From my perspective as a law professor and a Catholic moral theologian, the most engaging question about the role of the American legal system in confronting the clergy abuse crisis is this: How will the encounter with the hard edges of American law reshape Catholic doctrine on sexual morality, which governs not only American Catholics, but also Catholics around the globe? The civil law has immense power that canon law does not possess. Canon law can strip a man of his status as a priest; it cannot imprison him for decades, as American criminal law can do. Nor does canon law create the same incentives for litigation as the American tort law system, which has resulted in the bankruptcy of several dioceses and the payment of over three billion dollars in costs associated with the sex abuse crisis.
My question may seem to be an odd question. After all, when Americans think of the optimal relationship of law to religion, many assume that the ideal is no relationship at all—or at least as little a relationship as possible. Yet secular legal systems do in fact help shape the internal belief systems of religious communities. For example, after years of hostile engagements with the federal government, the president of the Church of Jesus Christ of Latter Day Saints received a revelation proclaiming it had become illicit for Mormons to practice polygamy. Other forms of influence are more inviting and less coercive, as the way in which the American experience of religious liberty influenced the development of Catholic teaching on freedom of conscience in Vatican II.
So how might the clergy sex abuse crisis, and the shameful encounters with American tort and criminal law it has precipitated, shift Catholic teaching on sexual morality? I can sum up the development in Catholic moral teaching on sex in one sentence: the Church is now fully recognizing that sexual ethics is a matter of justice—not merely of chastity.
Clergy sex abuse is not a new problem. The Pennsylvania grand jury report, for example, recounts incidents going back for the better part of a century. But as we all know now, the problem was covered up. Why? One reason is the way the incidents were framed. Traditional Catholic moral thought treats sexual sins primarily as a violation of the virtue of chastity, which the US Catholic bishops define in a recent document as “the successful integration of sexuality within the person and thus the inner unity of man in his bodily and spiritual being.” It entails “an apprenticeship in self-mastery which is a training in human freedom.” If bishops see the dominant offense involved in clergy sex abuse as an essentially private violation of chastity, they channel their response in a certain offender-centered direction. They encourage the avoidance of the occasions of sin, moderation in alcohol use, and the frequent resort to the sacrament of confession. In the dominant framework of clericalism, which assumes that priests matter more than laypeople, the suffering of those who are sinned against remains hazy. The focus is the spiritual reformation of the priest.
The multiple tort lawsuits, the criminal prosecutions, and the grand jury reports have, I think, forced Church officials to grapple with the fact that abuse is not only a violation of chastity, but also (and centrally) a violation of justice. Abuse is not merely a defect in the character of the priest, it is also a violation of the rights of the victims to bodily and spiritual integrity. In many cases, the harm it causes is significant and long-lasting. In other words, the lawsuits and prosecutions have demanded that the Church finally look at things from the perspective of those who were violated.
This shift to the rights and welfare of the laity retrieves a key doctrinal development of the Second Vatican Council that had been undermined by the conservative backlash in the papacies of John Paul II and Benedict XVI: the recognition that the Church centrally and fully encompasses not only clergy, but also lay people, who also have rights and duties within the community. The laity are not simply expendable members of an audience for the sacerdotal celebrations of sacraments.
A second and related doctrinal development will be, I think, a fruit of the scandal. This is the full recognition that sexual abuse is not only (or even centrally) motivated by sexual passion, but by the desire to exercise power—the libido dominandi. In the summer of 2018, the “Summer of Shame,” the Church confronted not only the Pennsylvania grand jury report, but disturbing revelations about Cardinal Theodore McCarrick, the retired archbishop of Washington, DC. Not only had he abused children, he had also sexually harassed seminarians under his authority. Furthermore, his relations with seminarians were widely known throughout the hierarchy. In the American context, these revelations fused with each other, and with similar revelations about powerful men in other industries.
The Church increasingly understands that addressing such abuses requires analyzing and critiquing social networks of power and influence. The insight that sexual relations are also power relations is, of course, an insight that both secular and religious feminists have been developing for decades now. Ironically enough, their work may yet prove to be a helpful resource for conservative moralists in Rome. What about progressive Catholics? They too may be forced to rethink their positions. In their efforts to retrieve a more positive notion of sexuality, progressives, in my view, may have paid too little attention to the darker and more dangerous aspects of human sexual relations, which have been explored by thinkers from Augustine to Foucault. It is tempting for progressives to think instituting a married priesthood will eliminate possibilities of abuse. But marriage is not a panacea protecting against sexual predation, as the charges against Harvey Weinstein and Bill Cosby demonstrate.
It is not clear to me what the effect of the clergy abuse crisis will be on one of the most controversial aspects of official Catholic teaching: its rejection of sexual relations among persons of the same sex. The controversy is playing out in the battle to name the root cause of the crisis. Progressives argue that the fundamental problem is clericalism—the privileging of the well-being of priests over laity. They point to the John Jay Report’s conclusion that gay men are no more statistically likely to be abusers than straight men. Conservatives maintain that the root cause is the increasing presence of gay men in the priesthood. They highlight the statistics showing that a significant majority of the victims of abuse are males. Progressives respond that the disparity is explicable because abuse is a crime of opportunity. Ironically, however, the “progressive” solution that many propose for the crisis—allowing a (heterosexually) married clergy—will probably reduce the number of gay men in the priesthood. Given the reports about abuse in other denominations, however, it would be foolish to treat the decision to allow married priests as a silver bullet against sexual misbehavior. A married priesthood may simply open up different venues for its expression.
What is taking place in the Catholic Church, I believe, is a very painful development of our understanding of the nature and norms of human sexuality. The “Me Too” movement shows that the broader culture is also reconsidering what counts as acceptable sexual behavior, paying particular attention to the role of power dynamics in sexual relationships. In both contexts, the law (both secular and religious) can be seen as a reflection of and as a catalyst for the development of moral insight.