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Accused in waiting?

February 14, 2018

 

If some years ago, I had ventured to ask a lawyer to explain to me the "presumption of innocence", I would doubtless have received an unqualified response along the lines of: "this presumption is one of the foundation stones of the rule of law". After all, he who asserts must prove. Statements of this kind would have been well founded. Both secular and canonical legal tradition recognises the presumption of innocence and the corresponding duty upon the state to make good its allegation (i.e. the burden of proof) as indices of procedural justice.  The canonical tradition is well documented in the masterly survey conducted by Fr William Richardson: "The Presumption of Innocence in Canonical Trials of Clerics Accused of Child Sexual Abuse: An Historical Analysis of the Current Law" (Peeters, Leuven, 2012). 

 

For the secular endorsement of the presumption, one need look no further than Art 6(2) of the ECHR:

 

"Everyone charged with a criminal offence shall be presumed innocent until proven guilty."

 

Nor does this provision stand in isolation. Art 6(3) ECHR includes additional measures intend to ensure the accused is an equal participant in any trial process; including the right to cross-examine/challenge his accuser.  These standards are said to be universally recognised; if not always adhered to. 

Given the normative character of these principles, it is not a little surprising that supervision and mentorship of all clergy and religious is the subject of consideration, in certain quarters; presumably by lay members of the Church.  It is unclear as to how such a notion could be be given any meaningful consideration without the immediate recognition that it offends the law of the church, its mission, character and purpose.

 

Canon 220 of the Code of Canon Law 1983 recognises the right of each member of the faithful to their good name. Indeed, it declares the canonical norm that no one has the right to harm another's reputation without  legitimate cause. Why is this relevant to the suggestion that all clergy and religious should be 'supervised' or 'mentored?  

 

First, the proposal appears to be predicated upon the basis that clerics and religious possess a greater propensity for the commission of sexual offences; seemingly, a propensity from which "lay persons" are immune. Yet, the research undertaken by the John Jay Institute (www.usccb.org/issues-and-action/child-and-youth-protection/upload/The-Causes-and-Context-of-Sexual-Abuse-of-Minors-by-Catholic-Priests-in-the-United-States-1950-2010) does not support this proposition.

 

Second, as noted by His Holiness Pope Benedict in his Pastoral Letter to the people of Ireland ( https://w2.vatican.va/content/benedict-xvi/en/letters/2010/documents/hf_ben-xvi_let_20100319_church-ireland.html): 

 

"All of us are suffering as a result of the sins of our confreres who betrayed a sacred trust or failed to deal justly and responsibly with allegations of abuse. In view of the outrage and indignation which this has provoked, not only among the lay faithful but among yourselves and your religious communities, many of you feel personally discouraged, even abandoned. I am also aware that in some people’s eyes you are tainted by association, and viewed as if you were somehow responsible for the misdeeds of others. At this painful time, I want to acknowledge the dedication of your priestly and religious lives and apostolates, and I invite you to reaffirm your faith in Christ, your love of his Church and your confidence in the Gospel's promise of redemption, forgiveness and interior renewal. In this way, you will demonstrate for all to see that where sin abounds, grace abounds all the more (cf. Rom 5:20). I know that many of you are disappointed, bewildered and angered by the way these matters have been handled by some of your superiors. Yet, it is essential that you cooperate closely with those in authority and help to ensure that the measures adopted to respond to the crisis will be truly evangelical, just and effective. Above all, I urge you to become ever more clearly men and women of prayer, courageously following the path of conversion, purification and reconciliation. In this way, the Church in Ireland will draw new life and vitality from your witness to the Lord's redeeming power made visible in your lives." 

 

His Holiness was referring to not merely the offences of the few, but also the failings of those who were tasked with hierarchical oversight (i.e. diocesan bishops and others).  A proposal of lay mentors/supervisors for all clergy and religious will serve to make the fear of guilt by association a reality.  

 

For clergy and religious, the result would be a situation worthy of the character "Elbow" encountered in Shakespeare's Measure for Measure.  Having arrested and detained a suspect, Elbow (a constable) presents him to the Judge (Escalus) whereupon he is asked to name the nature of the suspect's offence. Unable to identify any offence (or evidence in support of it) Elbow confesses his predicament. In response, the Judge observes: 

 

"Truly, officer, because he hath some offences in him that thou wouldst discover if thou couldst, let him continue in his course till thou knowest what they are..." 

 

The comedy of the moment is sustained by the observer's conviction that the dramatic scene (i.e. the application of a process which results in the arrest, detention or curtailment of a person's rights without evidence) would not be countenanced in the real world.  The reality of our present times demand that we ensure such a notion does not find a foothold within the Church. 

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