Revelations of sex abuse in the Catholic Church and its cover-up have been pouring out for more than twenty-five years now. The abuse has been horrific, and its consequences have been profoundly corrosive within the Church and sad and appalling for its friends. Part of the tragedy is that, although some of the underlying abuse took place decades ago, efforts at comprehensive accounts, credible responses, and effective reforms on the part of both Church and state have only come in fits and starts and remain uncertain.
But does this terrible crisis raise any deep questions of theory or principle with respect to either the cultural tension between secularity and faith or the existential legal encounter between religion and the state? On the surface, the answer might seem to be no. Some predations are so despicable and tragic that they seem to transcend the usual clash of normative worlds. But there are deeper currents at work here that reveal not just potential tensions but important, dialectical, interactions. The dialogue between any religious community and the world around it is a continuing labor of the normative imagination, rarely easy and never static.
With respect to the cultural side of the equation, the sex abuse crisis does not, to be sure, raise the same sorts of clashes of values as, say, the debates over abortion or marriage. Nobody defends sexual predation. Everyone bemoans personal tragedies and institutional failures. Nevertheless, these revelations have raised tough questions about the aura of religious authority and the profane dangers inherent in any demarcation of sacred space. The crisis has also become the awkward arena for rehashing a variety of continuing debates. Conservatives in the Church blame the so-called gay subculture within the priesthood and the chaos wrought by Vatican II. Liberals blame priestly celibacy or the all-male clergy. The rest of us wonder if we have any standing to speak on these debates. At the very least, we onlookers might be of some use in injecting the corrective facts that cast doubt on both notions and suggesting other explanations, or in admitting the contributory role played by modernity’s own dark underside.
More directly, the sex abuse crisis reveals a seeming mismatch of perspectives between the institutional Church, its members, and the world around it. The Catholic Church finds deep theological significance in an ecclesiology marked by knotty lines of authority. It also runs on a clock calibrated to eternity, or at least centuries, not the fast pulse of the news cycle. The surrounding society and even the Church’s own members can find all this hard to understand. But such normative disharmony is not fixed or simply given. Recent events have begun to reshape the Church’s ecclesiology, its sense of time, and its historic confidence in the adequacy of its own moral and structural resources. They have also, ironically, called into doubt the Church’s eagerness to look in the past to secular psychological theories and therapies as excuses for allowing offenders to remain in their positions and often abuse again. Simultaneously, the secular world and many of its proudly trendy institutions, facing their own crises of depredation, denial, and cover-up, have lost much right to feel superior.
Some of these entangled dialectics are crystallized in that resonant word “scandal.” As revelations have emerged of cover-ups and of the long practice of transferring offending clerics from one unsuspecting parish to another, some church officials have argued that, however misguided their actions are in retrospect, their motive was to avoid “scandal.” And lest we think that by “scandal” they simply mean embarrassment or disgrace, they quickly explain that “scandal” is a theological term of art, referring to any action that might lead others to do evil, in this case by losing their faith in the Church. Indeed, it is true that “scandal” is a complex term in Catholic theology. And the Church’s catechism, in the very provision dealing with “respect for the truth,” does hold in section 2489 that “The duty to avoid scandal often commands strict discretion.” At one level, this is surely a useful reminder to the rest of us to take seriously the Church’s conviction that its main responsibility is to the welfare of souls.
Nevertheless, it does not take a cynic to suspect that this resort to the theological dictionary is only half the story; surely, past cover-ups were motivated as much by the fear of scandal in its popular sense as in its technical sense. In any event, genuine Catholic moral theology would not countenance endangering innocents even for the sake of keeping the trust of the faithful. Moreover, the Church has long recognized that scandal is sometimes inevitable in the service of proclaiming the truth. Why else would it follow Saint Paul in commemorating the “scandal” of the crucifixion and the cross? Perhaps there is something to be said for the medieval authorities who imposed avowedly “public” penitential pilgrimages on clergy who committed “those scandalous and notorious [sexual] sins which set the whole town talking.” The upshot, perhaps, is that the Church was right to worry about scandal in the theological sense. But it failed its responsibility to plumb that theological sense to its core, just as the larger society failed in its own responsibility not to look the other way.
The story is similar on the legal side. Again, there is little conflict about the primary conduct here. The Catholic Church has never claimed a religious justification for abusing minors or invoked principles of religious liberty in defense of predatory priests. No such defense could or would succeed in any event. Complications, though, appear in legal efforts—whether through tort law or the criminal law—for holding the Church itself to account. Some cases might involve clear-cut aiding and abetting. More often, though, tort suits have been grounded in theories of negligent hiring, negligent supervision, or the like.
In an essay in 2004, I argued for caution in imposing tort liability on church institutions as a response to the abuse committed by individual priests. In general, tort law is reluctant to hold third parties liable for not doing enough to prevent wrongs committed by others. Some jurisdictions have put aside that reluctance whenever the third party can prevent foreseeable serious harms. In most jurisdictions, though, third parties only have a duty to prevent harm by others if they have a “special relationship” of the requisite sort with either the perpetrator or the victim. In the church abuse cases, the putative “special relationship” is between the Church as employer and the abusive priest as its “employee.” I pointed out in my 2004 article, though, that terms such as “employer” and “employee” are constructs of secular law that might be alien to the Church’s own theological and canonical understanding of the relationship between bishops and priests. I argued that it would violate important principles of institutional religious autonomy to superimpose those secular categories on the normative world constituted by the Church’s own religious understanding. I concluded that “Whatever ‘special relationships’ might exist, or not exist, in the internal workings of a religious community, they should just be opaque to the gaze of secular law, at least when that law threatens to interfere with the internal discipline and organization of religious life.”
I still think that my caution was justified, theoretically and doctrinally. But, in implicitly assuming that the Church’s theological categories are fixed and self-contained, I neglected the larger dynamic—the dialogical, interactive, and dialectical potential inherent in any meeting of religion and state. No normative world stands in isolation, especially in moments of crisis. Specifically, as one commentator has put it, “in less than two decades, the forces unleashed by the priest sexual abuse scandal have overwhelmed centuries of canonical and theological resistance to the idea that a priest can be adequately characterized as in ‘the church’s employ,’” and this “may prove to be, for good or ill, [the scandal’s] most significant outcome.”1John P. Beal, “‘Turning Pro:’ Theologico-Canonical Hurdles on the Way to a Professional Ethic for Church Leaders” in Church Ethics and Its Organizational Context: Learning from the Sex Abuse Scandal in the Catholic Church, ed. Jean M. Bartunek, Mary Ann Hinsdale, and James F. Keenan (Rowman and Littlefield, 2006) 169-179. The lesson here is that if the existential encounter between religion and secular law must be played out on a field defined by both theological and legal categories, it is no less true that the urgency of the encounter can reshape those categories and the long-held assumptions that might have supported them.
All this talk about encounters and dialectics might seem to neglect the most obvious parties in interest here—the victims of sexual abuse, along with their families, friends, and companions, and all those who have personally struggled on their behalf both inside and outside the Church. But it is precisely the agency of all these souls, and their insistence—within the Church, in the public arena, and in the courtroom—on breaking decades-long silences and holding both individuals and institutions to account, that has set in motion the complicated confrontation of normative worlds, with its transformative potential for both sides of the encounter. We academics are not the brave ones; at best we can try to help make sense of the new horizons on the religious, cultural, and legal landscape.