dysfunctional aspects become more than apparent, while in former times they could be kept hidden and disguised. However, this is again quite unnuanced and a too general point that would not help to discern ideological causes. Indeed, clericalism belongs to the practical styles or structural arrangements and less to the theological level, even if the distinction is by no means easy. Indeed, it could be argued that clericalism has been reinforced by some theological ideas, and possibly we need to focus more on that level. In any case, the general thesis about an intrinsic traditional Catholic culture that could be linked to the abuse crisis is too broad and needs more nuance. We still need to identify which aspects of traditional Catholic theology need to be reviewed and corrected, as has been done in the past when dealing with other epochal crisis, as happened in the long and complex Reformation era, leading to a deep revision of many flaws present in the former Church style, praxis, and its legitimising discourse. If we want to advance in this new critical time, the best we can do is to provide a more nuanced analysis that could assist, after reviewing unfit ideas, in order to reform the most flawed aspects in ecclesial praxis that were sustained by those ideas. This first attempt, taking into account some available popular explanations, invites us to pursue the research that tries to identify what could go wrong at the ideological level in those years, and then to clarify to what extent those trends could be present and relatively constant in former periods, to only later become revealed in their limits or flaws. A good diagnosis probably needs to take into account the previously described theses, but needs to move on and advance in more nuanced research. Indeed, theological and ecclesial views could keep quite constant through centuries, but would reveal their inadequacy only in more recent times when the abuse crisis is exposing an inability to deal with those problems. The problems probably came from earlier times but were not taking advantage of the theological weaknesses and driving them to manifest the inadequacy of some ecclesial styles and ways to represent the Church’s presence and function.

Faulty theology’s role in abuse crisis 77 One of the few attempts to identify such theological flaws is provided in a short essay by Ilia Delio, recently published in open access (Delio 2018). In her own words: Academic theology is as much to blame for the abuse crisis as the hierarchy itself, insofar as the academy of Catholic theology perpetuates a substance ontology and remains essentially entrenched in ancient philosophies and cosmologies. . . . Incorporating science into seminary education will not preclude abusers but over time the formation of new structural systems that are more consonant with nature as cooperative interdependent systems might allow for greater transparency, interdependency, and accountability. Delio’s argument points to an outdated theological model unable to come to terms with contemporary science and perpetuating a mind frame deeply anchored in traditional ideas that could justify clericalism and a very flawed ecclesial praxis. In my opinion, this critical line appears to be too bold and in need of more nuance and analysis in order to better spot in detail which developments could be wrong in the former theological framework. 2.2.  Dealing with theological formal issues Trying to refine the analysis and to move beyond statements that are too bold, the main issue at stake is to what extent theological reflection has failed together with other multiple failures. An initial answer to this question is quite easy: theology appears throughout this process as quite absent, both in its origins and then in the ability to address the challenge. What comes to mind first when positing that question—to what extent theology was responsible for that crisis—is that theology has sinned more by omission and less by actively exerting any influence. The theological absence in the ongoing crisis, both before, during, and after the crisis, can be understood as an absolutely extraneous location, remote from such an issue. Rather the abuses took place in a different dimension, leaving theology completely untouched and unconcerned. In that case, theology’s fault would be less serious; it was just somewhere else, and its interests and method were keeping it outside or out of touch with those problems, now seen by many as too serious to be ignored and demanding a more committed re-thinking of a too seemingly self-referential and insensitive theology. Trying to put some order in these analyses, I propose to distinguish between formal or methodological aspects and contents that could deserve a revision. Among the formal aspects, two clearly come to mind: one relates the just-described inability to come to terms with real challenges and difficulties, and the second with levels of inculturation and how to understand them.

78  Lluis Oviedo When observing current theological production, something that clearly strikes our attention is how it was apparently so foreign to the crisis and did not feel any involvement in it. In my opinion, this point reveals not just an omission but a flaw in theological method: theology has been predominantly a speculative and aprioristic discourse built on an effort to interpret the canonical revelation texts so that they might become relevant for our days. A first problem lies in an approach too self-centred in revelation and their normative value. The sexual abuse of minors is, to my knowledge, not a topic we find in the Bible, the Old or the New Testaments, except that we understand some Pauline letters and their corruption catalogues as including such sins in an implicit way.2 This is a problem that takes place in several other cases when theology is unable to find references in its canonical texts, for instance, when dealing with secularization or with scientific development. A first temptation is to deduce that, since these issues are absent from the Bible or the Great Christian Tradition, then they are just irrelevant and should be neglected. The Bible does not know cases of secularized societies when religion becomes irrelevant and people indifferent to religious ideas and feelings; this is a contemporary development. Moroever, the Bible ignores the scientific mentality and all that it involves, since this is a completely modern process. By the same token, the Bible does not pay attention to sexual abuses by priests; this was absolutely out of its radar. Does it mean that we can safely ignore such issues, since they are not “biblical” in any sense? Well, this seems to be a broad trend in many theological settings—a view that considers those problems as belonging to a kind of theological otherness, or to a limbo, to the excluded and grey field where we can say very little and it is better to keep silent. This has happened in the last decades, revealing a theological style too detached from reality and unable to come to terms with real and pressing problems. In that same formal dimension, theology has been unable to assume a more empirical stance and to discern the “signs of times” with the available tools that the social sciences provide. The problem has more facets. In the first place, despite the Second Vatican Council’s appeal to pay attention to the “signs of time” and to discern them as revelatory features, both positive and negative, very little in theology has been done to pursue that demanding program, and it is still unclear how theology could assume a responsibility in assisting pastors in the task of analyzing the present and showing ways out from the current crisis after the “signs of time” have been discerned. The other facet is the inability of current theology to accept empirical data as a locus theologicus, or at least as a provision of relevant information that can help to better understand what is right and what is wrong in many actual Church features. Let’s express it directly: theology has felt an allergy toward empirical reality and its data. In other words, it has experienced great difficulty in leaving its “comfort zone,” which was built up over a long history in which the only true worry was to be able to interpret its canonical texts in the right and trustful way. The application moment has been neglected—a

Faulty theology’s role in abuse crisis 79 point that should be central in every hermeneutic exercise; the outcomes from applying what is interpreted belong to the interpretation exercise itself and determine its validity. It is not surprising that theology could consider less interesting for its own activity what was happening in parishes and in the sometimes vitiated relationships between priests and lay people, or to attend to the worries that some prophetic voices were expressing quite early in the previous phases of the crisis, and where a more decided critical account was badly needed. A theology that does not care about real ongoing problems, since its target is the more constant and revealed perennial features, is absent from the issue at stake. It would be wasting our time trying to identify what went wrong with theology. The immediate answer is: nothing; it was simply somewhere else and cut-off from most of the real world. A second formal issue related to our analysis of theological causes points to inculturation and its challenges. The point is that this is not a secondary or accidental question. Every Christian community needs to decide its way and strategies to relate to the world, the society, and culture. That requirement was made in an excellent way by H. Richard Niebuhr and his famous essay Christ and Culture (1951), and there is no way to avoid the duty or decision on how we conceive the relationship between faith and culture, between church and state, or between Christians and civil society. This point is delicate and requires a discernment exercise at any time, for which theology should play a central role; indeed, some circumstances, such as totalitarian regimes, require a very critical stance—Christ against culture, following Niebuhr’s typology—while times of social progress invite supportive efforts of general improvement. The issue at stake now is to what extent the inculturation model that could be dominant in the period when the sexual abuses occurred was right or wrong. As can be easily perceived, that exercise is not an easy one, and often the Church has been wrong in its inculturation strategies. When it was needed to show contrast, the Church was giving support; and when it was convenient to recognize positive trends, then it was distrustful and suspicious. The question looms: were the Church’s inculturation strategies in that period following a fitting model that could respect both the need to keep a prophetic distance and to push for effective transformation? The answer cannot be but nuanced: it depends on what we focus upon and what aspect we examine. An analysis of the inculturation models in the decades after the Second Vatican Council could easily perceive two contrasting ways, and both become problematic, at least at an historical distance. To some extent, a trend tried to get closer and assimilate Catholic views to the dominant culture that stressed a greater tolerance in the relational praxis or a greater openness to a culture of “expressivism,” to use a term coined by the Catholic philosopher Charles Taylor (2007). This could be seen as a slow process, often contrasting the immobility in doctrinal authorities and the general pastoral praxis. That trend could be spotted in the permeability of a culture

80  Lluis Oviedo of sexual relaxation that permeated several sectors of Catholic clergy and did relativize the constraints of celibacy and other strict models of priestly and consecrated life. This trend is quite easy to identify in some sectors, even if this was by no means an official position, and it surely reflected a theological model or understanding on the way the Christian message could adapt to new social and cultural circumstances. Several critical voices have described, even in gross terms, an ambient too much adapted to a sexually relaxed dominant culture in the U.S.A. and other Western areas (Reno 2018). In those cases, the idea that comes to mind is that the sector was probably exaggerated in their approach to inculturation, or in their theological vision of a “Church in and for the world.” The second trend, in the opposite direction, would rather find out an incapacity to really get attuned with the deep transformations and sensitivity that could emerge in the Western areas after the 1960s, and that included a greater attention to women, children, marginalized people, and a huge demand for justice, respect, and equality. Indeed, Charles Taylor complains about the inability of Catholic Church to understand and to get in touch with the new cultural developments that claimed greater personal freedom and the right to express one’s own emotions and projects (Taylor 2007). That culture was arriving very slowly in the Catholic intellectual headquarters, and with great delay could be recognized as legitimate by most Church authorities. In a critical vein, we could state that the inculturation process sinned by being too much in some cases, and too little or too late in others. Many circumstances could confirm that the Catholic milieu was just reflecting the general one when issues concerning sexual morality were becoming more relaxed, and could even involve relationships with underage and vulnerable subjects, as some voices have claimed (Benedict XVI 2019). But, at the same time, the Church could be too slow at reacting to a new cultural sensitivity toward victims of those abusive relationships. However, this is a very disputable point. It is far from clear that the theological issue at the root of the abuse crisis could be seen in terms of a wrong exercise in inculturation or a botched system unable to keep a critical distance when such was required; and to assume a greater social sensitivity when it was the case that the media were pushing those problems at the core of their agenda, drawing attention to neglected abuses until recently. It is too complex and difficult a decision, when trying to establish a nuanced relationship with our own cultural context, and when a Church needs to assimilate the best of its contextual culture and to reject the worst. But again, this demanding task requires a much more committed reflection or study, able to discern in each case, and to help find out what is worthy to implement and what needs to be discarded and criticized. Again, the impression it is that not too much theology of any kind, but too little, to blame for those wrong developments.

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3. Moving to some suspicious contents: the anthropological motives Going a step further, it is necessary to consider theological contents that could be associated with the abuse crisis and its bad management. Again, such an exercise assumes in a hypothetical way the possibility some ideas regarding the human condition, sinfulness, and grace, or ideas about sacraments and church, could facilitate such behavior. The question is whether among many other factors that influenced that disastrous outcome, theological views could play a role too. In this section, the analysis will focus almost exclusively in the anthropological factors, or the way theology tries to explain the human mind and behavior. The next paragraphs deal with ecclesiological issues that, no doubt, also played a big role in the crisis. The moral theological views surely played a big role in the crisis, but that is beyond my competence area, and to some extent it is linked to the anthropology that provides some basis for it. When trying to describe candidates to fill the ideological gaps, some come to mind. In the first place, traditional Catholic anthropological categories really could not help much when things were going wrong. Christian anthropology consists mostly of an interplay between positive and negative features in human nature, the analysis of which relates to a divine plan. In other words, it reflects a relational program between the human person and God. From a theological perspective we try to understand human identity and behavior, relating them to the creation and loving divine plans, to a mystery of iniquity that removes humans from God’s relationship and closeness, and the regenerative working of grace. The long history of Christian anthropological views can be understood as many variations trying to combine those three variables: created in the image of God, sinners, and redeemed by grace. Big discussions were taking place regarding the right understanding of human nature since the early centuries and assumed a more divisive and harsh character in the Reformation era. The distinctions arising in that time still mar the boundaries between confessional groups. The point is that our way of conceiving the described interplay determines the proposed moral rules and strategies, and even the politics, internal and external to the Church, as well as many more aspects such as economics, culture, or social custom, as Max Weber showed. In our case, the problem arises when we try to identify what went wrong with our anthropology after spotting the practical failures that marked an entire Church era. The most tempting answer is that Catholic anthropology was too optimistic when considering the reach of corruption and the effects of grace. In big strokes, in contrast with other more pessimistic views, paramount in Protestant theology, Catholics were mostly convinced that sinful corruption never completely destroys the positive dimensions present in human nature; and, in any case, we consider the effects of grace as much stronger

82  Lluis Oviedo and able to change lives through the conversion process. This can be seen as a matter of choice that distinguishes Catholics and Lutherans, but possibly something more or at least something that finds confirmation in reality. The question is indeed which anthropology is closer to the real human behavior, and not just to the imagined model. The abuse of minors crisis reveals that, in many cases, human corruption goes beyond any expected limit, and that grace, even sacramental grace, cannot remedy some bad behaviors that are deeply ingrained in a vitiated life, or just marked by sexual drives beyond the permissible. Phrased in the former terms, things seem too bold and little nuanced, and if theology is about nuance and not just about general and fuzzy statements or views, then we need to apply a finer analysis. Indeed, human nature can be assumed in theological terms as highly complex, unpredictable, and very hard to control, despite the many current attempts. In principle, after the scandals, we cannot deduce that Catholic anthropology was wrong, while the practical cases proved that a more Protestant-like style could become more fitting to the real situation. What emerges, once more, is a lack of ability to come to terms with the empirical reality and its demands to apply more nuances and distinctions. Catholic anthropology could sin of naivety when conceiving human nature as exalted, despite the sin present from the beginning. However, its fault was rather overgeneralization, or the inability to spot exceptions and cases in which pathologies and other defects can even create a big question regarding the central claim about human likeness to God. Indeed, some voices point to grave psychopathologies as a proof against a universal declaration for humans as reflecting the divine image (Feierman 2018). The issue about how to dovetail exceptional cases inside a general framework declaring and assuming human goodness is still a big issue. The point is that in theology, or in any other version, a realistic anthropology needs to come to terms with the wide plurality of forms that human behavior assumes, and needs to make place for its worst cases and manifestations. The question of grace needs to be tackled with nuance too. Universal statements are right, provided that we do not miss the particular cases; and in my opinion, that was the main problem in the standard Catholic anthropology. Even if we can grant a transforming effect of sanctifying grace, this does not mean that we can trust that such an effect will be able to overturn very encrusted abusive behaviors or dependencies and vices. A lack of realism and knowledge about the dynamics involved in such tendencies could influence bad decisions in that troubled time. Part of the problem lies in the inability of standard theology to make a place for analysis and views in behavioral sciences that reveal the limits and strong influences on human nature. In the end, a too idealistic anthropology, unable or unwilling to account for the most disturbing aspects of human behavior, could inspire wrongheaded decisions. This is not just a question of probabilities and the expected and real effects associated with the dynamics of grace. It is about

Faulty theology’s role in abuse crisis 83 the contrast between a priori statements or ideal claims, and the real historical processes with all their variety and disconcerting phenomena. In any case, even in Catholic theology we cannot take for granted that sacramental grace can fix whatever is wrong in human minds or behavior; that would be reckless. Even a sacramental theology that could treat the problem in a facile way, for instance assuming that penitential confession would solve the big sins, would reflect a flawed theology, not because it is incorrect to state that sacramental grace can forgive all sins, but because such sins require a treatment beyond sacramental or ritual praxis, and ignoring that point means again a failure in the sense of lacking nuance regarding a highly problematic attitude with its many features. Providing a diagnosis on what went wrong with Christian anthropology in those years is not easy after all, and in this case it is hard to link theological views and wrong decisions at different levels. Perhaps a different approach could better help in discerning the problem and the human limits in a broad sense, one that requires a more reflexive anthropology assisted by recent developments in the behavioral sciences. We can probably extend the model of human failure that corresponds to the label “original sin” if we take into account the enigmatic tendency to self-deception present in human relationships and polluting personal and social dimensions (Paulhus and Buckels 2012). The idea revealed in many published studies is that humans and other animals frequently resort to forms of self-deception wherein the individual truly believes what he or she says, even if it is wrong. It can probably be discussed whether such strategies, which many believe to be adaptive and hence necessary for human evolution and social life (Trivers 2011), belong to the dark side or to the many resources nature has endowed us to favor our survival. The fact is that in many cases, sexual abuse involves selfdeception at various levels, but not the sort that could help a better adaptation, but those leaning toward mal-adaptation. Self-deception was surely involved in human sinfulness or negativity already at the level of perpetrators, who could convince themselves that such an abusive behavior was not a sin, or was not a serious sin, or was a sin that could be easily remedied or forgiven in sacramental praxis. I am convinced by many testimonies that in many cases this kind of self-deception was present and was even being projected onto the victims, who were convinced about the good and beneficial nature of such abuses. The self-deception was surely present at the level of Church authorities who dealt with the problem, too. Again many testimonies point to an attitude that reveals how far these authorities were wrongly self-convinced that that abusive clergy could not be that bad or so perverse; that they could overcome the problem in quite an easy way, through simple measures and the help of sacramental grace; or that they would not relapse when being allowed to. To some extent, many in the Catholic hierarchy were convinced in those years about the impossibility that such bad behaviors could even happen. Denial was a common first reaction to denunciations delivered to dioceses and other instances,

84  Lluis Oviedo since many could consider unconceivable that a priest under sacramental grace could participate in such a grievous misconduct. The second form of self-deception consisted in accepting the facts, but diminishing their gravity or conceiving their relatively easy treatment and eventual overcoming after some appropriate measures were taken. The third form of self-deception consisted of relativizing the negative impact that such abuses could have on the victims or ignoring the damage done to the victims. The point is that a better-informed Christian anthropology, which would benefit from important inputs from the behavioral sciences, needs to account for such a tendency and its very negative consequences. These appear as aspects of the negative side of the human fabric, something hard to address and to deal with in terms of prevention and repair. Grace and regeneration could be understood as an instance that could help to fix that tendency and its negative effects, or could “de-bias” deeply rooted cognitive mechanisms that people use to hide from themselves the associated confusion and pain, even if most people in responsible positions were acting with good faith and were not being mischievous in their decisions.

4.  Looking for a better theological model The question that emerges now after all the applied analysis is what anthropology needs to be adopted in order to prevent and to deal with such abusive behavior more correctly. Some guidelines can easily be deduced from the previous review and the attempt to spot the flaws in the formerly available models. Indeed, the issue about theological responsibility can be addressed only after proposing alternative models that might correct the existing ones now seen as unsatisfactory or even flawed. Connecting the dots, we can figure out what kind of anthropology could be more fitting for the new context we now inhabit. Possibly, the first principle we need to adopt is that theology, especially in its anthropological application, can never be the same as in former times, before the clergy abuse of minors crisis. The idea is that the crisis has deeply changed even the rules of the game and imposes a new vision and new priorities for those theologians. The anthropological model that can be conceived after such traumatic experiences should at least be able to take into account the psychopathologies associated with abuse, to assume a high fallibility level in human judgement and planning, and to work following a systemic or holistic template. In the first instance, psychopathologies clearly defy the traditional approach to human understanding. They are exceptional rather than the norm, but their very capricious and often perverse character leads to a revision of such descriptors as “image of God” and a deepening in the way we understand sinfulness. The most negative tendencies, the acts that trigger great suffering in others but do not awaken a sense of guilt, do not represent just a stain in a harmonious human landscape, but deeply question the goodness of human nature and encourage a view that malignity and “naturally driven evil” are

Faulty theology’s role in abuse crisis 85 part of an incomplete and fragmented nature, still maturing and trying to adapt to an hostile environment, and where not every maladaptation can be discarded. Having to account with those cases, theology should make more place for a hard-to-tame negativity and to recognize its limits when trying to relate human nature to a divine plan, especially where negative acts occur at the outermost margins of human tendencies—something that clearly is reminiscent of the traditional topic under the enigmatic label mysterium iniquitatis and cannot be reduced or assimilated into a schema of grace. A second point relates to a sense of fallibility in our approach to human judgement that includes obviously the theological view as well. The study of self-deception, many biases, and other cognitive mechanisms that drive the mind into confusion and what once was called “false consciousness” is essential for accounting for a higher level of uncertainty and the demand for greater cognitive control, to look for greater evidence, continuous testing, and a dynamic in which recognizing error becomes an essential part of any healthy method, both in the theoretical approach and in practical application. This is something hard to assume, but some instances clearly point in that direction; the main one is surely the great pluralism we witness in any topic regarding human nature during a long period of theological development. We can even safely state that concerning human nature, we do not have, except for some essential Christian doctrines, any certainty. The only theological certainty is the divine will to save humans; but when human nature is under examination, things become too fuzzy and a theory trying to fix every aspect or to determine how good or how bad it is, is destined to fail. This does not mean that we should renounce providing any representation on that reality, rather that we are always called to learn, and that such a view be kept steadily open, and that surprise remains possible both for the good and for the bad. Indeed, nothing surprises more than human behavior, in both directions. The third point invites a more fitting theology to assume a decidedly systemic, integral, or holistic approach. A lesson we learned from all the mistakes and neglects the Church has incurred in those years is that a good theological approach cannot be an isolated or reductive one, but needs to account for multiple aspects or dimensions, providing a multi-level analysis aided by such other auxiliary disciplines as psychology, the social sciences, therapeutic sciences, and obviously normative disciplines, including legal studies. To state it more simply, we cannot provide a good insight into that enormous problem through just a clever hermeneutic of revealed canonical texts. Theology needs a more integral view that includes the traditional treatment of its canonical texts, the lessons learned from the complementary sciences or disciplines, the inputs from fresh empirical data, and discernment about the signs of time. A disengaged and lazy theology—an analysis detached from these involved fields—would be unable to provide a wisdom able to address such a huge challenge and to offer better insights to guide the decision process.

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5.  More theological dimensions: a struggling ecclesiology3 After considering the anthropological aspects, ecclesiology is clearly involved in our attempt to account for the perceived failures and to explore possible correctives. The ecclesiological question in this case is a complex one, since it needs to cover the relationship between the official Church, its popular bases, and theological production. The overwhelming feeling is that some correlation can be found among those instances. In the first place, it is relatively easy to observe that for years the most innovative, dynamic, and creative theological proposals come from Christian milieux of great vitality; while weakened Christian areas usually do not go beyond repetitions of well-known models, rhetorical forms without much content, or are incapable of connecting with the sensibility and challenges of present times. It seems something quite intuitive: it would be illogical to expect that churches that languish could be able to produce theologies of great intellectual vigor. The correlation also works in the other sense: from theology to the churches. Some theological proposals seem unable to encourage Christian communities in their faith and their mission, while others support renewed forms of creative fidelity to their own tradition. Some theologians of a pragmatic orientation point to this axiom: the value of a theological proposal should be discerned after its effects in the Christian communities are known; that is to say, in the measure that these programs contribute to revitalizing them (Lindbeck 1984; Murphy 1990). Perhaps these reflections go too far, and move away from the fundamental objective in this chapter: to discern the theological responsibility during last decades in the recent episodes of Church governance and its failures. Let us assume—in a hypothetical way—that theology would have its part of guilt in all this. If we take this hypothetical perspective, what would be the errors that could be attributed to theological development, and what could be done to fix them? Truly, this is no more than a supposition for a simple reason: it is extremely difficult, from an empirical point of view, to verify this hypothesis and provide evidence to test the weight of theological reflection and formation during the last decades in the negative registered trends. If it is already difficult to prove the point with regard to certain forms of (mis-)understanding and (mis-)applying the 1983 Code of Canon Law, this task is so much harder when we deal with broader sectors and involve more ideological variables beyond those properly regulatory ones. Consequently, things are much more complex regarding the role played by theology. In a cautious way, I assume this hypothesis to explore the possible lacunae in the dominant ecclesiological tendencies, and the constructive ways to fix the perceived problems or deficiencies, in the expectation that developments in the dominant ecclesiological models could contribute to the renewal of the Church. This can perhaps be a still more hypothetical point, but it is worthwhile at least to try and look for improvement.

Faulty theology’s role in abuse crisis 87 5.1.  Church: holiness and sin The debate concerning the presence of sin in the Church is not new; it began mainly at the end of the 1990s, soon after the repeated expressions of regret by Pope John Paul II upon recognizing errors made in the past and the violence that its perpetrators were committing allegedly on behalf of the Christian religion. It was a clear magisterial acceptance that the Church— considered in her human, institutional, historical dimension—had made serious mistakes in its history, and hence needs, in that sense, to beg for forgiveness. This attitude pointed to a more modest vision of “historical” ecclesial reality—a reality in which the essential holiness of the Church in herself is weighed down and obscured by the defects in the humans and institutions that represent her visibly, in history, with clear negative impacts on her historical identity and mission. We cannot reconstruct the details of the theological discussion that arose at the time. Painting it with a broad brush, there could be perceived a “minimalist” party that tried to downplay the reach and consequences of what appeared as “expressions of ecclesial bad conscience” and a pope’s apologies; some in that party even assumed positions of open criticism towards the Papal initiative. On the other hand, the “maximalist” party pointed out deep implications that such a recognition of fault presupposed when thinking of the real historical Church. The minimalist line was gathered around Georges Cottier and the International Theological Commission, and reiterated that the Church in itself was not sinful, but rather counted sinners among its children (Cottier 1998; International Theological Commission 1999). The distinction seemed to preserve the reality of the holy Church, despite the sins of its children, who as humans are, of course, always imperfect; the logic seemed sensible, but did not appear completely convincing to everyone. The language used in relevant passages by Pope Benedict XVI seems to maintain this distinction. Reading the current statements, it can be seen that the Magisterial language usually avoids talking about “sin of the Church,” but uses the expression “sin that is in the Church”—a less striking formula. I have verified the official editions in other languages, and the result is similar: the sin is not “of the Church” but “inside the Church”; it happens in it, but not to the point that could allow anyone to deduce that the Church is sinful, or that could challenge the doctrine about its sanctity. In this sense, we can affirm that the recent episodes of abuses do not put in question the doctrine of the Church’s holiness expressed in Lumen gentium 14, but call for its right understanding. From my point of view, however, these obligatory doctrinal nuances do not affect the substance of what is at stake very much. The reality is that the last popes recognize that sin happens in the Church, and that it has very negative repercussions, to the point of claiming that, “the greatest persecution of the Church comes not from her enemies without, but arises from sin

88  Lluis Oviedo within the Church.”4 This humble recognition changes things in a radical way regarding certain misreadings of traditional ecclesiology. After witnessing the strong resistance in some Roman circles to the courageous position assumed by John Paul II, when he acknowledged the mistakes of the past and begged for forgiveness before all the world, doubts about theological efficiency are justified. Such resistance partly came from high ecclesiastical spheres and from that theological milieu. Benedict XVI has taken a step further: the institutional Church not only made mistakes in a more or less remote past, but some of its officials also commit them right now, in our days. There are even abominable sins that deserve the divine reproach and the penal trial of civil institutions. To understand the reach of this change, it is enough to glance at how the question of Church’s credibility is posed, until very recently, fundamentally beginning from a reflection around its “notes”: one, holy, Catholic, and apostolic. Unity and sanctity have constituted the clearest proofs of the perennial value attributed to the Church. To accept now that the Church is indeed holy, but that serious sins are committed inside it, even on the part of its ministers and pastors, changes the strategy of credibility as it has been outlined to the present. The historical reality of the Church is affected by this negative perception that calls for limiting the false pretensions involved in the note of “sanctity,” as if it were automatically extended from the Church as such to every last one of its ministers, and in this sense, to revise downward its perceived effective content, and to look for an alternative, much more realistic position, able to account for the empirical dimension of the Church that do not necessarily correspond at any given time to the Church’s being in itself, and is not exhausted by the more heroic of its members or deeds. There are more points to keep in mind. Pope Benedict and Pope Francis have repeated in recent times their calls to penance. For instance, the words of Pope Benedict XVI during his journey to Lisbon are clear and explicit: “the Church has a deep necessity to learn penance again, of accepting purification.”5 The emphasis on the required penance supposes two things at least. In the first place, if the Church is called to do penance, it is because it recognizes to have sinned in its members, and that means leaving behind the untenable pretense that its own supernatural holiness always subsists in all her empirical expressions as well. The solemn petition for forgiveness in the homily during the mass concluding the Year for Priests goes in the same direction: “We too insistently beg forgiveness from God and from the persons involved, while promising to do everything possible to ensure that such abuse will never occur again” (June 11, 2010). Nothing surely must, or can at all, be done to diminish the intensity of this act of regret. The second consideration is that the path of penance is associated with that of sanctity in a more realistic way. Following the anthropological simile, holiness does not necessarily equal a condition arising from a spotless purity, but is also the result of regret, penance, and conversion, just as it has happened to

Faulty theology’s role in abuse crisis 89 the great majority of Christian saints. The Pilgrim Church, in her ministers and members, concretely recovers the note of holiness in the measure that it is able to convert, to beg for forgiveness, and to make penance; for the Church, in this dimension, it is not an “a priori attribute,” but the result of a constant call to purification after acknowledging sin and forming a purpose of amendment. On the other hand, the holiness of the Church is not better preserved with aprioristically or deductively attributing it to its particular historical structures, ministers, or members. The confession of guilt and the corresponding doing of penance bespeak a more honest and sincere attitude, a condition sine qua non of that conversion and sanctity that are the Church’s purpose. Holiness, after these scandals, depends on the capacity to recognize limits and mistakes, to acknowledge the damage caused, and on the will to compensate the victims. From such an attitude true conversion can arise, something to be concretely demonstrated and not only rhetorically affirmed. As to the question about how the credibility of the Church can now be proposed, after being so deeply affected by decades of scandals, and after the limits of its institutions, in their human, historical dimensions have been exposed, much depends on the model’s change, or rather restoration to its true meaning, as just described. In any event, it seems that a more realistic view of the empirical Church can, in the long run, better serve the cause of its credibility when the Church is proposed to our contemporaries as a community of salvation. On the other hand, the idealizing excesses that ignore the real conditions in which the Church operates in history could confuse those who come near, leaving them unready to confront the scandals that inevitably arise at a closer look. 5.2.  Idealistic and realist ecclesiologies This point has already been introduced in the previous paragraph, analyzing the question of the Church’s holiness. However, there are other aspects to take into account. In broad terms, the dominant ecclesiologies after the Second Vatican Council have often offered an image of the Church that has been much too idealized and optimistic. Probably, formerly dominant images represented a greater institutional triumphalism when using terms like societas perfecta. Nevertheless, there are good reasons to wonder to what extent new views on the Church were idealized in a different sense, giving rise to a delusional sense of excellence. Indeed, the so-called “communion ecclesiology,” with all its contribution to renewal, encouraging a more participative and fraternal program, can—in some of its manifestations— appear after the recent negative events as too utopian and lacking institutional realism. Reviewing a sample of ecclesiologies published during the last 30 years, the change that took place clearly emerges soon after Council Vatican II: from “societarian” or hierarchical ecclesiologies to those built on the core

90  Lluis Oviedo concepts of sacrament, the People of God, and communion. Such an effort at overcoming an institutionalist and pragmatic view has often been interpreted as progress, by favoring an alternative model, more fraternal and based on categories like the “mystery of salvation.” Now, considering what has happened in the last decades, it is convenient to review whether that evolution can be considered as positive as it was expected to be. To some extent, and after being aware of all those failures, it is not a good idea to drop or neglect the “societarian” and institutional dimension of the Church, with its conditions, boundaries, and the required realism it entails. Indeed, one of the most shocking facts that we notice is that in many cases “networks of communion” became “networks of complicity” to cover for perpetrators. Risking a more polemical turn, we consider it necessary for a deep revision of ecclesiological proposals that were popular in the “Eighties,” and whose ideas seem to have lasted until the present. Their emphasis has always been on aspects of “charisma” and “communion,” and against ecclesiologies in which there could resonate the semantics of institution, hierarchy, and power. There are several examples of that position (Boff 1985; Estrada 1984), and more recent ecclesiologies persist in their idea of a necessary correction of the institutional aspects, well alive in the expressions of the post-Vatican II 1983 Code of Canon Law, to promote a more communionlike model (Pié I Ninot 2007, 592 ff.). In our opinion, the correction should rather proceed in the opposite way: to recover a greater institutional consciousness able to provide self-correcting systems, and to promote a culture of accountability and transparency. The next lines can help to clarify our case providing more arguments. Many observers wonder what failed in the Church when too many perpetrators enjoyed apparent forms of impunity despite their serious crimes of corruption, both sexual and economic. Probably the social and philosophical studies on institutions can offer useful orientations, whenever we accept that we can learn from external sources, or that theology can also somehow assume a “principle of exteriority” to correct the defects derived from too much self-reference. To start with, an axiom of organization studies is that religious institutions, too, are always threatened by the dissolutive action of free riders, especially when they lack systems to prevent and neutralize them. A simple empirical observation provides proofs: when those who benefit from the resources the institution provides, but do not contribute to it, and are not timely corrected, other members will feel tempted to assume similar attitudes, leading to the complete attrition of the religious institution. In these brief pages it is impossible to deal with this argument in depth, but a common experience points to a serious deficit in the ecclesiastical structure that has inhibited measures and policies aimed to avoid and cope with the perceived abuses. It is not sure to what extent the denounced abuses have to do with a too idealized and optimistic ecclesiology that—stressing the sacramental and communion dimensions—was unable to assume a more

Faulty theology’s role in abuse crisis 91 critical and realistic stance, taking into account the actual situation in current churches, with its inevitable entropic tendencies. A different reflection comes from philosophy and political ethics. It has been discussed for some time now whether the arrangement of a society to reach greater justice has to be inspired by an ideal model of reference—a society conceived as fully just, free, and equal. Some scholars point clearly to the inadequacy of this model, since the ideal reference often serves very little when trying to cope with very complex concrete problems, rather far from the ideal situation (Sen 2009). In other words, a model representing an ideally fair society would not be a good guide to lead the efforts to improve the current situation; it is preferable to follow a small-steps rhythm able to fix the perceived defects. This debate has consequences for the question we are concerned with. It is suggested here, in general lines, that the Church, precisely insofar as it is an organization, cannot be guided by models of the ideal Church in its traditional versions, and still less by the most utopian version of a communion of believers blissfully living fraternal relationships as they anticipate the Kingdom of God on Earth. Maybe what has partly failed has been the ability to keep more realistic visions of the Church, and to pursue reform programs that were not inspired so much by the unattainable models of an earthly “community of saints,” but rather ones grounded in the habitual anthropological and institutional conditions, so as to build, with the help of divine grace, a community able to learn from its own failures and to correct them. Psychology offers some explanations in that regard. The perception of corrupt behaviors among the Church’s own clergy could have created in many pastors a form of cognitive dissonance because it collided with the ecclesiological bias identifying the historical reality with the holy Church as a communion, shot through with sacramental grace. The consequence often was to deny the evidence, or becoming unable to adopt measures of effective correction. What is needed is a complete reframing or change of the cognitive ecclesial pattern in the way we conceive the Church and the mystery of grace to adjust it to the realities of the present time, with the Church still making her way toward ultimate fulfillment, and the mystery of grace still operating in an environment marked by sin. The theory of “learning systems” probably constitutes a better guide for our case. These systems are not static, nor do they take for granted the habitual procedures that help them to manage their own environment; rather, they remain open to taking up new methods or management styles, engage in a steady monitoring of outcomes and feedback, and maintain a greater sensitivity to external inputs or received instructions. In general, these systems do not aspire to perfection, which could block them, but rather they live in a permanent provisional state in which the received formats and procedures can be replaced by others, based on the detection of defects and the application of correctives and implementation of their functions and performance. All this is not so difficult to translate into theological terms; in fact,

92  Lluis Oviedo the similarities are obvious. Topics as the Church being semper reformanda (Congar 1973, 357ff), all things’ provisional status in the historical condition, or the state of “already and not yet,” could clearly be connected with that proposal. It is apparent that conditions have changed—as in history they always did and always will—and by trying to be aware of the “signs of the times,” the Church should become an institution able to learn from these signs, leaving aside, though they be theologically warranted, models that are either too static, too idealized, or both. It is important to recall that my intention is not to disqualify the “theology of communion” or to blame it for the recent episodes of bad management. The aim is rather to reframe this important theological contribution in a more realistic institutional outline in order to reach a new balance between “communional” and institutional aspects of Church life. Excesses on either side would not do. 5.3. A self-sufficient Church or a Church that needs worldly assistance A third point of great significance in the proposed ecclesiological revision relates to the idea of Church self-sufficiency. This idea has been expressed in different ways. The traditional expression has been the doctrine that claims that the Church is a societas perfecta, namely that the Church is sovereign in her own order, and has within itself its own end and all the means necessary to attain that end, namely the salvation of humankind. Often misunderstood and mischaracterized (sometimes deliberately), the term itself has not been appearing in recent times as often as before. Some proponents of the “ecclesiology of communion” would exclude it as too juridical to be adequate to expressing the Church’s innermost being as “mystery of communion.” There can be no doubt that, in content, it is necessary and logically unrenounceable, since its opposite would be untenable. However, as with the doctrine of the holiness of the Church, this doctrine too has been subject to undue misreading, as if the sovereignty and selfsufficiency and liberty of the Church, in the order of salvation, removed it from its place in the stream of history and living in the midst of human societies. Unhappily, the decline in the explicit use of the actual term, “a perfect society,” has not served—one can say from observation—to correct its debased misreading, as if the Church could not benefit from external input and support, even as it works toward its own proper goals. The recent crisis does indeed pose some questions in this regard. Are the Church’s own means really enough, in every respect and in every situation, concretely? A possible answer is that the Church could indeed count on adequate and proportionate means, but that recent events reveal a failure, in practice, to make use of them and to apply the rules. There is room for discussion here of what actually went wrong. In the first place, it is clearly the case that in the vast majority of abuses, the

Faulty theology’s role in abuse crisis 93 denunciations came from extra-ecclesial sources, hardly from inside. The first great wave in the U.S.A. was a consequence of the repeated accusations in the pages of the The Boston Globe newspaper in 2002, although there had been harbingers of things to come, elsewhere, also in the general press. In Ireland, the Ryan and Murphy Reports have been promoted by state agencies, external to the Church. The accusations that have followed on from then have likewise been channeled by media and law enforcement agencies external to the Church; in very few cases did internal whistleblowers contribute to denouncing misconduct. The interesting thing is that the Church needs to be grateful to these denouncers; without the accusations mediated by non-ecclesiastical (and sometimes even anti-ecclesiastical) agencies, the perpetrators of those crimes might have continued with their abuses, destroying the lives of more, perhaps many more, persons in an atmosphere of impunity and in the face of inaction on the part of the ecclesiastical authorities. After the greater awareness in the Catholic Church of the extent of abusive behavior, new rules have been adopted; and in the practice and directives that have followed, the ecclesiastical authorities clearly affirm the need to inform the civil authorities of the crimes.6 This change from past usage means that the Church recognizes, in its practice, the need to appeal to external law enforcement agencies, in fact those of the state, when confronting certain serious problems. It is recognized thereby that the Church’s own law enforcement mechanisms either do not suffice or, in fact, have not been very operational, as it were. A different take on it is that the system is not at fault; rather, its managers failed to make proper use of it. It is useful to recall in this regard that, until very recently, Church authorities were still discussing the appropriateness of collaborating with civil authorities and even of reporting suspected cases of sexual abuse to them in the first place. There is some evidence of the hesitations before such a policy was, in the end, chosen. The actual situation hereby described admits different interpretations, but a possible one is the recognition of the infeasibility of a “practical ecclesiology” that is too self-referential for its practitioners to admit that, in a given situation, such as the present crisis, they may not, as a matter of contingent fact, be so self-sufficient as to be able to solve all the Church’s problems without recourse to external agencies. Indeed, the Church has long accepted the cooperation of civil authorities in handling situations that call for it, and in confronting serious cases of violation of the penal code. The “Privilegium Fori” has not been invoked for a very long time now, and a greater collaboration is assumed with the civil authorities as to investigations and deterrence of crime. The question arises as to the extent that such a practice would be admitted as positive for Church organization and management. The doctrine of the Church “societas perfecta” received great emphasis, particularly in the context of the 19th century tensions (that would then go on into the next century) between the Catholic Church and the national and

94  Lluis Oviedo liberal states. It was an atmosphere of strong competition, the time of the original Kulturkampf, and putting an emphasis on this essential doctrine had the function of legally defending the Church from dangerous interference and abuses on the part of the civil authorities. The context that Vatican II chose to highlight is different, and rather assumes a regime of cooperation with modern society, in which many positive qualities are appreciated in spite of the existing ambiguities. This approach does not mean a renunciation of a strong juridical autonomy for the Church, but it could be seen as leading to a recognition of the need to count more on the help, for example, of external police and penal competence in the face of the proven inability, as a matter of contingent fact, of the previous self-contained pattern to prevent and to handle the verified abuses. Some consequences can be drawn: the Church is viewed as, in certain respects, an integral part of a network or social system from which it does not only draw economic resources or receives cultural stimuli, but also gets policing and penal support that, in fact, it cannot provide by itself. It is accepting a greater level of involvement in the social and institutional fabric of the advanced societies, precisely in order to be able to carry out its own independent mission better. Let us say that the renunciation of a certain sense of “strong identity” and “difference” on the part of the Church vis-à-vis the neighboring and surrounding human society becomes the condition for better carrying out its own distinctive mission of providing for the salvation of all. The “external helps” are contemplated as a necessary element so that the Church may feel freer and better able to focus on its own aims, thanks to the help that others offer it in dealing with its own internal problems. This ecclesiological model is probably not so radical, because the last decades have shown how much the Church depends on the support of, and references to, external authorities for its “survival” in this world. However, recent developments open a new path to more interdependence, at least in advanced societies with better means to detect and prevent criminal behavior. The consequence is that it is vain to conceive of the Church in juridical isolation from the rest of society. No institution can be conceived in terms of penal impunity when its members transgress shared civil laws. This does not mean that the Church renounces its own juridical space, necessary to implement and enforce its own goals; it is just that its own space cannot protect against every criminal behavior subjected to common penal law. Indeed, the Church lacks the technical means to detect some kinds of crime—as for example, illicit traffic in the internet—and the means to deter with appropriate penal correction some typified crimes. Without the help of these external agencies, ecclesial authorities would be unable in many cases to spot misbehaviors that are broadly damaging for Church mission, nor could it count on sufficient measures of her own to discourage such deviant attitudes. Cooperation with the civil power’s police and judiciary is in the interest of local churches, since this is in many cases the only way to deal in an effective way with some hidden or hard-to-detect abuses.

Faulty theology’s role in abuse crisis 95 5.4.  Transparency and dynamism in the Church Many observers have paid attention to the statement of the director of the once Holy See’s Press Office, Fr. Federico Lombardi, SJ, in favor of greater transparency. In two places in his “Note” of April 9, 2010, he affirmed the need for transparency: “transparency and rigor are urgent requirements for wise and just government within the Church.”7 It is justified to wonder about the consequences of this clear change in ecclesiastical strategy. It appears as a change for a simple reason: up to now, the general impression that many observers have had, mainly in Rome, is that secrecy and informational opacity were the dominant norms ruling ecclesiastic administration. It is worthwhile to remember that transparency, or “openness,” constitutes a key element of most programs of political reform. It appears as an intuitive point; governance optimization requires greater transparency that implies suppressing censorship, promoting the free circulation of information, promoting internal debate, and listening to critical voices in the conviction that these measures favor the participation and involvement of most citizens and help to overcome corruption and inefficient governance. An immediate exploration on an internet search engine reveals that often the term transparency is inversely linked to the term corruption, and positively linked with quality levels in governance. It is time to ask to what extent indexes of transparency and controls on the quality of governance apply to the Church and its many agencies, organizations, and corporate entities. This could appear as a question beyond the theological sphere, except for the fact that what is at stake is not just some practical issues of ecclesial governance, but the ecclesiological model itself. In a hypothetical way, emphasis on ecclesial self-sufficiency and the perfection of the inherited format, highly idealized, could favor styles of opacity. Such a tendency could be assumed to prevent the circulation of information that could damage a splendid ecclesial image constructed in a self-serving mood. An ecclesiology pointing to efficiency, the dissuasion of malfeasance, and accountability, as cues for better governance, surely need a different style of managing information. There are other processes that can explain this change. The Church no longer controls the flows of information, as it could do in many places until several years ago, when its influence in those territories allowed it to silence scandals or stop the flow of uncomfortable information. Nowadays we can assume that this loss is good news for believers, because the previous situation contributed to an atmosphere of impunity that was increasing levels of damage to the Church from within. On the other hand, the informational explosion triggered by the internet, the prolific blogs, and the many webpages with ecclesial information create a very different and more critical environment, as the last popes themselves have recognized. The Catholic Church needs to be grateful to the press

96  Lluis Oviedo and the journalists that have disclosed the scandals, both sexual and financial, and have helped with correcting them. The Church becomes in this way aware, once more, that it cannot try to live isolated from the rest of society, and this implies a political will to open channels of information as part of a wide strategy of greater involvement in the society lives after registering the failure of the previous pattern. This trend possibly corresponds to Pope Francis’ call for a “going forth” or “going out” Church. There is another aspect intimately bound to transparency that deserves attention. When that new strategy is accepted as part of a program of “good governance,” it then becomes necessary to aim at accelerating rhythms of response and decision-making. A lesson that we learn from all the events of the last few years is that the Church has been until recently too slow; it was lacking the right reflexes to respond in due time. The idea of a Church installed halfway between its long-ago origins and its eschatological consummation, beyond time and near eternity, has contributed to an administrative slowness and to a style that prefers to wait and not to rush in its decisions. It seemed that time was always thought to play in favor of the Church and its interests. The world has changed a great deal, and slowness no longer pays—it only contributes minimally in any organizational dynamics. When agencies lack the nerve and reflexes to react at the right time, they lose precious opportunities and accumulate uncertainty, with the result of a progressive institutional wasting. During recent years a different style of governance could be perceived in the Roman Church. There has been greater speed in responding to accusations, in taking criticism seriously, in making focused decisions, and in trying to contain the damage in real-time—something that was not previously habitual. It is important to insist that this does not only suggest a change of style in the central governance of the Church, but a change in the ecclesiological model; it becomes more dynamic and responsible in relation to the stimuli that come from outside. It is not “indifference” toward its own environment that reinforces the system, but its capacity to react in due time and to adapt to new contexts. That implies that the Church assumes a more historical conscience, and that it undergoes the rhythms of real time, renouncing the determination to set them according to its own agenda.

4.  Concluding remarks At this point, the initial question in the chapter title will hardly find a good answer: was a faulty theology to blame for the disastrous trends in the Church of which we latter became aware? Theology could probably play some role, but again, her fault is rather associated with passivity or absence than for being directly involved or playing any role influencing both in the

Faulty theology’s role in abuse crisis 97 moral morass that could allow for the abuses and the mind of pastors or authorities who made the wrong decisions and were unable to spot how bad things could become. This attempt in this chapter has been to provide some rationale in a case in which we assume that ideas and imaginaries that the theological systems contribute to could play a role in that negative development. In any case, such a possible contribution needs to be placed together with other, probably more important factors, such as a relaxed cultural environment, a faulty formation scheme, unskilled management styles, or a poor legal system in the Church. The point is that theology lost most of its luster and influence in those years, and could hardly determine what took place at various ecclesial levels, rendering its role rather negligible. But it would be wrong to try to excuse or justify theology’s disappointing role and performance in the entire process and miss the opportunity to correct and address pending issues. As already stated, theology cannot remain the same and work the same way after the abuse crisis, and I just hope we can learn the lesson to avoid repeating the same mistakes, the same delusions. The lesson to be learned clearly includes changes in method and approach, and surely a new style and awareness regarding its responsibility in ecclesial dynamics. The invited engagement entails a message of hope and reparation.

Notes 1 See as an example this report in Crux magazine: https://cruxnow.com/churchin-the-usa/2019/03/31/theologians-examine-role-of-power-clericalism-in-the-sexabuse-crisis/ 2 Perhaps an exception is the pericope on the scandal to the little ones Mt 18:6, which admits to several interpretations and cannot be identified strictly as a warning against abuses. 3 This section reproduces in part and adapts the previously published article: L.L. Oviedo, “Discerning Lacunae in Church Governance: Organisational, Juridical and Theological Aspects,” Antonianum 87:3(2012): 521–48. 4 Declarations of Pope Benedict XVI to journalists during his flight to Lisbon, 11 May 2010; source, www.vatican.va/holy_father/benedict_xvi/speeches/2010/ may/documents/hf_ben-xvi_spe_20100511_portogallo-interview_en.html. 5 Similar texts can be found in the homily pronounced to the members of the International Biblical Commission, April 15, 2010, and the letter to Irish Catholics March 19, 2010. 6 “Guide to Understanding Basic CDF Procedures concerning Sexual Abuse Allegations”: www.vatican.va/resources/resources_guide-CDF-procedures_en.html 7 www.vatican.va/resources/resources_lombardi-nota-abusi_en.html

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Faulty theology’s role in abuse crisis 99 Sen, Amartya. The Idea of Justice. Cambridge, MA: Harvard University Press, 2009. Stäheli, Urs. “The Popular in the Political System.” Cultural Studies 17(2003): 275–99. Taylor, Charles. A Secular Age. Cambridge, MA: Harvard University Press, 2007. Trivers, Robert. Deceit and Self-Deception: Fooling Yourself the Better to Fool Others. New York: Allen Lane, 2011.

4 Social networks and sexual abuse in the Catholic Church When priests become pirates Anthony J. Pogorelc

Sexual abuse: recent history The sexual abuse of minors and vulnerable adults in the Catholic Church has been a major concern for decades. 2018 was a particularly significant year when scandals again took center stage. In June 2018, Theodore McCarrick, the powerful and highly networked former Cardinal Archbishop of Washington D.C., was credibly charged with the abuse of minors and of young men aspiring to become priests. This led to his removal from public ministry, his resignation from the College of Cardinals, his sequestration in a residence for priests in a remote area, and his removal from the clerical state. However, 2018 was a year when the phenomenon of sexual abuse was uncovered in other organizations as well. The “me too” movement started in the entertainment industry, spurred by revelations about producer Harvey Weinstein, who was alleged to have abused young women seeking to establish careers in this industry. Another venue for ongoing abuse was U.S.A. Gymnastics, where Dr. Larry Nassar serially abused young women athletes under the guise of medical treatment. The scandal continued into 2019 when a pattern of sexual abuse was exposed in the Southern Baptist Convention, and in the summer of 2019 the Boy Scouts underwent a similar reckoning. One reason why perpetrators in these cases were able to persist in their abusive behavior was because social networks protected them.

Formal organizations and social networks Social networks emerge from institutions, and the two mutually influence one another. Selznick (1943), in developing a theory of bureaucracy, advanced three relevant hypotheses. First, every formal organization creates an informal structure. Second, every formal organization, through processes within it, modifies its goals by abandonment, deflection, or elaboration. And third, this process of modification is achieved through informal structures. It may be added that informal structures lack the mechanisms of accountability that are found in formal organizations. Homans (1950) identified

Social networks & abuse in the Church 101 informal relations as impeding production in a firm. Informal relations can assist or prevent the acquisition of values appropriate to the exercise of one’s role in an organization (Podolny and Baron 1997). The clergy sex abuse scandal is an example of how social networks played a role in the abandonment of the normative goals of the Catholic Church and replaced them by the pursuit of utilitarian interests. Cases examined in this chapter provide examples of this.

Social networks All formal organizations contain social networks, yet the role of these networks has been understudied (Kadushin 2012; Warburton 2013). Most simply, a social network is set of relations between objects (Kadushin 2012). Each person is an interconnected node. Actors in the network grow connections according to their interests, needs, and desires as well as through environmental and social influences; these factors also condition the way in which actors respond to connections that grow toward them (Warburton 2013). Social networks are products of individual and institutional actions. They are conduits through which resources flow, and they are also primary bases of social identity that convey a sense of personal belonging and normative expectations associated with one’s position. Within a formal organization, ties and networks exist among positions as well as among individuals (Podolny and Baron 1997). This chapter discusses the nature of social networks, the factors that motivate them, and presents cases that illustrate how they operate. It examines the role of social networks in spawning abusive behaviors, allowing their persistence, and also remedying them. In particular, there has been little focus on the role of social networks in the phenomenon of sex abuse in the Catholic Church. Many attempts to explain and prevent sexual abuse have drawn on psychology, the role of sexual orientation, clericalism treated as an ideology, and the decline of morals, but there has been little examination of the role of social networks. Understanding their role can help us to understand processes by which such corruption comes into being and endures, as well as how it can be addressed. Social networks are frequently formed on the basis of homophily, meaning people with like characteristics tend to connect to one another. These can be personal characteristics or social locations in organizations. People who are alike may develop positive feelings that are mutual. These sentiments forge reciprocal bonds because people enjoy giving and receiving from those they like and those they believe like them. Liking others can lead to positive regard, overlooking faults and even the denial of deviant behavior (Kadushin 2012). Humans are hardwired to mimic one another, and people are more defined by their structural connections than they are by their personal traits (Christakis and Fowler 2009). By associating with people whose

102  Anthony J. Pogorelc characteristics and structural locations resemble our own, we become more connected and in some respects more alike through the process of association. Homophily can be seen in the relationships between all ranks in the Catholic Church. Bishops, priests, and laity are all embedded in their own social networks. In response to a survey, 69% of bishops agreed that other bishops were among their closest friends (Fichter et al. 2019). While there are interactions between multiple networks, loyalty to one’s own network is strong. This will be examined in greater detail in the following paragraphs. Greeley (1977) claimed the process of selecting bishops is skewed to selecting priests who are most deferential to authority and who have a high level of identification with the clerical state. The confidential questionnaire sent out by the Vatican to elicit the names of potential bishops explicitly asks about his identification with the clerical role. Episcopabili are to be scrutinized for the following values. Loyalty and docility to the Holy Father, the Apostolic See, and the Hierarchy; esteem for and acceptance of priestly celibacy, as it has been set forth by the ecclesiastical Magisterium; respect for and observance of the general and particular norms governing divine worship and clerical attire. (Reese 1989, 32) The Second Vatican Council institutionalized the development of social networks among bishops by emphasizing the importance of local bishops collaborating with one another (Lumen Gentium 1996, 18). Before Vatican II, the relationship of a bishop to the centralized authority of the pope and Roman Curia was clearly outlined, but bishops were less cognizant of their relationship to one another (Riccardi 1997). At the Second Vatican Council the bishops’ horizontal link with other bishops was theologically defined as the theological principle of collegiality, meaning that bishops and the pope have responsibility for the Church (Fogarty 1997). Caporale (1964), a sociologist studying the Second Vatican Council, found that the council caused changes in the pattern of communications among the bishops that increased their intensity and even structurally modified them, which led to many other changes in the Church. Social networks influence the adoption of norms and can promote both the moral high ground and deviance. People think, feel, and act like those with whom they network. Vaughn’s study of NASA examined the role of social networks in the normalization of the deviance and negligence that contributed to the loss of life in the 1986 Space Shuttle Challenger disaster (Kramer 2010). Berry (1992) studied networks of corruption in Catholic dioceses, seminaries, and administrative structures. Wood et al. (2019) investigated the role of social networks in police misconduct.

Social networks & abuse in the Church 103 The 2018 Pennsylvania Grand Jury Report exposed the deviance in a network of priests in a diocese who used similar methods to groom their victims. One witness testified: These priests had a group of favored boys who they would take on trips. The boys received gifts; specifically, gold cross necklaces. [T]he priests, would give their boys, their altar boys or their favorite boys these crosses. (2018, 235) From this testimony, the Grand Jury ascertained that the network created a system that would enable its members to identify and share their victims. The Grand Jury observed that these crosses served another purpose beyond the grooming of the victims: They were a visible designation that these children were victims of sexual abuse. They were a signal to other predators that the children had been desensitized to sexual abuse and were optimal targets for further victimization. (2018, 235) The alleged victims of Theodore McCarrick were also part of a network called “the Nathans.” An accuser stated that: many of the boys knew one another. They would often travel together with McCarrick on fundraising trips to churches and homes of donors nationwide, where the abuse allegedly would occur. As adults, some would speak about their alleged abuse to one another in the barest of terms. (Boorstein. Washington Post, October 17, 2019)

Types of power in organizations Etzioni (1975) classified organizations according to the types of power that drive them. He concentrated on three types of power: coercive, normative, and utilitarian. Sometimes an organization relies predominantly on one type of power; however, it is possible for an organization to utilize more than one type. Religious organizations, such as the Catholic Church, employ multiple types of power. Lunenburg (2012) characterizes the influence of these types of power according to direction, from positive to negative, and intensity, from high to low. They shape an individual’s involvement in an organization. Coercive power, which motivates by punishment, can produce high levels of alienation, passive behavior, and negative feelings. Normative involvement is a positive orientation of high intensity that is demonstrated by engagement in

104  Anthony J. Pogorelc the organization’s mission. Utilitarian power can be positive or negative and is of low intensity; it objectifies others and views both superiors and subordinates as means to increase one’s own resources. What needs to be added is that in relationships, what can be positive for one party can be negative for another. These types of power and involvement are actualized through the social networks that develop in organizations. Coercive power employs force and fear to control persons and is used in custodial institutions such as schools or hospitals, military organizations, and in some religious organizations, especially at the initial levels of involvement, such as the novitiate or seminary, as well as among lower-level members. A saying often repeated among subordinates in Catholic organizations was “Keep the rule and the rule will keep you.” Everyone who has gone through a Catholic formation system has experienced some level of coercive power. Victims of sexual abuse as well as lower-level personnel involved in cover-ups were likely to be influenced by coercive power. Because control by structures of coercive power center on rules and sanctions, it can contribute to scrupulosity because obsession with following the letter of the law may grant latitude for individuals to perform actions that can cause grave harm to others but do not technically transgress the law. In the area of Catholic sexual norms, there was a great concentration on the immorality of deriving pleasure from any sex act outside of marital intercourse. Yet, if one engaged in sexual behavior with another, but claimed to derive no pleasure from it, it could be rationalized as a less serious offense or even no offense at all. This manner of thinking is focused on the action of the perpetrator and does not take account of the effect on the victim. The John Jay Study on Clergy Sexual Abuse discussed the rationalizations clergy abusers used to justify their actions. In order for the child sexual abuse to continue, child sexual abusers often rationalize their behavior through “cognitive distortions,” or distorted thinking patterns. Like any other type of offender, child sexual abusers may subconsciously use a “neutralization technique” to defuse any feelings of remorse or guilt they have for committing the abusive act or for the consequences of that act. They do so by excusing or justifying their actions, often acknowledging their guilt but not taking responsibility for the acts. Commonly, they blame the victims for their offenses or justify their offenses through the victims’ actions. (2004, 66) Normative power focuses on intrinsic rewards, such as satisfaction in the advancement of the organization’s goals and mission, a sense of contribution to the greater good, and the pursuit of meaning. In this case, the power of leaders resides in their ability to employ symbols and enact rituals that inspire members to implement norms and take delight in their contributions

Social networks & abuse in the Church 105 to the organization’s mission, as well as to encourage them to persist and do even more. Non-profit organizations are often perceived as normative organizations. Examples include churches, advocacy groups, hospitals, universities, and professional associations. Normative power also has an underside, especially if the organization itself, rather than its mission, becomes the object of one’s loyalty. In the Catholic Church, service of the Church has often been made into an end in itself. This can translate into protecting the Church at the expense of violating other norms. The oath taken by cardinals on reception of the Cardinal’s Biretta requires them to pledge loyalty to the Catholic Church and never to reveal anything that would harm the Church as an institution: I [name and surname], Cardinal of the Holy Roman Church, promise and swear to be faithful henceforth and forever, while I live, to Christ and his Gospel, being constantly obedient to the Holy Roman Apostolic Church, to Blessed Peter in the person of the Supreme Pontiff N., and of his canonically elected Successors; to maintain communion with the Catholic Church always, in word and deed; not to reveal to anyone what is confided to me in secret, nor to divulge what may bring harm or dishonor to Holy Church; to carry out with great diligence and faithfulness those tasks to which I am called by my service to the Church, in accord with the norms of the law. So help me Almighty God. (Zenit.org October 21, 2003) Such a practice institutionalizes keeping secrets that could adversely affect the institution. In a Pennsylvania archdiocese known for its strong internal networks among the clergy, one official was convicted of covering up sexual abuse by priests under his supervision and served time in jail for his actions. At the trial, he claimed that he did his best to protect children, but could not do more because only the archbishop had the authority to remove priests (New York Times June 22, 2012). His loyalty to the organization would not allow him to conceive of going over the archbishop’s head or becoming a whistleblower to protect victims. There is a counter network called Catholic Whistleblowers that is comprised of current and former priests, deacons, religious, and laypersons actively supporting survivors of sexual abuse. In a letter to Pope Francis published on the website (catholicwhistleblowers.com), they present themselves as motivated by norms. From the convictions of our conscience we wish to make known for the good of the Church, you and the Christian faithful the experience we have lived regarding the ongoing clergy sexual abuse crisis and scandal.

106  Anthony J. Pogorelc Some of them have reported instances of sexual abuse to civil and church authorities and worked to expose cover-ups. Utilitarian power uses extrinsic rewards to control participants. For example, businesses and agencies use forms of remuneration such as salaries, benefits, quality working conditions, and job security to reward participants. Weber (1978, 926–39) distinguished among three types of power: class, economic power; status, the power of prestige; and party, the power generated through the interconnections of people. In the Catholic Church, prestigious titles, expanded jurisdiction, and location in a power center such as a diocesan chancery, an affluent parish, or provincial headquarters may be examples of utilitarian rewards. Individuals may join networks to connect to others who are powerful and who can help them gain resources. Corruption is a technique of goal achievement, not an end in itself. It is a social process in which public power is used to acquire private benefits wherein officials use their authority to promote their own interests in opposition to the common good (Warburton 2013). A case that represents utilitarian corruption is that of the recently retired bishop of West Virginia. In his pursuit of wealth, prestige, and power, he resembled Pope Leo X (1475–1521), the son of Lorenzo de’ Medici and pope at the time of the Protestant Reformation, who was known for excess, lechery, and hedonism, and who once quipped: “God has given us the papacy, let us enjoy it.” Unbeknownst to many, the bishop of West Virginia had access to the proceeds of oil money that had been donated to the diocese. He treated it as his personal coffer and spent millions of dollars of diocesan funds on first-class travel, food and drink, and accommodations at luxury locations. He offered generous monetary gifts to prelates higher up than himself who might be in a position to do him future favors. One result was prestigious placements at Vatican ceremonies. He also used monetary gifts to groom young clerics who felt coerced to respond to his sexual advances. He covered over the fact that the source of his largesse was not his personal accounts but diocesan resources by arranging with the financial officer a system of his receiving reimbursement for such expanses. After allegations of sexual harassment were revealed, questions of financial mismanagement were soon raised. The resulting investigation found that there were few internal checks to stop the bishop and that the finance board was passive and failed to conduct any meaningful reviews. The priests who served as his senior aides did little to check him or to assist the victims of his harassment for fear of harming their own careers ((Boorstein, Boburg, O’Harrow. Washington Post, June 5, 2019). Utilitarian and coercive power dominated his exercise of episcopal authority. A question that requires added research is this: did this bishop or others like him pursue the priesthood with utilitarian motivations in mind, or was his deviance a product of his formation by social networks he encountered in the seminary or in his early years of priesthood? He went to the seminary

Social networks & abuse in the Church 107 and was ordained for a Pennsylvania archdiocese known for coercive domination by its cardinal-archbishops, its strong internal networks among the clergy, and its outright ban of homosexual persons entering its seminary. Nearly 20% of the priests reported as abusers in the John Jay study (2004, 41) were ordained in the decade of this bishop’s priestly ordination—the 1970s. He worked in a high school and was linked to other priest abusers (Hurdle. New York Times. April 19, 2012). Future research on how clergy come to adopt processes of corruption would be valuable in extending our knowledge in this area. Individuals become involved with particular organizations because of the types of power that drive the organization. Some individuals are incarcerated in coercive organizations as inmates. Their lack of autonomy may produce alienation, passive behavior, and negative feelings. Yet there are also actors who chose to work in such organizations. They may be there because of normative motivations, such as a belief that society must be protected from criminals or the desire to offer care to those who are mentally ill and unable to mix with society. They may also be there for utilitarian reasons, such as salary and benefits. Lewis Coser (1974), who studied involvement with organizations, developed the concept of greedy institutions. They rely not on coercion but on voluntary compliance, yet they also make demands of participants that weaken or sever their social ties to those outside the organization and increase their dependency on the organization. To compensate for this, these organizations claim to offer exclusive benefits such as the status of being among a chosen caste in exchange for renouncing other ties that would compete with one’s commitment to the institution. He identified the clerical state in the Catholic Church as an example of such an occupation. However, as a means of coping with this institutional greed, individuals may use informal systems to meet personal needs that cannot be met by, or are even forbidden by, the formal organization, such as needs for affiliation and intimacy (Selznick 1943; Kadushin 2012). Greedy institutions demand loyalty and punish criticism that is perceived as disloyalty. At the highest levels of the Catholic Church, high officials such as cardinals take oaths of loyalty; those who aspire to such offices at least try to create the perception of having such loyalty to the institution. For those striving for upward mobility, the system incentivizes ignoring problems and even covering them up.

The clergy In greedy institutions, social power is exerted by and through networks. Networking power operates through inclusion and exclusion, and enables actors and organizations in the networks to exercise power over those who are not in the network (Egger de Campo 2013). Clericalism establishes social distinctions between officials and members in religious organizations and constructs the former as superior and the later as subordinate (Pogorelc

108  Anthony J. Pogorelc 2015). Clericalism is more than an ideology rooted in beliefs about status; it is a culture—shared socially learned behavior—based in a utilitarian orientation toward power. It objectifies both superiors and subordinates and views them as means to be used to increase one’s own resources (Lunenburg 2012). To the utilitarian cleric, the bishop is not a spiritual leader but a means to acquiring higher status. Other priests are means to advancement or competitors to be blocked. Laity with resources can be tools for advancement while those without can be pawns to be manipulated. The history of entering the clergy for the pursuit of utilitarian rewards is a long one. In 17th-century France, a wealthy family would designate a son, not destined to inherit the family fortune, to make a career in the Church by achieving the office of bishop, allowing him to accumulate material resources such as benefices: religious properties that would provide him with the resources for an upper-class lifestyle. These sons would become bishops who were heads of dioceses in name, but delegated their powers to subordinates so they could live outside of their territorial dioceses and reside in the royal court in order to acquire additional power and wealth (Pitaud 2017). In colonial Brazil and among Roman aristocracy, the third son of a wealthy family would be destined for ordination, irrespective of his religiosity or lack of religiosity. The post-Tridentine seminary reformer Jean Jacques Olier was initially a product of this utilitarian clerical system. He acquired benefices and traversed to Rome to build a social network to further advance his clerical career. Experiencing personal dissatisfaction with his embeddedness in this utilitarian social network, he reformed his own life and sought to make institutional changes by reorienting the seminary program to form individuals who would be centered on enacting norms and advancing the mission of the Church. The cornerstone of the normative type of seminary he sought to create was spiritual direction, a regular one-on-one manifestation of conscience by a seminarian to a priest. Through this interaction, he wanted to liberate seminarians from an unreflective acquiescence to the utilitarian system in order to develop the freedom to make choices based on norms and oriented toward the mission of the Church, which is spiritual. In the United States in the 19th and early 20th centuries, the Catholic Church was composed of immigrants who worked long hours in industries. An alternative to this demanding labor that offered sustenance wages was to join the clergy, which offered advances in status and power. In the seminary, one would receive an education well advanced over that of an industrial laborer. One’s material needs would be met. Membership in the clergy would confer both social status and the symbolic power to strongly influence the lives of others. One would also be introduced to other powerful individuals and gain the opportunity to become part of their social networks. Clerical life attracted participants by its claims to offer exclusive benefits to its members. The status of being among God’s chosen ones in exchange

Social networks & abuse in the Church 109 for renouncing marriage and family received great emphasis. However, as in any institution, informal social networks assisted clerics in meeting otherwise unmet personal needs, such as affiliation and intimacy. Some of these networks were centered on normative practices such as prayer and spiritual direction. Others were utilitarian. One example of success at operating in utilitarian clerical networks was Francis J. Spellman (1889–1967). The grandson of Irish immigrants, Spellman was raised in Whitman, Massachusetts. His father was a grocer, and young Spellman went first to public schools and then to Fordham University. Following his college graduation, he entered the seminary for the Archdiocese of Boston, and was sent to study in Rome by Cardinal William O’Connell, who was himself known for his utilitarian approach to his own clerical career (Morris 1997). In Rome, Spellman established connections with high-ranking clerics. Spellman’s obviously utilitarian approach to his clerical career turned off O’Connell, who gave him menial assignments. Unable to enter O’Connell’s clerical network, his own Roman network enabled Spellman to leave Boston and get a Roman assignment and to forge a friendship with the future Pope Pius XII, who eventually appointed him Archbishop of New York and created him a cardinal. In this position, he was able to forge networks that included U.S. presidents and others in the power elite. Suggestions of his sexual malfeasance appear in books and journals. It was Spellman who ordained and promoted Theodore McCarrick in the earlier years of the latter’s clerical career by granting him the opportunity to do graduate studies and placing him in administrative positions such as president of the Catholic University of Puerto Rico. This pattern of promotion continued under Spellman’s successor, Terrence Cooke. McCarrick was appointed auxiliary bishop of New York, founding bishop of the Diocese of Metuchen, New Jersey, Archbishop of Newark, and Cardinal-Archbishop of Washington D.C. In this these positions, he was able to build strong network ties with power elites in government, business, and finance. Known for his fundraising acumen, he was a powerful board member of the Papal Foundation, a Philadelphia-based organization founded in 1988 that works with bishops and superiors to fund Catholic charitable projects. In 2018, McCarrick was removed from Catholic ministry because of allegations of sexual misconduct.

Social networks in the Church Social networks operate throughout the Catholic Church at all levels. Archbishop Jean Jadot, Apostolic Delegate to the United States from 1973–1980, once told Catholic bishops at their annual meeting, “Church leaders will have to work with the laity to develop new patterns of parochial life and, perhaps, new forms of parochial organization so that the parish can become ‘a community of small communities’ ” (Castelli Sacramento Catholic Herald November 11, 1976). Jadot was aware of the social fact that organizations,

110  Anthony J. Pogorelc like the Catholic Church, are made up of smaller social networks, and in the spirit of Vatican II, encouraged cooperation among them. In the Church many social networks collaborate, but these inter-related social networks in the Church could also work at cross-purposes. The sex abuse scandal and its cover-up is an example of social networks protecting the interests of insiders and working against those on the outside. Here, informal relations impeded the ability of the Church to exercise its normative mission. One example of networks of nuns and clerics opposing the interests of the laity is seen in the case of Fall River, Massachusetts priest James Porter, who allegedly abused over 100 children in his first assignment from 1960–1963. What is not known is whether the nuns and the pastor were operating under coercion or utilitarian motives. Lytton (2008, 22–3) describes the scene: Nuns teaching in the school knew of but failed to complain about Porter’s predations. When parents and relatives of several victims complained to St. Mary’s pastor . . . he scolded them, “What are you trying to do, crucify him?” In his next assignment from 1963–1965 . . . Porter molested more children. . . . At no point throughout the Porter saga did church officials ever warn parishioners at any of Porter’s assignments, nor did they ever report anything to the police . . . the major lesson learned was that if there was one victim . . . there was potential for multiple victims, which was an awareness that maybe had not sunk in up until that point in time. At the head of the Catholic hierarchy are those who hold the office of bishop. The pope, most cardinals, officials of the Roman Curia, and leaders of dioceses hold this office. At the highest levels of the hierarchy, many of the networks are closed, have clear boundaries, and are constituted as exclusive groups. Clear social identity is facilitated by smaller networks that display high closure and cohesiveness (Podolny and Baron 1997). Bishops are ordered according to a variety of ranks, and within these ranks are a multiplicity of social networks rooted in a variety of needs and interests. Some bishops are leaders of dioceses and some are auxiliary bishops who work under the bishop-leader of the diocese. Bishops are also in regional and national networks related to national organizations of bishops. Some bishops have greater influence with the Vatican and have formal or informal input into the selection and promotion of other bishops. Sometimes these networks are in oppositional relationships. In the U.S. hierarchy there are differences between networks of bishops who subscribe to the openness to the world inaugurated by the Second Vatican Council and promoted by the current pope, Francis, (hereafter, “first network”) and those who maintain a view of the Church as a perfect society, superior to the world, and self-sufficient (hereafter, “second network”). The nuncio, the ambassador of the Holy See to a country, who served in the U.S.

Social networks & abuse in the Church 111 from 2011–2016 and is now retired, was alleged to be involved in squelching an independent investigation conducted by an external law firm into the alleged sexual malfeasance of the eighth Archbishop of St. Paul and Minneapolis with whom he had a favorable relationship as part of the aforementioned second network. This same nuncio, after his retirement, engaged in a very public attack on the retired archbishop of latter over revelations of alleged behaviors of sexual malfeasance similar to that of the eighth Archbishop of St. Paul and Minneapolis. This Archbishop of Washington D.C. was known to be a member of the first social network. This case exemplifies opposition between social networks of bishops. The priesthood exists as a series of networks. A diocese is a formal organization headed by a bishop with priests who are officially his collaborators. There are also a variety of informal social networks within a diocese. Some of these networks would be focused on supporting normative practices, such as the Jesus Caritas support groups (Jesuscaritas.org), who meet monthly to read scripture, pray, review their lives, and share fellowship. Other networks gather to support other interests, some of them utilitarian. There are also priests of religious orders, which are international organizations headed by a superior. Within orders there are also a variety of informal social networks. There are informal networks of priests that may cross the lines of diocese, religious order, geography, and other categories. Loyalty to one’s formal network of priests is cultivated in the program of initial socialization that occurs in the seminary, and is also the locus of one’s formal and informal experience of types of power in the Church that will form one’s involvement with the organization and the informal networks within it. Diocesan and religious priests report to various authorities that are not coordinated. Many social networks have independence from the formal church organization. Consequently, cases of malfeasance have been able to avoid accountability. Parishes are formal organizations usually led by priests. Today in the United States, parishes tend to operate through the collaboration of priests and laity. Lay members may head some of the formal organizations in a parish; however, ultimate power resides with the pastor. The basic contract of organizational life is that members who are lower in the organizational hierarchy accept and acquiesce to the structure determined by the higherups (Kadushin 2012). There are also informal social networks in parishes that follow the general patterns of social networks that we have discussed. One way to frame the sex abuse crisis in the Catholic Church is to examine it as an oppositional relationship between social networks. Using the theory of social networks, it is possible to gain an understanding of dynamics and processes within the Church and how as an organization it handles critical issues. Catholic polity, which makes the bishop the decider in his diocese, does not allow the U.S. Conference of Catholic Bishops to mandate specific regulations or procedures. The bishops of the 197 dioceses in the U.S. determine most policies in their dioceses. Bernie Nojadera, Director of

112  Anthony J. Pogorelc the U.S. Bishops Secretariat of Child and Youth Protection, says: “We have 197 different ways that the Dallas Charter is being implemented” (Lauer and Hoyer 2019). The history of relationships between clerical and lay networks has been both cooperative and oppositional. There are some clerics who find the idea of power-sharing with the laity appealing, while others find it appalling. From a phenomenological perspective, Hegy (2019, 13) asserts that “clergy and laity often live in different life-worlds and may talk past one another.” This has been true throughout the history of Catholicism in the U.S. An early battle related to clerical-lay relationships concerned Trusteeism. It was an American civil tradition for Church properties to be held by lay trustees who managed money and properties and hired and fired clergy. This practice was ensconced in law in the state of New York. Bishop John Hughes, the ordinary, ignored this law, and in 1863, the Democratic governor of New York succeeded in having it repealed. Other bishops took their cue from New York, and Church administration was wrested from trustees (Morris 1997). Clerics do not want laymen to have power over them. The Code of Canon Law forbids it: “Only clerics can obtain powers, whether of orders or of ecclesiastical jurisdiction, and benefices or ecclesiastical pensions”(Code of Canon Law 1917 Canon 118). This case reveals the tensions between the cultures of Catholicism and U.S. democratic culture. A few years after the Second Vatican Council, in the early 1970s, to celebrate the U.S. bicentennial, the National Conference of Catholic Bishops (NCCB), now the United States Conference of Catholic Bishops (USCCB), initiated an extensive process of consultation of the laity to create and implement a national pastoral plan and raise consciousness about Catholic social teaching. This was one of a series of hierarchy-initiated experiments in shared responsibility between clergy and laity. A series of listening sessions was held around the country to listen to what a range of Catholics were thinking about pertinent topics. This move by the NCCB was rooted in the spirit of Vatican II. Pope Paul VI issued a “call to action” for Catholics to challenge unjust structures in their respective societies (Octogesimo Adveniens 1971). Likewise, the International Synod of Bishops wrote that the Church must critique itself so that it embodies the justice it advocates (Justice in the World 1971). This program became known as the “Call to Action.” At the end of the consultation process, a national meeting was held in Detroit in October 1976, and attended by 1,340 delegates representing 152 out of 167 U.S. Catholic dioceses and 92 national Catholic organizations. The delegates voted to pass resolutions addressing eight key areas: Church, Ethnicity and Race, Family, Personhood, Work, Neighborhood, Nationhood, and Humankind. The resolutions were intended to be the topics of substantial discussion at the annual meeting of the NCCB and to generate recommendations to be implemented ad experimentum and evaluated over a five-year span. Of the 182 resolutions passed by the delegates at the

Social networks & abuse in the Church 113 1976 conference in Detroit, 92% were consistent with the traditional social teaching of the Catholic Church. In contrast, 8% called for the discussion of internal Church reforms, such as extending ordination beyond celibate men and reconsidering the Church’s position on artificial birth control (Pogorelc 2011). The lay conference delegates’ call for reform of established Catholic disciplines led to a breakdown in the relationship between the lay delegates and some of the hierarchy. Archbishop Joseph L. Bernardin, president of the NCCB, issued a statement to the press saying that some of the conference resolutions “must be considered problematical at best” (Origins November 4, 1976). Progressive Catholics throughout the country were outraged, and some tried to form their own social networks to keep the spirit of the Call to Action Conference alive. Subsequent attempts of the Conference of Bishops to consult the laity had mixed results. Social networks are based on homophily, in this case homophily of structural positions in the Church. Actors with similar power orientations, interests, needs, and desires build connections and ally with one another. The power relationship between clergy and laity is a neuralgic issue that comes up in the Catholic Church repeatedly, and it is present today in debates about how to hold bishops accountable for their actions in dealing with clergy sexual abuse. The National Advisory Council (NAC) was formed in 1968, three years after the close of the Second Vatican Council. It is a rotating group, mostly made up of laity, to help prelates consider a range of viewpoints as they respond to issues in the public arena. The group’s chair in 2019, Retired Colonel Anita Raines, told the bishops that lay voices were not adequately included in the discussion of their proposals to address the abuse crisis. The NAC was concerned because no proposal mandated the involvement of laity, nor did they allow for independent investigations. Raines said, “The proposed model still give the perception of bishops investigating bishops” (Jenkins 2019). Francesco Cesareo, Chair of the National Review Board (NRB), established as part of the 2002 Dallas Charter to prevent the sexual abuse of minors in the Church, called responses to the “dual crises of abuse and leadership” inconsistent. He said, “Until there is a uniform response and mechanism across all dioceses . . . we cannot be confident that the response to this dual crisis is adequate or sustainable over time.” He said the NRB is uncomfortable with “bishops policing bishops” and that the metropolitan archbishop should not be the only one tasked with investigatory power (Jenkins 2019). From their perspective, lay Catholics are suspicious of continuing to hand sole power over to metropolitan archbishops who in the past have not all been credible actors. Ferrone (2019) names eight metropolitan archbishops who have been involved in documented scandals, cover-ups, and mismanagement of abuse cases over the last 20 years. From his perspective as a cleric, canon lawyer and chair of the USCCB Canonical Affairs Committee, one bishop insisted that bishops cannot

114  Anthony J. Pogorelc compel lay participation in the process because that would be contrary to the system that the Vatican has designated. Pope Francis’s Motu Proprio, Vos Estis Lux Mundi (You are the Light of the World), which went into effect on June 1, 2019, designates bishops as the responsible parties to address cases of abuse. When a metropolitan archbishop receives a credible report of malfeasance by a bishop he is to request appointment from the competent Dicastery (Vatican office) to commence an investigation (article 10). While the document suggests lay involvement in investigations, it does not make it formal by mandating it, but leaves it as an informal option. Informal structures lack the accountability structures that are found in formal arrangements and can actually impede the achievement of organizational goals (Homans 1950). Ann Barrett Doyle, co-director of Bishopaccountability.org, which maintains an extensive data-base on clergy sexual abuse, takes a dim view of the new norms: The edict has three serious weaknesses. It stipulates no penalties for those who ignore it, it mandates no transparency to the public, and it doesn’t require permanent removal of abusers from ministry. This is not the bold action that is desperately needed. A law without penalties is not a law at all—It’s a suggestion. (San Martin 2019) In the relationship between networks of laity and clergy, to many lay persons there appears to be a pattern of hierarchs inviting participation and then pulling back on the invitation when they have determined that they have given too much power away. This was seen in Call to Action, in the consultation on a “Women’s Pastoral” in the late 1980s, and in the response to sexual abuse and its cover-up. This way of acting by bishops has eroded the trust of the laity. The Code of Canon Law (1983) and its definition of governance in the church strongly influence how the issue of shared responsibility in holding bishops accountable is understood. In accord with the prescription of law, those who have received sacred orders are capable of the power of governance, which exists in the Church by divine institution and is also called the power of jurisdiction. (The Code of Canon Law 1983 Canon 129.1) According to this canon, it is no less than God’s will that the power to govern the Church comes about through sacramental ordination. The code does allow the participation of the laity, but only as cooperators with the clergy. “Lay members of the Christian faithful can cooperate in the exercise of this power in accord with the norms of law” (Canon 129.2). These canons are consistent with canon 118 of the 1917 code. In his commentary on canon

Social networks & abuse in the Church 115 129, Richard Hill, S.J. (1985, 93) says, “The distinction between possessing the power of governance and merely sharing in its exercise is new and it is not at all clear what it means to cooperate in the exercise of a power that a person cannot hold.” In the 20th century, the first Code of Canon Law was published in 1917, and to better conform with the Second Vatican Council, a revised code went into effect in 1983. This demonstrates that canon law is mutable. A question at hand concerns whether the current circumstances of dealing with the crisis of sexual abuse in the Catholic Church and its consequences suggest the necessity of reexamining the 1983 code and its effectiveness in dealing with this crisis today. Since the Second Vatican Council, the number of lay persons studying canon law has increased, and in Pope Francis’s plans for the reorganization of the Roman Curia he calls for more lay people to be involved in the workings of the Curia and in providing input. Likewise, in 2014, a Commission for the Protection of Minors was instituted to work with the Dicastery for Doctrine in the handling of sexual abuse cases. In organizations, those with similar orientations toward power form social networks. Do the networks of canon lawyers and curial staff that include the laity have the power to, for a start, facilitate discussions of reforming the law? Social networks played a role in facilitating the Catholic sexual abuse scandal and its cover-up. These networks engaged in the social process of corruption—the misuse of public power for private profit wherein officials use their authority to promote their own interests instead of the good of all. A process of corruption was enacted by clerics motivated by the acquisition of utilitarian benefits for themselves and their social networks. Parties to corrupt transactions are both holders of resources and power seekers. The purpose of a corrupt transaction is to conduct a swap that converts common resources into usable power that promotes one’s own interests. (Warburton 2013) Responding to motivational or excitatory forces driving them to promote self-interest, parties to corrupt transactions cross a decisional threshold that the corrupt transaction will satisfy (Warburton 2013). Utilitarian motivations triumph over normative or coercive forces that no longer inhibit the tendencies of actors to transgress decisional thresholds. Being a part of a network that supports commitment to the moral norms of the Church that stress justice, service, and celibate chastity for priests would be expected to inhibit corruption. Social action within such a network that facilitates honest discussion, revelation of struggles, and reminders of sanctions for malfeasance can bolster appropriate behaviors. However, other outcomes are possible. Further research to examine the role of social networks in combating malfeasance would be valuable. Tilley (2005) distinguishes between social networks in general and some that are networks of trust; not all social networks are trust networks. He defines a network of trust as one in which members are connected by similar

116  Anthony J. Pogorelc ties. These ties are strong and facilitate one member to make a claim on another. The network is set up to carry on major long-term enterprises. In such a network, members realize that they experience benefits and losses because of the actions of their fellow members. The enterprise is at risk to the malfeasance, mistakes, and failures of individual members. Tilley (2005) examined the case of sailors who became pirates. Pirates formed trust networks that preyed on other trust networks. Sailing is a legitimate occupation that provided an important service by enabling the exchange of goods between distant markets. Pirates took the goods legitimately entrusted to them and others and commandeered them for their own gain. The priesthood is meant to provide service to Church members and others who seek the spiritual and corporal ministries that the Church offers. For the sake of their own utilitarian gain, malfeasant clergy, abusive priests, and the bishops who covered-up their crimes formed a trust network that excluded and betrayed the trust networks of clergy and laity who adhered to Catholic norms. These clerics objectified their victims by treating them as instruments to be used for their gratification and as a means to an end (Gruenfeld et al. 2008). They used the clerical office to obtain sexual acquiescence from subordinates for whom they had fiduciary responsibility. Tilley (2005) found that piracy persisted by means of an organized process that enabled it to sustain and reproduce its networks. In order to prey on individuals and organizations, pirates employed the strategy of concealment to allow network insiders to know one another and the true purposes of their enterprise while deceiving outsiders who were taken in by their pretense of carrying out a legitimate purpose while their true activities were clouded in secrecy. Externally, they presented themselves as being in compliance with norms so that they would not draw scrutiny. They aligned with powerful patrons from whom they could obtain resources and protection, often for a price. Structures of abuse within the Church and other organizations depended on these same factors. Concealment allowed insiders in abuse networks to preserve secrecy, to know one another, and to gain access to outsiders who presumed legitimate purposes in any contacts. Diocesan leaders served as patrons, also maintaining secrecy. The evidence demonstrated that the Diocese had discussions with lawyers regarding the sexual conduct of priests with children and made settlements with the victims. These settlements contained confidentiality agreements forbidding victims from speaking out about their abuse under threat of some penalty, such as legal action to recover previously paid settlement monies. Finally, the Grand Jury received evidence that several Diocesan administrators, including the bishops, often dissuaded victims from reporting to police or conducted their own deficient,

Social networks & abuse in the Church 117 biased investigation without reporting crimes against children to the proper authorities. (Pennsylvania Grand Jury 2018, 209) Corrupt transactions are a misuse of public power for private profit. They are a form of power relations that involve mutual swapping of resources of power. They are the actions of officials using power, in the form of authority, to promote their own interests over those of the public. Because corrupt transactions are subject to sanctions from formal organizations, participants want to keep them secret. Therefore, corrupt approaches are usually made in face-to-face meetings. Authority is transformed into power used to serve the private interests of both parties in the transaction. Once parties commit to corruption it is hard to close the communications channel even if someone wants to get out (Warburton 2013). After the case of the notorious abuser John Geoghan, hundreds of victims filed suit against the Archdiocese of Boston. The attorney general of Massachusetts, Thomas Reilly, launched an investigation and in his report implicated Cardinal Archbishop Bernard Law’s former auxiliary bishops in the mishandling of abusive priests. Most of them had been promoted to lead dioceses throughout the country (Lytton 2008). Lytton said the Geoghan case was significant because of its effect on public opinion. The unsealing of the documents in this case demonstrated that Law and his network knew about Geoghan’s abusive behavior and still moved him from parish to parish. When malfeasance is exposed in the Church, it prefers internal investigations, as is demonstrated as we return to the case of the eighth Archbishop of St. Paul and Minneapolis. Due to allegations of misconduct by the archbishop, the archdiocese initially selected a highly respected local law firm to conduct an independent investigation that gathered substantial evidence of alleged misconduct. Due to the likelihood that a considerable history of malfeasance by the archbishop would be revealed, the archbishop and the papal nuncio acted to curtail and abort the independent investigation. The auxiliary bishops were used to accomplish this. Through improper interventions, the independent investigation was so compromised that it could not be completed. Subsequently, the archbishop resigned and one of the auxiliary bishops was also forced to resign. Because the independent investigation went outside the clerical network headed by the archbishop and nuncio, it threatened to derail the secrecy required to protect this corrupt social network. Corrupt relationships must be conducted in total secrecy, in the belief that only insiders can be trusted to behave predictably (Warburton 2013). When other alleged misconduct was discovered, the information was forwarded to the succeeding papal nuncio. After a period of years, no investigation had been conducted (Shea 2019).

118  Anthony J. Pogorelc In the case of the West Virginia Bishop, the Vatican commissioned an investigation headed up by the Metropolitan Archbishop. He had been a recipient of the bishop’s generosity. In the resulting report, the archbishop suppressed the names of all clerics who received checks from the bishop so it would not reflect poorly on them. Participants in corrupt networks are locked in complex social interactions in which trust must be maintained. Even when the consequences of not following the newly established protocols for reporting abuse are clear, it is difficult to alter behaviors. A pastor in an archdiocese had allegedly engaged in misconduct with minors on two separate occasions. He is alleged to have engaged in misconduct even before he was a priest and was working in a parish as a layman. Despite these allegations, he remained in active priestly ministry and was able to apply for and receive a promotion to another parish. After the latest allegations of misconduct were revealed, the archbishop who issued the new appointment claimed he was unaware of them because this information was withheld from him and relevant boards by the auxiliary bishop, who was also the director of priest personnel, and who knew of the incidents but believed the priest when he assured him that he would not do it again. The archdiocese began an investigation with a company hired by the archdiocesan lawyers. The priest was removed from ministry and sent for psychological assessment. The auxiliary bishop was removed as director of priest personnel. There are no current reports of any other investigations or further disciplinary actions on the auxiliary bishop (Rinaudo 2019).

Multiple networks Actors in networks grow connections according to their needs and desires as well as through environmental and social influences; these also condition the way they respond to connections grown toward them (Warburton 2013). Some actors have more connections than others and have links to multiple social networks. These more extensive ties can facilitate the flow of resources from the margins of one’s own network and from additional networks. These loose ties can integrate social networks (Kadushin 2012). Some abusers were connected to various networks, and these connections actually assisted them in their abuse. People capable of generating relationships characterized by positive sentiments are able to enter a variety of networks because they can get others to like them because of their personal dynamism. The interchange of positive sentiments forges reciprocal bonds because people enjoy giving and receiving from those they like and those they believe like them. The cultural and social structure of the Church influences the informal system of social networks that are embedded within the formal organization. People like to associate with clerics whom they perceive as both powerful and likable. In some cases, clerics who were connected to a variety of lay networks built positive relationships with adults who were parents, and because of the

Social networks & abuse in the Church 119 trust between them, gained access to their children who became victims of the abusive cleric. This is seen in the first case that attracted national attention, the case of the Lafayette, Louisiana priest, Gilbert Gauthe. In the five and a half years since his arrival, many parishioners had come to treat him as a family member. He dined regularly in their homes and was often invited along on vacations . . . Fr. Gauthe organized activities for the boys of the community, who were naturally attracted to the hip, energetic priest who rode a dirt bike, drove a black Camaro Z28, and shot ducks from the roof of the rectory. He trained the boys to assist him at Mass, and he took them boating, camping, fishing, and hunting. He also sexually abused them. (Lytton 2008, 1) Personal dynamism was also a factor in the case of Theodore McCarrick, who was described by one alleged victim as able to get away with abusive behaviors for so many years because: “He was charming. He was self-effacing. He was completely disarming. And he ran that game on everyone. He ran it on his colleagues, donors, and on young boys. Everyone around this guy is just another shade of victim” (Boorstein. Washington Post, October 17, 2019). Such positive connections enabled abusers to cultivate defenders among the laity who would not believe the allegations and who would answer questions or allay fears that might arise from some lay members by asserting: “Father would never do such a thing.” These positive relationships also assisted dismissed clerics to obtain employment in other sectors. The data set Bishopaccountablilty.org documents a case in which a priest and highlevel church administrator, who was an alleged abuser, was able to attain top-level appointed governmental positions because of his relationships with other highly placed government officials. Attorney Steve Rubino used The Official Catholic Directory to trace the clerical assignments of alleged abusers, including periods of sick leave, treatment, or unaccounted-for periods. Subsequent assignment to a parish offered clues about the practice of reassigning known offenders (Lytton 2008). In some cases, the movement from position to position makes no sense in terms of the conventional patterns of promotion in an organization but demonstrates the capacity of an alleged abuser to manipulate networks. There is the case of a religious brother who completed his novitiate and continued his formation and education for a B.S. He is assigned to a college and serves there for 11 years, earning a M.S. at the local state university and a Ph.D. at another branch of the same university system along the way. He is poised to be a scientific researcher. He also serves as dean of the college, but is then assigned outside his field to the department of testing and guidance. That would seem to be a drawback for a researcher who must keep up with his field. From there, he is moved to a larger university in another state that

120  Anthony J. Pogorelc is conducted by his order. He serves in his field for six years and then is made director of admissions at the same university and serves for eight years. He then leaves the state and moves back into his field at a university outside of his order, but is networked enough in his order to be selected to serve on the provincial council. After three years, he moves to the West Coast to serve in his field at a university run by his order. After two years, he is selected as president of the university but resigns after three years. Eventually he leaves his order and affiliates with a Pennsylvania diocese and is ordained a priest 13 years after he resigned the university presidency. The Pennsylvania Grand Jury Report (2018, 875) shows a continuation of brief and unstable assignments in the diocese, suggesting that he gets into trouble and is then reassigned. In the summary it is reported: He approached Bishop James C. Timlin and requested to be accepted into the Diocese of Scranton. He was approved by the Admission Committee. After several months of confirming his records, he was ordained as a priest at 69 years of age. . . . Handwritten note in the file reflected that in July 2002, the Diocese became aware that while he was a Religious Brother there were allegations made that he had sexually abused two boys. He admitted to abusing one of the boys and he was sent for evaluation and treatment. Somehow, this sometime brother/sometime priest managed to move between one institution after another without any caution from previous institutions and superiors forewarning the next one. The Archbishop of St. Paul and Minneapolis resigned from leadership of his archdiocese because of allegations of personal sexual misconduct as well as his cover-up of misconduct by priests. He was part of a social network that opposes the current pope and was close to a nuncio with similar sentiments. After his resignation, he was given residence and a chaplaincy role by a wealthy, conservative institute that shared his antipathy to the pope. This archbishop had long-standing and deep network ties with the head of the institute who condemned another high-ranking bishop over revelations of similar behaviors. The latter was known to have connections with progressive Catholic networks. (American Conservative August 6, 2018) In some cases, it is failure in the formal system itself that enables former clerics to enter employment networks while concealing their history of abuse to obtain positions that put them in contact with minors. Research conducted by Lauer and Hoyer (2019) of the Associated Press found hundreds of credibly accused priests in situations where they worked for other denominations or worked in Catholic Churches outside the U.S. Some obtained professional licenses to work in education, medicine, social work, and counseling. Their skills as priests who counselled parishioners, administered parishes, taught in schools, and interacted with others in a positive

Social networks & abuse in the Church 121 manner facilitated their ability to land such jobs. Some of them had not been criminally prosecuted and therefore had no criminal history. Because Church officials successfully lobbied civil authorities to downgrade charges, sometimes to those below state levels for registration, and to expunge convictions if someone completed a probationary program, few Church personnel are listed on sex offender registries. Many dioceses and orders never publicly named alleged abusers so that their abuse remained unknown. If priests choose to leave the clerical state or the Church laicizes them it loses the authority to supervise them and the alleged abusers can live without Church or civil oversight. To avoid this dangerous situation, the Chicago archdiocese has created a program to keep these priests in-network. This program offers treatment, benefits, and the possibility of “dying as a priest” if they sign over their rights to privacy and are willing to have their movements, finances, and internet use monitored, as well as to participate in twice-a-month meetings with a social worker-case manager. The case manager says if they are laicized they will be unsupervised and that this program has value because it protects children and the community. Individuals may also be motivated to join networks in order to strive for safety by forging relationships with others in similar situations whom they trust and find supportive. The 1980s was a time of widespread concern about child sexual abuse. The revelations of abuse in churches and other organizations generated press coverage and prosecutions. These revelations enabled more abuse victims to come forward. C. Wright Mills (1959) contrasted private troubles that were perceived to be located at the individual level with public issues that threatened cherished public values and involved crises in institutional arrangements. Because of these revelations in the press, victims realized that they were not alone and that the abuse was not their fault and they were enabled to come forward. Plaintiff’s attorney Sylvia Demarest described the victim’s experience in this way. You may have been abused, but you may have believed that you were the only one or that you did something that caused you to be abused by father . . . so you see a pattern that occurs, and word reaches different places that this is occurring . . . then victims hear it and they go “well you know, I’m not alone.” (Lytton 2008, 18) From the early to late 1980s, cases of abuse reported to chanceries more than doubled (Lytton 2008). Victims sought to form networks, and in 1989 The Survivors Network of those Abused by Priests (SNAP) was founded by victims of clerical sexual abuse. It identifies itself as the largest, oldest, and most active support network of those wounded by religious and institutional authorities. It has local networks throughout the United States and in other countries as well (snapnetwork.org).

122  Anthony J. Pogorelc

Conclusion This chapter has defined the concept of social network and examined its role in organizations. Found in every organization, social networks have a role in modifying organizational goals and can even enable individuals to skirt a formal organization’s accountability structures. Types of power such as coercive, normative, and utilitarian affect both organizations and social networks. Utilitarian purposes lead to the objectification of persons and often to corrupt behavior. While individuals respond to the utilitarian perks given by greedy institutions, social networks can circumvent the limits these organizations construct. In the Church, utilitarian motives are expressed through the practices associated with clericalism that draw clear distinctions between superiors and subordinates and contribute to the objectification of all parties. Utilitarian motivations to enter the clergy clash with normative motivations. Social networks in the Church can both cooperate and oppose one another. This is true of networks of clergy, laity, and mixed groups. The clerical sexual abuse scandal can be viewed as a conflict between members of the hierarchy and clergy motivated by utilitarian goals, and members of the clergy and laity motivated by normative goals. It is an example of corruption that misuses public power to cater to private interests. In the Catholic Church, it is a betrayal of trust and of the Church’s normative mission. Patterns of corruption are difficult to break even when formal policies and procedures are enacted to do so. The acts of concealment and the covert protection by the powerful in formal organizations may persist, but transparency is their enemy. While spanning the boundaries of social networks can facilitate transparency, it can also facilitate the persistence of abuse because of the additional resources it can provide for abusers. There is a considerable need for further empirical study of the role of social networks in the facilitation and persistence of corruption in the Catholic Church. Qualitative studies that would include interviewing some of the powerful actors that succumbed to utilitarian motives would be extremely beneficial, but also difficult to conduct. There are many research questions that could be pursued: to what extent were abusers networked with one another? Did informal networks of Church officials and laity coordinate cover-ups? Would participants in norm-centered social networks be less likely to engage in acts of malfeasance? The role of the social networks that enveloped clerics engaging in sexual abuse and its cover-up needs extensive research in order to better understand the origins, persistence, and prevention of sex abuse in the Catholic Church. In general, the role of social networks in the corruption of organizations is an understudied area (Kadushin 2012; Warburton 2013). Attempts to explain and prevent sexual abuse have operated at the micro level, such as explanations drawing on psychology and sexual orientation, or at the macro

Social networks & abuse in the Church 123 level, such as the ideology of clericalism and the general decline of morals. The examination of the role of social networks brings us to the study of the meso level: the intermediate level of organizational action. Looking at the issue of corruption at this level can enable concerned parties to move closer to understanding causes and solutions at a level where concrete and effective action may be more possible.

References Berry, Jason. Lead Us Not into Temptation. New York: Doubleday, 1992. Caporale, Rocco. Vatican II: Last of the Councils. Baltimore: Helicon, 1964. Christakis, Nicholas A., and James H. Fowler. Connected: The Surprising Power of Our Social Networks and How They Shape Our Lives. New York: Little Brown, 2009. Code of Canon Law in English Translation. London: Collins Liturgical Publications, 1983. Code of Canon Law 1917. San Francisco: Ignatius Press, 2001. Coser, Lewis A. Greedy Institutions, Patterns of Undivided Commitment. New York: The Free Press, 1974. Egger de Campo, Marianne. “Contemporary Greedy Institutions: An Essay on Lewis Coser’s Concept to the Era of the Hive Mind.” Sociologicky casopis/Czech Sociological Review 49:6(2013): 969–87. Etzioni, Amitai. 1975. A Comparative Analysis of Complex Organizations. New York: Free Press, 1975. Ferrone, Rita. 2019. “Why the ‘Metropolitan Plan’ Doesn’t Work.” Commonweal Magazine, August 9. Fichter, Stephen J., P. Thomas, S.J. Gaunt, C.S.J. Catherine Hoegeman, and Paul M. Pearl. Catholic Bishops in the United States: Church Leadership in the Third Millennium. New York: Oxford University Press, 2019. Fogarty, Gerald P. “The Council Gets Underway.” In History of Vatican II: Volume II, ed. Giuseppe Alberigo, Joseph A. Komonchak. Maryknoll, NY: Orbis, 1997, 69–106. Greeley, Andrew M. The American Catholic: A Social Portrait. New York: Basic Books, 1977. Gruenfeld, Deborah H., M. Ena Inesi, Joe C. Magee, and Adam D. Galinsky. “Power and the Objectification of Social Targets.” Journal of Personality and Social Psychology 95:1(2008): 111–27. Hegy, Pierre. Worship as Community Drama: Introduction to Liturgical Evaluation. Eugene, OR: Wipf & Stock, 2019. Hill, S.J. Richard. “Title VIII: The Power of Governance (cc. 19–144).” In 1983 Code of Canon Law: A Text and Commentary, ed. James A. Coriden, Thomas J. Green, Donald E. Heintschel. New York: Paulist Press, 1985, 92–8. Homans, George Casper. The Human Group. New York: Harcourt, Brace, 1950. Jenkins, Jack. Catholic Bishops Open Meeting to Criticism, Discussion of Reddit, June 11, 2019. https://religionnews.com. John Jay College of Criminal Justice. The Nature and Scope of Sexual Abuse of Minors by Catholic Priests and Deacons in the United States 1950–2002. New York: The City University of New York, 2004.

124  Anthony J. Pogorelc “Justice in the World.” In Renewing the Earth: Catholic Documents on Peace, Justice and Liberation, ed. David J. O’Brien and Thomas A. Shannon. Garden City, NY: Image Doubleday, 1971 [1977], 390–408. Kadushin, Charles. Understanding Social Networks: Theories, Concepts and Findings. New York: Oxford University Press, 2012. Kenedy, P.J. and Sons. The Official Catholic Directory. New Providence, NJ: P.J. Kennedy & Sons. Kramer, Ronald C. “Vaughan, Diane: The Normalization of Deviance.” In Encyclopedia of Criminological Theory, ed. Francis T. Cullen and Pamela Wilcox. Thousand Oaks, CA: Sage, 2010, 977–9. Lauer, Claudia, and Meghan Hoyer. Without Oversight, Scores of Accused Priests Commit Crimes, 2019. www.apnews.com/197c6234838f420ab693517fb49a215e. Lumen Gentium. The Documents of Vatican II, edited by Walter M. Abbott. New York: America Press, 1966, 14–101. Lunenburg, Fred C. “Compliance Theory and Organizational Effectiveness.” International Journal of Scholarly Academic Intellectual Diversity 14:1(2012): 1–4. Lytton, Timothy D. 2008. Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse. Cambridge, MA: Harvard University Press. Mills, C. Wright. 1959. The Sociological Imagination. New York: Oxford University Press. Morris, Charles R. 1997. American Catholic: The Saints and Sinners Who Built America’s Most Powerful Church. New York: Random House. Pennsylvania Grand Jury Report. 2018. Office of the Attorney General Commonwealth of Pennsylvania. Pitaud, Bernard. Jean-Jacques Olier. Paris: Lessius, 2017. Podolny, Joel M., and James N. Baron. “Resources and Relationships: Social Networks and Mobility in the Workplace.” American Sociological Review 62:5(1997): 673–93. Pogorelc, Anthony J. “Movement to Movement Transmission and the Role of Place: The Relationship Between Catholic Action and Call to Action.” Sociology of Religion 72:4(2011): 415–34. doi:10.1093/socrel/srr001. Pogorelc, Anthony J. “Clericalism.” In Encyclopedia of Political Thought, ed. Michael Gibbons. Hoboken, NJ: John Wiley & Sons, 2015. Pope Francis. Vos Estis Lux Mundi, 2019. http://w2.vatican.va/content/francesco/ en/motu_proprio/documents/papa-francesco-motu-proprio-20190507_vos-estislux-mundi.html. Pope Paul VI. “Octogesima Adveniens (A Call to Action).” In Renewing the Earth: Catholic Documents on Peace, Justice and Liberation, ed. David J. O’Brien and Thomas A. Shannon. Garden City, NY: Image Doubleday, 1971 [1977], 347–83. Reese, Thomas J. Archbishop: Inside the Power Structure of the American Church. San Francisco: Harper & Row, 1989. Riccardi, Andrea. “The Tumultuous Opening Days of the Council.” In History of Vatican II: Volume II, ed. Giuseppe Alberigo and Joseph A. Komonchak. Maryknoll, NY: Orbis, 1997, 1–67. Rinaudo, Jessica. “Cincinnati Pastor on Leave; Auxiliary Didn’t Report Claims against Priest.” The National Catholic Reporter, August 8, 2019. San Martin, Ines. “Pope Issues Global Standards for Reporting, Investigating Clergy Abuse.” Crux, May 9, 2019.

Social networks & abuse in the Church 125 Selznick, Philip. “An Approach to a Theory of Bureaucracy.” American Sociological Review 8:1(1943): 47–54. Shea, Hank. “Curb the Crisis: 10 Essential Lessons for Investigating Church Leaders.” The National Catholic Reporter, January 15, 2019. Tilley, Charles. Trust and Rule. New York: Cambridge University Press, 2005. Warburton, John. “Corruption as a Social Process: From Dyads to Networks.” In Corruption and Anti-Corruption, ed. Larmour Peter and Wolanin Nick. ANU Press, 2013, 221–37. www.jstor.org/stable/j.ctt2tt19f.16. Weber, Max. Economy and Society: An Outline of Interpretive Sociology, ed. Guenther Roth and Claus Wittich, Vol. 2. Berkeley: University of California Press, 1978. Wood, G., D. Roithmayr, and A.V. Papachristos. “The Network Structure of Police Misconduct.” Socius (2019). https://doi.org/10.1177/2378023119879798. ZENIT.org. 2003. https://zenith.org/.

5 From causes toward stratagems and theological considerations Anthony J. Blasi

Proposing “the” cause or causes of the abuse of minors by Catholic clergy would be simplistic. Moreover, it is easy to draw unwarranted conclusions on the subject, given the unsystematic nature of the data on incidents of abuse. When some causes are passed over or misidentified, the solutions to the abuse problem that would be suggested will be ineffective. I think, for example, mandatory celibacy among clergy has been too readily dismissed as a contributing factor, largely because of a faulty interpretation of data by the researchers who conducted the research that was commissioned by the United States Conference of Catholic Bishops. Even the late Andrew Greeley misread his own National Opinion Research Center (NORC) data on celibacy from the early 1970s that were collected as part of earlier studies commissioned by the bishops. In both the John Jay study and the NORC study, the interpretations that were made are understandable; one can see how the conclusions were arrived at. It was not a matter of incompetence or dishonesty, but of ingrained ways of thinking. The John Jay team took the usual meaning of “causal” as that term is understood in correlational analysis in survey research; as will be shown later, that is simply too narrow a concept of causality. Greeley looked at explanations for why men were leaving the priesthood in the 1970s and applied that discussion in a rather cursory fashion to a different, far more recent issue. Consequently, I will be making observations of a critical nature before pointing toward preventive or proposals. The nature of the available data on the problem in the United States to date does not lend the data to a proper multivariate analysis. The major reports from the John Jay College of Criminal Justice (John Jay College 2004, 2011)1 produced tables of one potential cause at a time and drew seemingly likely inferences from the distribution of incidents across time periods. A serious problem with that kind of analysis is the delay in reporting incidents, resulting in known incidents over time having an uneven pattern. Thus, the studies concluded that celibacy was not to be considered a cause of the abuse of minors by clergy because it was a constant across time, while incidents were unevenly distributed across time periods. That pattern of incidents over time would be uneven in any event since occurrences in the

Stratagems & theological considerations 127 more distant past were covered up more successfully, rather than reported and archived, and recent cases have had insufficient time to be discovered and included in the data. It is necessary to make a digression here on the proper reporting of collected data. The John Jay study tallied incidents. A proper reporting would give data on incidence, not incidents. In our everyday lives, we speak of gasoline automobiles’ efficiency in terms of miles per gallon or we speak of crime in terms of violent crimes per 100,000 people. These are incidence: how many miles divided by the number of gallons or how many violent crimes divided by a territory’s population, with the resultant decimal point sometimes moved rightward two places for a “per cent” or more places for some other kind of “rate.” The problem with reporting incidents, as discussed earlier, pertains to the number that comes before the “per”—the incidents. Many other problems pertain to the numbers that come up as divisors in the calculation of incidences or rates. With “miles per gallon,” a gallon pumped on a hot day will “be” smaller than one pumped on a cold day because of evaporation. Consequently, there will “be” more gallons involved in the calculation on a hot day than on a cold day. In the case of violent crime rates, the “populations” divided into the incidents of crime could include higher percentages of youths; infants; middle aged, old, or elderly people; of varying percentages of males; and varying percentages of single people. All of these subcategories of “population” are relevant to the incidence of violent crimes in different ways. If one were to calculate the incidence of current clergy abusers among a church’s clergy, one must first define the incidents. Do we mean persons who have ever perpetrated, perpetrated within a given time period, the number of cases of abuse? As for the divisors in the calculation, there are a number of other considerations. A decline in the total number of priests would elevate the incidence or rate. We know, for example, the number of priests declined both because of departures and because of smaller totals of vocations. The addition of non-transitional deacons after Vatican II would lower the incidence if deacons in general have lower incidence than priests, higher if their incidence were higher. The aging of the clergy population would affect the incidence because retired people would have a lessened opportunity structure and a lessened proximity to targets, for example. Then there are factors that are far more difficult to translate into a metric; for example, the generations of church members that are less involved religiously will have children who are less often in churches and church-related schools or youth programs. No conclusion about the causal antecedents of the abuse of minors by Catholic clergy from the John Jay College study can be definitive for a variety of reasons. One of these reasons is that one cannot infer information about individuals on the basis of group statistics; doing so is called the ecological fallacy. The term comes from the error of using territorial data to make inferences about individual residents. For example, South Carolina may have a higher proportion of Evangelicals than Rhode Island, and South Carolina

128  Anthony J. Blasi may have a higher divorce rate than Rhode Island; but it does not follow that Evangelicals must have a higher divorce rate than non-Evangelicals. The John Jay College study uses the distribution of incidences of the abuse of minors by priests across five-year intervals as the form in which most of its findings are reported, even though they report that less than 5% of priests have perpetrated such abuse, and even a lower percentage in any given fiveyear period. Making causal inferences concerning individual activity on the part of such a minority on the basis of five-year groupings, albeit temporal rather than territorial groupings, is not valid. The John Jay College study was well done in many respects, given the kind of data that were available to work with. Creating distributions across time intervals was an inventive way to describe the problem the researchers were asked to study; however, the distributions cannot be taken at face value since not all incidents are alike. One important finding their data confirmed was that in most cases the problem was not pedophilia (the abuse of children under 13 years of age), but the abuse of an older age groups of minors. The relatively small proportion of cases that were pedophilia were the ones that created the greatest sensation in the press, but the abuse of postpubescent adolescents, usually males, comprised the largest proportion of cases. That is what will be addressed in the following. Research conducted so far on pedophilia does not enable us to reach many conclusions about it, except that it appears to be accompanied by “emotional congruence” with children; the typical offender is said to interact with children on their level, as if he were also a child (Wilson 1999; McPhail et al. 2018). Some pedophiles are attracted to children exclusively, but for some it is a question of being frustrated in achieving appropriate contacts with adults and habitually turning to children as substitutes (Langevin 2004, 26). It is in this context that celibacy can be associated with pedophilia. Meanwhile, conservative commentators have been arguing that Catholic seminaries began admitting homosexual candidates to ordination and that that in turn has been responsible for the abuse of minors by priests. In the Catholic context, a conservative is someone who takes the anti-modernism of Pope Pius X as the standard of Catholic tradition. Thus, they view the teachings of the Second Vatican Council as suspect, not to mention views that go beyond the Council’s explicit documents. Homosexuality and its acceptance have become rationales in recent years for which conservatives vilify their ideological opponents. The association of homosexuality with the abuse of minors has been identified by clinicians as a myth; a heterosexual adult male is statistically a greater risk to children than is a homosexual male, especially ones attracted to adult males or masculine features (Rossetti and Lothstein 1990, 11–12; Gladue 1990; Groth and Birnbaum 1978). A conservative commentator has claimed that the “liberal” intellectuals of the United States promoted the acceptance of adult/child sexual relationships as normal from 1960 to 1990, citing a few anecdotes rather than any systematic studies (Eberstadt 2009).

Stratagems & theological considerations 129

Varieties of causation Before some clarity can be brought to the issue, it is necessary to consider the kinds of causation that are likely involved. To begin with, constants in a dataset can be part of an etiology, so long as their combination with some other part of an etiology occurs with them. Gravity remains at a constant force near the Earth’s surface, but it can cause death when combined with a separation from a cliff or upper story of a building. Celibacy as a requirement for ordination has been a constant in Latin Rite Catholicism throughout the time covered by the John Jay College study, but that does not mean celibacy cannot be a factor in the causation behind the sexual abuse of minors by celibates. If a large proportion of the priests were married, the incidence of abuse may well diminish. Marriage can provide a pastor not only with intimacy but also a familial small community that is less likely to leave a pastor alone. As Vivencio Ballano notes (2019a, see also 2019b, 66), sociologists see families with two parents as highly effective agents of social control, preventing various kinds of deviance on the part of their members.2 In his 2004 book, Andrew Greeley looked back to the data he published earlier (Greeley 1972, 2004). In discussing the older report’s fourth chapter (that he misidentifies as its third), he has this to say: In chapter 3 of the NORC sociological report (1972) priests were compared with groups for which norms were available. On none of the nine scales—including the capacity for intimacy—were priests significantly lower than age peers. Hence there was no support for the position that priesthood and celibacy affect either self-actualization or capacity for intimacy or any of the other scales one can create from the POI (Greeley 2004, 20) The POI was a psychological instrument used in the study. To begin with, the NORC study did not publish any significance levels; the samples were of a sufficient size that significance tests of differences among different groups were not necessary. Contrary to Greeley’s statement, the data presented two mean scores that were lower for active priests than for the adult norm: capacity for intimacy (2.3 points lower than the norm group) and inner directedness (5.8 points lower). Greeley read the lower mean score for the capacity for intimacy as showing that celibacy was not a problem. It is unclear how he came to such a conclusion. In any event, it is not the mean score for the population that needs to be lower; it is sufficient that the lower six percent or so of that distribution be in the priesthood population, if an insufficient capacity for intimacy were a factor that contributes to the abusing of minors. To my way of thinking, Greeley focused too much on the “capacity for intimacy” matter anyway, and too little on the much more marked finding of low “inner directedness.” Inner direction is something

130  Anthony J. Blasi that presupposes some sense of self-empowerment, and, as will be seen in the following, power is a major theme in sexual abuse. The original 1972 report showed that active priests had a mean “inner directedness” score of 81.0 compared to the normal adult group’s mean score of 87.2. The active priests’ mean score was only slightly above that of college juniors and seniors (79.9). It was true, as Greeley pointed out, that a group of lay supervisors in an electronics company had a score about equal to that of the active priests (81.1). He concluded the data to mean that active priests were no different from anyone else. However, we still have the higher “normal adult” score. What appears to be very important is that active priests aged 35 and younger had a higher score (84.9) on the inner directed measure than the sample of active priests as a whole. Arithmetically, that means if the younger priests were compared to those over 35 years old, the older priests would have degenerated to a lower level still. Time in ministry appears to have been accompanied by a loss of inner direction (see Greeley 1972, 65). An intrusive monarchical government over the Catholic priesthood is a constant throughout the time covered by the John Jay study, but that does not mean that it too cannot be a factor in the causation behind the sexual abuse of minors by clergy. Intrusive and unaccountable monarchical governments are not simply monarchies; monarchies can be “constitutional” in the sense of actually being bound by rules. Monarchies can be accompanied by independent judiciaries and representative assemblies. Monarchies can be circumscribed by systems of checks and balances. When monarchies or other polities are intrusive, however, they control broad aspects of the lives of the people subject to them, and these aspects may have nothing to do with the purposes of the organization that they govern. When monarchies or other polities are unaccountable, they are free to fail to reach the goals for which the organization they govern exists and to be distracted by extraneous goals. In particular, rules that are originally designed to achieve an end can become ends in themselves that undermine the principal goal of the organization (Merton 1968, 253–4). I think it is important that Greeley had found in 1972, 29% of active diocesan priests, 73% of resigned diocesan priests, 21% of active religious priests, and 62% of resigned religious priests saw the exercise of authority in the Church as a problem (Greeley 1972, 206). A second kind of cause is probabilistic. One need only hear or read weather reports to find out that the causes of rain have their effects only some of the time and only in some portions of a locality. Similarly, the era of relaxed sexual mores in the counterculture of the 1970s may have induced some people to engage in irresponsible sexual activity, but by no means did it induce all people or contribute to every kind of non-normative sexual behavior. When the data show that 4% or so of American Catholic diocesan clergy abused minors, and of course 96% or so did not, any given widespread or broad cultural contributing cause might actually bring the

Stratagems & theological considerations 131 abusive activity about in only a small percentage of the priests exposed to that cause. Third, some causes are remotely antecedent while others have their effect close to or at the time of the effect in question. A given sexual orientation is antecedent to any deed performed in adulthood. It is similar to a constant insofar as it may require some other factor to be present in order to have an effect, but it differs insofar as not all ordained people have that sexual orientation, while with a constant, all would be subject to the constant factor. Thus, all Latin Rite ordained people are subject to celibacy (with the exception of the Anglican Communion converts who have not joined their special rite) but not all Latin Rite ordained people have a given sexual orientation. Some causes can be catalysts that elicit a course of action that allows an antecedent cause to have an effect. This kind of cause would be proximate in time or simultaneous to the effect in question. A wave picked up on the antenna of a radio or television receiver serves as the catalyst for the antecedent charge in an amplifier to be activated and causes visible impulses on a screen or vibrations in a speaker. In the case of sexual abuse of minors, it may be that stress and loneliness in ministry serve as catalysts activating an antecedent sexual propensity. In this context, I think it is important that in 1972, Greeley found that 16% of active diocesan priests, 51% of resigned diocesan priests, 13% of active religious priests, and 52% of resigned religious priests had a problem with loneliness (1972, 206). As the shortage of clergy increased in the Catholic Church in the 1970s, an increasing percentage of priests lived alone, thereby exacerbating the problem after the time of Greeley’s study. Some factors are not strictly causes at all but rather neutralize preventive mechanisms. Criminologists have long observed that youth go through a gang stage and that the more isolated and alienated they are from the adult world and adult norms, the greater their likelihood of promoting and reinforcing counter norms among themselves. The “homosexual culture” some have said existed in seminaries in the early 1980s would be a phenomenon of this kind. Such a culture would not in a strict sense cause the abuse of minors years later, but could undermine the normative culture during the seminary years, leaving individuals with excuses, rationales, and justifications that could be employed in later years, even as they would know that their behavior is normally seen as immoral. Some causes contribute to an effect only when they reach a threshold. Anyone who has worked as an educator knows that when a critical number of inquisitive and engaged students in a class are present, there is a qualitative enhancement of class proceedings. With a sufficient number of such students, the learning that takes place exceeds the sum of individuals’ learning if the latter were accomplished alone. In the case of “homosexual cultures” in seminaries, they are unlikely to emerge on the basis of the presence of a small number of seminarians with same-sex attractions; rather they may be more likely to emerge with a critical mass of them within a closed environment.

132  Anthony J. Blasi

Sequencing of causes In the middle of the last century and possibly even now, cognitive “taking” of the Catholic clergy role and imagining oneself in it occurred during elementary school (Potvin and Suziedelis 1969). A child’s perception that the role is positively evaluated and that oneself is or could be similar to the clergy image or role model increased the likelihood of entering the priesthood, at least in the child’s mind (Blasi 1975). The currency of positive evaluation was prestige (Fichter 1961, 59–134). In the present context, the child’s perception that oneself is similar to the clergy image or role model has salience. The image was not that of a family person, but an unmarried man. At an early age, there would not be much discursive thinking about the life of a priest, but an inchoate yet sure differentness would be an aspect of the role image. Years later, there would be a “background” of difference at a level of presupposition rather than discursive consideration for someone with a Catholic childhood.3 It would be a different matter for converts to Catholicism insofar as an exalted image of the priest as a type would not originate in childhood. If for some reason a male feels negatively about sexuality, an attraction to that different status, the one without family, can develop without much or any discursive consideration of the imagery that remains from childhood. One therapist interprets the phenomenon (not necessarily common) of children being abused and later becoming abusers with a framework of a male adolescent loathing sexuality altogether because of the childhood experience and finding the priesthood as a way to avoid sexuality (Keenan 2012, 132).4 The basic interpretation is probably sound, though it can be doubted that a tactic of avoidance is thought out discursively. It should be kept in mind that in her interpretation the effect of being abused as a minor is sexual avoidance, not becoming an abuser of minors, and that conclusions based on a small number of people in a therapeutic context apply only to that small number of people, not a population at large; the individuals in question are not a representative sample of a larger population. A different study conducted by Bruce Rind, based on 1992 American survey data followed up with interviews that took a subsample of men with same-sex experiences, casts doubt on the alleged negative effects of the experiences. Men whose first post-pubertal same-sex sexual experience was as a minor with an adult were as healthy, happy, sexually well adjusted, and successful in educational and occupational achievement as controls. The “severity” of the experience (oral or anal intercourse) had no effects. Use of force was rare, and reactions were more often positive rather than negative (Rind 2018). A recent paper lists a series of studies that report the contrary—negative effects of being abused in childhood (Morton et al. 2019, 138–9). It was noted previously that celibacy in the Latin Rite is a constant factor in the modern era. Celibacy is not a mere state of being single; people who intend to marry at a time in the future may be single but not committed to

Stratagems & theological considerations 133 celibacy. In a historical sense, the constant of celibacy predates the roletaking by the present-day school child, but it enters the consciousness of the individual during adolescence. This simple fact creates a dilemma for the institutional Church: the earlier the age seminary entrance takes place, the less realistic any life plans will be, but the later the age of entry, the fewer entrants there will be since the individuals are entering a stage of life of dating and an intent to marry, though not marrying any particular person yet. Adolescence has been extended in the West in modern times and full adulthood delayed. It has become statistically safe, in terms of potential priests, to eliminate high school seminaries; most early adolescents are not marrying. The issue, however, is the intent to marry. By late adolescence, many heterosexuals anticipate marriage, not celibacy. They are in social environments where their age-mates reinforce that trajectory. At a later age, traditional college-level seminary programs not only occasion supervised spiritual and personal development but an exercise in social engineering; the seminarians are withdrawn from the social environment wherein age-mates reinforce a trajectory of marriage. Celibacy can be related to the issue of patriarchy. Patriarchy is not similar to economic inequality, wherein women would have a smaller quantity of goods than men. Its problem is that of unearned power, wherein women and children can neither make ultimate decisions the way the patriarch decides nor enjoy rights and respect except as a concession granted conditionally by the patriarch. While patriarchy has lost ground as an ideal in adult culture, it has not disappeared in adolescent male culture. A violent form of it can be found among late adolescent/emergent adult males who beat “their” girlfriends. Patriarchy persists durably if not violently in the ecclesiology of the Latin Rite Catholic Church. From the perspective of ecclesiastical subculture, men who sexually abuse children are not formed by a counternormative ecclesiastical culture of power; rather they are violators of sexual norms. Their problem, as seen from the institutionalized patriarchal position, is not that they fail to respect the dignity and rights of children (and possibly women), but that they engage in illicit sex (Keenan 2012, 118). The important feature of the patriarchal context is not the hegemony that an adult male may have—indeed, abusers are sometimes inadequate in many respects.5 The important feature is what women and children do not have; they and their needs are not taken seriously. Consequently, the issue is not simply clericalism,6 which should be an issue in itself, but clericalist expectations coming to be found hollow in the course of a ministerial career. Monarchical governance in the Church is another constant in contemporary Catholicism. It should be noted, however, that such governance is in the Church but not effectively over the Church, if by Church one means the “people of God” and not the clerical establishment. Humans enjoy a primacy of conscience and are therefore not fully subject to hierarchical authority.7 This is not the case with priests, however. The monarchical governance by pope and bishops is over them. There remains a freedom of

134  Anthony J. Blasi conscience, but in a private “internal forum,” analogous to the confessional. The public life of the cleric is subject to the dictates of the monarch. On the face of it, this would appear to allow and encourage bishops to micromanage the actions of priests, but there are paradoxical dimensions inherent in such power. First, the episcopacy is a nobility, and the other priests, though perhaps regarded as a caste-like upper stratum above the laity, comprise a commoner-like lower stratum below the episcopacy. One way an aristocracy maintains its dignity is to require more of itself than it requires from lower strata, or to phrase it differently, to maintain its dignity by being lenient on the lower strata.8 A second way an aristocracy maintains its dignity is sufficiently monitoring the pool of potential recruits into its own ranks in order to be in a position to exclude anyone who does not resemble themselves.9 If they have high dignity themselves, potential bishops must have that kind of dignity too. Both patriarchy and governance affect the individual as matters of power—power claimed, power exercised, power denied. After much study of the problem of sexual abuse of minors by Catholic clergy, Stephen Rossetti (1996, 111) wrote of coming to the realization that the abuse is not only an abuse of sexuality and an act of aggression, it is a “misuse of power.” If, he writes, “we are to become proactive in our treatment of the issue of child sexual abuse, we will necessarily rethink the way our society, and our Church, understand and exercise power” (1996, 112). The decline in innerdirectedness during the course of the priestly ministry noted by Greeley in 1972 is not exactly the same thing as power claimed but perceptibly denied, but it presupposes it. More research is obviously needed, and it should focus on an array of the concomitants that there may be to power unrealized and prestige received only from people who are in practice more discounted than oneself. A stochastic propensity toward the abuse of minors may be one such concomitant. The abuse of women, about which research also needs to be conducted, can be another. Same-sex attraction predates the formation of a homosexual identity since it is a cause of the latter. It may predate a commitment to celibacy, but may or may not lead to it. What percentage of the non-institutionalized population privately identifies itself as homosexual is an unknown; it is a sensitive matter for which representative sample surveys do not elicit accurate responses.10 Similarly, there are likely no good data on the proportion of seminarians who have same-sex attractions, let alone how many self-identify as homosexuals. In any case, “There is no evidence that sexual identity and sexually abusive behavior have the same origins” (Keenan 2012, 13).11 This is the conclusion of Irish psychotherapist Marie Keenan after reviewing a variety of studies. She was particularly impressed by the fact that fewer than half of abusing priests who had multiple victims had abused victims of the same gender and age. Data from the St. Luke’s Institute treatment center have shown that Catholic clergy patients who had abused minors reported themselves to be heterosexual in 40% of the cases, homosexual in 44%,

Stratagems & theological considerations 135 bisexual in 15% of the cases, and asexual in 2%, though 68% of victims were male (McGlone 2003, 115). Rather than sexual orientation as an individual condition leading to some future individual misconduct, a critical mass of seminarians with same-sex attractions may well lead to what have been called “homosexual cultures” that likely have effects of their own. A “homosexual culture” in a seminary is a vague term when not further explained. The phenomenon that it pertains to, if genuine, would be a subgroup in a seminary that forms a collective identity as “gays” who have an interest in their fellows not being discriminated against or dismissed from the seminary simply on the grounds of their sexual orientation. We might call this an “interest group.” It could also refer to a group whose members engage in homosexual acts. There are no good data on either homosexual interest groups in seminaries or on “active” homosexuality in them. What is well established in the sociological literature, however, is that adolescent gangs serve as semi-isolated social spaces for intense intra-group communication that serves to formulate and reinforce rationales, justifications, and excuses for violating one or more social norms (see Matza 1964). Gang members usually leave their group when they reach young adulthood, marry, and take on full-time gainful employment—only to be replaced by younger recruits. When a local economy is depressed, however, gang members may stay in because they cannot take on full-time employment or contemplate family formation. They may engage in illicit activities, especially selling drugs, out of economic necessity. What we know from the literature on this phenomenon is that young people do not automatically grow out of gang membership and that intra-gang communication provides a justificatory discourse for lines of action that contravene societal norms. What a “homosexual culture” group in a seminary provides is a justificatory discourse. One need not be a member of such a group to acquire familiarity with the discourse. Consequently, it is not necessarily the case that all or even a majority of the members who go on to be ordained will engage in same-sex sexual activity—with minors or with adults. Familiarity with the justificatory discourse, which can be adopted as needed, is what may increase the likelihood of engaging in same-sex sexual activity. A statistical graphic developed by D. Paul Sullins, in the form of a bar chart, shows a temporal similarity between peaks of incident totals of abusing minors and being educated or trained in seminaries where homosexual cultures were reported to be present. Specifically, when five-year periods that the percentage of priests ordained had high percentages reporting the presence of homosexual subcultures in their seminaries, the incidence of priests abusing minors was high, and when the former was lower the latter was lower (Sullins 2018, Table 11). In addition to the problem of conducting an analysis with coinciding distributions leading to the ecological fallacy, this one has the problem of assuming abuse incidents occurring in the same five-year period that the reported homosexual subcultures were present in

136  Anthony J. Blasi seminaries; we know from the John Jay College study that the mean age of first abuse by a priest was 39, hardly the typical age of ordination (John Jay College 2004, 44),12 and that there was an average interval of 11 years in the ministry before the first abuse took place (John Jay College 2011, 9).13 The norm-neutralizing discourse that was available in seminaries need not be seen as limited to seminarians, but may well have circulated in clerical circles of priests in older age groups. The ideal of celibacy may well be impossible for many clergy to live up to, making the availability of various norm-neutralizing discourses an important resource for them.14 Moreover, a theme that appears again and again in studies of priests who abuse minors is that they are lonely and isolated from their time in the seminary onward. It would hardly be likely that such isolates would be involved intensely in the discourse of a “homosexual culture” group, though they could be affected by it.

Toward stratagems While it is better after the fact to remove clergy who abuse minors from ministry than not to remove them, and to report them to the civil authorities, only measures that address factors that contribute to the occurrence of the abuse of minors in the first place can appreciably reduce the incidence of abuse, thereby constituting a stratagem of prevention.15 It has been a gargantuan task to move the Catholic Church’s hierarchy and even many civil authorities to accept the stratagem of reporting abusers to the civil authorities for prosecution; only sensationalism in the media appears to have accomplished that much. And whether that has been completely accomplished is not certain. After decades of media exposés and the erstwhile efforts of most bishops, a recent television exposé of a cover-up attempted by the bishop of Buffalo, New York, suggests that some have not learned anything from history. Much of the hierarchy saw abuse by clergy, as well as other sexual delicts, as sins to be dealt with behind the seal of the confessional. It is obviously appropriate to recognize that abuse occurs as a variety of behavioral phenomena that have etiological antecedents and ramifications. Here we can only align stratagems with the causes. Naïve perception of difference Appearing to children as a different sort of person who possesses prestige— this is undoubtedly a subtle factor that may not be all that significant from the perspective of adults, but may nevertheless have an impact on adults who were once children. And it may be especially difficult for some adults to shed. First difference: the image is that of someone who cannot marry, cannot be the “same” as most other men, and does not even dress the same. Celibacy will be discussed later; suffice it to say here that matters would

Stratagems & theological considerations 137 differ for the better if the imagery were not there. And while some kind of vestment may distinguish between being in a ritual mode and not being in a ritual mode, the non-ritual clerical garb makes a perceptual difference that the Church can do without. Second, prestige: cannot the English-speaking Church survive without the informal title “Father”? These may be minor matters when extracted from their context, but they appear to matter to some of the contemporary young clergy who want their biretta and, when in a ritual context, foresee their having a cappa magna upon promotion. Celibacy Male celibacy creates a status into which men who have a negative response to sexuality can enter in an effort to avoid the latter. It can lead to loneliness, both for the heterosexual and for the homosexual as well, who is trained in the seminary to keep a distance from women and is afraid of being outed if he does not also keep a distance from men. Clearly, the imposition of it as a requirement for diocesan priestly ministry in the Latin Rite of the Catholic Church is a post-apostolic contrivance. The author of First Timothy would have a bishop be a husband of one wife (3:2) and similarly would have deacons be husbands of one wife, managing children and their own household well (3:12). It is celibacy that makes the social engineering of the seminary system necessary. For an individual to choose celibacy as part of a specific spirituality is one thing; to make it a required part of a ministry is an accident of history at best, a tactic of patriarchy and control at worst. The elimination of mandatory celibacy is an obvious stratagem for the Church. With married priests in the Latin Rite, there will still be some who abuse postpubescent minors. First, not all priests would be married. Some will choose celibacy, and the pattern of maintaining a distance from both women and men, along with the subsequent loneliness, would still be in place for them. And of course, married clergy can also violate norms; presumably they would feel less need to do so than if required not to be married. A problem in the counseling professions in general, including pastors, is the problem of “unprofessional relationships” with counselees. Chaves and Garland (2009, 820) found that 3.1% of women who were regular church service attenders in various U.S. denominations experienced sexual advances by their pastors. One could reasonably predict, however, that the proportion of the priesthood caught in that convergence of causal factors centered in loneliness would be lesser. The lessening of the problem, however, would be more than a statistical amelioration. The Church would be no longer sponsoring that convergence of causal factors, arranging not only individual failures but an occasion of sin. Further, those priests who want or already have a stable relationship with a woman could enter into the sacrament of matrimony, surely something better than a hidden illicit relationship.

138  Anthony J. Blasi Patriarchy While the early Church had female ministers, there is a lack of evidence 1) that the priesthood as we know it today resided in one functionary, be that person a man or a woman, and 2) that the performance of the priestly function by women was explicitly forbidden. There is a passage in Paul’s First Letter to the Corinthians that is sometimes quoted out of context with respect to this: “let the women be silent in the churches, for it is not permitted for them to speak” (4:34). This comes from a section of the letter that takes up issues raised in a prior letter to Paul from the Corinthians. When turning to one of the issues, Paul sometimes quotes the prior letter. For example, “Now concerning the things you wrote about, ‘It is good for a husband not to exploit a wife’ ” (1 Cor 7:1). He does this again in chapter 4: “As in all the churches of the saints, let the women be silent in the churches, for it is not permitted for them to speak. But they should be subordinate, as even the law says. But if they want to ask about something, they should question their own husbands at home, for it is shameful for a woman to speak in church.” What! Did the word of God come out from you, or has it come down to you alone? Paul rejects the claim that women should not speak in the churches and explicitly indicates that the claim is not part of church law. Paul also writes a recommendation for “our sister Phoebe” that he attached to a copy of his Letter to the Romans saying that she is a deacon whom he wants the addressees to welcome (Rom 16:1–2). After some greetings, he adds, “But I urge you, brothers and sisters, to watch out for those who stand apart and create stumbling blocks beyond the teaching that you learned, and turn aside from them” (Rom 16:17). The concern is not that patriarchal attitudes that characterize the thinking of bishops and priests are taken up by priests who abuse minors. Many bishops and priests do not have such attitudes, and clearly many Catholics, ordained or not, do not accept such attitudes even if they are espoused by other Catholics. It is the practiced ecclesiology of the Church that is patriarchal, not necessarily the thinking of its officers. Most Catholics—women and men who are not ordained—have no power. Weak men who are baptized can aspire to be ordained in order to compensate or counter balance their weakness. To do that they need to follow rules, conform, and not “rock the boat” for a number of years in a seminary environment where there are no women and children. And then, upon ordination, they are lonely, discover they have little power and prestige corresponding to what they fantasied. Their inner direction wanes. The ordination of women would be one measure that would address patriarchy in a partial way. Patriarchy is said to be related to the problem of the abuse of minors by Catholic clergy. It is involved in the quest

Stratagems & theological considerations 139 for power—a quest that is usually frustrated and can be compensated for through abuse. Moreover, its sense of false empowerment can engender a dismissive response by the hierarchy to complaints. It is thought to be an aspect of cultural clericalism that corresponds to individual narcissism. Ordaining women is clearly contrary to the long-standing practice and norms of the hierarchy. One would certainly not raise the issue without reviewing the theological rationale behind the exclusion of women from ordination. One would expect the hierarchy to have solid theological reasons for the exclusion, especially if the latter contributes to the moral problems of clericalism and abuse. Wherefore, in order that all doubt may be removed regarding a matter of great importance, a matter which pertains to the Church’s divine constitution itself, in virtue of my ministry of confirming the brethren (cf. Lk 22:32) I declare that the Church has no authority whatsoever to confer priestly ordination on women and that this judgment is to be definitively held by all the Church’s faithful. Thus, Pope John Paul II concluded his apostolic letter, Ordinatio Sacerdotalis (1994). The clear intent of the letter is to stop any discussion of the ordination of women. Some features of the statement itself, however, reveal that it is not all that definitive. To begin with, it does not define a doctrine pertaining to faith and morals; rather it continues a practice.16 Second, it does not refer to the teaching ministry of the Roman Pontiff but to a ministry of “confirming” or strengthening, as mentioned in the Gospel of Luke. Third, the text speaks of what “the Church” has “authority” to do; it does not address, in the “definitive” part of the letter, what authority might have existed in the past or address at all what authority might be created in the future. It should be noted that the use of the term authority is a translator’s construction; the official text, in Latin, says “facultatem,” which would be translated more accurately as “function” or “power.” While the term “authority” in English means that some normativity lies behind an action, “facultas” in Latin refers to something practical, a function within a division of labor. Pope John Paul’s letter was not created de novo. It refers explicitly back to Pope Paul VI, who feared that the ordination of women in the Anglican Communion would inhibit any effort at union with it. According to Pope Paul, the Catholic Church holds that the ordination of women to the priesthood must not be allowed because of fundamental reasons. These reasons include: the example of Christ recorded in Sacred Scripture, who only selected his Apostles among men; the corresponding practice of the Church, which has imitated Christ by selecting only among men; and her live

140  Anthony J. Blasi magisterium, which has accordingly established that the exclusion of women from the priesthood is in agreement with God’s plan for his Church. (Paul VI 1975, my translation) One should observe closely exactly what Pope Paul’s letter said: Jesus, the Messiah, is reported to have selected only men to be apostles in scripture. Obviously, he also only selected Palestinians. Pope Paul himself was not a Palestinian. No criterion is presented by which one can judge which features of the original selections (if correctly recorded in the New Testament) should be normative for the future and which should not be normative. What is true of the original example of Jesus is also true of the Church’s later imitation thereof; what criterion for features of those who are ordained are normative for the future is not identified. It is also the case that Pope Paul’s letter does not identify exactly what live teaching of the Church maintains that women must be excluded. Having written his letter, Pope Paul asked the Congregation for the Doctrine of the Faith to explain his decision. It is in the rationale the Congregation published (Congregation for the Doctrine of the Faith 1976) that Pope John Paul II would find his own reasons; in fact, he cites it and follows its arguments closely. The Congregation’s essay, Inter Insigniores, has the marks of its origin as a brief for a conclusion set out for it in advance. It provides forced readings of biblical passages, early Christian writings, and Second Vatican Council documents. For example, it states, “A few heretical sects in the first centuries, especially Gnostic ones, entrusted the exercise of the priestly ministry to women: This innovation was immediately noted and condemned by the Fathers, who considered it as unacceptable in the Church.” In support of this assertion, they cite Irenaeus, Adversus Haereses, 1, 13, 2. The passage has nothing to do with the matter of ordaining women.17 They cite Tertullian’s De Praescriptione Haereticorum 41,5, another passage that has nothing really to do with the ordination of women to the full priesthood.18 They cite the Didascalia Apostolorum ch. 15 that also has nothing to say about the ordination of women and instead advises against widows teaching. So where in early Christian literature did the Congregation find support for the exclusion of women from the sacerdotal ministry? Their arguments came from the Apostolic Constitutions, 3, 6, 1–2, and 3, 9, 3–4, which they eventually cite. The first passage says that the fictive authors (the apostles) do not entrust teaching to women because the latter are not prepared; women’s lack of education was clearly a time-specific circumstance. The second sets out to refute people among the Christians who say women could be priests, citing the example of Jesus who chose to be baptized by John rather than his own mother and did not send women on a mission along with the (fictive) authors (the twelve apostles). So what is the normative status of the Apostolic Constitutions? It was a compilation of earlier works with adaptations by Syrian heretics,

Stratagems & theological considerations 141 dating from the 4th century. It is surprising that the Congregation would rely on such a source. The Congregation also cites a very clericalist book on the priesthood by John Chrysostom. While the Congregation distances itself from the sexist views of some Christian writers of past centuries, the fact that it cites John Chrysostom leads us to examine his reasoning. He wrote: For the divine law has excluded women from this ministry, and they strive to force their way into it, and as of themselves they cannot succeed, they accomplish everything by means of others, and they have acquired such influence that they appoint to the priesthood and depose from it whomsoever they please. And reversing everything, the words of the proverb, “Subjects govern their rulers,” are verified, and would that it were men that did so, and not those who are not permitted even to teach. Teach, do I say? The blessed Paul does not permit them even to speak in the Church. (John Chrysostom 1943, 50; Book 3, 9) Evidently, the divine law he was referring to is the statement that women should not speak in the Church; as shown previously, that is a complete misreading of St. Paul. John Chrysostom would have as a reason for what he regards as a divine law, that women are subjects, and he would have them remain so. And besides, they are manipulative. Who would want a manipulative clergyperson? Non-canonical early Christian literature, if it actually said consistently what the Congregation claims it said, would serve as evidence for a continuous practice over the centuries. However, the New Testament is the body of normative writings for Christianity. Inter Insigniores cites a number of passages from the New Testament, often on side issues that are not germane to the question of ordination. Among the germane citations, the Congregation argues that in Romans 16:3 and Philippians 4:2–3, Paul refers to women who helped out in his mission merely as “my fellow workers,” and in First Corinthians 3.9 and First Thessalonians 3:2, he refers to church officials as “God’s fellow workers.” Let’s begin with Romans 16; in verse 1 it clearly identifies Phoebe as a deacon, διάκονον, which indicates that she held a church office. The First Corinthians passage is simply using the language of a farm work metaphor; Paul and Apollos plant and water but God makes the crop grow, making Paul and Apollos God’s fellow workers, συνεργοί. Timothy, whom the Congregation notes is “God’s fellow worker” in First Thessalonians is “my fellow worker,” ὁ συνεργός μου, in Romans 16:21. The Congregation is simply wrong about the vocabulary usages it reports. The Congregation cites First Corinthians 14:34–35 as a “prohibition” concerning “the official function of teaching in the Christian assembly.” One would expect fundamentalists to take words from scripture out of context and cite them as words of God, but not educated Catholics! We have

142  Anthony J. Blasi already dealt with this passage; it is a quotation from a letter written by some Corinthians, and Paul rejects its claims out of hand. The Congregation cites Second Corinthians 11:2, somehow understanding it to require symbolically that the presider at the Eucharist be a male: “For I am jealous over you with the jealousy of God, for I betrothed you to present an untouched virgin to one groom, the Messiah.” The Congregation’s application of the reading appears to confuse the Eucharistic presence of the risen Messiah (the groom) with the presider over the Eucharistic prayer. In the same context, they cite Ephesians 5:22–23, a passage often mistranslated by turning an active participle into an imperative and detaching it from what comes before. Here is what the Greek says: And do not become drunk with wine; there is debauchery in that, but be filled with the spirit, giving voice to psalms, hymns, and spiritual songs among one another and singing praise to the Lord in your hearts, always giving thanks for everything to God and Father, in the name of our Lord Jesus, Messiah, submitting to one another, with fear of Messiah: Wives to your own husbands as to the Lord, because a husband is a head of the wife even as the Messiah is head of the church, himself the savior of the body. (Translation in Blasi 2017, vol. 2, 255) The author of Ephesians is not Paul, but a later writer. It is not a question of a feeling that Paul had with regard to the Corinthians, as in Second Corinthians 11:2, but an encouragement to sing praise in one’s heart, even while living according to the household code of the time. The Congregation’s reading would have the household code serve as a model for the Church, thereby making Jesus the Messiah like a 1st-century husband. A closer reading of the passage reveals that the author of Ephesians would instead have the Church be a model for the household. The point is not to depict the Messiah as more like a 1st-century husband but to present a model of the household where people would be more mutually considerate. At one juncture, the Congregation anticipates an argument based on Matthew 22:30. Could one say that, since Christ is now in the heavenly condition, from now on it is a matter of indifference whether he be represented by a man or by a woman, since “at the resurrection men and women do not marry”? They go on to say that the passage does not mean “that the distinction between man and women . . . is suppressed in the glorified state” and that “what holds for us also holds for Christ.” Here is what the passage says, as translated from the Greek: “for in the resurrection they will neither marry nor be married, but will be as angels in heaven” (Blasi 2017, vol. 2, 59). It

Stratagems & theological considerations 143 is not that humans will be unchanged and only play-acting like angels, but that they will be as angels, ἀλλ′ ὡς ἄγγελοι ἐν οὐρανῷ εἰσιν. Again, the Congregation cites scripture by extracting a few words from their context and quoting tendentiously. Turning from biblical exegesis to continuity from apostolic times, the Congregation distinguishes between what the hierarchy has authority to change and what it does not have authority to change. It begins its analysis with a quotation from Pope Pius XII: “The Church has no power over the substance of the sacraments, that is to say, over what Christ the Lord, as the sources of Revelation bear witness, determined should be maintained in the sacramental sign” (Pius XII 1947, #1). For some reason, the Congregation fails to focus on the central point of Pope Pius XII’s Apostolic Constitution on the Sacrament of Order: “In the Ordination to the Priesthood, the matter is the first imposition of hands of the Bishop which is done in silence” (1947, #5). Sacramental theologians will see the significance of the identification of the matter of the sacrament being the imposition of hands by the bishop, not, it should be noted, the gender of the person on whose head the hands of the bishop are imposed. The Congregation also cites the Council of Trent: In the Church there has always existed this power, that in the administration of the sacraments, provided that their substance remains unaltered, she can lay down or modify what she considers more fitting either for the benefit of those who receive them or for respect towards those same sacraments, according to varying circumstances, times or places. (Council of Trent, Session 21, chapter 2, DenzingerSchönmetzer Enchiridion Symbolorum 1728) While the Congregation focuses on the phrase, “provided that their substance remains unaltered,” it fails to prove that the “substance” of the sacrament of orders is the gender of the person being ordained. The Tridentine provision as a whole appears to argue against the Congregation’s argument. The Congregation devotes a major section of Inter Insigniores to establishing that in the Eucharistic Celebration, the presider acts in the person of the Messiah (in persona Christi) rather than in his own person (in persona propria). They cite the Constitution on the Sacred Liturgy of Vatican II to make the point;19 they quote partially: “by the priest who presides over the assembly in the person of Christ.” This appears to be a tendentious use of the Council document; the whole sentence and the one following read as follows: The priest, acting in the person of Christ, presides over the gathered assembly. Since the prayers which are said or sung by him aloud are proclaimed in the name of the entire holy people and of all present, they should be devoutly listened to by all.

144  Anthony J. Blasi The Congregation then follows this up by quoting a similar passage from the Council’s Constitution on the Church. The whole passage emphasizes the role of the entire priestly people in the Eucharist; the one sentence the Congregation quotes places the role of the presider in this context: “The ministerial priest, by the sacred power that he has, forms and rules the priestly people; in the person of Christ he effects the Eucharistic sacrifice and offers it to God in the name of all the people.” They do not quote what immediately follows: “The faithful indeed, by virtue of their royal priesthood participate in the offering of the Eucharist” (Vatican II, Dogmatic Constitution on the Church, #10). Given the Council’s general presentation, the topic is the Eucharist, not the Sacrament of Order. The symbolic and real presence of the resurrected Messiah is in the sacrifice, which is effected by priest and people. There are also other aspects of presence, in both the presider and the faithful, but the symbol of the real presence is neither the presider nor the people, but the sacrificial prayer and the species of bread and wine. The symbol of the real presence imposes no particular matter, gendered or not, on the Sacrament of Order. The Congregation gets around to the Sacrament of Order in a footnote, citing the Vatican II Decree on the Ministry and Life of Priests: “Through that sacrament” (Sacrament of Order) “priests by the anointing of the Holy Spirit are signed with a special character and so are configured to Christ the priest in such a way that they are able to act in the person of Christ the head.”20 They make the function of the citation seem to be that of seconding references to in persona Christi. A careful reading, however, leads to a different point that is very important. The special character that configures the ordained priests to Christ comes from the anointing of the Holy Spirit. It does not come from their birth gender, but from the Holy Spirit. It is astounding that the reasoning for the exclusion of women from the priesthood is so weak, the reading of scripture so flawed, the historical backdrop going back to the heretics who made changes in the texts incorporated into the Apostolic Constitutions, and to the desire of someone like John Chrysostom to keep women subordinate. It is even more surprising that the interpretations given to hierarchical statements ignore the latter’s point about the matter of ordination in the instance of Pius XII’s Sacramentum Ordinis and confound Eucharistic symbolism and presider in the instance of the teachings of Vatican II. The official discussion about who can be ordained needs to be based on a competent scholarly overview of the relevant scriptural evidence and teaching tradition, not a collection of tendentious readings fashioned with a desired conclusion set forth in advance. Monarchy Monarchy as a social phenomenon has two sides to it: the vesting of ultimate legislative, executive, and judicial power in one person, and the denial of meaningful participation of all others from all that is invested in the

Stratagems & theological considerations 145 monarch. Monarchy as a centralization of power has its own set of problems. The monarch must survey all that is to be governed and formulate norms for the entirety. This has the “one size fits all” problem as well as the glacially slow process of surveying all settings within the monarch’s realm and formulating detailed norms. The extended process of reformulating canon law after Vatican II and making adjustments to the reformulation is one factor that contributed to inconsistencies in the hierarchical response to abuse reports. There is also the problem of the limits of the monarch’s personal perspective and those of the monarch’s administrators. Early on in the abuse crisis, it came to light that bishops had been keen on maintaining secrecy and reluctant to report incidents to the civil authorities; however, when they began to be more transparent and cooperative with the civil authorities, the Vatican had not yet revised its policies and practices. Trials were to be conducted at the Vatican in secrecy, and greater care was taken to protect the rights of the accused than the rights of the abused. The Vatican officials had inherited a distrust of the state, in the form of the 19th century anticlerical Italian constitutional monarchy, and the Polish pope had learned to distrust civil authorities in Communist Poland. These perspectives were clearly out of place in modern democracies, and at the time the civil authorities could hardly have been described as hostile to Catholicism in the centers where the abuses took place.21 The other side of monarchical government is the habitual perspective of the governed. The Church monarchy exerts power through sub-monarchs— bishops. By the 19th century, Rome had ceased really consulting the diocesan bishops, who in many cases were not free from interference from the state and therefore were not considered by the papal administration as completely trustworthy. In 1870, the First Vatican Council met to decree what the pope wanted to be decreed; the inopportune declaration of papal infallibility was to be decreed, no matter how inopportune it was from the perspective of the bishops. Bishops similarly had no genuine consultation from the clergy or laity. It is in this context that men, who had imagined priests as prestigious and powerful patriarchs as children and who experienced their daily lives policed by clergy as seminarians, found out that they were powerless and not really worthy of consultation when they were ordained priests. This helps explain why priests who witnessed abuse by other priests did not report what they witnessed to their bishop; the bishop was not in the habit of listening to them anyway. It also helps explain why the laity tolerated the situation for so long; they were not listened to. The consequence was widespread passivity. One may wonder why the published data on the abuse of minors show an increase of incidents in the United States in the 1970s and 1980s. It may well be that there were more actual incidents in those decades, if for no other reason than there were more priests ordained in the late 1950s. But it is also the case that Pope John XXIII shook things up in the Vatican and that the Second Vatican Council stressed that the people were the Church. Catholics’

146  Anthony J. Blasi expectations were raised, and they became vociferous when they were not listened to—vociferous first in the Catholic press and later elsewhere. When lay people and priest witnesses both filed complaints with the bishops, they wanted to be heard. The newspaper that first gave a high profile to a case (that of Gilbert Gauthé in Louisiana) was the National Catholic Reporter, which was independent of any monarch and clearly animated in its general editorial policy by hopes deriving from Vatican II. Corrective stratagems are obvious. The Church can become more democratic in matters outside the scope of traditional doctrine. General norms for the formation of priests can come from national episcopal conferences rather than from the Vatican. Boards for the oversight of formation programs can be more diverse than they are. Seminaries need not be total institutions encompassing all aspects of the seminarians’ lives. Councils of lay delegates in dioceses can have genuine responsibilities. The Vatican needs to define normatively what “consultation” is and when it must take place, and consultation needs be more than making announcements to underlings to make sure they understand the will of monarchs. Historically, in civil matters, parliaments and other councils gained power by controlling the treasury; it would be unfortunate if that were the only way genuine change could occur in the Church. Cardinals need not be clerics, and indeed historically they have not always been clerics. Could cardinals not be baptized Catholics who are elected rather than appointed and whose principal function is the fill papal vacancies? Male homosexuality The official Church still makes a major issue of homosexuality, even as it is ceasing to be an issue among citizens in the industrialized world. In the yet-to-be industrialized world and among fundamentalists in the industrialized world, people who read the Bible literally condemn homosexual acts. The passages in the Hebrew Scriptures that condemn homosexuality do not mention lesbianism, let alone condemn it. They proscribe male homosexual intercourse in ritual contexts as a practice of other, non-monotheist religions, and in the context of rape. In the New Testament, there is really not much mention of homosexuality. At the time, it was what men sometimes did with slaves, something tantamount to rape; it was held to demean the victim.22 In the first chapter of his Letter to the Romans, Paul likens idolatry to homosexuality; the idolatrous person is oriented to an object resembling the self. Homosexual acts, as noted, were held to demean. Paul writes of a loss of prestige in connection with homosexual acts; his language is usually translated as “dishonoring.” The implication is that idolatrous Roman religion was reducing its deities and its practitioners in social standing. Because the idolaters “did not deem it good to keep God in mind” (Rom 1:28), God gave them over to “every offense,” which he goes on to name. Homosexuality does not appear in his list of “every offense.” The fundamentalists

Stratagems & theological considerations 147 appear to misread the passage; Paul does not actually say in Romans that homosexual acts are sinful. The later and vehement condemnation of homosexuality appears to be a construct that is not intrinsic to the Christian ethos. It has nevertheless been maintained by the official Church, with the result that Catholics and other Christians who had same-sex attractions hid the fact, and those who engaged in homosexual acts led double lives. Some left and still leave the Church because of official condemnatory pronouncements. Homosexual seminarians experience the stress of not disclosing themselves in a highly policed environment. The formation of gangs, as it were, in which the condemnation of the normative theology could be neutralized, would be a natural occurrence, especially if there were a sufficient concentration of homosexuals in an isolated environment. The problem is not homosexuality itself but the emergent discourse that neutralizes norms—not the particular norm about homosexuality, but norms in general. An obvious stratagem to reverse the situation is to conduct priestly formation in a less threatening environment. Surely the formation of a prayer life and spirituality can be accomplished in a condition other than that of a police state. Seminarians should not have to form gangs for purposes of neutralizing oppressive norms. More long-term, a development of doctrine is needed on the subject of homosexuality. More is known today than in the past about human development in general and sexuality in particular. The needed development of doctrine can take place in some manner other than the secret formulation of Vatican statements. A period of public discussion and education could, hopefully, result in a consensus. One would not wish for the angry schisms that have occurred in other churches over the issue, yet widespread consultation appears necessary. Church leadership can help bring such a consensus about, but that kind of leadership is dependent on leaders not desperately clutching onto a dated moral theology on the subject. As a preliminary step, an evaluation of official Church statements on homosexuality is necessary. It is been pointed out in a few of the contributions to this volume that homosexuality is not related to pedophilia in the technical sense, but that the abuse of postpubescent minors by Catholic clergy most frequently targets male victims. Gay priests, as the term has come to refer to homosexual clergy in relationships with adult males, are statistically unlikely to target postpubescent minors because they satisfy their attractions with adults. If the sole concern were that of preventing the abuse of minors, Church policy would be accepting of gay priests, along with priests who are married to women. Of course, preventing the abuse of minors is not the sole concern; Church policy would have priests lead morally exemplary lives. This raises the question of the moral status of consensual homosexual acts between adults. Critics of the post-Vatican II Church have claimed that after the Council, admissions of men to seminaries began to include homosexuals in great numbers and that such admissions in turn led to the abuse of minors by

148  Anthony J. Blasi priests (e.g., Morino 2018; Viganò 2018, 8; Russell 2018). This view, unrealistically nostalgic about the pre-conciliar Church, is mistaken because the perpetrators largely went through the seminaries before the Council and because abuse can have an origin separate from that of homosexuality among adults. Nevertheless, one response to the abuse crisis has been a policy of banishing men thought to be homosexual from seminaries. The official policy language is: In relation to persons with homosexual tendencies who seek admission to Seminary, or discover such a situation in the course of formation, consistent with her own Magisterium, “the Church, while profoundly respecting the persons in question, cannot admit to the seminary or to holy orders those who practice homosexuality, present deep-seated homosexual tendencies or support the so-called ‘gay culture.’ Such persons, in fact, find themselves in a situation that gravely hinders them from relating correctly to men and women. One must in no way overlook the negative consequences that can derive from the ordination of persons with deep-seated homosexual tendencies.” (Congregation for the Clergy 2016, #199)23 What is meant by “deep-seated homosexual tendencies” appears to be same-sex attraction that is not a passing phase.24 Interestingly, the explanation is not that homosexual acts are sinful, but that practicing homosexuality, having deep-seated tendencies, and supporting a “gay culture” gravely hinder relating correctly to men and women. If “correctly” means without sin, there is a need for a theological inquiry. If “correctly” means socially successfully, the assertion is doubtful. The term was probably meant to convey both meanings. In 1975, the Congregation for the Doctrine of the Faith argued from Scripture and natural law that homosexual acts are objectively evil because they “lack an essential and indispensable finality” (1975, VIII). After citing scripture, the Congregation used language that has been much cited in the popular press in subsequent decades; it said that homosexual acts are intrinsically disordered. The view was that sexual acts are objectively ordered to procreation, and that since homosexual acts could not lead to procreation, they were disordered from the plan of the Creator for the human race. The Congregation went out of its way not to condemn sweepingly; the objective judgment, they said, “does not of course permit us to conclude that all those who suffer from this anomaly are personally responsible for it” (1975, VIII). That the Congregation was not in the business of condemning is to be credited to them, but in speaking of an “anomaly” they still seemed to be informed by a view that is no longer deemed to be scientifically valid. Apart from speaking of homosexual acts as evidence of an anomaly, the general approach of the magisterium still maintains that some acts are intrinsically evil by virtue of their “very object, and quite apart from the ulterior

Stratagems & theological considerations 149 intentions of the one acting and the circumstances” (John Paul 1993, #80).25 Citing the Second Vatican Council, Pope John Paul II gives other examples of what he terms intrinsically evil acts: homicide, genocide, abortion, euthanasia, voluntary suicide, mutilation, torture, coercion, subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, human trafficking, and degrading conditions of work. Such are hostile to life itself or violate the integrity of the human person (Vatican II, Gaudium et Spes, #27). The general framework of moral thinking that distinguishes among the objects of an act, the end of an act, and the circumstances in which an act is performed comes from Thomas Aquinas. Unfortunately, the use the Congregation and popes make of that framework evinces considerable imprecision. Aquinas spoke of the species of an act deriving from its object, the immediate result of an act. He gives the example of taking what belongs to another (Thomas Aquinas ST I-II, 18, 2). The moral character of an act can come from the species. He also spoke of accidental aspects of an action, circumstances, lending a good or evil moral character to an action. He does not give an example, but one can think of a hiker caught in a sudden mountain snowstorm entering a cabin and using the absent owner’s firewood to build a fire to keep from freezing; the value of the hiker’s life outweighs the disvalue of taking the firewood that belongs to another. The circumstances of the snowstorm and the danger of freezing make the act benign despite its evil species. “So it is with action. For the plenitude of its goodness does not consist wholly in its species, but also in certain additions that accrue to it by reason of certain accidents: and such are its due circumstances” (ST, volume 2, I-II, 18, 3). Of course, it can work the other way around; a good species of action can be made evil by circumstances. For example, an intellectually stimulating conversation is a good activity in terms of its species, but made evil if carried on in a church during mass. Then Aquinas speaks of the end of an act, its intended purpose (ST, volume 2, I-II, 18, 4). All this sounds simple, but it is possible for an action to have contrary moral qualities contained within the same act, as for example when someone takes what belongs to another to give alms. The problem is that the taking what belongs to another is not ordained to the good end (giving alms) but only related to it accidentally (ST, volume 2, I-II, 18, 7.) If, however, one were to work an extra hour in order to earn extra money to give away what is one’s own, that would not have an evil character. The kind of analysis Aquinas makes is not completely persuasive because taking what belongs to another in order to give alms can be ordained to a good end; it is the genre of the act of taking that is objectionable, not a lack of an ordering what is taken to a good end. Moreover, the circumstantial fact that there are alternatives to the taking should be critical in the analysis. His treatment of the problem in his discussion of double effect is more persuasive; in the example of self-defense, there is the intended effect of preserving one’s own life and the unintended effect of an assailant being killed (ST, vol. 3, II-II, 64, 7).

150  Anthony J. Blasi Anything disproportionate from the intended effect—such as torturing the assailant as he lay dying—would be evil. Taking what belongs to another in order to give alms is not proportionate to giving alms since there are other ways of generating or acquiring something to give away. Unfortunately, Aquinas does not develop the concept of proportionatus very thoroughly. In this context, proportionatus means “tailored to” rather than the English proportionate, which refers to the magnitude of consequences in question. As noted, in Veritas Splendor, John Paul II speaks of “objects of the human act” that are by their nature incapable of being ordered to God. He then cites the examples from the pastoral constitution Gaudium et Spes of Vatican II. He mentions, for example, homicide. In most cases of killing a human, the analysis is logical, but when a police officer heroically killed a gunman who was shooting at innocent people from the library tower of the University of Texas on August 1, 1966, the end or purpose of protecting people rather than the object of the act (killing someone) clearly lent a good moral character to the officer’s action. The text of Veritas Splendor would hold that the object of the officer’s action made the act “incapable of being ordered to God.” Another example Pope John Paul took from Gaudium et Spes was deportation; sometimes it is clearly evil, but not in all cases. Deportation in the circumstance of an extradition of a criminal for prosecution can take its moral character from the end. In Persona Humana, the Congregation for the Doctrine of the Faith speaks of a singular “finality” of sexual acts. One would suppose that this is meant to refer to the end (finis) of the act. However, the scriptural support given for the disapproval of homosexual act by Pope John Paul in Veritas Splendor is Paul’s statement in Romans 3:8 that one should not do evil that good may come of it, which would be a matter of the intrinsic nature of the act, or its “object,” rather than its end or “finality” (Congregation for the Doctrine of the Faith 1975, #V; John Paul II 1993, 80). The Congregation would disapprove of homosexual acts because they do not have as an end begetting children, however benign other ends may be, while Pope John Paul would disapprove of them because of their intrinsic nature—their object. For clarity, the object, end, and circumstance of a homosexual act should be considered one at a time. The object of a sexual act is a sexual stimulation with response; this combination is what gives the act its genre—that of a sexual act. Considered in isolation, the act is morally neutral. As a good, it can be the matter of the sacrament of matrimony. As an evil, it can occur in a rape. Unlike torture, it is not inherently or intrinsically evil in such a manner that it is incapable of being ordered or ordained to a good or to God. When the Congregation or a pope have used such expressions as intrinsically evil or incapable of being ordered to God in this context, the expression actually weakens their argument by putting muddled reasoning on display. There can be more than one end of a sexual act, be it heterosexual or homosexual. When Pope Paul VI said in Humanae Vitae that every single

Stratagems & theological considerations 151 sexual act within marriage must be open to the end of begetting children (1968, 11),26 he was maintaining that one end of heterosexual acts within marriage should be the procreation of children. By its wording (matrimonii usus), the dictum does not actually address homosexual acts. Rather, Pope Paul was reiterating the teaching of Pope Pius XI, who was teaching against deliberately frustrating the power and purpose of the conjugal act (Pius XI 1930, 54).27 What Pope Pius was teaching against was not the nature of a sexual act per se but the act of frustrating the conception of human offspring. In general, magisterial teachings have focused on marriage and limiting intercourse to the marital state, which would be a circumstance rather than an end; their rationale for the teaching pertains to the end of marriage.28 What distinguishes a homosexual act from a heterosexual act is the circumstance. A circumstance, as something not giving an act its genre, cannot make an act intrinsically good or intrinsically evil. It can, however, lend an act a moral character. The theological issue is whether the same-sex circumstance of a sexual act imparts any particular moral character. The Congregation for the Doctrine of the Faith takes teachings about marriage and marital intercourse and broadens them to pertain to all sexual acts.29 This kind of argument switches the matter of discussion in the course of assigning a given moral evaluation. It is incumbent on someone who would argue that homosexual acts have any particular moral status to address the circumstance of its expression of a same-sex attraction rather than confounding it with heterosexual acts within or outside of marriage. Marriage is a circumstance ordained to specified ends, and an absence of marriage for heterosexual acts is a circumstance that can have an evil moral quality because, for example, biological parents not married to each other may not have a commitment to the wellbeing of children or may not have a permanent, indissoluble commitment to one another. Turning from the natural law approach of the magisterium and Thomist moral theology, we can take up the biblical evidence used in magisterial statements. In Veritas Splendor, #80, Pope John Paul II cites the citation made by Pope Paul VI of Romans 3:8, in making the argument that intrinsically evil acts must be judged unworthy, whatever end they serve. The passage in Romans has nothing to do with an act being evil in its very genre, but doing evil to bring about a manifestation of God’s judgment. The evil done could be so by virtue of its circumstances, for example, rather than the species of the act. The Pauline passage (Romans 3:5–8a) reads as follows: But if our injustice demonstrates the justice of God, what shall we say? Wouldn’t God be unjust when bringing wrath? I am speaking humanly. Certainly not. How then would God judge the world? But if God’s truthfulness abounds to His glory through my falsehood, why am I still judged as a sinner? and why not, as we are slandered and as some imagine we say: Let us do evil so that good may come? (Translation from Blasi 2017, vol. 1, 129)

152  Anthony J. Blasi The clause about doing evil so that good may come about has no particular bearing on an intrinsically evil act performed because of an otherwise good intention. It pertains to the paradox of God’s revelation coming through sinful humans. Veritas Splendor, #81, goes on to cite a passage that is much more relevant to the question of homosexuality. First Corinthians 6:9–10 reads as follows: Do you not know that the unjust will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral, idolaters, adulterers, easy men, pederasts, thieves, nor the greedy, not drunks, not abusive people, and not robbers will inherit the kingdom of God. (Translation from Blasi 2017, vol. 1, 160)30 To understand this passage, it is necessary to examine what the Greek behind it meant in the ancient Roman Empire. The sexually immoral, πόρνοι, would be elite Romans who attended banquets without their wives and enjoyed low-status pleasure women. The non-Christian Romans did not consider this adultery. Idolaters, εἰδωλολάτραι, would be men who frequented temples that were in effect brothels. Adulterers, μοιχοὶ, would be high-status men who had sexual relations with a high-status woman outside of marriage. Easy men, μαλακοὶ, would be youths making themselves available as passive homosexual companions in order to establish a patron-client relationship with an elite man. Pederasts, ἀρσενοκοῖται, would be active performers of homosexual acts who typically penetrated young male slaves. The ancients did not have a concept of sexual orientation (Townsley 2011, 708); males, especially elite males, abused slaves of either gender, had “easy men” for purposes of building up a network of clients, and had wives, similarly for purposes of political alliances. Paul, and the Christians in general, disapproved of all this. What they would have thought of consensual homosexual relations between equals is not known simply because they did not write about that kind of relationship. For a man to use another man was to either use a slave or other lower status male, or to demote someone to a low status, and from the Christians’ perspective, that sort of use of people was unjust.31 In this passage, Paul even sees injustice toward oneself, voluntarily becoming an “easy man,” as immoral. None of this really has a direct bearing on modern homosexuality, with consensual acts among equals. The letter of the Congregation for the Doctrine of the Faith on the pastoral care of homosexual persons begins its considerations from scripture with Genesis 19:1–11 (1986, #6), the narrative about Sodom and Gomorrah. The biblical passage is not squarely on topic. Genesis 18:20 already made it clear that Sodom and Gomorrah were considered evil, that there was an outcry against them, and that the Lord was ready to destroy them if he found that the outcry was warranted. Chapter 19, which the Congregation cites, reports that two angels from the Lord came to Sodom and were

Stratagems & theological considerations 153 given hospitality by Lot. The men of Sodom, egged on by all the inhabitants, demanded that Lot turn the two angels over to them so they can rape them. The angels miraculously blinded the men and led Lot and Lot’s household out before the Lord destroyed the city. The legend is not about homosexuality as much as about wickedness in general and raping sojourners in particular. In fact, given the context that the compositor of Genesis created, with the protagonists offering extravagant hospitality to sojourners who turn out to be from the Lord, the legend of Sodom is one in a series whose theme is hospitality to the stranger. A second biblical passage used by the Congregation is Leviticus 18:22: “You shall not lie with a male as with a woman; it is an abomination.” Leviticus 20:13 prescribes the death penalty for the offense. Chapter 18 makes a series of proscriptions, associating the offenses with other nations. As the Congregation puts it, the proscriptions are given “in the course of describing the conditions necessary for belonging to the Chosen People.” A fair reading would conclude that the Congregation has a point. This is not only a matter of national identity, which is for sure a theme in that part of Leviticus; the proscription is accompanied by others against incest, bigamy with a wife’s sister, and bestiality. The rationale in the passage will be taken up later, after reviewing the other passages cited by the Congregation. The Congregation’s reading of Romans 1:18–32 is accurate insofar as no proscription of homosexuality is read into the text. Nevertheless, the Congregation describes homosexuality as a “moral excess,” which the text of Romans does not do. The Congregation betrays no awareness of the status system of the Roman Empire, where a male homosexual act expresses a low status for the passive boy or man, either making the status of, for example, a would-be client subordinate to a patron, or taking advantage of a slave. Nor does the Congregation express any awareness of the absence of any concept of sexual orientation in the Roman world and hence any concept of a fully consensual expression of a homosexual orientation. Finally, the Congregation cites First Timothy 1:10, which provides a list of varieties of lawless people (1 Tim 1:11): But we know the law is good if someone applies it legitimately, knowing that the law is not set down for the just person but for the lawless, the undisciplined, the impious, sinners, the unholy, the godless, those who kill fathers and mothers, murderers, male prostitutes, pederasts, kidnappers, liars, perjurers, and anything else that is opposed to the teaching that is wholesome according to the good news. (Translation in Blasi 2017, vol. 3, 87) Male prostitutes, πόρνοις, could also be simply fornicators. As noted, pederasts, ἀρσενοκοῖται, would be active performers of homosexual acts who typically penetrated young male slaves. Kidnappers, ἀνδραποδισταῖς, sold their victims as slaves, sometimes subjecting young males to cosmetic makeovers

154  Anthony J. Blasi to market them as sex objects (Harrill 1999). The author of First Timothy does not have in mind the expression of a homosexual orientation (unknown in antiquity) in consensual sex acts between equals. Though misapplying a number of these biblical passages that are not really about homosexual relations as we understand them today, the Congregation gives an accurate reading of Leviticus 18:22 and 20:13, which not only proscribe homosexual relations but prescribe the death penalty for them. However, the Congregation seems conflicted about its readings of these passages: It is deplorable that homosexual persons have been and are the object of violent malice in speech or in action. Such treatment deserves condemnation from the Church’s pastors wherever it occurs. It reveals a kind of disregard for others which endangers the most fundamental principles of a healthy society. The intrinsic dignity of each person must always be respected in word, in action and in law. (Congregation for the Doctrine of the Faith 1986, #10) Thus, if Leviticus 18:22 is to be taken as normative, Leviticus 20:13, which prescribes the death penalty for homosexual relations, is not. One must ask what the criterion is for accepting one verse of Leviticus as normative and another as not normative. It may be useful to examine what rationale was at work in the composition of Leviticus 18:22. There is no trace of a specific theory that every sexual act must be ordained to the creation of new life; so the 20th century magisterial rationale should not be read into it. In part, Leviticus frames its list of proscriptions by condemning what was found among Egyptians and Canaanites; the Egyptians practiced homosexuality on enemies defeated in battle, while disapproving of pederasty, and in Canaan homosexuality was an aspect of the religious cults (Harrison 1980, 191–2). Beyond Hebrew identity and nationalism, the language in Leviticus reflects ritual concerns. The immediate context prohibits intercourse during a woman’s menstrual “uncleanness” (Lev 18:19). It prohibits adultery (Lev 18:20). It prohibits profaning the name of the Lord by sacrificing children to Molech (Lev 18:21). To lie with a male as with a woman is described as an abomination (Lev 18:22). Beastiality is described as a perversion (Lev 18:23). In succession, the underlying issues are ritual purity, adultery, idolatry, performing abominations, and perversions. Hence there is a juxtaposition of ritual and sexual ethics: ritual (verse 19), sexual ethics (verse 20), ritual (verse 21), sexual ethics (verse 22), and sexual ethics (verse 23). In verse 22, to lie with a male as with a woman is an “abomination,” (tow‘ēbah), which could be either a ritual or sexual ethical violation (Brown et al. 1980, 1072–3). We moderns, who think in our modern languages, have a much more precise language to think with than ancient Hebrew; this is

Stratagems & theological considerations 155 especially true of those of us who think in English, a particularly precise language. We want to know whether it is a ritual violation or a sexual ethical violation. Neither the text of Leviticus 18:22 nor its context tells us. Commentators say that the term abomination (tow‘ēbah) “usually” (Snaith 1967, 126) has to do with idolatrous actions and that the Hebrew stem is “chiefly” (W. Wilson 1981, 3) connected with idolatry. The Septuagint translators into Greek used the expression βδέλυγμα, meaning anything that must not be brought before God because it arouses his wrath, everything associated with idolatry (Arndt and Gingrich 1958, 137–8). “Bringing before” is to be taken especially in a physical sense, as in the Temple in Jerusalem. It appears that at least the ancient Greek translators who were responsible for the Septuagint translation of the Hebrew Scriptures thought the passage meant homosexual acts were a ritual problem rather than a moral one. For all the emphasis the modern magisterium places on the evil character of homosexual acts, it has a notably weak foundation for that judgment. In the language of Thomist ethical reasoning, it needs to focus on the circumstances that lend a sexual act a particular moral character. Applying such terms as objectively, inherently, and intrinsically fail to distinguish a homosexual act from a heterosexual act, or a heterosexual act within marriage from one within a rape, extramarital affair, or a “one-night stand.” Moreover, circumstances may distinguish a consensual sexual act expressing a same-sex attraction from one taking advantage of a child or degrading a conquered warrior. References to the end or purpose have yet to be fully justified by theological elaboration. Simply citing Genesis 1:28 (“Be fruitful and multiply, and fill the earth and subdue it”) is hardly adequate. For example, that can be used to condemn celibacy. It can be used to justify cloning humans. Or, it can be judged to have already been fulfilled since the Earth is not lacking a human population of great size. It appears necessary to develop a typology of circumstances and to develop separate moral evaluations of each type. The modern magisterium also needs to work from a more accurate reading of scriptural passages. It is striking that the excellent record of contemporary biblical scholarship, including that of Catholic exegetes, has not been matched by the magisterial use of the scriptures. The concept of a sexual orientation was foreign to the cultures of the biblical societies; the condemnations found in the biblical passages pertain to acts that had victims, acts that would be closer to our categories of homosexual rape of children, development of clients and patrons in prison life, and abuse of enemies, not to consensual relationships among equals. And by extension, the absence of a solid foundation for a moral condemnation of homosexuality applies to policies excluding homosexuals from seminaries as well. Admissions policies should reflect the likelihood of success in ministry and avoidance of the abuse of minors and the creation of client-patron relationships between, for example, seminarians and ecclesiastical superiors.

156  Anthony J. Blasi

Conclusion It is clear to many people that the Catholic Church needs to do more than simply remove from the ministry clergy who abuse minors. Money needs to be invested in research into screening methods that focus on propensities toward sexual abuse, especially the sexual abuse of minors. The screening should not focus on factors that are irrelevant to that and to ministerial performance. In general, screening criteria should relate to what may happen and what is needed after ordination, not to passivity and endurance under the highly policed condition of the traditional seminary. Gender, marital status, and sexual orientation should not be criteria. The priesthood role itself needs to be separated from administrative duties and associated more with the promotion of charity, peace, and justice, representing an engaged spirituality. With a package of such changes, not only would the statistical incidence of clergy abusing minors go down, but the Church’s practices and policies would place its mission centermost. Many people are emotionally invested in the Church—an attachment that is not to be criticized. They are often invested, however, in the Church as it is. A scholar such as this author—both a social scientist and a theologian—can only plead that those who care about the Church be open to developments that would change it into the Church it could be.

Notes 1 A comparable study in Germany: (MHG Forschungsprojekt 2018). 2 Elsewhere, Ballano notes that rather than a cohesive monolith, the Roman Catholic Church is a loose network at the hierarchical level under which the clergy live autonomous lives (2019b, 9). 3 One can only speculate about the relationship, if any, between this differentness and the specialness and self-importance that narcissism features. Sperry (2003, 95) observes, “For the narcissistic personality, the notion of a vocation as a ‘call’ from God or as a sign of ‘being set apart’ serves as further reinforcement and confirmation of their belief in their inherent specialness and superiority over others.” 4 There is doubt that retrospective reports by pedophilia offenders under therapy are reliable; Freund et al. (1999) indicate that such reports serve as excuses to reduce feelings of shame or guilt. Their finding casts doubt on the theory of a causal connection between being molested in childhood and molesting children later in life. See also Garland and Dougher (1990). 5 Bolin (2001, 144–5) proposes two pathways by which an inculcated sense of social context by male power leads to abusing children. First, some men “may be so assured of their power that they have male privilege”; second, they may react to an unfulfilled need for more power that derives from gendered social expectations. 6 Doyle (2006, 190) describes clericalism as “the radical misunderstanding of the place of clerics (deacons, priests, bishops) in the Catholic Church and in secular society. This pejorative ‘ism’ is grounded in the erroneous belief that clerics constitute an elite group and, because of their powers as sacramental ministers, they are superior to the laity.” He refers to “clerical narcissism” (2006, 198), thereby

Stratagems & theological considerations 157 linking the institutional-level subculture of clericalism with the individual-level psychological state of narcissism. 7 Catholic Church (1994). #1782. 8 “Only in allowing the masses of the many to do what is forbidden to the nobility is there the deepest contempt and indifference toward the masses. It lies in the fact that they are permitted many things that the nobility is forbidden to do: The masses are not considered to be worthy of the more stringent regulations” (Simmel 2009, 644). 9 This is not unique to aristocracies; see Kanter (1993). 10 Laumann et al. (1994, 305) reported 7.1% of U.S. males and 3.8% of U.S. women having sex with a same-gendered person since puberty; the corresponding percentages for Catholics were 6.4% and 3.4%. Even though they used combined national representative samples, spokesmen for the gay community accused them of producing an under-estimate. I faced a similar criticism when I found that 6% of former religious brothers reported in a survey that they were in a same-sex relationship; some of them believed that there was a far higher percentage (see Blasi 2004, 196). 11 Keenan cites Tallon and Terry (2008) as well as John Jay College (2011, 54–74). 12 MHG Forschungsprojekt, Sexueller Missbrauch (2018, 120) shows the modal age of first offense as 30, still well beyond the typical age of ordination. Expressed in five-year intervals, the mode was the 36–40 five-year span (p. 155). 13 Is the “first offense” the first occurrence or the first reported offense? If one were using data from a source that depends on news accounts and court documents, such as the Bishop Accountability website, it would be a reported offense; there could be many prior occurrences beforehand. The John Jay College study and the German MHG Forschungsprojekt study were based on diocesan archives; these likely included cases that never went to court or made their way into the press. It is unknown whether the first archived offenses were preceded by many other incidents. 14 Keenan (2012, 54–60) reviews research literature that reports 18% at the low end and 52% on the high end of the U.S. Catholic priests are sexually active, most of these with adults evenly divided between men and women. 15 Prevention as a concept has sometimes been limited to screening individuals, looking for pornography and “offending habits,” and making punishment more sure and severe: e.g., Scicluna (2004, 19). See also the entirely individualistic approach of Allen (2004, 204). 16 See Vatican II (1975b), #25, for what is covered under the teaching function of the pope and councils of bishops. 17 Irenaeus writes of one Marcus: “Pretending to consecrate cups mixed with wine, and protracting to great length the word of invocation, he contrives to give them a purple and reddish color, so that Charis, who is one of those that are superior to all things, should be thought to drop her own blood into that cup through means of his invocation, and that thus those who are present should be led to rejoice to taste of that cup, in order that, by so doing, the Charis, who is set forth by this magician, may also flow into them.” Some women do consecrate cups to Charis later on in the account, but the passage makes nothing of their being women. 18 In criticizing heretics for being lax, he includes one sentence about women: “Those heretical women, how shameless! They dare to teach, assert, work exorcisms, promise cures, and perhaps whether to baptize” (my literal translation from the Latin). Tertullian, of course, is not a saint in either the Eastern or Western Church and had some very strange ideas. 19 Vatican II (1975a, #14); the Congregation mistakenly cites it as #33.

158  Anthony J. Blasi 20 Vatican II (1975c, #2). The translation is not the fragment quoted in note 16 of Inter Insigniores, but the whole sentence. 21 The problem of monarch-like absolute power is not limited to Catholicism. In 2018, the Fort Worth Star-Telegram published an exposé of 412 allegations of ministerial sexual misconduct in 187 churches in a network of independent Baptist congregations, with senior clergy covering up and denying what had taken place. The report, dated December 9, 2018, emphasized the absolute authority of the clergy in their churches and the congregation members’ fear of their clergy. 22 I review the relevant literature in Blasi 2017, Volume 1, 121–24. 23 The Congregation quotes from “Instruction Concerning the Criteria for the Discernment of Vocations with regard to Persons with Homosexual Tendencies in view of their Admission to the Seminary and to Holy Orders,” # 2, Acta Apostolica Sedis 97 (2005), 1010. 24 See also, Congregation for the Doctrine of the Faith, Persona Humana, VIII: “A distinction is drawn, and it seems with some reason, between homosexuals whose tendency comes from a false education, from a lack of normal sexual development, from habit, from bad example, or from other similar causes, and is transitory or at least not incurable; and homosexuals who are definitively such because of some kind of innate instinct or a pathological constitution judged to be incurable.” Some of this language appears to be based on a dated psychology. 25 The text cites the reasoning in Paul VI 1968, #14. 26 The passage reads, “ut quilibet matrimonii usus ad vitam humanam procreandam per se destinatus permaneat/that any use of matrimony as such remain destined to procreating human life.” 27 Pope Paul was actually making the teaching more explicitly about marriage; Pope Pius had used the expression actus coniugii, which simply means a union, especially marriage but not expressly only marriage. 28 It is possible to force a reading of Casti Connubii to make it apply to homosexual acts: “every use of the faculty given by God for the procreation of new life is the right and privilege of the married state alone.” However, placing the wording within its context makes it clear that it is about heterosexual acts: “Nor must We omit to remark, in fine, that since the duty entrusted to parents for the good of their children is of such high dignity and of such great importance, every use of the faculty given by God for the procreation of new life is the right and privilege of the married state alone, by the law of God and of nature, and must be confined absolutely within the sacred limits of that state” (Pius XI 1940, 18). The Congregation for the Doctrine of the Faith (1975) makes this forced reading at the end of section V. 29 Congregation for the Doctrine of the Faith (1975, #V) does this by citing Vatican II (1975d, 49, 50), sections about marriage, when speaking about “the finality of the sexual act and on the principal criterion of its morality.” 30 The Congregation for the Doctrine of the Faith 1986, #5), also cites the passage. 31 Demote or lower in status is usually translated as “dishonor”; see Romans 1:24 and 26, as translated in most Bibles.

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Stratagems & theological considerations 159 Arndt, William F., and F. Wilbur Gingrich. A Greek-English Lexicon of the Literature New Testament and Other Early Christian Literature, 2nd Edition Revised. Chicago: University of Chicago Press, 1958. Ballano, Vivencio O. Celibacy and Social Disorganization in the Catholic Hierarchy, January 20, 2019a. https://ssrn.com/abstract=3319283. Ballano, Vivencio O. Sociological Perspectives on Clerical Sexual Abuse in the Catholic Hierarchy. An Exploratory Structural Analysis of Social Disorganization. Singapore: Springer, 2019b. Blasi, Anthony J. “Vocations and Perceptions.” Sociological Analysis 36:1(1975): 67–72. Blasi, Anthony J. Social Science and the Christian Scriptures, 3 vols. Eugene, OR: Wipf & Stock, 2017. Blasi, Anthony J., and Joseph F. Zimmerman. Transition from Vowed to Lay Ministry in American Catholicism. Lewiston, NY: Edwin Mellen, 2004. Brown, Francis, S.R. Driver, and Charels A. Briggs, A Hebrew and English Lexicon of the Old Testament. Oxford: Clarendon, 1980. Bolin, Rebecca Morris. Child Sex Abuse: Its Scope and Our Failure. New York: Springer, 2001. Catholic Church, Catechism of the Catholic Church. Vatican City: Libreria Editrice Vaticana, 1994. Chaves, Mark, and Diana Garland. “The Prevalence of Clergy Sexual Advances Toward Adults in Their Congregations.” Journal for the Scientific Study of Religion 48:4(2009): 817–24. Congregation for the Clergy. “The Gift of the Priestly Vocation. Ratio Fundamentalis Institutionalis Sacerdotalis.” L’Observatore Romano, December 8, 2016. Congregation for the Doctrine of the Faith. Persona Humana: Declaration on Certain Questions Concerning Sexual Ethics, December 29, 1975. www. vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_ 19751229_persona-humana_en.html. Congregation for the Doctrine of the Faith. Inter Insigniores, October 15, 1976. www. vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_ 19761015_inter-insigniores_en.html. Congregation for the Doctrine of the Faith. Letter to the Bishops of the Catholic Church on the Pastoral Care of Homosexual Persons, October 1, 1986. www. vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_ 19861001_homosexual-persons_en.html. Didascalia Apostolorum, 3rd century. www.earlychristianwritings.com/text/didas calia.html. Doyle, Thomas P. “Clericalism: Enabler of Clerical Sexual Abuse.” Pastoral Psychology 54:3(2006): 189–213. Eberstadt, Mary. “How Pedophilia Lost Its Cool.” First Things, December 2009. www.firstthings.com/article/2009/12/how-pedophilia-lost-its-cool, retrieved September 12, 2019. Fichter, Joseph H. Religion as an Occupation. Notre Dame, IN: University of Notre Dame Press, 1961. Francis Brown, S.R. Driver, and Charles A. Briggs (eds.). A Hebrew and English Lexicon of the Old Testament, Based on the Lexicon of William Gesenius. Oxford: Clarendon, 1980. Freund, Kurt, Robin Watson, and Robert Dickey. “Does Sexual Abuse in Childhood Cause Pedophilia: An Exploratory Study.” Archives of Sexual Behavior 19:6(1999): 557–68.

160  Anthony J. Blasi Garland, Randall J., and Michael J. Dougher. “The Abuse/Abuser Hypothesis of Child Sexual Abuse: A Critical Review of Theory and Research.” In Pedophilia: Biosocial Dimensions, ed. Jay R. Feierman. New York: Springer-Verlag, 1990, 488–509. Gladue, Brian A. “Hormones and Neuroendoctrine Factors in Atypical Human Sexual Behavior.” In Pedophilia: Biosocial Dimensions, ed. Jay R. Feierman. New York: Springer-Verlag, 1990, 274–98. Greeley, Andrew M. The Catholic Priest in the United States: Sociological Investigations. Washington, DC: United States Catholic Conference, 1972. Greeley, Andrew M. Priests: A Calling in Crisis. Chicago: University of Chicago Press, 2004. Groth, Nicholas, and H. Jean Birnbaum. “Adult Sexual Orientation and Attraction to Underage Persons.” Archives of Sexual Behavior 7:3(1978): 175–81. Harrill, J. Albert. “The Vice of Slave Dealers in Greco-Roman Society: The Use of a Topos in 1 Timothy 1:10.” Journal of Biblical Literature 118(1999): 97–122. Harrison, R.K. Leviticus: An Introduction and Commentary. Downers Grove, IL: Intervarsity Press, 1980. Irenaeus. Adversus Haereses, 3rd Century. https://archive.org/details/SaintIrenaeus AgainstHeresiesComplete/page/n33. John Chrysostom. On the Priesthood, translated by Patrick Boyle. Westminster, MD: Newman, 1943. John Jay College of Criminal Justice. The Nature and Scope of Sexual Abuse of Minors by Catholic Priests and Deacons in the United States, 1950–2002. Washington, DC: United States Conference of Bishops, 2004. John Jay College of Criminal Justice. The Causes and Context of Sexual Abuse of Minors by Catholic Priests in the United States, 1950–2010, 2011. www.usccb. org/mr/causes-and-contexts.html. John Paul II, Pope. Veritas Splendor, 1993. http://w2.vatican.va/content/john-paulii/en/encyclicals/documents/hf_jp-ii_enc_06081993_veritatis-splendor.html. John Paul II, Pope. Ordinatio Sacerdotalis. http://w2.vatican.va/content/john-paulii/en/apost_letters/1994/documents/hf_jp-ii_apl_19940522_ordinatio-sacerdota lis.html. Kanter, Rosabeth Moss. Men and Women of the Corporation, 2nd Edition. New York: Basic Books, 1993. Keenan, Marie. Child Sexual Abuse and the Catholic Church: Gender, Power, and Organizational Culture. New York: Oxford University Press, 2012. Langevin, Ron. “Who Engages in Sexual Behaviour with Children? Are Clergy Who Commit Sexual Offenses Different from Other Sex Offenders?” In Sexual Abuse in the Catholic Church. Scientific and Legal Perspectives, ed. R. Karl Hanson, Friedeman Pfäfflin, and Manfred Lütz. Vatican City: Libreria Editrice Vaticana, 2004, 24–43. Laumann, Edward O., John H. Gagnon, Robert T. Michael, and Stuart Michaels. The Social Organization of Sexuality: Sexual Practices in the United States. Chicago: University of Chicago Press, 1994. Matza, David. Delinquency and Drift. New York: John Wiley, 1964. McGlone, Gerard J. “Prevalence and Incidence of Roman Catholic Clerical Sex Offenders.” Sexual Addiction and Compulsivity 10(2003): 111–21. McPhail, Ian V., Kevin L. Nunes, Chantal A. Hermann, Rikki Sewell, Edward J. Peacock, Jan Looman, and Yolanda M. Fernandez. “Emotional Congruence with

Stratagems & theological considerations 161 Children: Are Implicit and Explicit Child-Like Self-Concept and Attitude Toward Children Associated with Sexual Offending Against Children?” Archives of Sexual Behavior 47:8(2018): 2241–54. Merton, Robert K. Social Theory and Social Structure, 1968 Enlarged Edition. New York: Free Press, 1968. MHG Forschungsprojekt. Sexueller Missbrauch an Minderjähriger durch katholischer Priester, Diakone und männliche Ordensangehörige im Bereich der Deutschen Bischofskonferenz, 2018, retrieved by its title, June 20, 2019. Morino, Bishop Robert C. “Bishop Robert C. Morino’s Letter to the Faithful Regarding the Ongoing Sexual Abuse Crisis in the Church.” Catholic Herald, August 18, 2018, Madison, WI. Morton, Kelly R., Laura Tanzini, and Jerry W. Lee. “Adult Life Satisfaction and the Role of Forgiveness After Childhood Sexual Abuse: Evidence from a SeventhDay Adventist Cohort.” Journal for the Scientific Study of Religion 58:1(2019): 138–52. Paul VI, Pope. Humanae Vitae. http://w2.vatican.va/content/paul-vi/en/encyclicals/ documents/hf_p-vi_enc_25071968_humanae-vitae.html. Paul VI, Pope. Rescriptum ad litteras Suae Gratiae Rev.mi Doctoris F.D. Coogan, Archiepiscopi Cantuariensis, de sacerdotali mulierum minsiterio, November 30, 1975. http://w2.vatican.va/content/paul-vi/it/letters/1975/documents/hf_p-vi_let_ 19751130_arc-canterbury.html. Pius XI, Pope. Casti Connubii, December 31, 1930. https://w2.vatican.va/content/ pius-xi/en/encyclicals/documents/hf_p-xi_enc_19301231_casti-connubii.html. Pius XII, Pope. Apostolic Constitution Sacramentum Ordinis, November 30, 1947. Potvin, Raymond H., and Antanas Suziedelis. Seminarians in the Sixties: A National Survey. Washington, DC: Center for Applied Research in the Apostolate, 1969. Rind, Bruce. “First Postpubertal Male Same-Sex Sexual Experience in the National Health and Social Life Survey: Current Functioning in Relation to Age at Time of Experience and Partner Age.” Archives of Sexual Behavior 47:6(2018): 1755–68. Rossetti, Stephen J. A Tragic Grace: The Catholic Church and Child Sexual Abuse. Collegeville, MN: Liturgical Press, 1996. Rossetti, Stephen J., and L.M. Lothstein. “Myths of the Child Molester.” In Slayer of the Soul: Child Sexual Abuse and the Catholic Church, ed. Stephen J. Rossetti. Mystic, CT: Twenty-Third Publications, 1990, 9–18. Russell, Jim. “Homosexual Inclination Common Bond to Clergy Sex Abuse.” Church Militant Website, November 20, 2018. www.churchmilitant.com/news/ article/why-clergy-see-abuse-undermines-the-lgbt-community, retrieved February 13, 2019. Scicluna, Charles J. “Sexual Abuse of Children and Young People by Catholic Priests and Religious: Description of the Problem from a Church Perspective.” In Sexual Abuse in the Catholic Church, Scientific and Legal Perspectives, ed. R. Karl Hanson, Friedeman Pfäfflin, and Manfred Lütz. Vatican City: Libreria Editrice Vaticana, 2004, 13–22. Simmel, Georg. Sociology: Inquiries into the Construction of Social Forms, translated by Anthony J. Blasi, Anton K. Jacobs, and Mathew Kanjirathinkal, Vol. 2. Leiden: Brill, 2009 [1908]. Snaith, N.H. Leviticus and Numbers. Camden, NJ: Thomas Nelson, 1967. Sperry, Len. Sex, Priestly Ministry, and the Church. Collegeville, MN: Liturgical Press, 2003.

162  Anthony J. Blasi Sullins, D. Paul. Is Catholic Clergy Sex Abuse Related to Homosexual Priests? Revised paper presented at a meeting organized by the International Center for Law, Life, Faith and Family on Sexually Aggressive Behavior toward Pre and Post Adolescent Males, Seminarians and Adults by Catholic Clergy: Prevention, Evaluation, and Responses, held at Ave Maria School of Law, Naples, FL, September 24–26, 2018. Tallon, J., and K. Terry. “Analyzing Paraphilic Activity, Specialization and Generalizations in Priests Who Sexually Abused Minors.” Criminal Justice and Behavior 35:3(2008): 615–28. Tertullian. De Praescriptione Haereticorum, circa 200. www.tertullian.org/latin/ de_praescriptione_haereticorum.htm. Townsley, Jeremy. “Paul, the Goddess Religions, and Queer Sects: Romans 1:23– 28.” Journal of Biblical Literature 130(2011): 707–28. Vatican II. “The Constitution on the Sacred Liturgy.” In Vatican Council II: The Conciliar and Post Conciliar Documents, ed. Austin Flannery. Northport, NY: Costello, 1975a, 1–37. Vatican II. “Dogmatic Constitution on the Church.” In Vatican Council II: The Conciliar and Post Conciliar Documents, ed. Austin Flannery. Northport, NY: Costello, 1975b, 350–426. Vatican II. “Decree on the Ministry and Life of Priests.” In Vatican Council II: The Conciliar and Post Conciliar Documents, ed. Austin Flannery. Northport, NY: Costello, 1975c, 863–902. Vatican II. “Pastoral Constitution on the Church in the Modern World.” In Vatican Council II: The Conciliar and Post Conciliar Documents, ed. Austin Flannery. Northport, NY: Costello, 1975d, 903–11. Viganò, Archbishop Carlo Maria. Testimony, translated by Diane Montagna, August 22, 2018. www.scribd.com/document/387059640/Carta-en-Inglese#from_ embed, retrieved February 13, 2019. Wilson, Robin J. “Emotional Congruence in Sexual Offender Against Children.” Sexual Abuse: A Journal of Research and Treatment 11:1(1999): 33–47. Wilson, William. Wilson’s Old Testament Word Studies. McLean, VA: MacDonald Publishing, 1981.

6 Canonical response to the sexual abuse crisis in the United States Patricia M. Dugan

The Catholic Church in the United States did not so much respond to the sexual abuse crisis, as react to it, albeit in slow motion. Criminal prosecutions, civil attorneys, victim’s rights groups, politicians, and social media were only a few of the factors that influenced many bishops’ actions once the crisis surfaced publicly. Events, civil lawsuits and criminal prosecutions were the prime movers in the first of many years of dealing with the fall out. Canon law has been and remains the least used tool for bishops and the Church to deal with this crisis. Unfortunately, use of it is often too late, and the passing of time has caused an erosion of what could be used. Before the crisis of sexual abuse of minors by Catholic clerics was exposed as the crisis it is, the Code of Canon Law promulgated in 1917 (The PioBenedictine Code), had first established penal sanctions for delicts against the Sixth Commandment. This first code laid out numerous definitions, among them definitions of terms, crimes, and sanctions. On the whole, this was the first attempt to take canonical tradition and define it. There was a need for canonical concepts to become norms. This was the first attempt at codifying canon law in a single, universal set of canonical norms. In the canonical tradition preceding the code, there was uncertainty in terminology. This first code was going to lay out and define every concept that impacted legal issues within the Church. The Pio-Benedictine Code Book V, “On Delicts and Penalties,” was inspired and based on the canonical tradition voiced eloquently and solemnly in the teachings of the Council of Trent, Canon 2214, Section 2. She shall always have before her eyes the advice of the Council of Trent, sess. 13, on ref, chap 1: Let Bishops and other Ordinaries bear in mind that they are pastors and not prosecutors, and that they ought so to preside over those subject to them so as not to lord it over them, but to love them as children and brethren, and to strive by exhortation and admonition to deter them from what is unlawful that they may not be obliged, should their subjects transgress, to coerce them by due punishments. In regard to those, however, who should happen to sin through frailty, that command of

164  Patricia M. Dugan the Apostle is to be observed: that they reprove, entreat and rebuke them in all kindness since benevolence toward those to be corrected often effects more than severity, exhortation more than threat, and charity more than force. But, if on account of the gravity of the offense there is need of the rod, then it is rigor to be tempered with gentleness, judgment with mercy, and severity with clemency, that discipline, so salutary and necessary for the people, may be preserved without harshness and they who are chastised may be corrected, or if they are unwilling to repent, that others may, by the wholesome example of their punishment be deterred. (1917 Pio-Benedictine Code of Canon Law, canon 2214) The Pio-Benedictine Code included 50 excommunications, 13 suspensions and five interdicts. The canon of introduction to Book V “On Delicts and Penalties” cannot be further from the concept of Zero Tolerance invoked by the United States Catholic Conference of Bishops 95 years later in response to the crisis of sexual abuse of minors by clergy. Zero Tolerance leaves no possibility for redemption of the sinner or his rehabilitation or repentance. The code outlined various penalties as medicinal penalties or censures, vindictive penalties, and penal remedies and penalties. No place in the PioBenedictine Code is there any delineation of delicts specifically for sexual abuse by clergy, or to minors. The Commission for the revision of the code that produced the 1983 Code agreed that, for the Church as a society it was necessary to have ecclesiastical penalties and sanctions, but that any penalties should be limited to the external forum and that the latae senteniae penalties should be fewer in number and used only for the most serious offenses causing the gravest of scandal. In the Codex Iuris Canonici 1983, there are five excommunications reserved to the Holy See and two not reserved to the Holy See, six suspensions, and five personal interdicts. The time when the act in question was committed controls the definition of the crime that may apply. If the act occurred before November 27, 1983, the 1917 Code of Canon Law governs. If the act occurred subsequent to that date, the 1983 Code of Canon Law governs. The offense of sexual abuse of a minor by clergy may have been in the notice of some of the drafters of the code of 1983, but no indication of it is found in the current code. Evidence shows that abuse was happening, but not recognized as being at a crisis level. Once the extent of the sexual abuse cases materialized, it was evident that the abuse cases went back decades, at least as far as the 1960s. Accusations that were dealt with had accused priests sent to treatment and possibly reassigned, depending on the benevolence of the bishop involved. It was not until criminal prosecutions started to take place, and civil law suits against the dioceses and bishops involved were filed, that the Church began to react. Those reactions were fueled by

Canonical response to crisis in the U.S. 165 civil lawyers advising bishops and media coverage of the most egregious accusations. Notice by the Church faithful was taken. The first nationally publicized case in the United States was the 1997 criminal prosecution of Gilbert Gauthe, a priest of the Diocese of Lafayette in Southern Louisiana. Gauthe entered a guilty plea in state court to 11 criminal counts of molesting minor boys. He received a sentence of imprisonment for 20 years, of which he served ten in a Louisiana prison. Gauthe had admitted to abusing 37 children, first beginning after his ordination in 1971. During the prosecution he admitted that he had no real vocation but found the priesthood would give him easy access to countless young children. Gauthe moved to Texas after his release and was jailed there again from 2008 through 2010 for violating Texas sex registry requirements. This case was covered in news around the world, reeking of scandal because of the heinous nature of the abuse and the number of children attacked. It was considered the first widely publicized case of sexual abuse of a minor by a Roman Catholic priest. During the time Gauthe was committing the abuses he pled guilty to, it is alleged that Gauthe’s ordinary, the late Bishop Gerard Frey, was told repeatedly of Gauthe’s abuse and reacted by repeatedly moving Gauthe to different assignments. Gauthe abused boys during every one of those assignments. After several of the accusations were sent to the diocese, Bishop Frey named Gauthe chaplain to the Boy Scouts of the Diocese. No action was taken either criminally or canonically until civil suits against the diocese proliferated. All but one civil plaintiff settled with the diocese for monetary damages. One attorney, J. Minos Simon, refused all settlement offers. Simon’s suit became so extensively publicized that the district attorney was forced to finally bring the 1997 criminal charges against Gauthe. Canon law played little part in returning Gauthe to the lay state. The Congregation for the Doctrine of the Faith viewed a guilty plea in a criminal court of law as an admission of the abuse, and so a process was not necessary in the Gauthe case. This was also true in the next case to have the same extent of media coverage. It was the criminal case against a priest of the Fall River Diocese in Massachusetts. The defendant in that case was the priest named James Porter. He was convicted of molesting 28 children, although he admitted abusing at least 100 children of both sexes during a period of 30 years, starting in the 1960s. By 1963, four sets of parents had complained about Porter to his diocesan superiors. The reaction was to move him to a different parish for assignment. In 1964, Porter was arrested for molesting a 13-year-old boy. Porter was therapeutically institutionalized as a result; after 13 months of treatment, he was released to be assigned to yet another parish. As new allegations of abuse surfaced, he was twice more moved to new parishes where he had access to children. In 1967, he was sent to a religious treatment center for priest abusers. After a few months there he was declared cured and given

166  Patricia M. Dugan parish assignments in Texas, New Mexico, and Minnesota. He had access to children in all of the assignments and continued to abuse children in all of them. In 1973, Porter had still not had any canonical action taken against him. He petitioned for a voluntary return to the lay state. It was granted by the Holy Father in 1974, and Porter subsequently married and fathered four children. Many years later after Porter’s arrest, his son gave statements that Porter had abused him as well. By 1993, dozens of civil lawsuits were in place against the Church and Porter in Minnesota, New Mexico, and Texas. As the result of a plea bargain, Porter pled guilty to more than 200 charges of sexual abuse of a minor and was sentenced to 18 to 20 years in prison. He died in custody in 2005. The Porter criminal case also received extensive media coverage. The Boston Globe published numerous stories on Porter and his crimes; the convictions were covered in national, primetime television investigative reports. It was noted throughout the publicity that Porter had no action taken against him by the Church, but instead had a request for his laicization granted by the Holy See. The more publicity these two cases received, the more accusers came forward to report sexual abuse when they were minors at the hands of Catholic priests. Other names of priest abusers became synonymous with the term “priest pedophile.” In Boston alone, John Geoghan, John Hanlon, Robert V. Gale, James Talbot, S.J., and Paul Shanley were priests exposed as serial abusers and were among the cases investigated by the Boston Globe for its 2002 Spotlight series of news articles, for which the newspaper received a Pulitzer Prize. John Geoghan and Paul Richard Shanley were the most infamous of priest abuse cases publicized. John Geoghan died with appellate cases still pending. In a 30-year period of parish assignments, John Geoghan was accused of sexually abusing more than 130 boys. The Archdiocese of Boston settled pending civil actions by 86 of the alleged abused victims for ten million dollars. Paul Richard Shanley was convicted of rape of one minor boy over many years. His case received a great deal of publicity because Shanley was known for his advocacy for gay rights and because he was convicted on the basis of recovered “repressed memories.” His case was heard by the Massachusetts Supreme Judicial Court, the final Court of Appeal, and they affirmed his conviction. The Shanley case with its allegations of the Boston Archdiocese’s enabling repeated crimes of abuse, and led to the resignation of Boston’s Bernard L. Cardinal Law from his role as Archbishop of Boston. The Cardinal left the United States on the day he was to testify before a grand jury. He arrived in Rome, where he stayed in residence until his death in 2017, never having returned to the United States. In 1998, Pope John Paul II permanently removed Geoghan from ministry as a Catholic priest. Geoghan had struck no plea deals to the hundreds of criminal charges made against him. Prior to one scheduled trial, two accusers chose not to testify. Geoghan’s attorneys fought appeal after appeal

Canonical response to crisis in the U.S. 167 to the highest criminal courts invoking a statute of limitations to overturn two convictions finally obtained against Goeghan in 2002. Geoghan did not apply for a voluntary return to the lay state. He had retired from active ministry in 1993. He was finally convicted criminally in 2002 and sentenced to prison, where he was murdered by his cell mate despite being held in protective custody. Numerous criminal cases and appeals were still active at the time of his murder. In that same year of 2002, the United States Conference of Catholic Bishops (USCCB) decided it should study the problem. It commissioned the John Jay College of Criminal Justice in New York City to conduct a study on the problem of sexual abuse of minors by Catholic priests. Its report was published in print form in 2004 as The Nature and Scope of Sexual Abuse of Minors by Catholic Priests and Deacons in the United States 1950–2002. The bases for the report were surveys taken by all of the United States dioceses. Considering the number of accusations of dioceses and bishops hiding abuse, this basis may not have been prudent. It called into question the seriousness and/or accuracy of what became known as the John Jay Report. The John Jay Report was commissioned to study the problem of sexual abuse of minors by Catholic priests from 1950 through 2002. The report relied heavily on numbers. It broke down how many abusers repeated their abuse how many times. It equated homosexuality in the priesthood to be comparable to society as a whole. One of its main conclusions was that priests who became abusers had been abused themselves early in life. The report was relied upon by many in the Church who defended the Church’s role in covering up the problem. It was highly criticized because of its unreliable data base and lack of concrete conclusions as to why the problem was occurring. The statistics it garnered from its survey of dioceses were informative in a snapshot way, but this lack of insight as to why the abuse was happening rendered the report ineffective and lackluster. The USCCB continued to cite it as if it held groundbreaking insight to the issue of sexual abuse by Catholic priests. Perhaps it gave the bishops solace that the John Jay numbers repeated that the ratio of homosexual priests to the number of homosexual men in society as a whole was equal. Through to 2018, the USCCB, in updating and republishing its Charter for the Protection of Children and Young People, cited the 2004 John Jay Report as a basis for its continued action in the way it was attempting to protect children and young people. While the John Jay Report was being prepared, the USCCB, at its June Plenary Assembly of 2002, set in place the Charter for Protection of Children and Young People (The Charter). The Charter was established to address allegations of sexual abuse of minors by Catholic clergy. The Charter self-proclaimed that it included guidelines for reconciliation, healing, accountability, and prevention of future acts of abuse. It would be revised by the USCCB in 2005, 2011, and 2018.

168  Patricia M. Dugan Concurrent with the release of The Charter but not a part of The Charter, the Conference released its Statement of the Episcopal Commitment and its Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons.1 The final revised edition in 2018 of all three documents was authorized for publication by then General Secretary of the USCCB, Monsignor J. Brian Bransfield: Again, with this 2018 revision of the Charter for the Protection of Children and Young People, we re-affirm our deep commitment to sustain and strengthen a safe environment within the Church for children and youth. We have listened to the profound pain and suffering of those victimized by sexual abuse and will continue to respond to their cries. We have agonized over the sinfulness, the criminality, and the breach of trust perpetrated by some members of the clergy. We have determined as best we can the extent of the problem of this abuse of minors by clergy in our country, as well as its causes and context. We will use what we have learned to strengthen the protection given to the children and young people in our care. (United States Conference of Catholic Bishops 2018) These Essential Norms specifically included sexual abuse with a minor. Having been granted recognition by the Holy See and legitimately promulgated in accord with the practice of the United States Conference of Catholic Bishops on May 5, 2006, the Essential Norms constituted particular law for the United States dioceses and eparchies. The Essential Norms set up a plan to address prior abuse and to curtail if not eliminate future sexual abuse of minors by Catholic priests. Four of the requirements set out by the Bishops impacted the Dioceses and the accused in practical ways, and are discussed in the sections that follow.

Diocesan policies The establishment of a written policy on sexual abuse by clergy and other church personnel. A copy of the policy and any subsequent revisions had to be filed with the USCCB. The policies adopted under this requirement very much mirrored the Essential Norms as a whole and each other. There were no groundbreaking variations from the general terms set out by the USCCB. Diocese after diocese filed them with the USCCB and published them on their diocesan websites, where they remain posted. The policies were not specific, nor did they outline any repercussions or consequences for those a bishop found to be credibly accused of sexually abusing a minor. In the Essential Norms the review board is advisory and the bishop makes the final decisions.

Canonical response to crisis in the U.S. 169

Victim assistance personnel The designation of a competent person to coordinate assistance for the pastoral care of persons claiming to have been abused when they were minors. This requirement did not specify nor even suggest any qualifications for such a “competent person.” There was also no direction on what pastoral care necessities might be, or how else the diocese could make a proven victim whole again. This was one of the few openings for the use of lay people in the process. A vast majority of dioceses appointed lay women to this post and in doing so either sought to utilize this previously untapped resource, or hide behind female skirts in the hopes of garnering some approval by the media. Seventeen years later, women serve as a victim assistance advocate or coordinator in the vast majority of dioceses who actually identify the coordinator by name on their diocesan websites.

Review boards The establishment of a review board to serve as a consultative body to the bishop in discharging his responsibilities. This board is to assess allegations of sexual abuse and advise the bishop of the accused cleric’s suitability for ministry. The board is to review policies for dealing with sexual abuse of minors. The board is to offer advice on all aspects of cases, whether retrospectively or prospectively. The board must consist of at least five persons of outstanding integrity and sound judgment, in full communion with the Catholic Church. One member should be a pastor priest experienced and respected in the diocese. A majority should be laypersons not employed by the diocese. All terms of service on the review board are five-year terms. Of all the articles of the Essential Norms, this one poses the most unanswered questions and lack of specificities. Within the investigation prior to a review by the diocesan review board, the dioceses themselves have a myriad of different procedures. At the diocesan level, the required review boards serve to review accusations and make a non-binding recommendation to the bishop on how to proceed. In practical application, the review boards operate in as many ways as there are dioceses in the United States. Some dioceses require that an accused be given the opportunity to address the review board. Some will not allow the accused, only his advocate, to appear before the review board. Some will require an accused to appear before it to answer its questions but make no argument or present any defense. Some have no requirement for a quorum to be present and/or vote on its recommendation to the bishop. In one case, a review board of 15 members had only three members present to decide on a recommendation concerning an accused. The accused priest was not permitted to attend the meeting or address the review board. Those three members alone voted a recommendation to the bishop.

170  Patricia M. Dugan At the national level, the USCCB has its own review board. At its June plenary assembly in 2002, the USCCB established its National Review Board. The function of the Board was revised and reconfirmed in 2004. The functions of the National Review Board have no canonical implications other than it is particular law to the United States Episcopal Conference. It serves at the pleasure of the USCCB to advise, review, recommend, alert, and inform, as outlined by the USCCB. Its final charge is to “make appropriate recommendations to prevent sexual abuse of minors.” At the June plenary assembly of the USCCB in 2018, National Review Board Chair Francesco Cesareo, Ph.D., delivered a special report to the body of the U.S. bishops regarding the abuse crisis in the Church. Cesareo outlined what he characterized as key reforms, and he urged action on them. The report called for broadening the scope of the Charter on the Protection of Children and Young People to include bishops, the publication of complete lists of credibly accused clergy in all dioceses, improving the audit process, and enhancing accountability for bishops regarding cases of abuse. This report came after the Holy Father’s motu propio Lux Esti Vox Mundi (as discussed later) and the Pennsylvania Grand Jury Report of 2018 which demanded the publication of credibly accused priests as part of its recommendations.

Preliminary investigation There is direction of a preliminary investigation of an accusation. It is to be done in accordance with canon law (CIC, c. 1717, CCEO, c. 1468).2 During the investigation the accused enjoys the presumption of innocence, and all appropriate steps shall be taken to protect his reputation. The accused will be encouraged to retain the assistance of civil and canonical counsel and will be promptly notified of the results of the investigation. When there is evidence that sexual abuse of a minor has occurred, the Congregation for the Doctrine of the Faith shall be notified. The bishop/eparch will then apply the precautionary measures mentioned in CIC, canon 1722, or CCEO, canon 1473—i.e. withdraw the accused from exercising the sacred ministry or any ecclesiastical office of function, impose or prohibit residence in a given place or territory, and prohibit public participation in the Most Holy Eucharist pending the outcome of the process. Both the Codex Iuris Canonici 1983 and these Norms require a preliminary investigation of any accusation of sexual abuse of a minor by a cleric. This investigation direction, like the requirement of a review board, leaves more questions than answers. Despite the encouragement of the presumption of innocence, an accused priest is immediately taken from active ministry, with very little explanation to those to whom he ministers. Some bishops have stopped the cleric’s stipend or even suspended an accused cleric’s medical insurance coverage pending a final disposition. This move in particular by a bishop would prohibit a cleric from continuing or obtaining counseling

Canonical response to crisis in the U.S. 171 for any underlying illness, or for help needed to cope with the stress of the accusation and being suspended from his ministry and his vocation. Most accused clerics cannot afford to retain canonical counsel, especially where they may need to retain legal counsel to defend against criminal prosecution. If a diocese provides a canonical advocate for the accused cleric, it is usually not an advocate of the cleric’s choosing. Some dioceses mandate that an advocate may not be from the same diocese as the accused priest. Some require that the advocate must be from the same diocese as the accused cleric. There are expenses involved in providing a canonical defense to an accusation of sexual abuse. Psychological evaluations ordered by a bishop are usually done by an evaluator chosen by the bishop. The accused cleric may need or choose to have an evaluation performed by a second evaluator, and the diocese seldom provides the expense of that. Questions abound as to whether or not a bishop can order any cleric to participate in a psychological evaluation. Who is entitled to see such an evaluation and for how long may it be kept in the cleric’s file? Today some of the most used evaluation facilities (by bishops) require the accused to take a polygraph test in order to be evaluated. The test itself, as well as the qualifications to give the test accurately, seem not to be a consideration in this policy. If the accused cleric can retain canonical counsel, that may not be acceptable to the bishop involved. Some bishops have refused to accept the mandate of an advocate without any explanation to the accused or the advocate. There is an appeal that can be made to the Congregation for the Doctrine of the Faith in the Vatican on that issue. Then the advocate becomes the issue, the case is extended until the CDF replies, and the accused and the advocate run the risk of antagonizing the bishop who will make a decision on the accusation. There is no guarantee that an accused cleric will ever know the name of his accuser. Details are often not provided even as to the time or place. A preliminary investigation has the ability to end an accusation where it is deficient of facts. For example, when an accused never served as parish priest in the parish where it is alleged that prolonged abuse occurred, or where abuse is alleged on a school trip that the school never organized. It is obviously possible for an accused to discern who his accuser is, if the accused committed the abuse. But that is certainly not always the case. Most secular law requires that the accused have the right to face his accuser. That may not be pastoral or possible in some cases. But unless the basic four corners of an accusation are made known to an accused, adequate defense of the accusation is not possible. When someone accuses a cleric of sexual abuse there is no guarantee, canonical or pastoral, that he or she will ever know the outcome of that accusation. There is no provision for this in canon law or in particular law. Their cooperation is required in the most personal and intimate ways, and still they may never feel as if they received justice in the Church. This alone could be at the heart of many of the civil law suits the Church faces for this

172  Patricia M. Dugan sexual abuse. Most clerics have no significant resources to satisfy a monetary judgment against them in a civil court, and often the cleric chooses not to defend himself civilly because he is judgment proof. But Church pockets are considered deep and endlessly full, and the only place for proven victims to finally get some semblance of justice. Vos Estis Lux Mundi The most important action taken by the Holy See in response to the clergy sexual abuse crisis occurred on May 7, 2019, 17 years after the Boston Globe’s Pulitzer Prize-winning series of articles. It was the issuance of an Apostolic Letter issued motu proprio by the Holy Father Pope Francis (2019), entitled Vos Estis Lux Mundi (VELM). As a motu proprio, VELM was issued by the Holy Father on his own initiative. It became effective June 1, 2019 and remains approved ad experimentum for three years. This action had been alluded to by the Holy Father at the February conference on the protection of minors, held in Rome by the Holy See. It is a new set of norms on handling sex abuse and included procedures for handling accusations against bishops. Prior to this, the Holy Father had asked the USCCB to delay further legislation of particular law in an effort to not have it conflict with or contradict the coming action of the Holy See. VELM was initiated and acted upon by the pope, directly from his hand. It was the first such action on sexual abuse of minors, and its result is the setting out of universal law for every diocese around the world to follow. It lays out procedures regarding all claims involving sexual abuse. The fact that this step was taken is enormous just in the promulgation of the document as universal law. VELM starts with the mandate that all dioceses create a system for the reporting of any claim of sexual abuse. Through this document, the Church’s scope of abuse was widened to include vulnerable adults and people who had been intimidated or pressured to engage in sexual acts as potential victims. The letter also widened the definition of abuse under Church law. It concretely identified the possession or distribution of child pornography as abuse in the Universal Church. And, finally, the letter identified as abusive the misconduct and the cover-up of sexual misconduct committed by cardinals, bishops, and heads of religious orders. The sum and substance of these norms held that any cleric or member of an institute of consecrated life or a society of apostolic life, in a case of action against the Sixth Commandment of the Decalogue is subject to action. The act that is the causation is an act of violence or the threat of violence or through the abuse of authority forces a minor or vulnerable person to perform sexual acts. VELM specifically identifies pornography as the production, exhibition possession, or distribution, including by electronic means, of child pornography, and holds it to be a delict. It also names the offense of grooming by

Canonical response to crisis in the U.S. 173 defining it as an offense to recruit or induce a minor or vulnerable person to participate in pornographic exhibition(s). VELM’s final identification of a crime is that of performing acts or omissions intended to interfere with or avoid civil investigations or canonical investigations, whether administrative or penal, against a cleric or a religious, regarding the delicts against the Sixth Commandment. Up until this point, once secular law, civil or criminal, was in process in response to an allegation, there had been no publicized cover-up by any Church official in the United States. Any interference could be interpreted as the crime of obstruction of justice. The first allegations against bishops since VELM had been promulgated occurred prior to the activities of secular law and civil government in identifying and proceeding on allegations of sexual abuse against a cleric. Once the secular authorities started a civil or criminal process, the Church officials suspended its canonical process until the secular process had been concluded. The benefit of this to a diocese was receiving the results of the secular investigation that could be incorporated into the Church process. When a secular process resulted in a criminal guilty plea by a cleric, the practice of the Congregation for the Doctrine of the Faith was to view that as a canonical admission of guilt and act accordingly to dismiss the priest. VELM established a specific system of reporting an allegation. First, by June 1, 2020, every diocese in the world must establish one or more public, stable, and easily accessible systems for submission of reports, even if it meant the institution of a specific ecclesiastical office. The relevant pontifical representative is to be notified when the system is in place. Jurisdiction is outlined so that the ordinary who receives the allegation must transmit it “without delay” to the ordinary where the delict is alleged to have occurred, and also to the ordinary of the person against whom the allegation is made. Articles three and four of VELM emphasize the initial reporting of the complaint. Any person can submit one, and it is encouraged that the reporter includes as many facts as possible concerning any incident of the complaint. Making an allegation is not a violation of office confidentiality, and an obligation to keep silent in light of a complaint may not be imposed on any person in relation to the allegation. The protection of the person making a report is given utmost priority by the Holy Father in Article Five. When people report an allegation, they are to be welcomed, listened to, and supported by the diocesan personnel. Spiritual assistance must be offered to the reporter. Medical assistance including therapy and psychological assistance must be offered and provided. And most importantly to the Holy Father’s purposes here, the good name and the privacy of the persons involved, as well as the confidentiality of their personal information, must be protected. Title Two of VELM is most stunning and deals with complaints of offenses against cardinals, patriarchs, bishops, and legates of the Roman Pontiff. These are named as the pastoral heads of a particular church who

174  Patricia M. Dugan are alleged to have committed delicts or cover-ups during their term of office (durante munere). In addition, jurisdiction is taken for acts alleged by the past or present leaders of a personal prelature, and the supreme moderators of institutes of consecrated life or societies of apostolic life of pontifical right. The recognition here of the possibility of persons of authority committing delicts is groundbreaking in the Church. Setting out a specific procedure to deal with such allegations is equally novel and impactful. The procedure against a person under this title begins with an allegation against such a person. A report of the allegation is transmitted to the metropolitan where the accused is domiciled. That report is also sent immediately to the Holy See. The metropolitan to the accused immediately requests from the competent dicastery that he be assigned to begin an investigation of the accusation. That dicastery has 30 days in which to respond to the metropolitan’s request and include any appropriate instructions on proceeding. If the metropolitan considers the accusation to be completely unfounded, the metropolitan informs the pontifical representative of that fact. An investigation must take place either by the metropolitan or another person entrusted by the appointing dicastery. The metropolitan is free to utilize the assistance of qualified persons free of conflicts of interest. When making use of another investigator, the metropolitan is still responsible for the direction and conduct of the investigation, as well as its timely completion. The metropolitan is to take measures to assure the presumption of innocence of the accused. Every 30 days, the metropolitan must send a status report on the state of the investigation to the competent dicastery. The investigation is to be completed within 90 days if not otherwise directed by the competent dicastery. VELM acknowledges that this type of investigation sustains expenses. The ecclesiastical provinces, episcopal conferences, synods of bishops, and councils of hierarchs may create a fund along with an administrator to pay out the funds requested by the metropolitan through an accounting at the end of the investigation. Once the metropolitan concludes his investigation, he must transmit the acts to the competent dicastery along with his votum regarding the results of the investigation and in response to the queries made by the competent dicastery in the initial assignment of the metropolitan to open the investigation. The investigatory faculties of the metropolitan cease once the investigation is complete. The metropolitan, upon request, informs the person who made the allegation of an offense or the accuser’s legal representative, of the outcome of the investigation. As plentiful as the accolades were for VELM, criticisms were made as well. VELM’s procedures still have bishops investigating bishops. And under these procedures, the bishops, being from the same episcopal conference, undoubtedly know one another. There is no specific mention of lay involvement in the bishops’ process. The only possible use of lay people is in the investigation by the metropolitan that allows for use of qualified experts.

Canonical response to crisis in the U.S. 175 There is no removal from ministry pending the investigation, unlike the use of that suspension in complaints against mere clerics. The concept of “zero tolerance” has not held a place in this procedure so far. There are no consequences outlined in VELM, and this belies transparency. It is the competent dicastery in Rome that ultimately decides the action to be taken against a bishop or comparable Church leader. The metropolitan may (not must) tell the accuser of the outcome of his investigation, upon request, but there is no continuation through to the finding and decision of the competent dicastery. The first case under VELM involving an accusation against a bishop was assigned in September 2019, for investigation to a metropolitan, Archbishop Bernard Hebda, who is dual-degreed as both a canon lawyer and a civil lawyer. The charges are against the Very Reverend Michael Hoeppner of the Diocese of Crookston, Minnesota. The main accusation against Bishop Hoeppner is that he thwarted a police investigation of clerical sexual misconduct in his diocese. The case has received a great deal of media coverage and created a high degree of scandal, not just because of its being the first case under VELM but because of the details of the allegation. It allegedly involved actions by the bishop taken against a deacon candidate in his last year of formation. This man was the father of a priest in the diocese; details suggest that there was an abuse of power in that threats were made against the priest to get his father to recant his allegation of sexual abuse that he had suffered. This, together with the publicity on cases that did not come under VELM, most notably the allegations against Theodore Cardinal McCarrick, shows how necessary it had become for the Church to take action in cases involving cover-ups and abuse of authority. In what would have been the second case under VELM, Timothy Cardinal Dolan of New York requested assignment to investigate allegations made against the Very Reverend Richard J. Malone, Bishop of Buffalo, New York. The media had indicated that any investigation of Bishop Malone would review conversations secretly recorded by Bishop Malone’s priest secretary. The salacious nature of the underlying accusation could also involve the possible sexual misconduct of that secretary. The Holy See ignored its VELM protocols and did not authorize Cardinal Dolan’s request to be an investigation as mandated in VELM. In both the cases of Bishop Hoeppner and Bishop Malone, neither bishop stepped down nor been required to, pending the investigations they faced. Bishop Hoeppner has remained silent on this issue. On September 4, 2019, Bishop Malone held a press conference and stated that the majority of priests and parishioners in the diocese supported him and he would not resign over his actions involving cases of sexual abuse of minors by clergy in Buffalo. “I go out to parishes and schools all the time for visits. I am always well received when I go . . . I do feel enough support, honestly to continue on,” Bishop Malone told reporters. This issue of not resigning created immense scandal, and many of the faithful signed and published petitions to force the resignations of these bishops.

176  Patricia M. Dugan Despite its highly publicized, newly minted protocol in VELM, the Holy See did not approve Cardinal Dolan’s request of an investigation of Bishop Malone, and it did so without any explanation or clarification. It ignored VELM and instead initiated an Apostolic Visitation of the Buffalo Diocese, headed, not by Cardinal Dolan, but by Bishop Nicholas DiMarzio of the Diocese of Brooklyn and Queens, New York. An Apostolic Visitation is conducted under the auspices of the Holy See and is initiated in exceptional circumstances. The purpose is to evaluate the ecclesiastical institute and assist the institute being examined to improve the way that it carries out its function in the life of the Church. The Apostolic Visitation is neither judicial nor administrative. In a statement on this Apostolic Visitation, the Apostolic Nuncio to the United States described the visitation as a “fact-finding mission.” The Apostolic Visitation by Bishop DiMarzio was conducted over seven days, and finished just before the ad limina on November 14, involving New York, New Jersey, and Pennsylvania when both Bishops Malone and DiMarzio would be in attendance. During that ad limina Bishop Malone was made aware of the contents of the final report submitted by Bishop DiMarzio. Bishop Malone submitted his resignation to the Holy See while in Rome for the ad limina, and it was accepted December 4, 2019. The report has not been made public and no comment has been made by the Holy See concerning Bishop Malone’s resignation. Why VELM was not used in Buffalo remains a mystery and, at best, causes confusion of when the Holy See will initiate the use of VELM and when it will not. As metropolitan, Cardinal Dolan could be investigating another highly publicized accusation against retired Bishop Howard Hubbard of the Diocese of Albany, New York. Bishop Hubbard stands accused of abusing a 16-year-old male in the 1990s, an allegation Bishop Hubbard denies. Before Buffalo, there was no doubt but that VELM would be applied to allegations against a bishop. Now, that is not predictable. The only possible light at the end of the tunnel in Crookston, the only active VELM case, is if the matter proceeds quickly at the metropolitan level and the competent dicastery level, and that the final determination by the competent dicastery is made public so that all of the faithful can see this procedure play out. Quietly telling the investigation result to the accuser or their representative if they request it is not enough to counterbalance these scandals. To win back the faithful assaulted by the facts of these allegations, complete transparency must take place. When actually used, VELM can make a strong start toward prosecuting the allegations involving Bishops, but the scandal surrounding any such accusation, requires more from the Holy See and Church leaders.

Possible solution: national penal tribunal For many years the possibility of a U.S. National Penal Tribunal has been discussed and outlined by canonists. It remains the most practical alternative to the sexual abuse crisis and is practical in the United States for many reasons.

Canonical response to crisis in the U.S. 177 Many dioceses can be crushed by the expenses involved in a penal case. The more accusations they need to sort out, the more expensive the canonical procedure becomes for the diocese. A national penal tribunal would be an opportunity to pool resources to proceed with an investigation and process in a shorter time frame. Consolidating resources on the personnel level would be a huge advantage to every diocese. No ordinary or canon lawyer, professor, theologian, or philosopher anticipated this crisis. Until it developed, penal law was the least-used part of canon law. Judges, promoters of justice, and advocates, who are all intrinsic to the penal process, were not prepared to participate in it. Many who are asked to participate are still now not prepared. There is a dearth of qualified personnel willing to work with the penal process. A national penal tribunal would assemble qualified canonists who were willing to work with penal law and penal processes and provide an opportunity to train them to serve in a consistent manner. This could also involve more participation by the laity, thus bringing a different perspective to the work and freeing up priest canonists whose dioceses need them more for pastoral ministry and education. A national penal tribunal would result in consistent application of the relevant law, consistent judgments using that law, and consistent results in consequences and sentences. One case in Pennsylvania that did not go through a canonical procedure involved an accuser who made 85 accusations against almost as many accused (some he accused twice). He had been incarcerated as a juvenile and had been kept in several juvenile facilities. He made accusations against guards, administrators, therapists, and chaplains in each of these facilities. He made the accusations by filing pro se civil complaints for money against each of the accused. The clerk of the federal district court with jurisdiction banned any more pro se filings from the accuser when his total cases filed reached 85. One of those accused was a Catholic priest. It was a full year after the accusation against the priest that the breadth of this accuser’s mayhem was realized. If the people involved were experienced investigators with better resources, perhaps the patterns would have been identified earlier. There have also been priests who have multiple accusations made against them in various dioceses and in different countries. That necessitates experienced investigators to assemble facts. When the secular law is involved in investigating such accusers and accused, the investigation assists any canonical process when the results are shared. Having cases and files consolidated according to accuser and accused would be facilitated and more accurate if the investigation was centered in one place or jurisdiction. National and regional tribunals are being embraced outside of the United States. The Holy See has given the Netherlands authorization to erect a national tribunal for penal cases. The same has happened with the Regional Tribunal of Toronto, Canada. The Canadian Appellate Tribunal has functioned as a national tribunal for marriage cases. So has the Scottish Interdiocesan Tribunal. The Canon Law Society of America, at its 2019 Annual Conference, voted overwhelmingly to perform a feasibility study of a national penal tribunal in the United States.

178  Patricia M. Dugan Some canonists and bishops see two negative aspects in a national penal tribunal. The first is the removal of the process from hierarchical hands. No one Church leader would have power over the tribunal. This may not be a bad thing. It would take the bishops et al out of a process they disdain at best and fear at worst. If a national penal tribunal were used under VELM, it would entail a complete removal of bishops investigating other bishops they know from their episcopal conference. It would eliminate the appearance and scandal of a lack of favoritism and conflicts of interests. Second, a national penal tribunal would require a much higher level of transparency if indeed any transparency exists now. It would be ridiculous to assemble a national tribunal with all the time effort and money that entails, only to have its work hidden and secret. This would be the opportunity the Church needs to fully embrace transparency and prove to the faithful lost in this crisis that they should come home. Unless something more radical than VELM is done and done soon, those disheartened faithful will never come home.

A short chronology of sexual abuse of minors by catholic clergy in the U. S. A. 1917 The first Codex Iuris Canonici, promulgated in 1917, established canonical sanctions for delicts against the Sixth Commandment. March 16, 1962 The instruction Crimen Solicitationis established a manner of proceeding in such cases. Judicial competence had been attributed exclusively to the Congregation of the Holy Office (later the Congregation for the Doctrine of the Faith), and that competence, it was stated, should be executed either administratively or through a judicial process. August 15, 1967 Regimin Ecclesiae Universae confirmed the judicial and administrative competence of the Congregation of the Holy Office and designated that it proceed in these cases according to its amended and approved norms. 1973 Cleric James Porter of Fall River, Massachusetts, requested a voluntary, canonical return to the lay state. In 1995, the first arrest and conviction of former cleric Porter took place and, after an appeal, a second arrest and conviction of Porter resulted in a sentence of imprisonment of 18 to 20 years. The 1995 conviction made this one of the most sensational cases of sexual abuse of children ever in the United States, and the media covered it extensively. June 28, 1988 By the authority of the Apostolic Constitution Pastor Bonus, it was expressly established that “the Congregation for the Doctrine of the Faith examines delicts against the faith and more grave delicts whether against morals or committed in the celebration of the sacraments, which have been referred to it and, whenever necessary,

Canonical response to crisis in the U.S. 179 proceeds to declare or impose canonical sanctions according to the norm of both common or proper law.” 1997 The criminal prosecution of Gilbert Gauthe in Louisiana is reported. Gauthe entered a guilty plea in state court to the sexual abuse of 11 minor boys. This case received as much media coverage as would the Porter case and caused the first great outrage and backlash against the Catholic Church. 1998 Pope John Paull II permanently removed Boston Catholic cleric John Geoghan from the priesthood. Geoghan had retired from active ministry in 1993. He would be convicted criminally in 2002 and sentenced to prison, where he was murdered by his cell mate. Numerous criminal cases and appeals concerning him were still active at the time of his death. April 30, 2001 The apostolic letter issued motu proprio promulgated The Norms Concerning the More Grave Delicts Reserved to the Congregation for the Doctrine of the Faith (Sacramentorum Sanctitatis Tutela). These norms consisted of two parts, The Substantive Norms and The Procedural Norms. 2002 The Boston Globe published a series of articles concerning sexual abuse of minors by Catholic clerics and received a Pulitzer Prize for its work. In Boston, John Geoghan, John Hanlon, Robert V. Gale, James Talbot, S.J., and Paul Shanley, all Catholic clerics, were exposed as serial abusers and were among the cases investigated by the Globe. 2002 The United States Catholic Conference of Bishops (USCCB) commissioned the John Jay College of Criminal Justice in New York City “to conduct a study on the problem of sexual abuse of minors by Catholic priests.” Its findings would be published in a report in 2004. June, 2002 The USCCB, at its regular June plenary assembly, set in place the Charter for Protection of Children and Young People (The Charter). Concurrent with the release of The Charter but not a part of The Charter, the Conference released its Statement of the Episcopal Commitment and its Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons. June, 2002 The USCCB established its National Review Board of advisers “to make appropriate recommendations to prevent sexual abuse of minors.” December 13, 2002 Bernard Cardinal Law resigned as ordinary of the Catholic Church in Boston. On the day he was due to testify at a deposition in a civil case for which he was subpoenaed, Law traveled to Rome where he stayed until his death on December 12, 2017. June, 2004 The function of the National Review Board was minimally revised and reconfirmed by the USCCB at its June plenary assembly.

180  Patricia M. Dugan July, 2004 The Archdiocese of Portland, Oregon became the first diocese in the United States to declare bankruptcy because of civil claims of sexual abuse by a cleric. Bankruptcy filings have continued. June, 2005 The USCCB revised its Charter for the Protection of Children and Young People at its June plenary assembly. 2005 The first grand jury investigation by a grand jury in Pennsylvania was carried out, focusing on Philadelphia clergy. No convictions resulted from that investigation. May 5, 2006 The USCCB Essential Norms were granted recognition by the Holy See and legitimately promulgated in accord with the practice of the United States Conference of Catholic Bishops. They constituted particular law for the United States dioceses and eparchies. 2011 Another grand jury report was published concerning Catholic clergy in Philadelphia, Pennsylvania. It resulted in the conviction of three clergy perpetrators. More importantly, it resulted in the conviction of Monsignor William Lynn, who became the first official to be convicted in the United States of covering up sexual abuses by other priests in his charge. Other senior church officials were extensively criticized in the media for their management of the issue in the archdiocese. The criminal case against Lynn became complicated through the appeal process and at one point, even though not convicted at the time, Lynn was denied bond and was imprisoned for 33 months. June 2011 The USCCB revised its Charter for the Protection of Children and Young People at its June plenary assembly. March 22, 2014 Pope Francis instituted the Pontifical Commission for the Protection of Minors. It is chaired by Boston’s Cardinal Archbishop, Sean Cardinal O’Malley, O.F.M.Cap. From 2016 through 2018 A Pennsylvania grand jury investigated sexual abuse of minors by Catholic clergy in six of the eight dioceses in the state. The dioceses of Philadelphia and Altoona-Johnstown were not included, as they had been the subjects of earlier investigations. Prior to the release of the report in August 2018, six bishops pledged future cooperation in investigating such sexual abuse of minors and published the names of the credibly accused priests of their respective dioceses. When it was released, the report named several bishops as having helped cover-up complaints of abusive priests. June 2018 The USCCB revised its Charter for the Protection of Children and Young People at its June plenary assembly. February 21–24, 2019 The Meeting on the Protection of Minors was held in Rome and sponsored by the Holy See. March 29, 2019 Pope Francis issued new laws and guidelines on the protection of minors for those working within Vatican City and the Roman Curia, including the obligation to report abuse. May 9, 2019 Pope Francis releases the apostolic letter issued motu proprio, Vos Estis Lux Mundi, which included new law for the investigation of clergy abuse and any facilitation of it by bishops.

Canonical response to crisis in the U.S. 181 September 10, 2019 Bishop Michael Hoeppner of Crookston, Minneapolis becomes the first sitting U.S. bishop to be investigated under the new misconduct protocols of VELM. September 12, 2019 The Diocese of Rochester, New York declares bankruptcy and becomes the twentieth diocese in the United States to so. November 4, 2019 Bishop Bernard Hebda submits the first VELM investigation report of Bishop Michael Hoeppner to the Holy See.

Notes 1 Throughout the official documents, there are parallel references to the dioceses under the rules, or canons, for the Latin Rite and the eparchies under the rules, or canons, for the Eastern Rite. 2 The abbreviations are to the 1983 Codex Iuris Canonici for the Latin Rite and the Codex Canonum Ecclesiarum Orientalium for the Eastern Rite.

References 1917 Pio-Benedictine Code of Canon Law. In English Translation, ed. Edward Peters. San Francisco: Ignatius Press, 2001. Francis, Pope. Vos Estis Lux Mundi. Vatican City: Libreria Editrice Vaticana, 2019. http://w2.vatican.va/content/francesco/en/motu_proprio/documents/papa-franc esco-motu-proprio-20190507_vos-estis-lux-mundi.html. United States Conference of Catholic Bishops. Promise to Protect: Pledge to Heal. Charter for the Protection of Children and Young People and the Essential Norms. Washington, DC: United States Conference of Catholic Bishops, 2018.

7 Tort liability and representations of religious authority in clergy sex abuse litigation Nicolás Zambrana-Tévar Introduction: liability for sex abuse in the different areas of the law The liability of religious entities for acts of sex abuse by clergy may be examined under different areas of the law: tort law, criminal law, administrative law (Deutscher Bundestag 2010, 3), and even the international law of human rights (Cismas 2017, 311). This chapter will only deal with tort or civil liability of local Christian churches, with the focus on the Catholic Church. Nevertheless, similar cases may also be found in other religions (2019, ESP-12). Tort litigation has been the preferred mechanism chosen by victims to obtain redress. One reason may be that statutes of limitation in criminal law are considerably shorter, so criminal prosecution may be foreclosed in many cases, where the acts of sex abuse had taken place years or decades before the victim reported the facts. Furthermore, given that clergy sex abuse litigation focuses on the liability of ecclesiastics and Church entities, tort law is a much better venue to examine the perception of religious authority by state courts. Although some courts have also considered the responsibility of the government, as well as the responsibility of those educational institutions where acts of sex abuse by clergy took place, this is not going to be a central aspect of this chapter. The very few cases where the Holy See has been named as a defendant in civil proceedings will not be examined either, as the main issue in them is not liability but immunity from jurisdiction (Zambrana 2020). The personal liability of abusing priests for their own acts of sex abuse may fall, in common law jurisdictions, under torts such as assault or battery. However, since priests do not usually own any significant amount of assets with which to compensate the victim, the diocese where the priest was incardinated or the religious order he was a member of are usually named in the lawsuit too, solely or as codefendants, to answer jointly or subsidiarily. Where Church entities are sued for their own acts, claimants try to establish that the Church was negligent in hiring, retaining, or supervising the priest, minister, or Church employee and that the act of sex abuse occurred

Liability & authority in sex abuse litigation 183 as a result of their negligence. Additionally, allegations that the victim or their parents complained to the bishop or to other Church authorities but their complaints were unduly turned down and the complainants harassed may lead to claims of intentional infliction of emotional distress or simply moral harm. Allegations of cover-up can result in claims for fraudulent concealment or misrepresentation, if Church authorities falsely denied any knowledge of the acts of sex abuse. Finally, and also in common law jurisdictions, if the victim proves that there was a special relationship of trust between the victim and the Church entity—not necessarily between the victim and the abusing priest—and that because of that relationship the Church had a special discretionary obligation to protect the victim and profited to some extent from that relationship, Church entities may also be liable for breach of their fiduciary duties. With respect to liability for the acts of others, common law courts— especially outside the United States—have applied principles such as respondeat superior and other vicarious liability principles, alleging in different ways that the bishop, the diocese or the religious order should respond for the harmful acts of the abusing priest as their subordinate under canon law or simply considering that it was the Church entity that had ordained and appointed him, supervised him, and maintained him and that the priest “worked” for its benefit. Liability under the law of agency may also be a possibility if the priest can be characterized as an agent for the diocese who acts on its behalf in the eyes of Church members or society at large. In the civil law world, in addition to the general principle that wrongful harm must be compensated by the wrongdoer, civil codes usually contain a relatively short list of cases where the harmful acts of certain individuals may be attributed to those with some control or responsibility over them, so that they are jointly or subsidiarily liable for those acts. These lists may include parental liability for the acts of their children (traditionally absent in the common law), the liability of owners for the acts of their animals or things of their property, or the liability of employers for the acts of their employees. Judges in civil law jurisdictions have been much more flexible and creative than common law courts when applying by analogy these short lists of cases to any scenario where they considered fair that someone respond for the acts of others. Another important difference is that in the common law world, vicarious liability is a form of strict liability, i.e., there is generally no need to prove the fault of the individual or entity considered vicariously liable, only the liability of the tortfeasor under the rules of the specific tort committed, which may include intentionality or fault. In civil law jurisdictions, fault used to be the cornerstone of the whole system of civil wrongs, and this is still reflected in the fact that judges may give at least some consideration to the degree of diligence with which, for instance, parents or employers supervised the actual tortfeasor.

184  Nicolás Zambrana-Tévar

Religious authority and clergy sex abuse litigation Religious authority, as well as the perception of religious authority by plaintiffs and state courts, has been essential in many findings of direct and indirect liability in cases of sex abuse committed by clergy of several denominations, be they Catholic or Anglican priests, Presbyterian ministers or Pentecostal pastors. Manifestations of such authority, as perceived by courts, are the appointing, training, and supervisory authority of Catholic bishops or religious superiors (e.g., CIC §§381 et seq, §§556 et seq), or any supposed authority of clergy over laypersons. In a way that is not far from the general tendency in the law of civil wrongs, the underlying rationale of state courts has been that the Church could have avoided sex abuse by clergy with better supervision or simply by not vesting clergy with an authority they could abuse. If the Church chose not do so, it must pay for it. This chapter makes use of case law to observe the perception, by state courts, of religious authority and control in several Christian denominations. Authority is here defined in its Weberian sense as imperative legitimate control—the capacity to make others follow a mandate issued by whoever holds authority, without having recourse to coercive power (Bartholomew 1981, 119). Religious authority in the Catholic Church is established by Christ as provided by Church doctrine and Church law in order to fulfil the Church’s mission of salvation through teaching, sanctifying, and governing, i.e., organizing and coordinating the celebration of sacraments as well as teaching and charity activities (Catechism §§874 et seq.). Although the socalled power of orders and power of governance (CIC §§129 et seq) require the sacrament of priesthood, it may be said that ordinary Christians do hold a degree of religious authority for that same mission, granted by the sacrament of baptism (Catechism §§901 et seq.). For the analysis of religious authority, courts often rely on very basic or even superficial readings of religious norms and doctrinal texts. Alternatively, courts take a “sociological approach,” asking themselves how priests are perceived by those with whom they interact. In general, courts usually disregard the nature and origin of religious authority and focus on their apparent effects, i.e., the submission of the victim to the desires of the sexual aggressor.

The United States: direct liability and constitutional issues Although the U.S. belongs to the common law tradition and its tort law is relatively similar to that of other common law jurisdictions, the approach taken by U.S. state courts has been relatively different, favoring the application of principles of direct liability (Moses, US-4). For a finding of negligent hiring, supervision or retention of an abusing priest, claimants had to prove that there was a causal connection between the lack of reasonable care of the diocese and the harm, that the harm was foreseeable, and that there

Liability & authority in sex abuse litigation 185 was a special relationship between the diocese and the priest or between the diocese and the victim. Claimants have made use of Diocesan files and records facilitated by U.S. wide discovery rules to prove that dioceses were aware of the risk of abuse, especially in those cases where there had been prior allegations against a specific priest. Furthermore, claimants have also maintained that any supervisory and organizational authority of bishops over the priests of their diocese was evidence of the abovementioned special relationship between the diocese and the priest. Furthermore, claimants may argue that the diocese is liable because it knew of the propensities of the priest and did nothing or, if the diocese did not know about the priest’s inclinations, the claim may be based on negligence to properly supervise priests or seminarians (O’Reilly and Chalmers 2014, 43). It is difficult to assess quantitatively how successful these claims for negligence have been in the U.S. (Lytton 2008, 58). Other common theories of liability discussed before U.S. courts have been breach of fiduciary duty, ratification, and racketeering. Claimants have often contended that a bishop owes Catholics in his diocese a fiduciary duty because they, as principals, place their trust in the bishop as a fiduciary who has an obligation to act for the benefit of the principal. Claimants have sometimes succeeded in proving that the bishop had breached his fiduciary duty when the act of sex abuse took place because the bishop had knowledge of the priest’s record of sex abuse but failed to act accordingly (Martinelli, US-11). Under the theory of ratification, liability can be imposed on employers who adopt, confirm, or do not repudiate the unlawful acts of an employee, with due knowledge of the employer (DeBose, US-7). Vicarious liability in the U.S. requires not only the existence of an employment relationship but a finding that the tortious acts of the employee were within the scope of his employment. However, U.S. courts have been reluctant to conclude that acts of sex abuse could in any way be part of the scope of employment of a priest or a minister. Exceptionally, in Fearing v Bucher (US-10), the Oregon Supreme Court held that there was vicarious liability for an intentional tort because “the sexual assaults were the culmination of a progressive series of actions that began and continued to involve Bucher’s performance of the ordinary and authorized duties of a priest.” The priest’s pastoral duties “were a necessary precursor to the sexual abuse and . . . the assaults thus were a direct outgrowth of and were engendered by conduct within the scope” of the priest’s employment. Another difference between clergy sex abuse litigation in the U.S. and elsewhere is that U.S. courts have extensively dealt with constitutional issues (Lupu and Tuttle 2004, 1789) derived from the “constitutional clauses” of the First Amendment of the U.S. Constitution: the Establishment Clause and the Free Exercise Clause (Gibson, US-8). This issue has not really arisen in other courts in either common law or civil law jurisdictions, except in an early Belgian court decision (BEL-1).

186  Nicolás Zambrana-Tévar In this regard, especially during the 1980s and 90s, U.S. state courts manifested their fears that digging too deeply into the organizational structure of religious groups, their doctrine, and religious norms may go against the “wall” of separation of church and state as well as against freedom of religion. U.S. courts have sometimes held that deciding about the possible negligent behavior of a bishop in the discharge of his canon law obligations to recruit, train, supervise, and discipline priests may be meddling into the internal affairs of a religious group. Additionally, there has been fear that examining what those supervisory and disciplining obligations were could only be done with a thorough analysis of Church doctrine and canon law, for which state courts are poorly equipped and which might turn them into veritable ecclesiastical tribunals. Thus, for instance, the creation of a tort of clergy malpractice—analogous, for instance, to the tort of medical malpractice—has been ruled out (Destefano, US-3). However, when dealing with contractual and especially property issues in a religious context, U.S. courts have usually concluded that they could apply “neutral principles” to the obligations and alleged negligence of religious entities (Bivin, US-6). In cases of sex abuse by clergy, this meant that even without examining the deeply religious meaning of the relationship between bishop and priest, a diocese could be held liable if the elements of, for instance, the tort of negligence could be proved by reference to common obligations of employers and caretakers (Smith, US-9). With respect to the description of the nature and scope of religious authority, U.S. courts are quite succinct and do not engage in discussions about the reasons behind that power of control. U.S. courts often rely on the testimonies of the parties and experts in canon law and theology. The analysis made is commonly of the degree of authority of the bishop in his diocese and not of the priest over the faithful. In this regard, in a 1975 case unrelated to sex abuse, the court found the diocese vicariously liable for the acts of the priest and ruled that “the Bishop of Fresno had the power of control but chose not to exercise it” (Stevens, US-1). In 1988, the court found that the bishop’s “right to control over” the priest “was based on ecclesiastical, rather than civil law.” The pastor may be “removed from office only for a serious cause” but his “day-to-day activities are within his own discretion and control” (Brillart, US-2). In 1994, a U.S. court understood that “the Bishop does not direct or otherwise control the operation of the individual parishes” (Plate, US-5). In Moses (US-4), reference was made to the authority of bishops in the Episcopal Church saying that they had “considerable influence” and “exercised the right of control over the manner of work performed by a priest as well as the hiring, compensation, counselling performed by the priest and discipline of the priest.” In 2006, in a case unrelated to sex abuse, another court ruled that “[w]e hold that the level of authority and control possessed by the Diocese over the actions of its priests belies any notion that the Diocese is immune from any and all claims against it under the theory of vicarious liability” (Jackson, US-13).

Liability & authority in sex abuse litigation 187

Canada: introducing enterprise risk in sex abuse litigation Before 1999, Canada subscribed to the so-called “Salmond test” on vicarious liability, whereby an employer is responsible for the harmful acts of the employee if he authorized them. The employer is also responsible for harm arising out of unauthorized acts provided that these are so connected with authorized acts as to be improper modes of doing authorized acts (Giliker 2010, 157; Hoyano and Keenan 2010, 299). In 1996, the Court of Appeal in Mombourquette (CAN-1) still applied the Salmond test to a case of sex abuse by a Catholic priest. The court admitted that in institutions for the care of minors, abuse by caretakers authorized to have physical contact with them as part of their tasks was an authorized way of conduct “while undertaking the responsibilities” of the employment that the caretaker had been engaged to do and so vicarious liability should be imposed on the employing institution. The court understood that priests are authorized “to act in a privileged position” but that was “not sufficient to impose liability, particularly where [the priest’s] acts are criminally and totally contrary to the religious tenets that he has sworn to uphold.” Therefore, the acts of abuse of the priest were totally out of the scope of his employment; so the traditional requirements of vicarious liability were not satisfied. Furthermore, there was no evidence of negligence in the appointment or supervision of the abusive priest. Finally, the victim was “simply a member of the church” and the diocese “exercised no discretion or power over him,” so that the diocese did not have any fiduciary obligations toward the victim that could have been breached. Just one year later, in 1997 (Pornbacher, CAN-2), the Supreme Court of British Columbia changed the doctrine of Mombourquette. First, the diocese was found directly liable for negligence because it “had a duty to take care of his flock and to ensure that [its] priests maintained their vows.” Furthermore, the diocese and the victim “were in a fiduciary relationship based on the trust reposed in the church and its representatives as spiritual leaders.” Although the bishop did not know about the priest’s propensities, he had notice of other similar cases, so the harm had been foreseeable and “[t]he fact that the bishop did nothing is prima facie evidence of a breach of the duty of care.” In Pornbacher the diocese was also found vicariously liable because, although the relationship between the bishop and the priest is governed by canon law (i.e., not contract or employment law), that does not mean “there can be no employer/employee relationship for the purpose of protecting third party rights.” The bishop was considered the employer in so far as he could select, control, dismiss, and pay wages. The court concluded that Catholic priests are invested with authority and they are to be accorded respect. Their vows to live in chastity do not define the scope of their employment, as they did in Mombourquette. Such scope was actually determined by the fact that part of their duties were “to look after all

188  Nicolás Zambrana-Tévar parishioners, including children,” the Church having “actively encouraged the involvement of youth in Church activities” so that the unlawful contact of the priest with the victim was indeed connected enough to the priest’s functions as employee. Overlapping the rationale of direct and indirect liability, the court also mentioned that the Church places priests in a position of authority and as spiritual advisors to children, who are involved with the Church “almost by blind obedience.” Therefore, the Church owes children “a very high duty of care.” Pornbacher may be considered a precursor of Bazely v Curry (CAN-3) and Jacobi v Griffiths (CAN-4), both decided in 1999. These two cases dealt with child abuse, although not in a religious context. Most importantly, these two cases modified the scope of employment test of vicarious liability to allow for intentionally wrongful actions by the employee. Bazely and Jacobi held that courts should make policy considerations as well as ask themselves whether there was a significant connection between the causation or increase of the risk introduced by the defendant and the wrongful actions of the tortfeasor, arising from that risk. In a religious context, this meant attributing vicarious liability to the Church for vesting the “risk” of religious authority on priests through ordination. Also in 1999 (F.S.M, CAN-5), the Supreme Court of British Columbia held that the Anglican Church and the State of Canada had both been negligent and were both vicariously liable. The victim was a minor who had been sent by law to a youth religious institution under the jurisdiction and supervision of the government. The sexual aggressor and principal of the institution was an Anglican clergyman described by the court as having “practically absolute power in the management” of the institution and the Anglican Church as having a “Christian responsibility to help the First Nations assimilate.” The principal had been appointed “upon the recommendation of the Bishop,” reported to the Church as well as to the government and “stood in loco parentis,” being “responsible for all aspects of the children’s daily lives.” This assimilation of the sexual aggressor to a paternal figure within a “hierarchical ethos” is going to be a constant in Canadian and English case law. In these two jurisdictions the attribution of liability to churches is often made on the basis that it was the Church who put the aggressor in that position and, through its doctrine, had infused victims with the idea that they had to obey such paternal figures. Canadian and English courts also perceive that the Church is responsible for the possibilities for intimate physical contact that such figures entail. Therefore, in F.S.M. the Anglican Church was held responsible because it had “introduced the risk of the wrong,” and there was also a “nexus between the employment enterprise and that wrong” because the principal’s “duties as dormitory supervisor created an obvious opportunity for abuse within a relationship of absolute dependency.” For the attribution of joint vicarious liability to the church and the government, the identity of the employer also had to be determined, and here the question was “who

Liability & authority in sex abuse litigation 189 is entitled to give orders as to how the work should be done.” Here, “both Canada and the church exercised control over the activities at the school through the office of the principal,” who “advanced the interests of both.” For the purpose of liability for negligence, the court understood that “both the Crown and the Anglican Church owed a duty of care to the plaintiff and that both breached that duty.” The duty and the foreseeability of any harm resided in a relation of proximity arising out of the “delegation of the parental role to the principal” and in “the risk created by placing children in isolated areas,” the influence that the church had on the victim, his “emotional dependence,” and the church’s expectation of “blind obedience.” Both the church and the government had “failed to take reasonable supervisory precautions” that would have revealed the existence of abuse. As in Pornbacher, the court in F.S.M. understood that the defendants also had fiduciary duties because the victim was particularly vulnerable, had deposited trust on them, and they exercised discretion or power in that relationship of religious trust. The following cases, both in Canada and in England, largely follow the doctrine established in F.S.M. In 2003 (Doe v. O’Dell, CAN-7), the Ontario Superior Court of Justice heard a case where the victim and his family were Anglicans who had entered into contact with the aggressor, a Catholic priest. With respect to direct liability, the court understood that the Church owed a duty of care to the victim because, although he was not Catholic, it was “foreseeable that a priest would deal with children” of any religion. However, given the “general lack of awareness of the risk of child sexual abuse by priests” at the time, the diocese did not act unreasonably in selecting, appointing, and supervising the priest. The diocese was nevertheless vicariously liable. First, the priest was considered an employee. Although he might be a “collaborator” of the bishop under Church law and doctrine, their relationship was hierarchical, “with the Bishop exercising extensive control over the parish priest.” Second, the court understood that the diocese had created a risk by encouraging and expecting the priest “to form relationships with child parishioners.” The court understood that a priest is a “spiritual leader” and that “the Church cloaks the priest with responsibility and authority,” putting him in a position where he could develop “a relationship of confidentiality and trust with a young person” so that “priestly functions were inextricably enmeshed” with the wrongful actions. The relationship between the abuser and the victim “in part, carried out the religious objectives of the Church.” In 2004, (Glendinning, CAN-8) several victims declared before the same court that they had been taught that priests were “God on earth” and thought the priest was a “magical, powerful person who could see if you were good or bad”; they also “likened priests to Jesus,” thought that “a priest could do no wrong,” and had “absolute” faith in them. Vicarious liability was appropriate because there was “a connection between the employment and the wrong.” Furthermore, the priest’s “choice of activity

190  Nicolás Zambrana-Tévar was clearly subject to the approval of his superiors” and was “encouraged by those in authority,” there being “no question that as a priest he was in a position of power over the children.” In Glendining, it was held that the diocese had a duty to prevent abuse but the court accepted that it had not directed the priest to associate with children, given that the abuser was not a parish priest but worked in a seminary. However, the duty of care was breached under the standards of care of the day because, among other reasons, the Church had been “willfully blind to the fact that on occasion the children stayed” with the priest overnight in his chambers. Furthermore, the court accused the Church of treating “the issue of sex as taboo, resulting in inappropriate and unusual behavior going unchecked.” Directly accusing Church doctrine of causing the sex abuse crisis is not common (BRA-1). Therefore, the Glendinning curt held that the Church had “created and nurtured an environment in which [the abuser] was free to carry on his sexual predation.” Part of this environment was due to the “pontifical secret” under punishment of “excommunication,” that supposedly prevented revealing information about ecclesiastical disciplinary proceedings dealing with acts of a sexual nature by priests (Beal 2007, 211). Finally, the court saw no breach of fiduciary duty because the Church did not take advantage of the position of trust it had vis à vis the victims. Also in 2004 (Doe v Bennett, CAN-9), the Supreme Court of Canada found the diocese directly liable for acts of sex abuse “resulting from its bishops’ failure to properly direct and discipline” the abusive priest. Importantly, the Supreme Court in Doe v Bennett understood that there was not enough evidence about the organizational structure of the Catholic Church as a whole for a finding that the entire universal Catholic Church was directly responsible. Such considerations about any world responsibility of the Church will resurface again in the two most recent Chilean cases (2017, CHI-2 and 2019, CHI-3). The two elements of the new vicarious liability test were also met in Doe v Bennett. First, for the sufficiently close relationship between the tortfeasor and the person against whom a finding of vicarious liability is sought, the court saw that “the bishop exercises extensive control over the priest,” including assignment, removing him, and disciplining so that the relationship is not only spiritual but temporal and akin to employment, because a priest is “reasonably perceived as an agent of the diocesan enterprise.” Second, the bishop had provided the priest “with the opportunity to abuse his power,” expecting him to be involved with children as part of his role, so the harmful action was sufficiently connected to the conduct authorized by the employer. Furthermore, the acts of sex abuse were also considered to be “strongly related to the psychological intimacy inherent” in the role of the priest. Priests are “like parents” and they “represent God,” which “encourages victims’ submission to abuse,” so that there is “power imbalance,” especially in geographically isolated communities.

Liability & authority in sex abuse litigation 191 In 2005 (E.B., CAN-11), the Supreme Court of Canada applied the same test to a case of sex abuse in an educational establishment run by the Catholic Church. However, here the sexual aggressor was a lay employee who was “permitted no intimate contact with the students [. . . and had no responsibility for their day-to-day lives.” Although the job provided the employee “with the opportunity to come into contact with the children,” this contact was not intimate and not significant, and the “wrongful acts had nothing to do with furthering the respondent’s aims.” Students in this residential institution were vulnerable and required protection, but that was in the nature of the institution, not in the power conferred to an employee. A 2005 case (Blackwater v. Plint, CAN-12) against the United Church of Canada was similar to E.B. in that the sexual aggressor was not a religious minister but a dormitory supervisor employed by the church and who reported to it. However, the court saw that the church “employed him in furtherance of its interest in providing residential education to Aboriginal children, and gave him control and opportunity that made it possible for him to prey on vulnerable victims,” so that the church was found vicariously liable. In L.E.W. (2005, CAN-10), the sexual aggressor was described as an elder and a lay minister of the United Church of Canada. For the analysis of his authority, the court referred to the testimony of the victims, who claimed that he said to them, “I am a man of God, I am your preacher, I am your elder, you must obey me or you will go to hell.” However, there was no finding of vicarious liability against the church because the court saw the aggressor as a volunteer, “never an employee of the defendant”. It was the group of elders who had control over the church. It was the elders who supervised and directed the aggressor, too. Most importantly, the Board of Elders never directed the minister to “develop a close relationship with the children of the community” nor to be alone with them; so the court understood that nothing in his authorized role “provided him a greater opportunity” for “intimacy with children.” Therefore, there was no sufficient connection between his appointed role and the wrongful actions. L.E.W. is also a good example of how different may be the treatment given to congregational churches (e.g., United Church of Canada), as opposed to those hierarchically organized like the Catholic or Anglican Churches, and how different is sometimes the understanding of priests with respect to other Christian ministers, their tasks, and the religious authority supposedly vested on them. In 2007 (Fifield, CAN-13), the Supreme Court of Newfoundland had the chance to hear a case against the Salvation Army, where the abuser was considered “a cleric and/or employee,” and this religious entity was considered “responsible for control, direction and supervision of the first respondent through its officers, board, religious superiors and/or council.” The victim declared that “his parents and Salvation Army officials taught him, as a child, to respect and obey Salvation Army officers.” The court concluded that the tortfeasor was “the object of respect, an authority figure,” and

192  Nicolás Zambrana-Tévar “a man of God,” whose duties were those of a religious pastor, including “providing ministry to children” and other “youth-related activities.” The church “set up a circumstance which afforded the first respondent the opportunity to abuse his power” by making him “a revered religious representative” who resided in the home of a victim and opening “the door for a higher level of friendship and intimacy.” Furthermore, the court mentioned that “[a] church member’s personal identity is closely entwined with his or her faith and its institutional expression, which may nurture trust in the institution’s hierarchy from a young age, granting it considerable power.” As to whether the acts of the tortfeasor advanced the second respondent’s aims, the court held that the church fostered psychological intimacy for its own legitimate ends that the abuser then took advantage of. In 2010 (W.R., CAN-14), the Ontario Superior Court of Justice did not attribute vicarious liability to the Anglican Church for acts of sexual abuse committed by a lay choir master, bearing in mind that the abuse did not occur in relation to the abuser’s tasks in the church and that his relationship was with the parish, not with the diocese. In this regard, the different legal personality of Catholic parishes and the diocese where the parish is located, under both canon law and state law, have usually not insulated the diocese from liability (ESP-3, ESP-8). In 2011 (Rich v Bromley, CAN-15), the Supreme Court of Newfoundland did not discuss any alleged religious power of a Catholic priest over its victims, nor the organizational control of the Church over the priest. The court did understand that the government—which ran the institution where the victim was interned—had not been negligent because there had been “no foreseeable risk of harm in allowing [the victim] an overnight pass to visit Father Bromley’s cabin,” and he was not an employee of the state. Also in 2011 (K.M.M., CAN-16), the diocese had admitted beforehand that it was vicariously liable for the actions of a Catholic priest. The diocese was not found negligent because the bishop was not aware of the priest’s pedophilia.

The United Kingdom and Ireland: vicarious liability in the wake of the Canadian Tort revolution In 2001 (Lister v Lesley Hall, EN-2), the English House of Lords adopted the Canadian approach toward vicarious liability in cases of intentional torts such as sex abuse in an institutional context that would be reflected in clergy sex abuse litigation in the following years (McIvor 2006, 268). Up until then, English law had still upheld the Salmond test. In 1999 (Trotman, EN-1) for instance, the court had considered that the acts of sex abuse by a teacher were “far removed from being an unauthorised mode of carrying out duties on behalf of his employer.” Calvert (2002, EN-3), however, was still decided under the traditional rules on vicarious liability, maybe because it was not related to sex abuse.

Liability & authority in sex abuse litigation 193 Here, the court of appeals understood that a first instance judge had been right to strike out a claim in nuisance against an Anglican bishop where a parish had allowed church personnel to ring the church bells too loudly. The court understood that in the Anglican Church, the ringing of the bells was a parish competence so the bishop could not give orders in that regard. Ten years later, the victim in Maga (2012, EN-4) was not Catholic and the court admitted that he “at no time had anything to do with the Church itself.” However, youth work was held to be part of the abusive priest’s employment and what “gave him the opportunity to abuse the claimant.” The Maga court also engaged in a description of the type of authority priests have: Priests wear “clerical garb,” have “a special role which involves trust and responsibility in a more general way than a teacher, a doctor or a nurse,” are “never off duty,” have “a degree of general moral authority which no other role enjoys,” and it was his “employment as a priest by the Archdiocese which enabled him, indeed was intended to enable him, to hold himself out as having such a role and such authority.” As in Doe v. O’Dell (2003, CAN-7), the court saw that the priest’s “duty to evangelize” meant that he was “obliged to befriend non-Roman Catholics” and “to gain and be worthy of their trust.” The priest also “developed his relationship with the claimant under the cloak, or guise, of performing his pastoral duties.” In Maga, the court’s description of the authority and tasks of a priest is meant, as in the previous line of Canadian cases, to establish the close connection between the wrong and the tasks given to the tortfeasor by the employer, so as to make the employer responsible for the manifestations of the risk it has introduced itself through ordination. As in Doe v Bennett (2004, CAN-9), the risk presented by priesthood in Maga seems to be a risk for the whole community because society recognizes priests’ authority and priests are meant to exercise that authority and engage in personal intimacy with everyone, Catholic or not. One concurrent opinion qualified this by saying that this new doctrine should be “fact sensitive” and religious authority should be examined on a case-by-case basis. Also in 2012 (JGE, EN-5), an English Court of Appeal understood that Catholic priests and bishops are not in an employment relationship. However, for the purposes of imposing vicarious liability on the defendant diocese, there only had to be a “close” connection between the tortfeasor and the defendant. In this regard, “subject to the oversight of the bishop” and Church law, “responsibility for running the parish rests with the priest,” who exercises his ministry in “collaboration with the bishop rather than as one who is subject to the bishop’s control.” Priests are nevertheless “ultimately subject to the sanctions and control of the bishop,” and the Catholic Church “looks like a business and operates like a business” for organizational purposes and the close connection part of the test. Furthermore, “the priest is reasonably perceived as an agent of the diocesan enterprise.” However, there is no detailed examination of the tasks or authority of the priest, as it is usually the case, in order to determine the scope of his employment.

194  Nicolás Zambrana-Tévar A dissenting opinion in JGE questioned “whether the psychological intimacy should be attributed to the status as ordained priest rather than to appointment as parish priest” and did not “consider that ordination by the church is without more sufficient to attract vicarious liability to a diocesan bishop.” It also considered “extravagant the notion that a Roman Catholic Bishop owes without more to every member of the Roman Catholic Church resident within his diocese an enforceable duty” and believed that the work of a priest is not done for the benefit of the diocese but, if at all, “for the benefit of the souls in the parish.” In a third 2012 case (CCWS, EN-6), the United Kingdom Supreme Court had to deal with abuse in a Catholic school, run this time by lay brothers, not priests. The court applied the same test and found that there was indeed the “necessary closeness of connection between the [religious] Institute and the brothers and the abuses committed” because the authority vested upon them to “further the purpose of the Institute, clothed with the status of members,” “significantly increased the risk that brothers sexually abused the children.” The institute’s control over the life of the brothers was described as “complete” and within a hierarchical structure, as evidenced by their internal “Rule.” Significantly, the court did not pay much attention to the existence of the risk itself, which the religious enterprise had allegedly enhanced, because in the decision there are no detailed descriptions of the authority that the lay brothers supposedly had, without necessarily being priests, nor to the intimacy with children that their functions allegedly facilitated. Finally, in a 2015 decision (A, EN-15), the High Court heard a case involving a minister of the Jehovah’s Witnesses. For the employment relationship part of the test, the court concluded that “[t]he high level of control over all aspects of the life of a Jehovah’s Witness is arguably a closer relationship than that to be found in an employer/employee relationship,” although the court saw no hierarchical structure setting apart the clergy, as in the Catholic Church. For the connection between the relationship and the sexual abuse—the significant risk enhanced by the enterprise—the minister “was ostensibly performing his duties as Jehovah’s Witness ministerial servant,” regardless of whether the abuse took place at or after Bible study, given that “the progressive acts of intimacy were only possible because he had the actual or ostensible status of ministerial servant.” Three Scottish cases of sex abuse by clergy are of no great help because they mostly deal with whether the claims were time barred. However, they also make passing references to the issue of organizational control and religious authority over priests and members of religious orders. In 2007 (A.McE, SCO-1), the Court of Sessions dealt with a case of sex abuse involving a school staffed with the La Salle Brothers, but focused on the statute of limitations. However, a concurring opinion explained that the claimant had failed to establish his own relationship with the religious order. Such religious order, in the opinion of the court, “simply put forward

Liability & authority in sex abuse litigation 195 candidates for employment by the managers” of the school, who are the only ones who might have had a duty that their employees could have breached, for a finding of vicarious liability against the managers. In 2012 (B.D., SCO-2), a claim against the Poor Sisters of Nazareth was considered time barred and this order was simply described as being “responsible for running” the educational institution where the accused nun worked and where the alleged abuse was committed. The claim was also against the city council, “which was responsible for the supervision of the home and for placing” the claimant there. In the final Scottish case under discussion (CW v. Trustees of the Roman Catholic Archdiocese of St Andrews and Edinburgh, 2013, SCO-3), the court cited E. v English province of Our Lady of Charity and admitted obiter dicta that the priest-bishop relationship is “close enough and so akin to employer/employee.” In Hickey v McGowan (2017, IR-1), the Supreme Court of Ireland considered the new Canadian and English doctrine on vicarious liability for “enterprise risk” and understood that the degree of control of the religious order over the abuser, founded on a vow of obedience to the superior within a hierarchical structure, made the relationship akin to one of employment. For the second part of the test, the court understood that there was a “close connection between the task devolved to the wrongdoer and the wrong.” The wrongdoer was acting “on behalf” of the order and his tasks were carried out for its benefit. Furthermore, the wrong suffered was “intimately woven into the web of school life” for reasons such as the fact that the victim had had but one teacher—the tortfeasor—over the entire period he had been at school or that the “initial setting of abuse was in a context of teaching a musical instrument, a task which requires gently physical contact.”

Australia: non-delegable duties and no liability for property trusts The main contribution of Australia to the development of tort liability in sex abuse litigation is the use made of non-delegable duties. In New South Wales v Lepore (2003, AUS-1), the High Court of Australia understood that where a person has a non-delegable duty, he “cannot discharge that responsibility by entrusting its performance to another.” Persons who undertake special duties of care, supervision, or control of the property of another assume a particular responsibility that is nevertheless not an obligation to prevent any kind of harm and does not extend to a duty to prevent intentional or criminal wrongdoing (Beuermann 2015, 114). However, non-delegable duties did not play an important role in Trustees of the Roman Catholic Church v Ellis (2007, AUS-2). Here, the Court of Appeal of New South Wales held, obiter dicta, that a “diocesan bishop had very extensive control over the appointment, removal and day to day activities of an assistant parish priest,” so as to hold vicariously liable those

196  Nicolás Zambrana-Tévar ecclesiastics who were the priest’s superiors at the time the priest had abused the victim, regardless of whether the bishop-priest relationship was not of an employment nature. However, the court found that neither the Archbishop of Sydney nor the trustees holding Church property were liable at the time of the proceedings, for several reasons. First, the diocese remained an unincorporated association and did not have legal standing in court. Second, the corporate trustees were not liable, either, because they were not involved in pastoral activities and their sphere of authority was solely the management of Church property. Therefore, they did not concern themselves in any way with the appointment or supervision of priests. New South Wales has recently put in place legislation to prevent this kind of defense. Finally, the Archbishop could not be said to be a “corporation sole in which are vested the obligations to pay the damages” because only a statutory norm could grant the possibility of such corporate form and no law had ever been passed in that regard.

Civil law and civil wrongs: direct and indirect liability for controlling organizations Courts of civil law jurisdictions have found dioceses and other Catholic institutions directly and indirectly liable for acts of sex abuse committed by priests and other Catholics. They have done so under their classic civil law rules of liability for fault, as well as under their similar but broader test of vicarious liability. This test requires a relationship of subordination evidenced by the instructions given by the principal and sometimes the representativeness of the employee or agent. The test also requires the commission of the wrongful action within the scope of the functions entrusted and/ or a nexus of causality. Such nexus is often found in the fact that the acts of sex abuse are simply committed within Church facilities, in the course of religious activities or, more broadly, when the priest takes advantage of his position to commit the aggression. The differences between common law and civil law jurisdictions in this area are, therefore, not enormous. In both legal traditions, control of the priest by the bishop and whether the abuser is perceived as acting for the benefit or on behalf of the religious institution, or could be perceived by the public as doing so, must be present in some way. A bigger difference lies in the fact that, in civil law countries, vicarious liability is not necessarily a type of strict liability, though strict liability is increasingly superseding classic liability for fault. Therefore, civil law courts have had more discretion to evaluate the degree of care with which employers or, more widely, controllers within an organization, supervise their employees. In fact, one of the usual principles or legal aphorisms used to justify a finding of vicarious liability in civil law countries is “culpa in vigilando,” so that if there was a sufficient degree of care and vigilance, there

Liability & authority in sex abuse litigation 197 may be no fault and no vicarious liability. However, culpa in vigilando may also be the principle cited by civil law courts for a finding of direct liability. In common law countries, the need to force organizations to be careful in the supervision of their members has been a policy consideration in developing the law on vicarious liability, but supervisory negligence is not really an element of any vicarious liability test. Increasingly, however, judges in civil law jurisdictions focus solely on the proof of control and the presumption of supervisory negligence of the principal has become almost unrebuttable. With respect to the scope of employment of the tortfeasor, the enterprise risk test introduced by Bazely is not that different from the broad interpretations of the scope of employment of priestly functions or the causal nexus between the abuse and those functions. “Enterprise risk” liability in civil law countries exists sometimes, too, but it is usually introduced by special legislation in specific areas such as hazardous products, dangerous activities, etc. Therefore, civil law courts have not attempted to justify the imposition of vicarious liability on Christian churches on the basis that they must bear the “risk” they have introduced into the community by ordaining priests, vesting them with authority, and giving them pastoral tasks. This may be one of the reasons why accusations of “fatherly” authority and “blind obedience” have had less resonance with civil law courts. Civil law courts also take much less time and space to justify their flexible or evolving interpretations of civil code provisions or to justify their own interpretation of what the church-priest-faithful relationship means and entails. Another difference is the fact that criminal law courts in civil law countries are empowered to make findings of civil liability against the accused and even against third parties. Usually, criminal courts apply the provisions on direct and indirect liability of the respective civil code. However, the criminal code of some jurisdictions like Spain or Italy have their own provisions on civil liability that are commonly read along the same lines as the relevant provisions of the respective civil code.

Civil law courts in continental Europe: evolution in the understanding of bishops’ authority In 1998, the Court of Appeals of Brussels (BEL-1) considered the liability of a Catholic diocese for the acts of sex abuse of an incardinated priest on the basis of the unrebuttable presumption of responsibility of the bishop as principal—commettant—for the wrongful acts of the priest as subordinate— préposé—and in the understanding that a link of subordination—lien de préposition—between the two would exist if the former could exercise his authority and supervision over the latter, even if such authority was not actually exercised. The court declared that it was not for her to judge the symbolism of the ordination to the priesthood, in order to verify the bishop’s authority,

198  Nicolás Zambrana-Tévar contrary to Canadian courts, for which religious symbolism is of the utmost importance. However, the Belgian court did not believe that examining canon law was against the constitutional principle of separation of church and state. This is similar to U.S. case law, where examining ecclesiastic rules is acceptable as long as only “neutral principles” are applied to the issue of liability. After this examination, the Belgian court understood that Catholic bishops do exercise legislative, executive, and judiciary power; take care of discipline; can create, suppress, or modify parishes as legal entities; transfer priests; and accept their resignation or not. However, the Belgian court also understood that priests under the Code of Canon Law of 1983—not under the previous Code of 1917—enjoy significant autonomy, bear many pastoral burdens themselves, and cannot be dismissed but for a serious cause. Catholic bishops only provide general guidelines but cannot give orders as to the specific way to carry out the priestly ministry. Moreover, priests carry out their ministry with their own authority, in their own name, and for their own benefit, not that of bishops. This, together with the fact that priests’ tasks are listed in detail by canon law and are not provided by the bishop himself, who may be geographically far from where the priest carries out his ministry, led the court to establish that a bishop is not the principal of the priest (Christians 2000, 955). However, the attribution of authority to canon law itself and not to the bishop who applies canon law may seem to place the responsibility on the Holy See as legislator, but the court did not mention this explicitly. The Court of Appeal of Liège (2015, BEL-2) found a bishop personally liable for negligence in 2015 for not having paid due attention to the complaint of a seminarian with respect to the sexual abuses he had suffered as a child. Similar claims for mishandling victim complaints can be found in Argentina and Chile. A 2002 decision of the Spanish Supreme Court (ESP-1) partly followed the reasoning of the Belgian court in 1998 (BEL-1). Here, a youth leader engaged by a parish had committed acts of sex abuse. The court understood that Catholic parishes have full organizational autonomy and are separate legal entities with their own patrimony, independent from that of the diocese. The bishop only has pastoral functions in this regard (Ferrer 2005, 594). This decision is an exception, in so far as the separate legal personality of Catholic parishes does not usually prevent the liability of the diocese. Soon afterwards, in 2003, the Court of Appeals of Vigo (ESP-2) issued a decision that was soon afterward affirmed by the Spanish Supreme Court (ESP-3) establishing the official doctrine to be followed in future years with respect to sex abuse by clergy in Spain. Here, the abuse had taken place both in the parish priest’s house and in the course of a pilgrimage organized by the parish. Both courts insisted that the liability of the diocese was direct (i.e., culpa in eligendo or in vigilando) and not vicarious because the diocese had breached its supervisory duties, given the fact that the acts of abuse had taken place in a context—spatial and otherwise—of dependency

Liability & authority in sex abuse litigation 199 from the Catholic Church and the abusive priest had been appointed by the bishop—relación de dependencia—who also had the obligation to be careful in the choice of clergy. The Spanish Supreme Court, similarly to Fearing v Bucher (1997, US-10) and Canadian case law, understood that the priest had availed himself of the age difference with the victim, who was subject to the authority of the priest because he was his student and served as altar boy. The court went as far as to mention the quasi-public nature of priestly authority. However, all these features of religious authority were actually meant to prove the priest’s criminal liability. The diocese here was found subsidiarily liable, regardless of the fact that the owner of the establishment where the abuse had taken place was the parish itself, which had legal personality independent of that of the diocese. The intimacy and superiority of the priest over his victims was also discussed in a decision of the Court of Appeals of Madrid in 2006 (ESP-4), later affirmed by the Supreme Court in 2007 (ESP-5). Such intimacy and superiority did not necessarily arise from the status of the priest but had been facilitated by the fact that the priest was a friend of the family and provided support classes to the victim in the latter’s house although, as in previous cases, the acts of sex abuse had actually taken place in the parish, which was said to depend on the diocese for organizational purposes. In 2011, the Court of Appeal of Girona (ESP-6) found a Catholic parish subsidiarily liable for the acts of sex abuse of a hired lay cook. The assault took place in the countryside during a summer camp organized by the parish. The decision was soon afterwards ratified by the Supreme Court (ESP-7). Contrary to the previous two cases, where the diocese had been found negligent in its supervision, here the court did not see any supervisory negligence in the acts of the parish. However, the diocese was found vicariously liable for several reasons. First, the cook had been hired by the parish. Second, although the court admitted that the crime did not have any relationship with the specific tasks of the aggressor as cook, those tasks had facilitated the crime in so far as the aggressor had to spend the night in the same facilities as the children and took advantage of this situation to have access to their rooms. Furthermore, there was no evidence that such access was expressly prohibited to him by the managers. The court of appeal mentioned obiter dicta that Spanish case law had progressively introduced the enterprise risk theory in a system originally dominated by liability for fault. The Supreme Court added that the benefit that the principal has to obtain from the activity of the tortfeasor does not have to be necessarily economic, especially in the case of non-profit organizations. This case shows well how much broader the civil law test on the scope of employment is. The facts in E.B. (2005, CAN-11) were relatively similar, but the Canadian court there understood that the employer had not directed the aggressor to have intimate contact with the minors whereas what the Spanish court gave relevance to was the fact that the employer had not prohibited him from having that contact.

200  Nicolás Zambrana-Tévar The First Instance Court of Granada (2015, ESP-8) also found the diocese liable instead of the parish where the aggressor carried out its ministry, despite its recognized independent legal personality. The court gave a lot of weight to the fact that the criminal acts had taken place inside the parish, which was considered an organizational element of the diocese. Furthermore, the priest had breached norms and guidelines causally connected with the wrongful actions. The norms understood to have been breached were norms of canon law about the expected behavior of priests vis à vis the lay faithful. In fact, the court repeatedly cited canon law provisions and Church doctrine in order to prove the relationship of subordination between a parish and its diocese, as well as the supervisory duties and capacities of the bishop, especially in relation to the protection of minors. The ascendency of the priest over the victim, who was an altar boy, was also highlighted. In 2016, the Court of Appeals of Madrid (ESP-9) and later the Supreme Court (2016, ESP-10) heard a case of sex abuse by an Evangelical pastor. The acts of sex abuse had taken place both within and without the church. Given the perceived pastor’s superiority and ascendency over the congregation, the church should have put in place proper supervision measures, but the abuse proved that it had not. However, no actual analysis or description of the authority of the pastor was made and, contrary to the attention paid to the internal law of the Catholic Church in the previous cases, there was no examination of the relationship between the pastor and the Evangelical Church, nor of the internal supervisory duties that the church supposedly had. Finally, an interlocutory decision of the Court of Appeals of Pontevedra in 2018 (ESP-11) dealt with an interesting case of abuse committed by a layman within an association of lay men and women incorporated both under Spanish law and canon law. Liability here was not based on whether the wrongful acts had been committed inside an establishment of the diocese, but on the basis of an employment or analogous relationship with the diocese. The court understood that the association collaborated with the bishop in pastoral activities of the diocese and was at the service of the bishop, who had approved its statutes and had certain canonical supervisory and disciplinary capacities. For instance, the bishop had decreed the suppression of the canonical association after the accusations of sex abuse had surfaced. The court left the door open to the possibility that if it was later proved that the association was an entity separate from the diocese, the latter may not be liable. The previous line of Spanish cases has obviously influenced the only reported case, so far, where a Muslim association has been held vicariously liable for the acts of an imam (2019, ESP-12). Here, a First Instance Court in Barcelona held that an imam had been verbally hired to teach the Quran to the victim at a mosque run by a Pakistani association who had not allegedly been diligent in its duty to supervise the imam. The court mentioned that the imam had taken advantage of his influence as a teaching and religious

Liability & authority in sex abuse litigation 201 authority. Without expressly saying so and without citing previous Spanish cases, the court clearly assumed that there was a proper analogy between a priest and an imam and between a mosque and a parish. However, there is actually no clergy in Islam and religious authority runs along very different lines in both religions (Mouline 2014, 1). In order to find a diocese liable for the acts of sex abuse of a priest, the Italian First Instance Court of Lecce (2012, ITA-1) started its analysis reminding that the existence of an employer-employee relationship is not absolutely necessary and neither is the rule that wrongful acts—intentional or not—have to be committed within the scope of employment of the subordinate—preposto—or as part of the tasks entrusted to him by the principal—committente. What is really relevant is that there is a relationship of subordination—rapporto di preposizione—and that this relationship is at the origin of the causal relationship between the wrongful act and the aforementioned entrusted tasks, in such a way that the principal vests the subordinate with certain competences, responsibilities, and authority that enables him to commit the wrongful act more easily. The test is similar to Fearing v Bucher (1997, US-10) and Canadian case law. However, Italian courts have much more interpretative space to look for such a “causal relationship.” In the case at hand, both conditions were met. The court understood that bishops, under canon law, choose and nominate parish priests and have to guarantee their suitability and honest life because the bishop places him in a position of religious and moral authority under his supervision. The court described this kind of strict liability as “culpa in eligendo” or “in vigilando” but, contrary to Spanish cases, here it is clearly understood as one type of vicarious liability, with no room for the examination of the degree of diligence or fault of the principal (Licastro 2013, 13). In 2013 (ITA-2), the First Instance Court of Bolzano followed closely the doctrine and the elements of the test used by the court of Lecce. The only difference was that the acts of sex abuse were committed by a priest who was an assistant to the parish priest. The court of Bolzano understood that under canon law, the tortfeasor was nevertheless under the supervision of both the parish priest and the bishop, so as to make both of them principals of the abusive priest (Gaudino 2014, 259–260). Finally, in 2016, the First Instance Court of Como (ITA-3, later affirmed by the Court of Appeals of Milan in 2018) also applied these same rules and described the supervisory authority of the bishop in the same way, finding the diocese vicariously liable for the acts of the parish priest. However, the parish as a legal entity was directly liable too, because parish priests were considered an “organ” of the parish. In the only reported case so far in Poland (2018, POL-1), a priest who was also a member of a religious order abused a minor who was a student at the school where the priest served as a teacher. The First Instance Court of Poznam (civil chamber) analyzed the liability of the defendant’s religious order, not the diocese where the school was located. The diocese had entered

202  Nicolás Zambrana-Tévar into an agreement with the order for the teaching services of the abusive priest. The court understood that the abuse had been made possible because priests are regarded as representatives of God by minors, who place their trust in them. The priest had committed the wrongful acts while carrying out the tasks—classes, pilgrimages, and other religious activities—that had been entrusted to him by the religious order, with which it had a relationship of hierarchical subordination, manifested in the fact that the order had chosen him, trained him, and also had the duty to supervise him. The Polish court added that in the case of monks, who have no possessions of their own, the order was also a financial guarantor. Finally, there seems to be elements of direct, indirect, and enterprise risk liability in the Polish reasoning, as when the court mentioned that the order was negligent for having allowed into the priesthood a candidate who had shown sexual deviations before ordination, thus introducing a risk into society.

Latin America: direct, indirect, and organic liability Court decisions reported in Latin America on the liability of dioceses for the acts of sex abuse by priests and other clergy also oscillate between the application of principles of direct and indirect liability. The breach of the supervisory obligations of dioceses and other ecclesiastical bodies is sometimes an element of vicarious liability and sometimes simply support it. Some decisions also deal with liability for the negligent handling of complaints by victims to the bishop—as in the U.S. and Belgium—and at least one case by the Supreme Court of Colombia introduces an innovative theory of “organic” liability similar to one Italian court decision (2016, ITA-3). There is also the same jurisprudential evolution as in other parts of the world, in so far as judges seem increasingly receptive to the claims of victims. As in some other civil law jurisdictions, criminal courts in Latin America may be called to make findings of civil liability, sometimes reaching conclusions that diverge from those of purely civil courts. Latin American courts also feel a stronger need to justify why they are entitled to make references to canon law provisions in order to prove the bond of subordination between the priest and his bishop, and do so with reference to the place of canon law in their domestic legal system, as a result of the obligations assumed by the state under a concordat. Common law courts may also make references to canon law but never as the applicable law to the merits of the case; simply as evidence of the internal workings of a religious organization. In 2005 (CH-1), the Supreme Court of Chile (criminal law chamber) understood that the principles of liability for the acts of third parties cannot be interpreted extensively or analogously because they depart from the general or ordinary rules of tort law, based on liability for fault. The court did not believe, either, that there was a bond of subordination between Catholic bishops and priests in their dioceses (Pimstein 2005, 178).

Liability & authority in sex abuse litigation 203 For the examination of such a bond of subordination, canon law was paramount because Chile recognizes the internal legal system of the Catholic Church and other churches under the concordat and municipal law that transposed it. Canon law does not provide bishops with any kind of temporal power. A bishop’s authority is of a pastoral nature, and priests remain free in their everyday life. Furthermore, any sanctions by the bishop are of a spiritual and not temporal nature. The bishop-priest relationship cannot be equated to the relationship between parents and their children, either, because priests are adults and live on their own, nor was that link considered analogous to an employment relationship, which depends on the existence of a contract. The link was described by the court—borrowing from Catholic doctrine—as a bond of “communion,” i.e., participation in a common ministry. Two judges made a dissenting vote whereby they understood that vicarious liability rules can indeed be interpreted broadly and must take into account the supervisory negligence of the defendant. More than ten years later, in 2017 (Karadima 1, CH-2), the First Instance Court of Santiago (civil law chamber) made a poor job of distinguishing between different claims for direct and indirect liability, and the arguments that supported them. The court did believe that the accused priest depended on and was subordinated to the diocese. However, the court hardly analyzed this bond of subordination. It simply reproduced, almost literally, the arguments of both parties and the testimonies of the witnesses. In this regard, the claimant went as far as to say that diocesan bishops have total jurisdiction over the territory of their diocese as direct representatives of the pope under canon law; although it is the pope who appoints bishops, national episcopal conferences propose the candidates to such appointments; priests owe unlimited obedience to their bishop and must fulfill the tasks he gives to them; bishops can punish priests—and all the lay faithful—with excommunication; priests are representatives of Christ; so they derive their authority from God, and abusive priests invoke such authority to commit acts of sexual aggression; in fact, the sacrament of confession permits them to invade the will and the conscience of people; so priests have an unlimited access to the faithful, over which there is an important power imbalance based upon the divine power of the priest and the vulnerability of the victim; such authority is also present in the customary way the lay faithful address the priest as “father”; priesthood involves therefore the possibility to misuse its coercive authority and the breach of priests’ fiduciary duties; therefore, there is an inherent and foreseeable risk. Finally, the decision also reproduced the claimant’s allegation that the bond between bishops and priests is indeed spiritual, but its strength lies precisely in its spiritual nature. The diocese alleged that authority in the Church must be regarded as a service, and priests do enjoy a high degree of autonomy. Any power of the bishops is of a pastoral nature. However, several witnesses, including other priests, had testified that priests regularly receive instructions from

204  Nicolás Zambrana-Tévar the bishop about their priestly life and pastoral ministry. Bishops can also discipline priests and appoint or remove them from their positions. In the end, the Archdiocese of Santiago was not held subsidiarily and vicariously liable for the acts of sex abuse of the priest because the statute of limitations in the previous trial had prevented a criminal conviction. Therefore, there were actually no wrongful actions of a third party that the ecclesiastical authorities had to respond for. With respect to direct liability claims, several diocesan priests had also been accused of a campaign of slander against the victims, but the court did not consider that their actions were attributable to the diocese. Furthermore, the court did not see any evidence of cover-up. There was indeed evidence of negligence and direct responsibility in the delay to process the complaints of the victims and in the ensuing ecclesiastical trial, but such negligence could not be considered a civil wrong. The key to the acquittal of the Archdiocese of Santiago in the 2017 direct liability claim was nevertheless the fact that the claim for negligence had been addressed at the “Catholic Church of Chile,” said to be represented by the Archdiocese of Santiago. The court understood that under Chilean law, the Archdiocese of Santiago is a legal entity separate from the Catholic Church. The Archdiocese of Santiago could therefore only answer for the Catholic Church of Santiago. There was furthermore no entity called the Catholic Church of Chile, and so it lacked legal standing in court as defendant. The recognition of the legal personality and legal system of the church implied a recognition of its internal structure and canon law clearly differentiated between the “Universal Church” and “Particular Churches” (e.g., dioceses, CIC §§368 et seq.). The uproar caused by the accusations of sex abuse and abuse of conscience against Father Karadima and other Chilean ecclesiastics in his entourage may have prompted that, less than two years later (2019, Karadima 2, CH-3), the Court of Appeals of Santiago (civil chamber) reversed the previous decision and found the defendant “Catholic Church of Chile” liable for the delay and negligent handling of the complaints made by the victims, but not for any alleged cover-up, which would have to be examined in the corresponding criminal proceedings. The Court of Appeal of Santiago now understood that the Code of Canon Law establishes that the Catholic Church, which is one and universal, exists “in and from” particular churches (CIC §368). For the purposes of the legal standing of the Archdiocese of Santiago, the court believed that it was one of the 27 ecclesiastical jurisdictions of the Catholic Church in Chile, which is itself a legal entity under domestic public law. The liability of the Chilean Church was based on the betrayal of the trust deposited in her by the faithful, who regard it as guarantor of its message, as well as on the authority of bishops with respect to priests that allows the former to give orders to priests—not to members of religious orders or to the lay faithful— concerning their behavior. Therefore, all those orders and acts of bishops

Liability & authority in sex abuse litigation 205 that have effects in secular life could be attributed to the defendant, the Catholic Church of Chile. The court further claimed that every time a priest does not observe proper conduct and harms someone, the Church is directly responsible for not having properly supervised him, an idea also found in a ruling of the Supreme Court of Brazil (2013, BRA-4). In 2013 (ARG-1), the Court of Appeal of Quilmes (Argentina) found a diocese directly liable for negligent hiring and supervision of a priest who assisted a parish priest. The court insisted that canon law is part of the law of the land under a municipal law that incorporated into the domestic legal system the concordat between Argentina and the Holy See. The court further concluded that, under canon law, the parish where the abusive priest served was a legal entity under the direction of the parish priest and was also independent from the diocese. However, the governance of Catholic parishes was ultimately the responsibility of the bishop, who has full legislative, judicial, and executive power in the diocese. Parish priests’ relationship with their bishop was seen as one of practically total subordination and dependence. After establishing the irrelevance of the separate legal personality of Catholic parishes for the purposes of the responsibility of the diocese, the court determined that the bishop knew the abusive priest was not psychologically suited when he appointed him. With respect to the allegations that the abuse had taken place in the private sphere of the priest’s life and outside working hours, the court went as far as to say that the pastoral ministry is no ordinary occupation: It is a way of life, and the priest’s vocation is exercised every hour and every day of the week (Medina 2013, 3). In 2015 (ARG-3), the Argentinian Court of Appeals of Mendoza ratified a first instance judgment (ARG-2) and found the diocese directly liable for not providing a victim of sex abuse with information about the ecclesiastical disciplinary proceedings that had taken place against the priest accused of abusing the claimant. Canon law supposedly prevented the publication of the outcome of the canonical trial for the protection of the parties’ reputation. However, although the court agreed that canon law was applicable in Argentina unless there is an issue of public policy, the right to obtain information that is of interest to the victim was a human right that prevailed over ecclesiastical norms because human right treaties are above ordinary laws. The courts of Brazil have usually found it easy to establish that the relationship between a priest and a bishop is enough for a finding of vicarious liability under the relevant civil code provisions. However, in 2012 (BRA-1), the Court of Appeal of the region of Cianorte (State of Paraná) was ambiguous in the application of the principles of either direct or indirect liability. The court based the liability of the Church, among other things, on a supposed causal nexus between sex abuse and the Church’s doctrine on the celibacy of priests. This court admitted that under the concordat, the bond between priests and dioceses is of a religious nature and does not give rise to a business

206  Nicolás Zambrana-Tévar relationship. However, that provision of the concordat is meant to be applied in matters of employment disputes and, in cases of sex abuse, that ecclesiastical relationship is abused by the priest, who makes use of his prerogatives as spiritual mentor to commit the sexual aggression. For the purposes of vicarious liability, the apparent existence of an organized hierarchical chain was therefore enough to determine the existence of a principal-subordinate relationship—relação de preposição. In 2013 (BRA-4), the Supreme Court of Brazil ratified the aforementioned decision of 2012 but on more elaborate grounds. The court saw that the voluntary relation of dependency between the priest and the diocese is indeed a relação de preposição because the priest is bound by “spiritual obedience” and receives orders, guidelines, and tasks from the diocese, being under its power of management and supervision. In the Church there is indeed a hierarchical chain and priests are—borrowing from pre-Vatican Council II terminology—the Church’s long arm. The diocese introduces the priest to the faithful and the former personifies the Church before them. Abusing priests take advantage of their functions, and the Church cannot remain indifferent. Furthermore, the Church has “deep pockets” with which to compensate victims. The remaining Brazilian cases follow this same doctrine. In a decision of 2012 issued by the Court of Appeal of Campo Mourão (BRA-2), which was later ratified by the Supreme Court of the State of Paraná in 2016 (BRA-5), the basis for the existence of the relação de preposição was the fact that the diocese trains, appoints, instructs, and supervises the priest. The priest is also understood to act for the benefit of the diocese. With respect to the scope of employment or causal nexus, it is enough that the harm is caused as a result of the tasks carried out by the priest, with which the harm may only have an incidental, temporal, or spatial relationship. The first instance court also used the argument that a priest acts in this capacity the whole time, even in his relationships with non-Catholics; so it is irrelevant whether acts of sex abuse are part of his ministry or are committed outside the usual working hours. In another case of 2013 (BRA-3), the perpetrator of acts of sex abuse had been an Evangelical pastor. The Court of Appeal of Londrina described him as an “official” of the church, from which he received orders and a salary. Therefore, the church was vicariously and strictly liable in addition to its direct liability for negligent supervision. The acts of abuse had not taken place inside a church but in a farm owned by the Evangelical Church. However, a causal nexus between the harm and the tasks entrusted to the pastor existed because the latter exercised certain supervisory functions over the family who lived and worked on the farm, and took advantage of those functions to perpetrate the acts of abuse. These same arguments were replicated in a similar case of 2016 (BRA-6), heard by the Court of Appeal of the State of Paraná, now with respect to a Catholic priest. Here, the court added that once there is evidence of the subordinate’s fault, there is a very

Liability & authority in sex abuse litigation 207 strong presumption of fault in the principal. However, the Supreme Court had already indicated that vicarious liability in sex abuse cases was strict (BRA-4). Finally, reference must be made to the only reported decision from Colombia (COL-1). In 2015, the Court of Appeal of the district of Ibagué had previously found the diocese vicariously liable in the understanding that Colombia is bound by the concordat to respect the provisions of canon law and this legal system determined that although there is no employment relationship between the priest and the bishop, it was enough that there is a bond of dependency based on the fact that the bishop, as representative of the diocese, exercised authority and vigilance over parish priests. In 2015, the Supreme Court of Colombia heard an appeal against the previously-mentioned decision and used the same argument as the Italian First Instance Court of Como in 2016 (ITA-3), finding that the diocese was directly liable for the acts of the abusive priest because a priest is both an agent and organ of the diocese. The Supreme Court reminded that the evolution of tort law in Colombia with respect to the liability of legal entities for the acts of their agents and organs made it unnecessary to prove that the responsible entity had any duties of supervision or control, or that it had breached those duties. It was only necessary to prove that priests are agents of the diocese and the evidence apparently lay in the fact that they are incardinated there. However, as in the classic application of vicarious liability rules, the Supreme Court accepted that legal entities only respond for the wrongful acts that their agents carry out within the scope of their functions. In this regard, not only priests represent the Church and act on their behalf, but abusive priests avail themselves of their position as ministers to perpetrate the crime. The court accepted that a diocese would not be liable if the abuse was committed by the priest outside of his condition as such. Finally, the parish where the priest served was indeed a legal entity separate from the diocese, but the Supreme Court understood that, under Catholic doctrine, the Catholic Church is a single unity and not simply an association of different and autonomous persons.

Some of what the Church is doing to solve the problem and heal the victims The avalanche of lawsuits in the U.S., and probably media reporting and the dramatic testimony of victims in their meetings with the hierarchy of the Church, may have had the positive effect of forcing the Church to address the problem of sex abuse by clergy seriously (Lytton 2008, 4). Although bishops have always had their own pastoral obligations under canon law and Church doctrine—appointment and training of priests, oversight, attention to victims, cooperation with civil authorities—that they could breach voluntarily or negligently, those canonical obligations have

208  Nicolás Zambrana-Tévar never gone as far as to establish a rule of strict liability of bishops for the crimes of a priest. This is nevertheless where state law and state courts stand right now. The position of the Church does not seem to have changed substantially with regard to scope of the responsibilities and accountability of bishops. What has indeed changed dramatically is the effort made by Pope Francis to establish potentially effective canon law mechanisms to exact those responsibilities (i.e. Motu Proprios “As a Loving Mother,” of 2016 and Vos Estis Lux Mundi, of 2019). An evolution may thus be perceived since the Explanatory Note of the Pontifical Council of Legislative Texts of 2004 that mostly focused on the absence of any liability of the bishop for the acts of the priest, provided the bishop had made use of the pastoral remedies available. Canon law mechanisms to hold priests accountable and expel them from the ministry had always been in place, but much swifter justice—some say too swift—was introduced when Sacramentorum Sactitatis Tutelae was issued in 2001. Before that and in the decades after Vatican Council II, some in the Church were strongly opposed to canon law in general and penal canonical norms in particular (Cabezas 2016, 227–8). Additionally, Pope Francis and the Vatican Curia continue to oversee and foster the efforts that Episcopal Conferences around the world are making to turn the Catholic Church into the safest environment possible from children (www.vatican.va/resources/index_en.htm). This effort has made a lot of progress since the US Charter and Essential Norms of 2002 were issued, but has not been exempt from difficulties and misunderstanding (USSBC 2002). Dioceses and Episcopal Conferences around the world have also put in place restorative justice programs as well as redress and compensation boards where victims could present their complaints (Bisshops 2014). After scrutiny from Church personnel and independent auditors, the victim is given financial compensation along with other remedies such as apologies, etc. This alternative dispute resolution approach may be less emotionally burdening for victims, avoids the obstacles presented by statutes of limitations imposed by state legislation and, allegedly, may have been the reason why the Church in Europe may have been spared from the enormous and taxing litigation of the United States. However, such programs and compensation mechanisms have also been the object of some criticism, for instance, in the Australian and Irish experience (Gleeson 2015, 328–9, 2016, 811–2).

An introduction to the canon law perspective State courts in some civil law countries are used to applying canon law or enforcing decisions of ecclesiastical tribunals in different ways (Cañivano 2005, 15–21; Carnì 2019, 205–10). However, state courts in cases of sex abuse are merely using canon law as evidence of intra-Church relationships, as a means of determining the kind of authority bishops supposedly have over priests, and priests over parishioners. In this attempt, courts are

Liability & authority in sex abuse litigation 209 reading canon law in a much different way than canon lawyers read it and have read it for centuries (Carnì 2019, 11–7, 241, 283). Canon law categories cannot simply be given the meaning that state law categories of the same name have in secular legal systems. Not only is the lack of training or sensitivity of state judges in matters of legal pluralism partly to blame, but also the tendency among canon lawyers and ecclesiastical legislators to frame Church norms within the same molds of state law, thus blurring the actually different meaning they have. In this regard, although the bishop has certain obligations to supervise, canon law does not give him the role of supervisor within the diocese (Carnì 2019, 57, 82–9). Similarly, the bond of subordination between bishop and priest clearly has a public law and communitarian nature under canon law and Church doctrine, but state courts tend to interpret it with the lenses of employment and agency law (Carnì 2019, 30, 250). Thus, neither employment, corporate, nor agency theories explain well the functions of bishops and priests and their respective spheres of autonomy as pastor proprius, both with their own potestas that they exercise in their own right. However, it is also true that the Codex of 1983 emphasizes the autonomy of the priest and the lay faithful more than the Codex of 1917 did, which is actually the norm under which most cases of sex abuse took place. A priest has pastoral duties because he is a priest and not because the bishop has given such duties to him. Furthermore, those priestly duties are not carried out on behalf of the bishop and much less in the interest of the bishop, but in the “interests” of the entire Christian community. Finally, acts of sex abuse would be so extraneous to the mission and functions of a priest that any attempt to place them within the “scope of employment” of the priest would be impossible (Carnì 2019, 276–8). With respect to the attribution of liability to ecclesiastical entities, state courts have failed to see that any bond of subordination is between individuals, not between moral entities. Furthermore, obligations and responsibilities under canon law are given to individual persons and not to ecclesiastical entities, even if bishops may represent the diocese in all its acts and the parish priest may represent the parish to the same extent. Furthermore, courts may have wrongfully applied to the Church the structure of territorial units within a state or subsidiaries within multinational corporations. Thus, parishes are mistaken as the parts of the diocese and the Universal Church as being made of thousands of dioceses (Carnì 2019, 21–4, 295). However, it is a gross misconception to say that a priest runs his parish in the name of the bishop or that the bishop runs the diocese in the name of the pope. Despite this misconception, although the corporate veil under state law usually prevents that a legal entity is made responsible for the acts of another entity, despite their obvious connections within the same business structure, dioceses are normally deprived of that protection, despite that state law recognizes the different legal personality of dioceses and Catholic parishes (Carnì 2019, 17–36)

210  Nicolás Zambrana-Tévar

Conclusions: religious authority misunderstood? Religious authority and organizational control, as perceived by those same state courts, are probably the most important element in the attribution of direct and indirect liability in tort to religious entities, for the acts of their ministers and employees. In the case of hierarchical religions like Catholicism or Anglicanism, the authority of the bishop is essential in the attribution of direct liability to the diocese. If bishops fail to exercise that authority in the supervision, training, and disciplining of priests, and there is a causal nexus between that failure and sex abuse, the diocese must pay for that failure in leadership. In the case of vicarious liability, bishops’ control is the only or the most important proof of the existence of the relationship of employment, agency, or subordination that then triggers liability. For the purposes of “enterprise risk” liability, if courts believe that sex abuse was made possible because of the authority of priests over victims, bishops and dioceses are also made responsible for having vested those priests with the authority they misused, which is another manifestation of bishops’ authority. In this regard, and especially in the case of the Catholic Church, courts understand that priests possess that authority in front of everyone, regardless of whether that person is Catholic or not. As previously said, state courts pay little attention to how canon law or Church doctrine really understands religious authority and rely mostly on an analogy between the authority of employers and parents and that of ecclesiastics. Furthermore, the perception state courts have of Christian churches and ministers does not seem to differentiate much between denominations. Courts seem to perceive that all Christian ministers have the same kind of religious authority and power over believers. Only occasionally is the organizational autonomy of congregational churches highlighted so that the national church may not be found liable for the acts attributed to a local church. The case law examined here probably reflects that state courts believe religious authority is real and is dangerous. Therefore, holders of such authority must rein it in or face the consequences. Direct and restrictive regulation of religious groups would be unpopular or simply unconstitutional in most Western countries; so tort law takes the place of regulation (Lytton 2008, 190). However, it cannot be said that tort law has been applied differently to religious institutions than to secular ones. The real difference lies in how courts perceive religion and religious institutions. Churches have fallen face down against tort law at its present state of evolution, when liability for fault has been practically abandoned as its main principle and when the inflexible rules of vicarious liability of the past have given way to a case-by-case, very flexible approach where what really counts is to find the person or entity best placed to compensate the victim and/or to prevent further damage (Giliker 2010, 244). The recent sensitivity toward sex abuse and especially toward child sex abuse may also explain certain jurisprudential changes.

Liability & authority in sex abuse litigation 211 Practically all courts agree that bishops have power over priests, although not all agree that priests have power over the faithful or do not deem it necessary to discuss such power. What none of them does is to devote much time to examining the origin, nature, scope, or limits of that power. Religious authority seems to be a well-known fact whose existence courts do not really bother to establish. Loose references to the “fatherly” authority of priests seem to rest on the testimony of victims and the recollections of the judges themselves. What counts is how much authority the parishioner believes the priest has over him—how afraid he is of him—regardless of how much power the priest actually has. In the case of the bishop-priest relationship, what counts is the authority that bishops are supposed to have in the reading that courts make of religious norms, not how dutifully priests and ministers actually obey their superiors. Provisions of the Catholic Code of Canon Law are often mentioned to prove the existence of the authority of Catholic bishops, but there is very little use of secondary sources to interpret the rules of a legal system that is probably more foreign to state courts than any foreign law. Even less use is made of doctrinal texts or theological sources and commentaries that are the “ideological” basis of canon law, in order to better understand its real meaning, the way it is applied, its flexibility, and room for discretion (Cenalmor and Miras 2004, 58–9). U.S. courts’ justification for not examining the notion of religious authority more thoroughly is their constitutional law, but courts outside the U.S. do not seem to have that kind of scruples and still refuse to go into any proper determination of what religious authority means and implies. There is no attempt either to make use of existing sociological, psychological, or anthropological studies of religion, religious organizations, or religious authority. Courts seem to believe that clericalism, abuse of power, and abuse of conscience is the rule, rather than a terrible exception, but do not bother to explain why. Furthermore, the reasoning of some courts reminds one strongly of the present revolt against the patriarchy, of which Christianity is seen as a stalwart bastion. The concept courts have of the weak or secondary status of the lay faithful, especially in cases against Catholic entities, pays absolutely no attention to the dramatic transformations that this Church, its people, and its doctrine have undergone in the course of the 20th century, as reflected, for instance, in the texts of Vatican Council II and the crisis that the church saw in its midst in the decades prior to and after the Council. To a certain extent, that religious crisis was also one of authority (Ratzinger 2019). The pope emeritus mostly referred to a crisis in the teaching authority of the Church, but others have also seen in it a crisis of leadership (Weigel 2002, 29). Finally, some references made by courts to the Catholic Church, its role, and authority make one think that courts actually see themselves as “protectors” of the Church, as holding it to the high standards that it should have and ultimately, as “supervisors” of the Church.

212  Nicolás Zambrana-Tévar

References Bartholomew, John Niles. “A Sociological View of Authority in Religious Organizations.” Review of Religious Research 23:2(1981): 118–32. Beal, John. “The 1962 Instruction Crimen Sollicitationis: Caught Red-Handed or Handed a Red Herring?” Studia Canonica 41(2007): 199–236. Beuermann, Christine. “Conferred Authority Strict Liability and Institutional Child Sexual Abuse.” Sydney Law Review 37:1(2015): 113–34. Bisshops, Anke. The Handling of Childhood Sexual Abuse Cases in the Roman Catholic Church: A Comparison of Three Procedures. Presentation at the International Conference on Sexual Abuse in the Church and Other Institutional Settings, International Institute for the Sociology of Law, Oñati, April 10–11, 2014. Cabezas Cañabate, Juan Manuel. “Una mirada histórico canónica al devenir del derecho penal canónico desde 1917 hasta nuestros días (I parte).” Ephemerides Iuris Canonici 56(2016): 219–44. Cañivano, Miguel Ángel. Las normas religiosas en el derecho español. La eficacia civil de los ordenamientos jurídicos de las confesiones religiosas. Barcelona: J.M. Bosch, 2005. Carnì, Matteo. La responsabilità civile della diocese per i delitti commessi dai presbiteri. Profili canonistici e di diritto ecclesiastico. Torino: Giappichelli, 2019. Cenalmor, Daniel, and Jorge Miras. El Derecho de la Iglesia. Curso básico de Derecho Canónico. Pamploma: Eunsa, 2004. Cismas, Ioana. “The Child’s Best Interests and Religion: A Case Study of the Holy See’s Best Interests Obligations and Clerical Child Sexual Abuse.” In Implementing Article 3 of the United Nations Convention on the Rights of the Child. Best Interests, Welfare and Well-Being, ed. Elain E. Sutherland. Cambridge: Cambridge University Press, 2017, 310–25. Christians, Louis-Léon. “L’autorité religieuse entre stéréotype napoléonien et exégèse canonique: l’absence de responsabilité objective de l’évêque pour son clergé en droit belge.” Quaderni di Diritto e di Politica Ecclesiastica 3(December 2000): 951–66. Deutscher Bundestag, Wissenschaftliche Dienste (German Parliament Research Office), Haftung der Kirche in sexuellen Missbrauchsfällen, 2010, WD 3-3000144/10. Ferrer Ortiz, Javier. “La Responsabilidad Civil de la Diócesis por los Actos de sus Clérigos.” Ius Canonicum 90(2005): 557–608. Foddai, Maria Antonietta. “Prevenire, punire, riparare: la responsabilità personale tra diritto dello Stato e diritto della Chiesa.” Stato, Chiese e pluralismo confessionale 35 (November 2015): 1–33. Francis, Apostolic Letter issued as Motu Proprio “As a Loving Mother”, 4 June, 2016, http://www.vatican.va/content/francesco/en/apost_letters/documents/papafrancesco_lettera-ap_20160604_come-una-madre-amorevole.html Francis, Apostolic Letter issued as Motu Proprio “Vos Estis Lux Mundi”, 7 May, 2019, http://www.vatican.va/content/francesco/en/motu_proprio/documents/papafrancesco-motu-proprio-20190507_vos-estis-lux-mundi.html Gaudino, Luigi. “La Responsbilità Oggetiva degli Ente Ecclesiastici per gli Abusi Sessuali a Danno del Minore.” Responsabilità Civile e Previdenza 1(2014): 253–276. Giliker, Paula. Vicarious Liability in Tort. A Comparative Perspective. Cambridge: Cambridge University Press, 2010.

Liability & authority in sex abuse litigation 213 Gleeson, Kate. “The Money Problem: Reparation and Restorative Justice in the Catholic Church’s Towards Healing Program.” Current Issues in Criminal Justice 26:3(2015): 317–32. Gleeson, Kate. “Responsibility and Redress: Theorising Gender Justice in the Context of Catholic Clerical Child Sexual Abuse in Ireland and Australia.” UNSW Law Journal 39:2(2016): 779–812. Hoyano, Laura and Keenan, Caroline. Child Abuse. Oxford: Oxford University Press, 2010. John Paul II. Apostolic Constitution Sacrae Disciplinae Leges of the Supreme Pontiff John Paul II for the Promulgation of the Promulgation of the New Code of Canon Law, 75/2 Acta Apostolicae Sedis vii–xiv (1983) http://www.vatican.va/archive/ cod-iuris-canonici/cic_index_en.html John Paul II. Catechism of the Catholic Church, promulgated by the Apostolic Constitution Fidei Depositum of October 11, 1992. Citta del Vaticano: Libreria Editrice Vaticana, 1993 https://www.vatican.va/archive/ENG0015/_INDEX.HTM John Paul II. Motu Proprio Sacramentorum Sanctitatis Tutelae. www.vatican.va/con tent/john-paul-ii/en/motu_proprio/documents/hf_jp-ii_motu-proprio_20020110_ sacramentorum-sanctitatis-tutela.html. Licastro, Angelo. “Riappare un ‘déjà vu’ nella giurisprudenza: la responsabilità oggettiva del vescovo per gli atti illeciti dei suoi sacerdoti.” Stato, Chiese e pluralismo confessionale 1 (January 2013): 1–21. Lupu, Ira, and Robert W. Tuttle. “Sexual Misconduct and Ecclesiastical Immunity.” BYU Law Review 5(2004): 1789–896. Lytton, Timothy D. Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse. Cambridge, MA: Harvard University Press, 2008. McIvor, C. “The Use and Abuse of the Doctrine of Vicarious Liability.” Common Law World Review 35:4(2006): 268–96. Medina, Graciela. “Responsabilidad por abuso sexual de un religioso a un menor.” La Ley, September (2013). Mouline, Nabil. The Clerics of Islam. Religious Authority and Political Power in Saudi Arabia. New Haven: Yale University Press, 2014. O’Reilly, James T., and Margaret S.P. Chalmers. The Clergy Sex Abuse Crisis and the Legal Responses. Oxford: Oxford University Press, 2014. Pimstein, María Elena. “Resonsabilidad Civil de la Iglesia por Delitos Cometidos por Clérigos en Chile: un Caso Reciente.” In Anales Derecho Universidad Católica, Actas del IV Coloquio del Consorcio Latinoamericano de Libertad Religiosa. Bogotá: Pontificia Universidad Católica de Chile, 2005, 173–9. POL-1 Appeal Court of Poznam I ACa 539/18 (October 2, 2018). Pontifical Council of Legislative Texts, Explanatory Note. “VIII Elements for the Clarification of the Canonical Area of Responsibility of the Diocesan Bishop with Regard to Priests Incardinated in His Own Diocese and Priests Working in His Diocese.” Communicationes 36(2004): 33–8. www.clerus.org/clerus/dati/200812/04-13/The_Pontifical_Council_for_Legislative_Texts.html. Ratzinger, Joseph (Benedict XVI). The Church and the Scandal of Sexual Abuse, 2019. www.catholicworldreport.com/2019/04/10/full-text-of-benedict-xvi-the-church-andthe-scandal-of-sexual-abuse/ (original German version published in Klerusblatt). USSBC (United States Bishops Conference). Charter for the Protection of Children and Young People & Essential Norms for Diocesan/Eparchial Policies Dealing

214  Nicolás Zambrana-Tévar with Allegations of Sexual Abuse of Minors by Priests or Deacons, 2002. www. usccb.org/issues-and-action/child-and-youth-protection/charter.cfm. Weigel, George. The Courage to be Catholic. New York: Basic Books, 2002. Zambrana-Tévar, Nicolás. “Reassessing the Immunity and Accountability of the Holy See in Clergy Sex Abuse Litigation.” Journal of Church and State 62:1(2020). TABLE OF AUTHORITIES Num.

CAN-16 CAN-15 CAN-14 CAN-13 CAN-12 CAN-11 CAN-10 CAN-9 CAN-8 CAN-7 CAN-6 CAN-5 CAN-4 CAN-3 CAN-2 CAN-1

EN-7 EN-6 EN-5 EN-4

Jurisdiction / Decision COMMON LAW Canada K.M.M. v The Roman Catholic Episcopal Corp. 2011 ONSC 2143 (April 20, 2011) Rich v. Bromley State, 2011 NLTD(G) 16 (January 31, 2011) W.R. v. The Anglican Church of Canada 2010 ONSC 6417 (October 15, 2010) John Doe (GEB 108) v. Fifield and Governing Council of the Salvation Army of Canada, 2007NLTD195 (November 13, 2007) Blackwater v. Plint 2005 SCC 58 (October 21, 2005) E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia, [2005] 3 S.C.R. 45, 2005 SCC 60 (October 28, 2005) L.E.W. v. United Church of Canada, 2005 BCSC 564 (April 14, 2005) John Doe v. Bennett, [2004] 1. S.C.R., 2004 SCC 17 (January 14, 2004) J.R.S. et al v. Glendinning et al 2004 CAnLII 5011 (February 2, 2004) Doe v. O’Dell [2003] O.T.C. 821 (SC) (15 September 2003) K.L.B. v. British Columbia 2003 SCC 51 (October 2, 2003) F.S.M. v. Derek Clarke, The Anglican Church of Canada et al. [2000] B.C.T.C. 26 (SC), 2000 BCSC 96 (December 14, 1999) Jacobi v. Griffiths [1999] [2003] 2 SCR 403, 2 SCR 570 (June 17, 1999) Bazley v. Curry [1999] 2 SCR 534 (October 6, 1998) W.K. v. Pornbacher, 1997 CanLII 12565 (BC SC) (January 9, 1997) Roman Catholic & Episcopal Corporation of Antigonish v. F.W.M., 1996 NSCA 125 (July 10, 1996) England A The Trustees of the Watchtower Bible and Tract Society and Others [2015] EWHC 1722 (QB) (June 19, 2015) Catholic Child Welfare Society and Others v. Various Claimants and the Institute of the Brothers of the Christian Schools and others [2012] UKSC 56 (November 21, 2012) JGE v. The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 (July 12, 2012) MAGA v. The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256 (March 16, 2010)

Num.

Jurisdiction / Decision

EN-3

Calvert v. Gardiner and others [2002] All ER (D) 168 (May 10, 2002) Lister v. Lesley Hall [2001] UKHL 22 (May 3, 2001) Trotman v. North Yorkshire County Council, [1999] LGR 584 (July 14, 1998)

EN-2 EN-1

SCO-3 SCOSCO-1

IR-1 AUS-2 AUS-1

US-15 US-14 US-13 US-12 US-11 US-10 US-9 US-8 US-7 US-6 US-5 US-4 US-3 US-2 US-1

Scotland CW v. Trustees of the Roman Catholic Archdiocese of St Andrews and Edinburgh [2013] CSOH_185 (December 3, 2013) B.D. v. Sister Bernard Mary and Others [2012] Scot CS CSOH_109 (June 29, 2012) A. McE. (A.P.) v. The Reverend Joseph Hendron and Others [2007] CSIH_27 (April 11, 2007) Ireland Hickey v. McGowan & ors [2017] IESC 6 (February 9, 2017) Australia Trustees of the Roman Catholic Church v. Ellis & Anor [2007] NSWCA 117 (May 24, 2007) New South Wales v. Lepore aka Hollis v. Vabu Pty Ltd (2003) 212 CLR 511 (February 6, 2003) United States Doe v. Holy See, 557 F.3d 1066 (9th Cir. 2009) (March 3, 2009) Eller v. Diocese of St. Cloud, 2006 Westlaw 163526 (Minn. App. 2006) (January 24, 2006) Roman Catholic Diocese of Jackson v. Morrison, 905 So.2d 1213 (Miss. 2006) (May 5, 2005) Aquilino v. Philadelphia Catholic Archdiocese, 884 A.2d 1269 (Pa. Super. 2005) (May 25, 2005) Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 989 F. Supp. 110 (D. Conn. 1997) (March 24, 1997) Fearing v. Bucher, 936 P. 2d 1023 (Or. Ct. App. 1997) (April 16, 1997) Smith v. O'CONNELL, 986 F. Supp. 73 (D.R.I. 1997) (November 25, 1997) Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997) (August 19, 1997) DeBose By and Through DeBose v. Bear Valley Church of Christ, 928 P. 2d 1315 (Colo. Dec. 23, 1996) (January 24, 1995) Bivin v. Wright, 275 III. App. 3d 899, 903 (1995) (October 18; 1995) Plate v. St. Mary’s Help Church, 520 N.W.2d 17 (Minn. Ct. App. 1994) (August 9, 1994) Moses v. Diocese of Colorado, 863 P. 2d 310, 313-14 (Colo. 1993) (November 15, 1993) Destefano v. Grabrian, 763 P. 2d 275 (Colo. 1988) (October 17, 1988) Brillhart v. Scheier 758, P. 2d 219 (Kan. 1988) (July 11, 1988) Stevens v. Roman Catholic Bishop of Fresno [49 Cal. App. 3d 878] (July 14, 1975) (Continued)

TABLE OF AUTHORITIES (Continued) Num.

Jurisdiction / Decision

ESP-1

CIVIL LAW Spain Audiencia Provincial de Barcelona, Sentencia 620/2019 (October 3, 2019) Audiencia Provincial de Pontevedra, Auto 30/201823 (January 23, 2018) Tribunal Supremo, Sentencia 855/2016 (November 11, 2016) Audiencia Provincial de Madrid, Sentencia 55/2016 (March 2, 2016) Juzgado de Instrucción de Granada, Auto, Diligencias Previas 9703/14 (September 8, 2015) Tribunal Supremo, Sentencia 1013/2011 (October 6, 2011) Audiencia Provincial de Girona, Sentencia 83/2011 (February 18, 2011) Tribunal Supremo, Sentencia 1065/2007 (June 7, 2007) Audiencia Provincial de Madrid, Sentencia 103/2006 (October 11, 2006) Tribunal Supremo, Sentencia 726/2004 (February 9, 2004) Audiencia Provincial de Vigo, Sentencia 7/2003 (February 26, 2003) Tribunal Supremo, Sentencia 414/2002 (March 11, 2002)

ITA-3 ITA-2 ITA-1

Italy Tribunale di Como causa N. 6710/2013 (January 14, 2016) Tribunale di Bolzano causa N.679 (August 21, 2013) Tribunale di Lecce (October 8, 2012)

ESP-12 ESP-11 ESP-10 ESP-9 ESP-8 ESP-7 ESP-6 ESP-5 ESP-4 ESP-3 ESP-2

BEL-1

Belgium Cour d’Appel de Liège 2013/RF/1811, 2015/2677 8April 23, 2015) Cour d’Appel de Bruxelles 1114/98 (September 25, 1998)

POL-1

Poland First Instance Court Poznam I ACa 539/18 (October 2, 2018)

BEL-2

COL-1

ARG-3 ARG-2 ARG-1

BRA-6

Colombia Corte Suprema de Justicia, Sala de Casación Civil, SC 136302015, Rad.: 73411-31-03-001-2009-00042-01 (October 7, 2015) Argentina Suprema Corte de Justicia de la Provincia de Mendoza AR/ JUR/72487/2015 (April 13, 2015) Cámara 4ª de Apelaciones de lo Civil de la Provincia de Mendoza, AR/JUR/8457/2015 (April 7, 2014) Cámara de Apelaciones en lo Civil y Comercial de Quilmes, Buenos Aires, Id SAIJ: FA13010041 (April 9, 2013) Brazil Tribunal de Justiça do Paraná TJ-PR - Apelação: APL 14369196 PR 1436919-6 (Acórdão) (October 20, 2016)

Num.

Jurisdiction / Decision

BRA-5

Tribunal de Justiça do Paraná TJ-PR – Apelação: APL 13516417 PR 1351641-7 (Acórdão) (March 18, 2016) Superior Tribunal de Justiça do Brasil, Recurso especial N. 1.393.699 – PR (2013/0211274-0) (November 19, 2013) Tribunal de Justiça do Paraná TJ-PR 936.723-9 (August 22, 2013) Tribunal de Justiça do Paraná TJ-PR: 9224526 PR 922452-6 (Acórdão) (August 23, 2012) Tribunal de Justiça do Paraná TJ-PR: 8451003 PR 845100-3 (Acórdão) (June 21, 2012)

BRA-4 BRA-3 BRA-2 BRA-1

CHI-3 CHI-2 CHI-1

Chile Corte de Apelaciones de Santiago Rol. C-4.028-2017 (March 27, 2019) Juzgado de Primera Instancia de Santiago Rol. 9209-2012 (March 16, 2017) Corte Suprema de Chile Rol. 3640-04 (January 5, 2005)

8 Sexual abuse of minors and clerical homosexuality Comments on a puzzling correlation Dominikus Kraschl 1.  “These are the numbers” Published studies on the sexual abuse of minors by clerics so far agree that a vast majority of all victims have two things in common. They are predominantly male and they had been pubescent or postpubescent when they became victims of sexual abuse. The extensive data-based research of the John Jay College of Criminal Justice, on which I mainly rely in the following, concludes that “the majority of alleged victims were post-pubescent, with only a small percentage of priests receiving allegations of abusing young children” (John Jay 2011, 69). In numbers, 81% out of a total of 8,956 alleged abuse victims were male, whereof 78% were in a pubescent (11–14 years, 51%) or postpubescent age (15–17 years, 27%) (John Jay 2011, 70).1 Pedophilia in the sense of a pathological phenomenon exists only in a small minority of cases. According to the John Jay report, “less than 5 percent of the priests with allegations of abuse exhibited behavior consistent with a diagnosis of pedophilia (a psychiatric disorder that is characterized by recurrent fantasies, urges, and behaviors about prepubescent children). Thus, it is inaccurate to refer to abusers as ‘pedophile priests’ ” (John Jay 2004, 3). This article deals with the sexual abuse of pubescent and postpubescent teenagers, while cases of pathological pedophilia are largely left out. The statistics mentioned, which are more or less replicated by a recently published study that was commissioned by the German Bishops’ Conference (MHG-Studie 2018), call for explanation. Even if homosexuals are strongly overrepresented within the clergy compared to society as a whole, they are surely not a majority in absolute numbers. The percentage of men who consider themselves to be exclusively homosexual is, according to several representative surveys, around 1% to 2% (Chandra et al. 2011).2 If the percentage of homosexual clerics has risen to 20% or 25% during the last 50 years, this percentage would be ten to 20 times higher than the percentage of homosexuals in the total population. There is a data basis for this assumption. According to a 2002 Los Angeles Times poll (“LA Times Data”), a random sample of 1,854 Catholic

Abuse of minors & clerical homosexuality 219 priests were asked whether they were heterosexual or homosexual, rather one of both, or in the middle of both. Some 15.2% of priests classified themselves as either homosexual or rather homosexual. Based on the survey, there has been a steady increase of homosexual priests since the 1950s. Within 40 years their number has probably quadrupled (Los Angeles Times 2002). As part of a detailed examination of the Catholic clergy, Sipe came to the conclusion that about 20% of priests have homosexual tendencies; this number would have increased greatly since the 1970s (Sipe 1990, 107, 133).

2.  The dispute about the “rest” Is there an explanation available why a minority in the clergy is apparently accountable for a vast majority of reported abuse cases? First and foremost, we owe it to the victims of sexual abuse to approach this question without prejudice. However, an unbiased discussion about potentially controversial answers appears to be extremely difficult. On the one hand, the calculation contains a number of unknowns that in turn leave a considerable scope for interpretation open. On the other hand, there are “sacred cows” on different sides. Defensive reflexes are to be observed when it comes to discussing the role of celibacy as well as of homosexuality in the context of the abuse scandal. (A terminological remark: In the following, the term homosexual refers to all who are sexually attracted by people of the same sex. Accordingly, bisexuals also fall under this category. As a consequence of this rather broad usage of the term homosexual, I will assume that not only 1% to 2% but 3% to 6% of all men have sufficiently strong homosexual inclinations.)3 Some conservative Church circles propagate the view that homosexuals in the clergy are the risk factor number one! Therefore, they argue, an effective freeze on recruiting of homosexual men into the seminaries is required and overdue. If such an action is taken, a significant part of the abuse problem could thus be solved and a big step toward the renormalization of the clergy be taken. A very different answer, more likely to be found in liberal Church circles, claims that it cannot be proven that homosexuality itself is a risk factor. In general society, abusers are mostly heterosexual men and the reported abuse victims predominantly girls. Therefore, they claim that the most notable risk factor is rather a lack of acceptance of homosexuals that in turn often leads to a rejected or repressed sexuality. (In addition, celibacy is also considered as a risk factor in the debate. However, since homosexual and heterosexual clerics alike commit themselves to it, celibacy itself cannot explain the overrepresentation of male victims.) Both of the answers are to be confronted with serious concerns. First and foremost, it should not be too quickly taken for granted that either homosexuality or homophobia plays a central role in the explanation.

220  Dominikus Kraschl

3.  Abuse risk compared In her book Sexual Abuse and the Culture of Catholicism, Myra Hidalgo (2007, 51) writes, I do believe that the homosexual nature of the majority of the sexual abuse offences reported, along with a disproportionate representation of homosexuals in seminaries and convents, are critical factors related to the problem but that homosexuality itself is not the cause. Two questions come into mind. First, how much higher is the statistical abuse probability if we compare the data on what is known about homosexual and heterosexual clerics? Secondly, to what extent might it be explained by an overrepresentation of homosexuals in the clergy? The following figures serve as a rough assessment.4 On the basis of what was set out in the first section, let’s assume that about 25% of all clerics have homosexual inclinations.5 Furthermore, it can be assumed that 80% of the reported victims of sexual abuse by clerics are male (John Jay 2011, 81% male and 19% female). Consequently, in a larger diocese with 1,200 clerics, statistically speaking, 300 clerics would have homosexual inclinations. Now, abuse allegations have been raised against less than 5% of all clerics; John Jay 2011 speaks of 4.0 to 4.3%, the MHGStudie of 4.4%. For reasons of simplicity I will calculate with a value of 5%,6 and besides (though reality is in fact more complex) assume that for every abuse victim there is one clerical abuser.7 Now, if we take 1,200 clerics, approximately 60 get accused of child sexual abuse. And if we have 100 abuse victims, 80% of whom are males, then there are about 80 male victims who face 48 homosexual abusers (16% of all homosexual clerics), and about 20 female abuse victims who face 12 heterosexual abusers (1.3% of all heterosexual clerics).8

Estimated statistical susceptibility to abuse of hetero- and homosexual clerics Approximate percentage of abuse victims according to sex 1,200 clerics of which 75% are heterosexual and 25% homosexual, 100 alleged victims of sexual abuse Statistical amount of heterosexual and homosexual alleged abusers

~20% girls

~80% boys

900 heterosexuals, 20 girls 12 of 60 alleged abusers

300 homo-/bisexuals, 80 boys 48 of 60 alleged abusers

1.3% of all heterosexual clerics get accused of sexual abuse

16% of all homosexual clerics get accused of sexual abuse

Abuse of minors & clerical homosexuality 221 According to these figures, it is 12 times more likely for a homosexual cleric to get accused of sexual abuse than for his heterosexual colleague.9 Admittedly, this is no more than a rough estimate. The result may therefore be slightly higher or lower depending on the underlying values. Now, this is not about exact numbers, but about an approximate idea of the proportions of the phenomenon in question. In any case, the numbers suggest a considerably higher probability for a homosexual cleric to either sexually abuse minors or to get accused of it. But if homosexuality as such is not a risk factor, as is repeatedly assured, what factors might explain the data?

4.  Two explanatory approaches The MHG study, commissioned by the German Bishops’ Conference, offers two explanatory approaches that have been readily taken up by Church representatives as well as by the media. The first explanation points out that clerics had easier access to boys, not least because until around 1970, only male altar servers were admitted. In short, one could say that access and opportunity “make” child abusers. The second explanatory approach is as follows. The repressive Catholic sexual morality, in conjunction with a homophobic environment, would often have led to the denial of homosexual inclinations and that in turn to sexual immaturity with a significantly increased susceptibility to abuse. In short, homophobia and sexual immaturity “make” child abusers (MHG-Studie 2018, 271).10 On examination of this information, are we faced with somewhat plausible explanations or rather with oversimplified or even insufficient answers? We will have to take a closer look! 4.1 Opportunity Until the 1970s, the service at the altar was reserved for males. Additionally, the Church ran quite a few Catholic private boys’ schools and boarding schools, where priests worked as teachers or educators. However, does this allow for the reverse conclusion that priests used to have comparatively little opportunity to meet girls and young women, as the first explanatory approach suggests? Such a conclusion seems all too hasty for a number of reasons. Firstly, before and after the Second Vatican Council many priests gave religious instruction, not only in private Catholic schools but also in public ones, from coeducational elementary schools up to girls’ colleges. In a selection of countries, this is still the case today.11 Secondly, regularly, often monthly, school confessions were common.12 Thirdly, many clerics befriended families that in turn made it possible to build relationships with the daughters of these families. Fourthly, priests used to organize all kinds of Church youth work (Jungschar, youth rides, youth camps, sports activities, etc.), and these events were frequented by boys and girls alike. Fifthly, by far the most sexual

222  Dominikus Kraschl assaults did not, for example, take place in the sacristy (only 0.2% according to the MHG study) but in the priest’s home or parish residence (24.3%, MHG study, 232; 40.9%, John Jay 2011, 80). Both boys and girls could be taken there, if necessary, under some pretext. Sixthly, it should be much more likely that some kind of an erotic attraction arises between a heterosexual priest and a (post)pubescent girl than between a homosexual priest and a (post) pubescent boy. There are not only significantly more heterosexual priests than homosexual priests, but the majority of (post)pubescent boys and girls are also heterosexual (about 95%). This is worth mentioning because not all abuse is complemented by physical violence or explicit threats. (According to John Jay 2004, 74, some 14.6% of the victims were threatened in some form by the abuser, of which physical threats form a minority of 12.7%.) In some cases it is more accurate to speak of “sexual intercourse” between an adult and a teenager, whereby a manipulative exploitation of an authority relationship is involved.13 Seventhly, for homosexual clerics, if they are sufficiently attracted to adult men, it is much easier to act out their sexuality with other clerics, for instance, in gay bars or at other meetings points. Why take the risk with an underage boy parishioner when it is much easier and less dangerous to get gay sex with an adult? Eighthly, if access or opportunity had great explanatory power, one would have expected that in the years after the Second Vatican Council, wherever female altar servers had become established, the percentage ratio of male and female victims would have changed significantly and in several places even reversed. However, though there has been a numerical decline in homosexual abuse of minors over the past three decades, male victims are still clearly in the majority, not only in relative but also in absolute terms. (According to John Jay [2011, 104], between 1990–1994 80% of the victims were male, while between 1995–1999 still 69% were. However, in terms of comparability, the methodological problem is that the figures are too low from 1995 onward to be considered sufficiently representative [Sullins 2018, 19–21].) Finally, it should be emphasized that the opportunity thesis does not give us any information about the real causes of sexual abuse of minors by priests. 4.2  Homophobia and sexual immaturity The German MHG study concludes that the opportunity thesis alone “cannot explain the clear preponderance of male victims.” Thereafter, the authors go on to say, “In this context, ambivalent statements and attitudes of Catholic sexual morality towards homosexuality and the meaning of celibacy are to be discussed” (MHG-Studie 2018, 11). The homophobia/immaturity thesis is phrased like this, The complex interplay of sexual immaturity, defended and denied and at the time of career choice possibly latent homosexual inclinations in

Abuse of minors & clerical homosexuality 223 an ambivalent, sometimes openly homophobic environment could thus be another explanation for the predominantly male victims of sexual abuse by Catholic clerics. (MHG Studie 2018, 11; here the MHG study relies, among others, on Müller 2010) What can be said about this explanation? Firstly, because of its complexity, it appears very speculative. It ties together several very different factors, like sexual immaturity, homosexual inclinations, defenses and denial mechanisms, Catholic sexual morality, and homophobic environment. The complexity of the hypothesis makes an empirical examination very difficult. Secondly, even the seemingly innocuous concept of “sexual immaturity” is somewhat blurred, and it is “diagnostically unknown,” as Manfred Lütz (2018a) remarks. Empirically, the concept is not easy to operationalize, since all too many factors come into play, like affective maturity, ability to relate, conscience, resilience, self-esteem, family background, and sociocultural environment, just to name a few. Therefore, a reliable empirical study of the factors that promote sexual immaturity and the extent that it is a risk factor for the abuse of minors proves to be extremely difficult. This does not mean that the concept of “sexual immaturity” is completely useless. Nevertheless, there is a serious danger to adopt it for everything for which we currently do not have a better explanation. Thirdly, it is unclear whether homosexual seminarians and priests had a much harder time to integrate their sexuality than their heterosexual colleagues, whatever “integrating one’s own sexuality” might eventually mean. In Catholic seminaries and houses of formation, the same standards have been applied to all candidates for priesthood. A confrontation with one´s own sexuality, measured by today’s standards, did of course not take place. And practiced sexuality, in whatever form, was and is taboo for heterosexual and homosexual seminarians alike. Therefore, it is not easy to see why heterosexual clerics should have done so much better than homosexual ones. Finally, it must not be denied that quite a few homosexual seminarians did in fact experience sexual encounters with other seminarians or clerics—beginning with erotic attraction, falling in love, and in some cases leading to sexual relations. This is supported by the fact that 25% of the priests who were ordained in the late 1960s report homosexual subculture in their seminary; more than 50% of those ordained in the 1980s report the same. According to Paul Sullins (2018, 27), this trend strongly correlates with the increase of sexual abuse. Therefore, it is certainly too easy to blame a repressive treatment of sexuality for the increased susceptibility to abuse. The statistical correlation supports the opposite thesis. William A. Donohue comments in his review of the second John Jay report, The authors were asked to put the abuse crisis in context, and it would have been delinquent of them not to cite the social and cultural milieu

224  Dominikus Kraschl in which the problem emerged. . . . It should be clear by now that the cultural winds of promiscuity that hit the larger society in the 1960s and 1970s came smashing through the windows of the Catholic Church; it is not an insular institution. Mentioning this is . . . good social science. (Donohue 2011) Sociologists Hoge and Wenger (2003, 110), based on interviews with Catholic priests, report that many priests confirm the existence of homosexual subcultures in their former seminary or their dioceses. They attest that those clerics had sex with each other (for very similar claims, Cozzens 2000, 101). In any case, homosexual seminarians live in community with other young men and are faced with issues such as sexual attraction, infatuation, falling in love, relationship, jealousy, and sexual morality on a daily basis. Alternatively, for heterosexual seminarians it was often difficult to socialize with girls or young women. These considerations speak against the assumption that it was, and is, much easier for heterosexual seminarians and clerics to deal with and successfully integrate their sexuality. While in some regard this might be true, ultimately it appears all too simple. A more sophisticated approach is required. Today, homosexuals encounter more understanding than several decades ago, at least in Western countries. It is a great relief for homosexuals that fewer prejudices are cherished and that one can speak fairly openly about the topic. Nevertheless, it would be hasty to bring the Church’s sexual morality into play when it comes to the abuse scandal. What speaks against a causal connection between the Church´s sexual morality and sexual abuse of minors by clerics is not only that the former does not inevitable go hand in hand with tabooing and stigmatization, but also that is has never changed, while the sexual abuse (by clerics and in general) in the United States strongly increased from the early 1960s until the late 1980s. In some years it came to a manifold increase in the number of victims before declining sharply again and settling down to the level of the 1960s. Incidentally, the number of male victims increased at the same time, from 64% in the 1950s to 76% in the 1960s, and 86% in the 1970s and 1980s (John Jay 2011, 104). The John Jay report (2011, 3) concludes that the “rise in abuse cases in the 1960s and 1970s was influenced by social factors in American society generally,” and it was paralleled by a strong increase in American society.14 This observation suggests that other factors that are only externally related to the issue are to blame, not the Church´s sexual morality.

5.  Interim results Let us summarize the results of the previous sections. First, we should readily admit that we do not really yet know why there is such a striking correlation between clerical homosexuality and sexual abuse of (post)pubescent boys. We should be aware that until the 1970s only male altar servers were

Abuse of minors & clerical homosexuality 225 allowed, even if that can only partly explain the high prevalence of male victims. More difficult to assess is the question of whether the link of repressive sexual morality, denial of homosexual inclinations, and homophobic environment played a major role in cases of abuse. The reason is that such a psychosocial hypothesis appears very speculative, and hitherto we do not have reliable scientific evidence that would support it. Moreover, the homophobia/immaturity thesis has only limited explanatory power, since it does not take into account that Catholic sexual morality has never changed and was held to be outdated by many at the time of the peak of the abuse scandal (especially in the United States of the 1970s and 1980s). Contrary to expectations, the mentioned numbers of sexual abuse increased enormously just at a time when Catholic sexual morality was no longer taken seriously by many and a general eagerness toward sexual experimentation was particularly great.

6.  Further explanatory approaches 6.1  Negative selection for celibacy What about the hypothesis that men who are either sexually immature or have sexual preferences for minors are more attracted by a celibate lifestyle? Such a phenomenon may indeed be part of the overall abuse problem. However, as it stands, it does not reveal anything about the sexual orientation of these men. Therefore, it cannot provide an answer to the question of why a great majority of abuse victims are male and (post)pubescent. Nevertheless, it might be helpful to take a closer look. Previously, it has been assumed that about 95% of all men have strong enough heterosexual inclinations. Consequently, there will in absolute numbers be significantly more heterosexual men than homosexual men who are affected by some kind of sexual immaturity or sexual preferences for minors. This might be illustrated like this: Let´s assume we have 1,000 young men of which about 950 are heterosexual and 50 are homosexual. Furthermore, let’s assume that 10% of the 950 heterosexuals are sexually attracted to (post)pubescent girls, whereas of the 50 homosexuals, 25% are sexually attracted to (post)pubescent boys. (The difference between heterosexual and homosexual men, for the sake of the argument, assumes that in general the latter might have a harder time to integrate their sexual inclinations.) In this case, the ratio of heterosexual and homosexual immature or ephebophile men would in total be 95:12.5. The result is that almost eight times as many of homosexual ephebophiles would have to enter priesthood in order to even catch up with the number of heterosexual priests who are attracted to (post)pubescent girls. However, to form a significant majority, let us say of 75% to 80%, homosexual ephebophiles would have to choose priesthood about 30 times more often than heterosexual ones. This, however, does not appear particularly plausible. Hence, it seems reasonable to

226  Dominikus Kraschl hold that negative selection can, if at all, only partly explain why the vast majority of abuse victims are boys and not girls (for a contrasting assessment, Feierman 2020). 6.2  Homosexuality once more It was claimed that clerical homosexuality as such cannot be a risk factor, because in general society a substantive majority of sexual abuse victims are girls. Is this conclusion correct? Once more, for an adequate assessment a closer look is required. In a 2009 meta-analysis of 65 studies from 22 countries, 19.7% of girls and 7.9% of boys were subjects of sexual abuse (Pereda et al. 2009). (It might be noteworthy that in the U.S.A. and Canada the figures [20.1% girls, 8% boys] are minimally higher than the global average, while in Europe they are significantly lower [13.5% girls, 5.6% boys], leaving the ratio of sexes more or less the same.) The global ratio of abused girls compared to boys is around 70:30.15 Now, if we assume that (i) 5% of men have sufficiently strong homosexual inclinations, (ii) for one (post) pubescent victim there is one abuser, and (iii) methodically exclude female abusers (partly because we lack reliable data),16 then 5% of men would be accountable for about 30% of all the minor abuse victims. According to these figures, the statistical probability that a homosexual man becomes a child abuser is over eight times higher than in the case of a straightforward heterosexual man. (Several studies that state a higher susceptibility to sexual child abuse of homosexual men are mentioned [e.g. Satinover 1996, 181].) Let us have a look at another study. According to a recent meta-study, in non-Catholic institutions of 728 victims, 328 (45.1%) were male and 400 (54.9%) female (Dreßing et al. 2018). If we consider the low proportion of men with homosexual tendencies in general, this might point to a disproportionately high number of male abuse victims once more. Finally, apparently more girls (33–50%) than boys (10–20%) get abused in their own families, not infrequently by their fathers or stepfathers (Lowen 2019). Assuming that exclusively heterosexual men more often have families and children, they would have more access and opportunity for abuse, which again lowers the relative abuse susceptibility of heterosexual men. To what extent the mentioned figures and considerations are reliable or representative might be a matter of ongoing discussion. However, they demonstrate that it is not enough to just point out that the majority of abuse victims are girls when it comes to explaining the striking correlation between male homosexuality and the high number of abused boys.

7.  A bundle of intertwined causes “Monocausal explanations for the clear preponderance of male victims of sexual abuse of children and adolescents by clerics of the Catholic Church are insufficient” (MHG-Studie 2018, 9)—so the German MHG-Studie

Abuse of minors & clerical homosexuality 227 assumes, apparently with good reason. The explanations considered so far (i.e., opportunity, homophobia, negative selection) apparently have too limited a scope of explanation. At most, they partly explain the majority of male victims. This in turn suggests that there might be further factors by which the greater susceptibility of homosexual clerics may fully be explained. An impartial investigation of this question may therefore include a thorough analysis of all the available data, including phenomena that are linked to typical patterns of homosexual behavior and diverse varieties of homosexuality. The relevant data often get neglected or ignored. People do not want to hurt the feelings of homosexual people, and of course they do not want to get suspected of homophobia too. However, if it is not contemptuous for men to ask why the majority of perpetrators of sexual abuse are male, then it should be equally acceptable for homosexual clerics to ask why they, apparently more often, become involved in cases of child sex abuse. a. Celibacy and homosexuality Experienced seminary instructors and spiritual guides have repeatedly reported that, on average, homosexual men have a harder time to live permanently celibate. This might be all the more so for homosexual seminarians who are unsettled or unstable in their sexuality, but build a community of life with other young men. (A former chairman of a victim protection commission confirmed this assessment to me on the basis of his experience, not only, but also with regard to the problem of excessive pornography consumption.) In a valuable article, a long-term vocation director at a major U.S. diocese reports that a significant number of clerics live out their homosexuality with others, be it occasionally or permanently. In doing so, this can lead to frequently changing sexual partners (Monsignore X 1988a; Mattson 2018) in his 25-year study of the Catholic clergy, Sipe notes that about half of the clergy with homosexual inclinations would become homosexually active [Sipe 1990]; Feierman gets to a similar estimate [Feierman 2020]). This tendency to promiscuity of homosexual men is evidenced by many data and studies, which brings us to the next point. b. Promiscuity and homosexuality A series of empirical studies conclude that homosexual men, if they live out their sexuality, tend toward a (sometimes strikingly) promiscuous lifestyle. Interestingly, this apparently also applies to homosexual men who live in same-sex partnerships.17 Several reasons might be accountable for this fact. Among other things, homosexual relationships are not by nature aligned to be reproductive and may therefore not develop as much pair-building power as heterosexual relationships. If these considerations can be generalized, this

228  Dominikus Kraschl surely applies to homosexually active seminarians and priests, too. This, in turn, leads to another point. c. Homosexual subcultures in seminaries and dioceses It has already been pointed out that the existence of homosexual subcultures was confirmed by many priests (Hoge and Wenger 2003; Rose 2002). In addition, in many seminaries as well as religious congregations and dioceses there are informal homosexual networks by virtue of which clerics protect and support each another, especially when it comes to posts and career. (A personally affected American religious [Wagner 1992, 203] explains how he got the statements of homosexual priests that underlie his study. “There is an informal network of gay priests in almost every area of the country. It was this network that was used to get respondents for the investigation.”) The points mentioned so far are loosely linked to another observation. d. Preference for, but not fixation on, adolescents Although contrary to the prevailing narrative, most homosexual clerics maintained sexual relationships with adults before they began to abuse minors. This is highlighted by Richard Fitzgibbon and other Catholic psychiatrists and psychologists. For more than 25 years, Fitzgibbon treated many ephebophilic and pedophile priests from various dioceses and religious communities. He concludes, “In fact, every priest whom I treated who was involved with children sexually had previously been involved in adult homosexual relationships” (Fitzgibbon 2010). Compare Feierman 2020 for a different experience and opinion with respect to this question.). This is confirmed by findings of the John Jay report, “The majority of priests who were given residential treatment following an allegation of sexual abuse of a minor also reported sexual behavior with adult partners” (John Jay 2011, 3). Another interesting finding in this context is, “After considering pre-seminary and in-seminary sexual behavior separately, only in-seminary (not pre-seminary) same-sex sexual behavior was significantly related to the increased likelihood of a male child victim” (John Jay 2011, 40ff). These observations are not inconsistent with the general data of sexual research. For example, homosexual researchers Jay and Young (1979, 275), in a study involving 4,300 male homosexuals, found that 73% of respondents said they had sex with boys aged 16 to 19 years or younger at any time; 22% of the respondents admitted having had illegal sex with minors.18 A study in the Archives of Sexual Behavior concludes that homosexual men are often attracted to very young men. The study compared the preferences of the sex age of heterosexual and homosexual people, both men and women. In contrast to all other groups, 40 out of 49 homosexuals preferred the lowest age category listed, including young men aged 15 (Silverthorne and Quinsey 2000, 70).

Abuse of minors & clerical homosexuality 229 Van den Aardweg (2010) reviewed several available studies on the sexual preferences of homosexual male clients. They indicate that about 20% prefer prepubertal or adolescent boys, while a further 20% indicated preference for late-pubertal boys or young-adult males. Only about 55% said that they would sexually prefer men between 20 and 40 years. e. Striking overrepresentation of homosexual priests who are sexually attracted to (pre)pubescent boys Between 1976 and 1995, a psychological treatment program for diocesan and religious order priests (87%) as well as religious brothers (13%) was carried out in New Mexico. About 2/3 of the men . . . were referred for problems with celibacy. The other 1/3 were in the program for a variety of non-celibacy problems (23% depression, 21% personality issues, 16% growth and development, 14% leaving or wanting to re-enter ministry, 13% stress, 9% anxiety disorder, and 4% other). (Feierman 2020) About 800 men went through one of the five-month modular programs. Feierman summarizes: Perri (1992) systematically sampled 395 consecutive men who received a full battery of psychological tests between 1982 and 1991. Within that selected sample of 395 men, 267 (68%) were homosexual and 128 (32%) were heterosexual. The final designation of sexual orientation was determined at the end of the five-month module on the basis the reason the man was in the program, the man’s self-report by the end of the program, physiological data, and staff consensus. There was no significant difference in the percent of homosexual men in the in the program for a celibacy or a non-celibacy problem. It was around 68% homosexual in both groups. More important, 41% percent of the all homosexuals (both groups combined) were sexually attracted to adolescent and pre-pubertal boys. By contrast, only 15.6% of the heterosexual men were sexually attracted to adolescent and pre-pubertal girls. (Feierman 2020) This result is very remarkable for two reasons. Firstly, because in a nonselected population of men, “for every adult male who is sexually attracted to a prepubertal girl, there should be at least fifty times as many men who are sexually attracted to adolescent girls” (Feierman 2020). Secondly, priests and religious brothers who are sexually attracted to (pre)pubescent boys are strongly overrepresented, when compared to those who are sexually attracted to (pre)pubescent girls. Feierman’s explanation for the data is that

230  Dominikus Kraschl “celibacy attracts sexual outliers,” and this obviously more often so for men who are sexually attracted to pubescent boys. The reason may well be that these men are more strongly attracted by a celibate lifestyle that at the same time gives them access to young boys (Perri 1992). f. Impact of the sexual revolution The report of the John Jay College of Criminal Justice points out that in the U.S., the numbers of abuses increased immensely in the aftermath of the 1968 revolution, and with a time lag within the Catholic Church, too. As far as the majority of male victims are concerned, this may also have something to do with the fact that the percentage of homosexual clerics increased only slowly but steadily (Sullins 2018, 4). At this time, more and more academic teachers, within Church and beyond, began to question Catholic sexual morality. They found nothing morally reprehensible in practiced homosexuality, and that may have encouraged quite a few homosexual seminarians and priests to experience and pursue what they had missed before. It may also not be forgotten that quite a few homosexual activists openly promoted sex with minors back then. For this, many documents could be cited. For example, it is well known that the two prominent German Green politicians, Volker Beck and Jürgen Trettin, advocated impunity for (nonviolent) sexual acts between adults and children in the 1980s. Graupner (1999, 23–6), formerly vice president of the Austrian Society for Sex Research (ÖGS) and a homosexual activist, argued in a 1999 article of the Journal of Homosexuality that consensual sexual relations between adult homosexuals and adolescents from the age of 14 should be a subject of gay rights (unless dependency relationships are at stake, like in the case of teachers/students). The professing homosexual author Paula Martinac writes, It’s not pedophilia, this thinking goes—pedophilia refers only to little kids. Instead, adult-youth sex is viewed as an important aspect of gay culture, with a history dating back to “Greek love” of ancient times. This romanticized version of adult-youth sexual relations has been a staple of gay literature and has made appearances, too, in gay-themed films. (Martinac 2002, 69) What the author refers to as pedophilia seems to include also phenomena such as ephebophilia. Jim Kepner, a gay activist, confirms this assessment. A point I’ve been trying to make is that if we reject the boylovers in our midst today, we’d better stop waving the banner of the ancient Greeks, of Michelangelo, Leonardo da Vinci, Oscar Wilde, Walt Whitman,

Abuse of minors & clerical homosexuality 231 Horatio Alger, and Shakespeare. We’d better stop claiming them as part of our heritage unless we are broadening our concept of what it means to be gay today. (Cited in Thorstad 1990, 266) g. Personal abuse experiences According to the John Jay College of Criminal Justice report, at least onethird of clerical abusers had themselves been abused during childhood or adolescence.19 Against this background, it is to be asked whether abuse experiences affect the statistical probability of becoming a child abuser.20 However, the hitherto presented studies differ significantly on this matter. h. More psychological problems Finally, it should be noted that homosexual men are more likely to suffer from mental health problems or disorders. Accordingly, they seek psychological treatment more often (Bitterli 2010, 149).21 Recent studies have found that men with a homosexual orientation are much more susceptible to depression and anxiety disorders. The risk of addiction or abuse of nicotine, alcohol and other drugs also seems to be much greater. It is particularly alarming that about 18% of all adult male homosexuals have already attempted suicide once. (Bitterli 2010, 149) Among other things, these psychopathological vulnerabilities may be related to the fact that people with a homosexual orientation often feel excluded or not fully accepted. However, this does not alter the fact that mental health problems and drug addiction are statistically correlated with a higher susceptibility to abuse. This might very well be relevant to our topic. What has been said does not suggest that “homosexuality as such” is accountable for the vast majority of male (post)pubescent abuse victims. Apart from that, there are other puzzling data like, for instance, that sexual abuse of (post)pubescent boys on average does not occur shortly after ordination, but only after several years of priestly ministry. (Some make overburdening, loneliness, and so forth responsible; others assume that the first reported or detected case of sexual abuse is usually not the first.) No doubt, there is still a need of clarification. Nevertheless, it has been argued that the cited evidence should be included in the analysis and evaluation. To what extent the mentioned evidence must be regarded as representative is still to be examined more closely. In any case, a viable explanation will have to consider multiple factors. Contrary to what is often claimed, the complex phenomenon of homosexuality, the way clerics deal with it, or other factors that are more or less closely connected to it, are partly responsible for the fact that the great majority of children being

232  Dominikus Kraschl sexually abused by priests are boys. (Donohue 2011; on the question of the compatibility of homosexuality and ordination compare, e. g., Bitterli 2010, chap. 4; Mettler 2008) Finally, it seems that suggestive narratives are not sufficiently supported by the empirical data, as for instance the popular idea of a sexually repressed priest, who suffers libidinous pressure and suddenly loses control over himself and his actions and lays hands on a child. It is not to say that this cannot be the case, but the available data expose this narrative as a clichéd projection.

8. Conclusion Recent studies on sexual abuse of minors by Catholic clerics reveal important facts and figures. However, there is still a long way toward a robust causal analysis, especially with respect to the delicate topic that was discussed in this chapter. Presently, we do not really know to what extent which causal factors are responsible. Nevertheless, it can hardly be denied that factors that are aspects of or at least linked to homosexuality play a causal role. A comprehensive explanation of the tenfold increase of the reported sexual abuse of boys by priests in 1960s and 1970s up to the 1980s should surely encompass social factors that lowered the social barriers, like the beginning of the sexual revolution and the breakdown of traditional sexual morality. On the other hand, such an explanation will have to consider that men who are sexually attracted to (post)pubescent boys are presumably strongly overrepresented within the clergy, apparently because celibacy attracts them more often, if compared to those who are sexually attracted to (post)pubescent girls. The Church leadership may therefore be well advised not to make hasty decisions and to uphold and deepen the current admission provisions until a later time when more is known (Congregation for the Clergy 2016, nr. 199–201). In any case, a lot of work is still to be done to seek justice for the victims and to minimize the risk of future abuse.

Notes 1 The psychiatrist Jay R. Feierman, a long-term expert in the field of sexual abuse of minors by priests, assumes that the numbers of sexually abused boys are in fact even higher, because many of the homosexual boys did not report the abusing priest. The priests who got in trouble were, as several priests told him, mainly reported by heterosexual boys (Feierman, Private Correspondence). If one considers that heterosexual people have a more or less natural aversion to homosexual acts, this appears fairly plausible. 2 According to this representative study of the Center for Disease Control and Prevention (CDC), 1.7% of American men between the ages of 15 and 44 describe themselves as homosexual. Other representative surveys (of 20,000 people and more), such as by the National Opinion Research Center, get to similar, and sometimes even lower, results.

Abuse of minors & clerical homosexuality 233 3 Again, it should be emphasized that people with an exclusive sexual preference for prepubertal children, of whom the secondary gender features have not yet emerged, are not in the focus of this paper. Therefore, it is not necessary to decide whether they are to be classified as homosexual, heterosexual, or bisexual, or whether they are to be classified separately. 4 D. Paul Sullins (Emeritus Professor of Sociology at the Catholic University of America, Washington, D.C.) compared in a study commissioned by the Ruth Institute in 2018 data on sexual abuse by clerics from the two studies of the John Jay College of Criminal Justice (2004, 2011) and the report of the Pennsylvania Grand Jury (2018, https://www.attorneygeneral.gov/report/) with the available data on the sexual orientation of Catholic clerics. The main source for this comparison was a long-term Cornell University study of Catholic priests in the United States in 2002, commissioned by the Los Angeles Times (Sullins 2018). 5 This percentage is higher than that of the 15.2% self-assessment reported by the (previously cited) Los Angeles Times poll. This takes into account the fact that some of those who do not class themselves as homosexual may not admit their homosexual inclinations to themselves. 6 International surveys show that in general about 30% of all accusations are false accusations. With respect to sexual abuse of minors by clerics in Germany, a certain percentage of the reported cases, about 10%, constitute demonstrably false accusations. In a not insignificant part of the cases, about 30%, according to the MHG study, it is one word against the other. For this reason, the accusation can only be considered reasonably clear in about 60% of the allegations (Lütz 2018a, 2018b). 7 Cf. John Jay (2011, 6): “The majority of priests (56%) were alleged to have abused one victim, nearly 27% were alleged to have abused two or three victims, nearly 14% were alleged to have abused four to nine victims and 3.4% were alleged to have abused more than ten victims. The 149 priests (3.5%) who had more than ten allegations of abuse were allegedly responsible for abusing 2.960 victims, thus accounting for 26% of allegations. Therefore, a very small percentage of accused priests are responsible for a substantial percentage of the allegations.” 8 In the following it is assumed that purely heterosexual men usually do not abuse (post)pubescent boys, while homosexual men usually do not abuse (post)pubescent girls. Although there are few reliable figures on the sexual orientation of child abusers, it is neither plausible nor supported by the available data that the sex of the victims for the perpetrators is secondary. John Jay (2004, 52) states that only 3.6% of the accused priests are charged by both male and female victims, while 64% of the priests are charged only by male victims and 22.6% only by female victims. Concerning 10% of the priests the gender of the alleged victims was unknown. These numbers match with figures of the MHG study; the criminal record analysis of the MHG study notes that 44 out of 66 prosecuted abusers were recorded as homosexual (40) or bisexual (4), with 76.6% of male victims clearly in the majority. This group accounts for about 66% of the accused, which is a clear majority. In 143 other cases there was no information on sexual orientation in the criminal records. The sketched tendencies are also confirmed by Erickson (1988). This study is based on a retrospective analysis of medical records of male sex offenders collected at the Minnesota Security Hospital from 1975–1984. The results: 70% of the men abused girls, 26% abused boys, and 4% abused children of both sexes. The study indicates that 86% of abusers of male minors classified themselves as homosexual or bisexual (Erickson 1988, 83). If one methodically abstracts of the pre-pubertal victims, the correlation of homosexual self-identification and male victims is likely to

234  Dominikus Kraschl be even more pronounced. The data support our assumption that heterosexual men usually do not abuse male minors. Incidentally, the vast majority of the abuses seem to have been planned, since they do not take place in the sacristy, but rather at the place where the perpetrator lives. The idea that a celibate man, because of a kind of sexual over-pressure in connection with lack of opportunity and momentary loss of control, passes on a child is probably more a cliché than reality. 9 To be precise, we should also take into account that some abusers are bisexual. Thus, it is to expect that some female victims do not get abused by exclusively heterosexual but bisexual clerics, which again increases the statistical probability that a homosexual or bisexual cleric abuses minors. In this context it might also be of interest that the MHG-study reports, “In subproject 3 [= criminal file analysis; D. K.] in 72 percent of the interviewed accused clerics was found evidence of homosexual orientation and in 12 percent of the interviewed not accused clerics.” (MHG-Studie 2018, 6) 10 The preceding summary of the MHG-study emphasizes that the findings are “purely descriptive” and “a statistical proof of causal relationships between individual phenomena or variables is not possible” (MHG-Studie 2018, 4). However, unfortunately this is not maintained in the study. Manfred Lütz has sharply criticized the MHG study in this regard, “The scientific low point of the whole, however, is the summary. . . . This summary has evidently received virtually all scientifically unproven but popular demands. It remains unclear who takes responsibility for this summary. It is hard to imagine any scientist writing that kind of thing” (Lütz 2018a). 11 On an international average, 12.9% of the abuses took place at school (MHGStudie, 232). 12 According to the figures of the MHG study only very few assaults took place in the confessional or during reconciliation (0.3% according to MHG-Studie 2018, 232; 1.8% according to John Jay 2011, 81). 13 According to Sullins’ study, the increase of male victims who are older than 8 years (from the end of the 1960s the end of the 1980s) correlates about 98% with the increase of homosexual men in the clergy (Sullins 2018, 3). The same study found that easier access to male adolescents could account for no more than one fifth of male victim preference. (2018, 33) 14 The reasons for the strong decrease in the 1980s are not yet clear. A partial explanation might be the declining numbers of priests. More important, however, might be that “seminarians [and priests] felt emboldened sexually when the sexual revolution started. The 1980s were when the arrests, trials and publicity of the priest sexual abuse scandal became public in the United States. Each year there were more articles on the TV news and in the newspapers about priests sexually abusing young boys. It may well be that the publicity is what caused the priest pederasts to slow down their behaviors. By 2002, the level of priests caught offending was back to the lower levels of the 1950s” (Feierman, Private Correspondence). 15 Cf. MHG-Studie 2018, 229, “There is a discrepancy with respect to the gender distribution of those affected by the Catholic Church and those affected by nonCatholic institutions. The following information is based on 34 results concerning the Catholic Church and nine results concerning the comparison group. In the context of the Catholic Church with a proportion of 77.3 percent the male affected outweighed significantly, while the proportion of male affected in the comparison group was 47.4 percent, which was lower than the proportion of female victims.”

Abuse of minors & clerical homosexuality 235 16 The author first points out that so far there are still not enough reliable empirical studies on the extent of sexual abuse of minors by women. He then continues, “There is much evidence that women are more likely to abuse children sexually than is currently known. Whether they abuse more girls or more boys remains unclear, or the results of the studies contradict each other” (Rossilhol 2005, 38f). Two questions are to be raised. First, is sexual abuse of minors by women sufficiently recorded in the so far published studies? This is strongly questioned by some authors, because for a long time many believed that women committed virtually no abuse; one could not or did not want to imagine women as child abusers, which also influenced the recording and reporting of abuse (Rossilhol 2002; Bunting 2005). Secondly, as some studies have shown, women more often appear to abuse prepubescent children (Rossilhol 2005, 39), while for our topic primarily the group of (post)pubescent boys is of interest. Since there are no reliable figures, it seems reasonable to methodically exclude female perpetrators. And even if they were counted in, this would presumable not withdraw the gross tendencies we are dealing with. 17 A 2003 study from the Netherlands found that partnerships between younger homosexual men last on average not more than 1.5 years. Within these partnerships each partner has an average of 12 other sexual partners during these 1.5 years (Xiridou et al. 2003, 1031). According to a study conducted in Australia, more than a quarter of homosexual men said they had 21–100 sexual partners; almost two-fifth would have had 101–1000 and more than one sixth over 1000 partners (Prestage et al. 1995, 3). An older German study came to comparable findings (Danecker and Reiche 1973, 236). Isay points out that in homosexual circles it is often distinguished between sexual loyalty and emotional loyalty. Sexual fidelity is not only very rare, but it is usually given even little importance (Isay 1990, 97ff). 18 In 1970, the Kinsey Institute interviewed 565 white homosexuals in San Francisco. Here, 23% of men said they had had illegal sex with boys who were 16 or younger while they were 21 or older (Bell and Weinberg 1978, 18; also see Elliott et al. 1995). In a few cases, as the Pennsylvania Grand Jury Report shows, there were even criminal networks of homosexual clerics who passed on to each other minor victims (Rüb 2018). 19 “Though priests’ personnel files contain limited information on their own childhood victimization and their substance and/or alcohol abuse problems, the surveys report that nearly 7% of priests had been physically, sexually and/ or emotionally abused as children. The surveys also indicate that nearly 17% had alcohol or substance abuse problems” (John Jay 2004, 6). Compare also MHG-Studie 2018, 7, “[For] Among the accused clerics, the personal files rarely contained evidence of sexual abuse during their childhood or adolescence (TP6), which may be due to the lack of information or documentation of relevant information. In subproject 2 [= criminal file analysis; D.K.] however, among 36 percent of the accused there was evidence they themselves had suffered sexual abuse.” A study in the International Journal of Offender Therapy and Comparative Criminology found, “In the case of childhood sexual experiences prior to the age of fourteen, 40% (of the pedophile sample) reported that they had engaged ‘very often’ in sexual activity with an adult, 28% stated that this type of activity had occurred ‘sometimes’“ (Sawle and Kear-Colwell 2001). 20 A recent long-term study found that the relative risk of experiencing homosexual abuse is 9.5 times higher for male homosexuals and 12.8 times higher for male bisexuals than male heterosexuals (Sweet and Welles 2012).

236  Dominikus Kraschl 21 Also see John Jay 2004, 9: “The surveys indicate that 32% of priests who were subject to allegations of sexual abuse were also recognized as having other behavioral or psychological problems.” John Jay 2004, 5, states that abusive priests “had vulnerabilities, intimacy deficits, and an absence of close personal relationships before and during seminary.”

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Abuse of minors & clerical homosexuality 237 Isay, Richard A. Schwul sein. Die psychologische Entwicklung des Homosexuellen. München: Piper Serie, 1990. Jay, Karla, and Allen Young. The Gay Report, Lesbians and Gay Men Speak Out About Sexual Experiences and Lifestyles. New York: Summit Books, 1979. John Jay College. The Nature and Scope of Sexual Abuse of Minors by Catholic Priests and Deacons in the United States 1950–2002. Washington, DC: United States Conference of Catholic Bishops, 2004. www.usccb.org/issues-and-action/ child-and-youth-protection/upload/The-Nature-and-Scope-of-Sexual-Abuse-ofMinors-by-Catholic-Priests-and-Deacons-in-the-United-States-1950-2002.pdf, retrieved February 19, 2019. John Jay College. The Causes and Context of Sexual Abuse of Minors by Catholic Priests in the United States, 1950–2010. Washington, DC: United States Conference of Catholic Bishops, 2011. http://votf.org/johnjay/John_Jay_Causes_and_ Context_Report.pdf, retrieved February 18, 2019. Los Angeles Times. Polls: Catholic Priests in the United States [Machine-Readable Data File]. USLAT2002-471, June 2002. Ithaca, NY: Roper Center for Public Opinion Research, Cornell University. Lowen, Linda. Cold Hard Facts, Statistics on Child Sexual Abuse: Most Victims Molested by Someone They Know and Trust, October 6, 2019. thoughtco.com/ facts-about-child-sexual-abuse-statistics-3533871, retrieved March 7, 2019. Lütz, Manfred. “Missbrauchsstudie‚ mangelhaft und kontraproduktiv.” Tagespost Online, September 24, 2018. https://www.die-tagespost.de/kircheaktuell/online/Manfred-Luetz-Missbrauchsstudie-mangelhaft-und-kontraprodu ktiv;art4691,192172, retrieved February 19, 2019 (= Lütz 2018a). Lütz, Manfred. “Spektakulär misslungen, das Forschungsprojekt im Auftrag der Deutschen Bischofskonferenz über Missbrauch.” Theologisches. Katholische Monatsschrift 48(2018): 479–90 (= Lütz 2018b). Martinac, Paula. “Mixed Messages on Pedophilia Need to Be Clarified, Unified.” Washington Blade, March 15, 2002. Mattson, Daniel. “Why Men Like Me Should Not Be Priests.” First Things, August 17, 2018. https://www.firstthings.com/web-exclusives/2018/08/why-menlike-me-should-not-be-priests, retrieved February 19, 2019. Mettler, Peter. Die Berufung zum Amt im Konfliktfeld von Eignung und Neigung. Eine Studie aus pastoraltheologischer und kanonistischer Perspektive, ob Homosexualität ein objektives Weihehindernis ist. Frankfurt a. M: Peter Lang, 2008. MHG-Studie. Forschungsprojekt. Sexueller Missbrauch an Minderjährigen durch katholische Priester, Diakone und männliche Ordensangehörige im Bereich der Deutschen Bischofskonferenz. https://www.dbk.de/fileadmin/redaktion/diverse_ downloads/dossiers_2018/MHG-Studie-gesamt.pdf, retrieved February 19, 2019. Monsignore X. “A Ticking Time Bomb: How the Church Can Address the Problem of Homosexuality in the Priesthood.” Crisis Magazine, October 1, 1988. https:// www.crisismagazine.com/author/monsignorx, retrieved February 19, 2019 (= Monsignore X 1988a). Monsignore X. “Looking the Other Way: Homosexual Seminarians Need Pastoral Care, Not Benign Neglect.” Crisis Magazine, November 1, 1988. www.crisismag azine.com/1988/looking-the-other-way-homosexual-seminarians-need-pastoralcare-not-benign-neglect (= Monsignore X 1988b). Müller, Wunibald. “Keine falsche Stärke vortäuschen.” Herder Korrespondenz 64 (March 2010): 119–23.

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Abuse of minors & clerical homosexuality 239 Wagner, R. “Schwule katholische Priester in den USA, Empirische Untersuchung einer Dissonanz zwischen Pflicht und Neigung.” In Sexualwissenschaft und Sexualpolitik, Spannungsverhältnisse in Europa, Amerika und Asien, ed. Rolf Gindorf and Erwin J. Haberle. Berlin: DeGruyter, 1992, 195–250. Xiridou, Maria et al. “The Contribution of Steady and Casual Partnerships to the Incidence of HIV Infection Among Homosexual Men in Amsterdam.” AIDS 17:7(2003): 1029–38.

9 Conclusion Trying to learn some lessons and correct past mistakes Anthony J. Blasi and Lluis Oviedo

The published literature analyzing the causes and the factors involved in that terrible season of abuses and cover-ups is now abundant.1 It is difficult to add new insights or to reveal aspects formerly neglected, but as editors of the present volume, we were still unsatisfied with most approaches, because the current treatment of the crisis has often not been deep enough, or unable to dig into the root causes and factors that determined such big disruptions in Church life. So a central motivation when we invited colleagues to participate in this project was to provide a deeper and updated analysis capable of revealing in a forensic way, not only the proximate, but also the remote causes that could explain that process. Now, closing these pages and looking backward, some central issues emerge after closely reviewing the contributions collected here. One issue that several voices addressed and will contribute to the ongoing discussion is the extent that remote causes can be identified in flaws in the current regime and discipline of Catholic priesthood. Celibacy comes clearly to the fore (see chapters by Blasi, Feierman, and Elzo) and the limitation of ordained ministries to males. This is a point that invites critical reflection and further research. However, the same voices reveal in the way that the Catholic priesthood is understood and formed, deep problems on account of an authoritarian or too hierarchical a style, one that justifies forms of domination and abuse at different levels. This second view finds further evidence by the recent revelations of abuses to minors in other churches and religions that were not bound to the celibacy rule, but were predominantly or even exclusively male in their clerical composition, and in all cases, the pastors or religious officials enjoyed great power and unlimited influence in their congregations. A second issue that has drawn the attention of several chapters is related to homosexuality. At least three chapters (Blasi, Feierman, and Kraschl) have engaged with this issue at different levels. The results are quite convergent: about 80% of victims were young boys, and hence a simplistic conclusion would be that this has been a problem of homosexuality in Catholic ranks, which probably has increased among Catholic clergy in several Western areas in the last decades. However, the studies in this volume show how

Conclusion 241 complex that issue is and offer a much more nuanced reading of the available data to show the particular sexual configuration of most perpetrators is not to be simply assimilated to homosexual attitudes. A third important issue regards contexts, ideas, and the internal and external culture in the Church during the worst years of the crisis. Some chapters deal in a detailed way, and considering the extensive available literature, with that factor and its possible impact (Elzo and Oviedo). Again, the current state of things does not allow us to draw quick conclusions, and a further lesson we learn is that blaming cultural moods in the 1960s and 1970s in Western Europe that tried, in a botched way, to legitimate sexual practices with underage people does not suffice as an explanation. Those attempts were clearly flawed, and they later backfired. It is hard to connect sexual abuses in the Church with that mood taking place in very distinct and distant subcultural settings. Possibly, the Church’s internal culture could be a better candidate when trying to find intellectual culprits, but again, things appear as less lineal and hard to connect with theologies or ideas in that environment. Theology has played a very minor role, not because it was not involved, but because its effects or consequences were very limited, and the fault is more to be found in its negligence than in a positive cause-effect implication. Another lesson to learn is that theology needs to engage more with current problems and provide analysis, guidance, and advice. A special consideration focuses on the juridical dimension, surely more directly involved in that scourge and its revelation. Two papers deal with this aspect (Dugan and Zambrana), showing, in one case, the still unsatisfactory approach to the problem after considering the very botched treatment in the past; and, in the other case, how the issue of ecclesial authority and legal liability explain in good measure the legal treatment and the many financial issues linked to the scandal that have contributed to its revelation and prosecution. The lessons here for jurists and lawyers in the Church have probably been learned in these almost 20 subsequent years of praxis, and the Church needs to learn from past mistakes. One chapter deals with the micro social structures and networks present among the clergy and in other institutions that contributed to the cover-up and a culture of impunity (Pogorelc). There is much to learn and apply at the level of seminary formation and forms of clerical aggregation to discourage future negative cases, such as those we have witnessed. Several, or better almost all, contributions engage in proposing measures that would help to avoid future crises similar to those already shown. It appears quite convincing that not only disciplinary or legal measures would ensure that the abuses will come into control and be avoided at all. Several authors in this book are convinced that more needs to be done and corrected at a structural level if the Catholic and other churches will avoid facing those problems again. The book is surely not exhaustive, but has tried to fill some gaps we spotted in the current published literature. It has tried to cover aspects that will

242  Anthony J. Blasi and Lluis Oviedo contribute to a greater awareness and to better deal with the worst problem the Catholic Church has lived in the last century. It would be interesting if the contributions could ignite new discussions and help better discern what went wrong in those years and to prevent future negative developments after considering flaws, mistakes, and learning the lessons suggested by the experts. It has been an important step to identify and explain the convergence of causes that has brought about the abuse and cover-up catastrophe. That step, however, is but a preliminary one. The next is a matter of salutary change. And while the offenses at the origin of the catastrophe were set in motion by biological dispositions combined with psychological absences of impulse control, salutary change involves a different kind of motivation. The original problematic behaviors often occurred contrary to preferred identities of the perpetrators, and occurred despite what they professed to be. They will continue despite efforts to tighten discipline. The cover-ups occurred as untoward activities consistent with clerical identities. They too will continue despite efforts to tighten discipline. Salutary change, if it is to be something organizational and not individual, institutional and not transitory, is not going to have biological dispositions in the background and is not going to be consistent with clergy identities that are at present set in place.2 Change does not enjoy the background factors that led to catastrophe. Identities, clergy identities included, are constructs people possess; they are based on expectations from people in social environments and expectations that individuals associate with themselves. They are long-term rather than short-term. People put on and take off short-term constructs as situationally useful; they play the role of customer in a store, guest when visiting, listener when an acquaintance talks through a problem. Long-term constructs, i.e., identities, are only changed with difficulty. “You can take the teacher out of the classroom but not the classroom out of the teacher.” Retirements need to be ritualized; divorces are messy. Identities that are highly institutionalized as aspects of family, profession, and religion are difficult to change because they are not simply habitualized but come to be aspects of one’s self and one’s identity. Few identities are as institutionalized as that of the priesthood. And identities serve as the basis of motives. People are motivated to conduct themselves consistently with their identities. Changing something bound up with an identity is difficult for that reason. We mention this because recommendations for preventing a future reoccurrence of the catastrophe typically call for changes that would alter the Catholic clergy’s identities. And no, it is not a matter of a few conspirators who want to do away with mandatory celibacy, male-only ordination, clericalism, and homophobia getting together and promoting another reason to do away with these things. The authors are people who are very different from one another in their own respective identities, varying in states in life, professions, nationalities, and social networks. Mandatory celibacy, ordination of males alone, clericalism, and homophobia come up in the

Conclusion 243 recommendations because they appear to be causally connected as background factors to a catastrophe. As background factors, they are not necessary and sufficient causes of any one offense and system of concealment, but related to these as soccer is to soccer riots, tobacco commercials to lung cancer incidence, and urban thoroughfares to traffic jams. However salutary changing such things may be, resistance will arise. So, we invite the ecclesiastical decision-makers to follow the path undertaken by the Second Vatican Council known as ressourcement. This was a return to authoritative documents from Christian origins to highlight the reasons for church practices. What do the sources actually say about ministry? Is mandatory celibacy really what ministry was intended to be about? Is a preponderance of men with responsible positions in antiquity because of a sexist ancient society a sound theological rationale for a male-only clergy in the present? Is sexuality to be a core concern in ministerial preparation, so core that association with potential marital partners would be suspect and homosexuality to be equally so? Are the clergy to comprise an estate? Let present identities not predetermine the answers to such questions. A natural conspiracy to oppose change is no more acceptable—intellectually and pragmatically—than would be a conspiracy of people who want certain changes to simply find another occasion to argue for their views. Of course, theology must always evolve simply because it is socially and historically located. This leaves us with theologies rather than one master theology. Needless to say, the differing lives and contexts of the contributors to this volume reflect varying social and historical contexts, with consequent differences in some of the views presented in the various chapters.

Notes 1 For a quite exhaustive bibliography, see (Quadara et al. 2015). 2 We say clergy rather than clericalism here in order to speak of the people in ministry rather than the clericalist identities that need to be changed.

Reference Quadara, A., V. Nagy, D. Higgins, and N. Siegel. Conceptualising the Prevention of Child Sexual Abuse. Final Report. Melbourne: Australian Government, Australian Institute of Family Studies, 2015, 67–73.

Index

Abel, G. 26 abuse data: distribution over time 126 – 7 accountability 75, 95 Adams, H. E. 33 Adamson, J. D. 8 adaptation 71, 72, 83 adolescence 133, 135 agency 183, 190, 209 Alger, H. 231 Allen, L. M. 157n15 altar servers 222 altruism 24 Ambady, N. 29 Ambroise-Rendu, A.-C. 53 Andersen, N. A. 69, 72 androphiles 16, 21 Angel, H. F. 72 Anglican Church 184, 188 – 9, 193, 210 anthropology 81 – 5 anxiety disorder 231 Apostolic Constitution on the Sacrament of Order 143 Apostolic Constitutions 140 – 1 Aquinas, T. 149 – 50 Aragon, L. 56 Arndt, W. et al. 155 arousal 8 – 25 assault 182 Australian Royal Commission 27 authority 184, 186 – 9, 193 – 4, 196 – 8, 199, 201, 203, 206, 208 – 11 autonomy 198, 203, 209 – 10 Bach-Ignasse, G. 55 Ballano, V. 129, 156n2 Balthazart, J. 10 Barthes, R. 56 battery 182

Bazely v Curry 188 Beauvoir, S. 56 Beck, V. 230 Belgium 27 beliefs 72 – 3 Bell, A. P. 24, 26, 235n18 Bitterli, M. J. 231, 232 Benedict XVI 48 – 9, 64, 80, 87 – 8 bisexuality 20 Blanchard, R. 19, 25 Blasi, A. J. 132, 142, 151, 152 Boff, L. 90 Bogaert, A. 12 Boston Globe 166 Boswell, J. 16, 33, 39 Boyd, R. P. 72 – 3 Brandmüller, C. W. 8 Brongersma, E. 31 Brooklyn Jews 37 Brown, F. et al. 154 Buckels, E. 83 Bunting, L. 235n16 Burgess, A. W. 20 Burke, A. 29 Camperio-Ciani, A. 24 canon law 90, 183, 186 – 7, 198, 200 – 5, 207 – 11; Code of 1983 112, 113, 114, 115, 164; Pio-Benedctine Code 163 – 4 Canon Law Society of America 177 Cantor, J. M. 23 Carnì, M. 208 – 10 Castoriadis, C. 71 Catholic schools 221 Catholic sexual morality 221, 223, 230 causality 126, 129; catalytic 131; probabilistic 130; proximate 131; remote 131

Index  245 celibacy 7, 33 – 7, 63, 76, 129, 132 – 3, 137, 205, 219, 225, 229 Center for Disease Control and Prevention 232n2 Chalmers, M. 185 Chandra, A. et al. 218 Charter for the Protection of Children and Young People 167 Chaves, M. 137 Cheval, B. 33 childhood victimization 235n19 children’s perception 132, 136 – 7 chronology 178 – 61 church youth work 221 civil law 182 – 3, 196 – 7, 208 clergy malpractice 186 clericalism 63, 74 – 6, 101, 107, 108, 122, 123, 133, 211 Clowes, B. W. 32 Cochini, C. 7 Cohn-Bendit, D. 54 collegiality 102 commettant 197 committente 201 common law 182, 184, 196 – 7 communication campaigns 62 – 3 communion 90, 92, 203 concealment 116, 122 concordat 202 – 3, 205 – 7 confession 221 Congar, Y. 92 Congregational Church 191 Congregation for the Clergy 148, 232 Congregation for the Doctrine of the Faith 140, 148, 158n24, 158nn28 – 30 conservative 128, 147 – 8 Constitution On the Church 144 Constitution on the Sacred Liturgy 143 control see authority conversion 88 Cooper, D. 54 corruption 106, 107, 115, 117 Coser, L. 107 Cottier, G. 87 Council of Trent 143, 163 – 4 counterculture 131 Cozzens, D. B. 25, 224 credibility 89 criminal law 182, 197 culpa in eligendo 201 culpa in vigilando 196 – 7, 201 cultural evolution 48, 72

cultural revolution: 1968 230 culture 48 – 54, 62, 69, 73, 80; internal 75 Danecker, M. 235n17 Da Vinci, L. 230 Davis, R. C. 8 Decree on the Ministry and Life of Priests 144 Deleuze, G. 56 Delio, I. 77 depression 231 development sexual 14 Diamond M 16 Didascalia Apostolorum 140 DiMarzio, Bp. N. 176 direct liability 184, 198, 202 – 6, 210 diocesan policies 168 discovery 185 Dolan Card, T. 175 – 6 Dolto, F. 54 Donohue, W. A. 7, 223 – 4, 232 Donovan, J. 22 Dover, K. J. 21 Doyle, T. P. 39, 156n6 Dresser, J. 33 Dreßing, H. et al. 226 duty of care 188 – 9, 190 Duvert, T. 54 Dynes, W. R. 22 Eberstadt, M. 60 – 1, 128 ecclesiology 75, 85 – 90, 93 ecological fallacy 127 – 8, 135 Eibl-Eibesfeldt, I. 10 elders 191 emotional loyalty 235n17 enterprise risk see risk Ephesians, Letter to the 142 Episcopal Church 186 Erickson, W. D. et al. 233n8 Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons 168 Establishment clause 185 Estrada, J. A. 90 Evangelical Church 200, 206 evolution 73 fallibility 85 family 129; background 223 fault 183, 196, 206 Faye, J. P. 56

246 Index Fearing v Bucher 185, 199, 201 Feierman, J. 8, 24, 82, 227, 229 – 30, 234n14 Fichter, J. H. 34, 132 fiduciary duty 183, 185, 187, 190, 203 fiduciary obligations see fiduciary duty Finkelhor, D. 13 First Amendment 185 Fisher, H. 8, 24 Fitzgibbons, R. 32, 228 Fleischhauer, J. 53 formal organization 100, 101, 107, 111, 117, 118, 122 forseeability 189, 192 Fort Worth Star-Telegram 158 Foucault, M. 54 France 48 – 60 Francis, Pope 30, 38, 63 – 4, 88 Free Exercise Clause 185 Freund, K. 13, 19, 21, 25 – 6, 156 Frey, Bp. G. 165 Gadamer, H. G. 73 Gagon, J. H. 32 Gale, R. V. 166 Gandhi, M. 54 Ganna, A. 24 Garland, R. J. 156 Gauthé, G. 119, 146, 165 gay subculture 25 Gebbhard, P. H. 26 gender 11 – 22 gender distribution 234n15 Geoghan, J. 117, 166 – 7 German Bishop’s Conference Report see MHG Forschungsprojekt Germany 48 Gibson 185 Giliker, P. 187, 210 Gladue, B. A. 128 Glucksman, A. 56 governance 95 grace 82 – 5, 91 Grammer, K. 13 – 14 Graupner, H. 230 greedy institutions 107, 122 Greeley, A. M. 34, 126, 129 – 30, 131 Green, R. 23 Grocholewski, C. Z. 23, 30 Gross, J. M. 21 Groth, A. N. 19, 128 Grove, C. 23, 25 Habermas, J. 73 Hall, J. 29

Hanlon, J. 166 Hanson, R. K. 36 Harlow, N. 20 Harrill, J. A. 154 Harrison, R. K. 154 Hebda Archbp, B. 175 Heid, S. 7 Herdt, G. H. 20 Hidalgo, M. 220 hierarchy 188 – 9, 191, 194, 202, 206, 210 history 69 Hoeppner, Bp. M. 175 Hoge, D. 224, 228 holiness 89 Hollersen, W. 53 Holy See 182, 198, 205 homophily 101, 102, 113 homophobia 33, 219, 222, 227 homosexual ephebophiles 225 homosexuality 7 – 39, 63, 134, 146 – 55, 226; as explanation 126 homosexual seminarians 224 homosexual subculture 131, 223, 228 Hoyano, L. 187 Hsu, K. J. 16 Hubbard, Bp. H. 176 Hudson, W. W. 33 Humanae Vitae 64 Human rights 182, 205 ideology 69 image 136 – 7 imam 200 – 1 Immelmann, K. 10 incidence 127 incidents 127 indirect liability see vicarious liability inner-directedness 129 – 30 institution 90, 92 Inter Insignores 140, 141 – 4 intimacy: capacity for 129 intrinsic disorder 148 – 9 intrusive governance 130, 133 – 4, 146 investigation 117, 118 Ireland 27 Irenaeus, Saint 140, 157n17 Isay, R. A. 235n17 isomorphism 61, 63 Jacobi v Griffiths 188 Jay, K. 228 Jehovah’s Witnesses 194 John XXIII 145 John Chrysostom, Saint 144

Index  247 John-Jay College Studies 26, 67, 104, 107, 126 – 8, 136, 167, 218, 220, 224, 228, 230, 233n4, 233nn7 – 8, 234n12, 235n19, 236n21 John Paul II 87 – 8, 139, 148 – 50, 166 Jordan, M. D. 30, 39 Kachel, S. 29 Kadushin, C. 101, 107, 111, 118, 122 Kanter, R. M. 157n9 Katzenstein, D. 26 Kear-Colwell, J. 235n19 Kelty, M. 35 Keenan, C. 187 Keenan, M. 132, 133, 134, 157n11, 157n14 Kennedy, E. C. 34 Kepner, J. 230 – 1 Kingston, D. A. 20 Kinsey, A. D. 15, 23 Kinsey Institute 235n18 Kirkpatrick, M. 13 Kowalski, A. P. 7 Kruger, T. H. C. 31 Kugle, S. 20 Lalumière, M. 23 Langevin, R. 128 Langfeldt, T. 20 Laumann, E. O. 157n10 Law Card, B. L. 166 Laws, D. R. 8 layman 200, 203, 209, 211 learning systems 91 legitimation 51 – 3, 58 – 9, 76 Leviticus 153, 154 – 5 Lindbeck, G. 86 Lister v Lesley Hall 192 loneliness 137, 231 Lorenz, K. 14 Los Angeles Times 218, 233nn4 – 5 lovemaps 8 – 11 Luhmann, N. 70 – 1 Luppu, I. 185 Lütz, M. 223, 233n6, 234n10 Lyotard, F. 56 Lytton, T. D. 110, 117, 119, 121, 185, 207, 210 Maccoby, H. 7 Maga 193 maladaptation 72 – 4 Malone, Bp. R. J. 175 – 6 Martel, F. 33 Martinac, P. 230

mating mind 14 Matthew, Gospel of 142 – 3 Mattson, D. 227 Matza, D. 135 Mazaurette, M. 53, 55 McCarrick Card, T. 100, 103, 109, 119, 175 McGeorge, J. 19 McGlone, G. J. 135 McPhail, I. V. 128 Mental health 231 Merton, R. K. 130 Mesoudi, A. 72 metropolitan archbishop 113, 114, 118 Mettler, P. 232 MHG Forschungsprojekt 27, 51, 157n1, 157n12, 157n13, 218, 221, 222 – 3, 226 – 7, 233n6, 233n8, 234nn9 – 10, 234n12, 234n15, 235n19 Michelangelo 230 Miller, G. 14 minister 191 monarchy 130, 133 – 4, 144 Money, J. 8 Monsignore, X. 227 Moore, M. 13 moral panic 62 – 3 moral sexual 61 – 2 Morris, J. A. 10 Morton, K. R. 132 mosque 200 Müller, W. 223 Murphy, N. 86 Murphy Report 93 Muslim 200 Mustanski, B. 23 mysterium iniquitatis 85 National Catholic Reporter 146 National Opinion Research Center 232n2 national penal tribunal 176 – 8 National Review Board 113, 170 negative selection 225 negligent hiring 184, 205 negligent retention 184 negligent supervision 184, 197, 198 – 9, 205 – 7, 210 Netherlands 48 New Mexico 27 – 8, 30 – 1 New South Wales v Lepore 195 Niebuhr, H. R. 70, 79 non-delegable duties 195

248 Index obedience see authority Ordinatio Sacerdotalis 139 O’Reilly, J. T. 185 organization studies 90 over burdening 231 Pain, N. 53 parish 186, 189, 190, 192 – 5, 198 – 9, 200 – 1, 209 particular church 204 pastor 184, 186, 192, 200, 206, 209 patriarchal family 65 patriarchy 133, 138 Paul, Saint 138, 141 – 2, 146 – 7, 150, 151 – 3 Paul VI 139 – 40, 150, 158n24 Paulhus, D. L. 83 pedophilia 128, 218 penance 88 Pennsylvania Grand Jury Report 27, 50, 103, 117, 120, 233n4 Pentecostal Church 184 Perper, T. 13 – 14 Perri, W. D. 28, 229, 230 Phipps, W. E. 7 Pie I Ninot, S. 90 Pierrehumbert, J. B. 29 Pius X 128 Pius XI 150 – 1, 158n28 Pius XII 143 Playa, E. 23 pope 203, 208 – 9 Pornbacher 187 Porter, J. 110, 165 – 6 Potvin, R. H. 34, 132 power 130, 134, 138; coercive 103, 104, 106, 115, 122; compensation for lack of 138; normative 103, 104, 105, 109, 111, 115, 122; utilitarian 103, 104, 106, 108, 109, 111, 115, 116, 122; see also authority Prado, F. 30 preliminary investiagion 170 – 2 Préposé 197 Preposto 201 Presbyterian Church 184 Prestage, G. et al. 235n17 prestige 137 prevention 136 psychoanalysis 34 psychological tests 10 psychopathologie 82, 84 puritanism 64 Quinn, P. A. 39 Quinsey, V. L. 19, 228

racketeering 185 Rahman, Q. 24 rapporto di preposizione 200 ratification 185 Ray, J. 37 rectory 222 Reed, D. 20 Regan, P. C. 13 Reiche, R. 235n17 relativism 55 religious authority see authority religious brothers 229 religious order priests 229 Reno, R. R. 25, 80 reparative therapy 13, 32 resilience 223 respondeat superior 183 restorative justice 208 review boards 169 Richerson, J. 72 rights of child 57 – 8 rigorism 64 Rind, B. 132 risk 185, 187 – 9, 192 – 4, 195, 197, 199, 202, 210 risk management 36 Roland, D. L. 8 role-taking 132 Rose, M. S. 228 Rossilhol, J. B. 235n16 Rossetti, S. 128, 134 Rossman, P. 19, 31 Rüb, M. 235n18 Rueda, E. 32 Ryan Report 93 Safe Environment Program 35 Saghir, M. T. 15 Saikaku, I. 20 Salmond test 187 Salvation Army 191 same-sex partnerships 227 Sandfort, T. G. M. 8, 29 Sartre, J.-P. 56 Satinover, J. 226 Sawle, G. A. 235n19 Schlegel, F. 64 Schmidt, J. 22 Schmitt, A. 20 scope of employment 185, 188, 196 – 7, 206 – 7, 209 Scott, J. P. 24 Seitz, R. 72 self-deception 83 – 4 self-esteem 223

Index Selin, G. 39 seminary 25, 223 Sen, A. 91 sexual immaturity 222 – 3 sexuality 7 – 39; negative perception of 132 sexual loyalty 235n17 sexual orientation 7 – 39, 229 sexual revolution 61 – 2 Shakespeare, W. 231 Shanley, P. R. 166 She, Z. 10 Sherer, R. 54 signs of times 78 Silva, D. 11, 25 Silverthorne, Z. A. 228 Simon, J. M. 165 Singh, D. 8 sin of the church 87 sin original 83 Sipe, R. 50, 219, 227 Snaith, N. H. 155 social imaginaries 70 social network 100, 101, 102, 104, 106, 108, 109, 110, 111, 113, 115, 118, 120, 122, 123 social systems 71 – 2, 94 Sollers, P. 56 Sorensen, R.C. 15 Southern Baptists 37 Sperry, L. 156n3 Spizer, R. L. 13 Stähely, U. 72 Statement of the Episcopal Commitment 168 statutes of limitation 182, 204 strict liability 183, 196, 206, 207 – 8 subordination 196 – 7, 200 – 6, 209 – 10 Sullins, D. P. 135, 223, 233n4, 234n13 Swift-Gallant, A. 10, 16, 21 – 2 Sweet, T. 235n20 Symons, D. 14 – 15, 21 taboo 223 Talbot, J. 166 Tallon, J. 157n11 Taylor, C. 71, 79, 80 Terry, K. J. 26 Tertullian 140, 157n18 theology 69 – 97 threshhold effect 131 Thoburn, J. 26 Thorstad, D. 231

249

Tilly, C. 115, 116 Timothy, First Letter to 153 Townsley, J. 153 tradition 73 transparency 95 – 6 Trettin, J. 230 Trivers, R. 25, 30, 33 – 4, 83 trust network 115, 116 Tskhay, K. O. 23 Tuttle, R. W. 185 United Church of Canada 191 United Kingdom 48, 60 United States Conference of Catholic Bishops 111, 112, 113, 167 – 8 Universal Church 204, 209 USA 48, 60 Van den Aardweg, G. 229 Vatican Council II 74, 78, 70, 89, 94, 102, 110, 112, 113, 115, 206, 208, 211, 222 VCPPIS 9 – 23, 28, 31 Verdieck, M. J. 34 Verdrager, P. 53 – 60 vicarious liability 183, 185, 187 – 9, 190 – 2, 194 – 7, 199, 201, 203 – 4, 207 victim assistance 169 Viganò Archbp, C. M. 33 Vitello, P. 30 Vos Estis Lux Mundi 114, 172 – 6 Wagner, R. 228 Warburton, J. 101, 115, 117, 118, 122 Watson, R. J. 26 Weber, M. 81 Wei, C. 23 Weinberg, M. S. 235n18 Weinrich, J. D. 13, 15 Welles, S. L. 235n20 Wenger, J. 224, 228 Whitman, W. 230 Wilde, O. 230 Williams, C. A. 21 Wilson, E. O. 24 Wilson, W. 128 Winfield, N. 38 Wolf, J. G. 25, 35 women: ordination of 138 – 44 Xiridou, M. et al. 235n17 Young, A. 228