The widening sex abuse scandal in the Catholic Church has garnered a variety of responses from scholars and other commentators inside and outside of the church. In the United States, the Pennsylvania grand jury report has been only the most recent story to capture national attention. (See Peter Steinfels at Commonweal for a thorough and subtle analysis of both media coverage of the report and of the institutional structures that have enabled the abuse. For a longer timeline of the scandal, see the National Catholic Reporter.) Both scholars and other commentators have focused on antiquated theologies of sex, mandatory celibacy, a male-only clergy, clericalism, institutional impulses to cover-up, seminary training, and a range of other matters. With respect to law, the most common view has been that the solution is more law, that is, more secular law—or more “good law,” as Sarah Imhoff notes in her contribution to this forum. The solution, they say, is to “call the cops.” The problem, it is often assumed, is that a combination of deliberate efforts by the church to protect priests from the reach of secular law, a reticence by secular authorities to intervene in what is conceived to be the internal matters of religious institutions, and outdated statutory limitation provisions have together inhibited what is plainly needed: vigorous prosecution and punishment by state authorities.
Default recourse to state law reflects a kind of denial and refusal of responsibility on the part of both the church and the state; it reflects a lack of understanding of law, of the deeply and often uncomfortably entwined nature of religious and secular law—what Perry Dane in this series calls “dialectic and dialogical”—as well as of the limits of law, all law. By assuming secular state law to be self-evidently secular and to be the only law that matters, the larger role of law in this crisis is impossible to understand and critique, let alone address for the future. Treating church law as not law, ironically a habit of both churchmen and secularists—as James Chappel notes—makes it beyond critique as law. By regarding state law as secular, its cosmologies, anthropologies, and its politics are not made visible.
Importantly, as Massimo Faggioli details in his piece for this series, the relationship between church and state that structures the legal regulation of the sexual abuses of minors today, among other matters, is under significant—even revolutionary—reconstruction, and differs in critical ways from jurisdiction to jurisdiction. This crisis is in part a crisis of jurisdiction, in the broadest sense of the word. It can no longer be assumed, if it ever could, particularly in the Americas, that the Roman Catholic Church is a single universal institution engaged in a struggle for authority with “the” state. A plurality of Catholic churches, other religious organizations, and civil jurisdictions—local, national, and transnational—govern these events, in a context of overlapping would-be authority. All, civil and religious, are challenged by lay movements eager to redress centuries of racism, misogyny, and authoritarianism. The Catholic Church is at once just one more contemporary institution faced with skepticism and mistrust, and an institution with a distinctive history with respect to these matters.
There is important new historical, theological, and sociological scholarship on the Catholic Church—on race, on women, on mission and conversion, on presence. Law, however, remains mostly stuck in older discourses of separation, privilege, and protection. In the United States, the distinctive separationism produced by cramped readings of the religion clauses of the First Amendment, both official and unofficial, a separationism that is widely shared across the spectrum, political and religious, combined with a willed ignorance about religion and religious history, as well as about sexuality, seems almost guaranteed to keep us stuck in a rut of loud and contentious recrimination.
Hussein Agrama asked whether Egypt is a secular state. We in this forum ask the same of the United States. We ask the question not in order to expose white male Christian bias, although that is there and that effort has been done to great effect. We ask in order to understand the entwined ways in which a particular US religio-legal consciousness has enabled and concealed the sexual abuse of children. In churches. In sports. In families.
This series of essays aims to open up, with respect to the sex abuse crisis in the Catholic Church, the ridiculously large question, “What does law have to do with it?” How can exposure of the injuries inflicted by the church, and the conditions that enabled and protected those injuries, lead to a reimagining of the rule of law closer to the ground—away, that is, from statist and corporatist understandings toward a fantasy of law, civil and religious, that serves the people?
In this context, such a project might begin with a theological anthropology that asks how a particular individual fields the multiple normative orders to which she is subject, particularly in the context of a church apparently newly awakened to the reality of sin. How should we understand the interplay of and felt hierarchy among civil law, religious and moral norms, local custom, and other forms of institutional regulation? What does law have to do with remediating injury?
In their remarkable book examining the legal consciousness of Northern Thai Buddhist accident victims, David and Jaruwan Engel explored their interlocutors’ lack of interest in suing for redress in Thai courts. In describing the circumstances of their various injuries, most as the result of traffic accidents apparently caused by careless drivers, the interlocutors articulated a wide range of causal explanations including their own personal distraction and karmic debt, as well as familiar local malignantly inclined ghosts and spirits. The Engels widen out the historical lens to offer other available explanations, including the internal imperialism and cultural erasure effected by the Bangkok government in the drafting of the modern Thai legal code, as well as the effects of the displacement from local forms of compensation caused by rapid urbanization.
Their story is one of a gap in which persons no longer protected by customary law and now alienated from modern legal processes apparently felt constrained to take responsibility for their own injuries. While this is in many ways a story specific to the Buddhist modernism and legal modernization of Thailand, one can imagine parallel stories in the United States in which victims of a wide range of illegal or merely negligent activity become caught in a gap between a sense of themselves and the web of normative orders, secular and religious, in which they live, on the one hand, and the available official legal routes, on the other. The causes and explanations are many. The failures of law legion.
Victims of clerical sex abuse also find themselves in the gaps created by the uneven terrain of the contemporary rule of law: a church which cannot rule itself, in part because it does not enforce its own law; secular law enforcement often deferential to powerful private interests of various kinds; the law of sex and gender; and religious and legal orders with inadequate understandings of the effect of the abuse of power on children by family members, coaches, teachers, doctors—anyone, it seems, with the opportunity. Where there are children, there is sex abuse. The result is part of what Melissa Wilcox in her contribution terms the laws of gender.
If we expand our understanding of law, as these authors do, to include the always interrelated law of the church, of gender, and the everyday law of human caring, can we see law—and religion and sex—differently? Might we even reimagine and change the law of the state, not with the unrealistic expectation of ending the abuse of power, but perhaps of recognizing, exposing, and blocking that abuse more readily?