Recently I received a present: a charming drawing of the Supreme Court Justice Ruth Bader Ginsburg as Princess Leia from Star Wars. Her hair is drawn in the iconic side-bun style that Leia sported in Star Wars: A New Hope. “You are our only hope,” a banner below her reads. Ginsburg-Leia is delightful, but she is also a fantasy: the fantasy that law is our savior.
When, in August 2018, one of the 301 priests named in the Pennsylvania grand jury report pleaded guilty, Pennsylvania Attorney General Josh Shapiro said, “Two of Poulson’s victims received justice today, but because of outdated statute of limitations laws in Pennsylvania, other victims may never have their day in court.” But let us be clear: These victims did not “receive justice.” Perhaps they felt relief or solace that their abuser was convicted, but that is not justice. The courts cannot provide anything that would qualify as justice for an abuse victim. Only not suffering abuse in the first place would be just, and that is not something the courts can provide.
Shapiro’s statement suggests that state law is good law, and it hints at a less-often articulated corollary: that there is also bad law. Like the good religion/bad religion dichotomy familiar to religious studies scholars, the good law/bad law dichotomy structures implicit judgments of legal systems. Good law might be state law, or international law, or some other legal system, but good law is imagined to simultaneously be impartial, rational, and protect the weak. Bad law might appear partial, irrational, or oppressive. Most commentators on clergy sex abuse assert that good law is the solution to the problem, but many also assume that bad law contributed to the problem. Religious law, in the form of Catholic canon law or Jewish halakhah, can play this role of bad law. “Bad law” becomes poorly conceived law, illegitimate law, and even harmful law.
Worldwide, commentators have looked at the Catholic scene and blamed bad law for creating the abuse crisis. Bruce Tallman, a marriage counselor and former Catholic adult educator, wrote, “In a way, celibate priesthood is the perfect storm for sexual abuse.” He suggested that fixing law would fix the problem: “Mandatory celibacy is an ecclesiastical law of the Catholic church, not a doctrine. In other words, the law should change.” An Australian report claimed that “mandatory celibacy and a culture of secrecy created by popes and bishops are major factors” in sexual abuse. Even an academic article claims that “mandatory celibacy” helps “create the problem.” In these views, bad law produces bad sex by prohibiting the appropriate kinds of sexual expression.
Data do not back up these explanations. These religious communities have instances of sexual abuse at similar rates to other communities, and there is no empirical data to link, say, Catholic canon law to sexual abuse. They undoubtedly do have the problems of secrecy, denial, and enabling. Scholar Anthea Butler identifies the error of canon law in this way: “More often than not, canon law—not local, state or national laws—is what clerical officials are most likely to follow. Secrecy, not transparency, is the church’s modus operandi. It’s built into its own laws.”
The good law/bad law stories extend beyond the Catholic Church. Commentators on sex abuse within Hasidic communities often frame their analysis as part of the same narrative, even though the details differ. Hasidic interpretations of law do not prescribe celibacy for clergy, but they do proscribe snitching to non-Jewish authorities. A New York Times article explained: “While some ultra-Orthodox rabbis now argue that a child molester should be reported to the police, others strictly adhere to an ancient prohibition against mesirah, the turning in of a Jew to non-Jewish authorities, and consider publicly airing allegations against fellow Jews to be chillul Hashem, a desecration of God’s name.” The same article suggested that some communities, particularly the Chabad community of Crown Heights, get it right because they prioritize secular law over religious law: “A religious court declared that the traditional prohibition against mesirah did not apply in cases with evidence of abuse. ‘One is forbidden to remain silent in such situations,’ said the ruling, signed by two of the court’s three judges.”
Even those within Catholic and Hasidic communities often tell a good law/bad law story. In response to criticism that they discouraged reporting, the Hasidic organization Agudath Israel argued, in essence, that halakhah was good law, in part by comparing it to secular law: Halakhah prescribes a certain threshold for reporting crimes, it explained, and then added, “The secular law also typically establishes a threshold for mandated reporters; in New York, it is ‘reasonable cause to suspect.’” However, Agudath Israel explained, interpretation of facts and law in cases of such importance should be left to those who are legal experts—in this case, rabbis: “The individual should not rely exclusively on his own judgment to determine” whether the threshold has been met. “Rather, he should present the facts of the case to a rabbi who is expert in halacha and who also has experience in the area of abuse and molestation” because the rabbi understands “the gravity of halakhah.”
Others insisted this interpretation of halakhah was bad law. Yeshiva University’s Rabbi Yosef Blau, speaking for a more centrist American Jewish Orthodoxy, framed his critique of their position: “Are the Agudah [Agudath Israel] and the RCA [the Orthodox rabbinical body] ready to go into the community and say publicly ‘we back this person going to the police?’” The only correct answer, as he framed the question, should be yes.
Some Catholics observed that canon law had not guaranteed order, justice, or efficient means of redressing wrongs and often implied that procedure plays an essential role in what makes state law good law. Thomas Reese, a columnist in the National Catholic Review, noted: “the public impression is of a church incapable of getting its house in order.” The proper recourse was a full investigation, he argued, not by the Church, but “by someone with credibility in the community—a retired judge, prosecutor, FBI agent or the like.” Good law must come in and clean house to restore the image of the Church. The Catholic Church has used this strategy in the past: In 2002 the US Conference of Catholic Bishops commissioned a report from John Jay College of Criminal Justice. Since 2002, seminarians and priests go through police background checks and are required to report abuse accusations to law enforcement. Reese called for expanding the legal solution: “What’s needed is a full-scale national inquiry akin to the one that was done in Australia—an inquiry that focuses on all faith groups and that not only subpoenas documents but also hears extensive testimony.”
Though this may be a good idea, secular law is not a savior. It can play a role in responding to abuse that has already happened, but courts cannot prevent sexual assault. Moreover, secular law has not historically done well by victims of sexual assault. Experiences with the legal system are often traumatic and exhausting, even for the small percentage of victims of sexual abuse whose abusers are convicted. Adult women find that their rapists serve no jail time, or that juries do not believe them. Ruth Bader Ginsburg is a feminist icon, but this does not mean we have a feminist justice system.
But Ginsburg is not, in the end, “our only hope.” We can put our efforts into changing our communities’ cultures with regard to human relationships, vulnerability, shame, and sexuality. Law, whether we call it bad or good, is only a small part of that project. And, generally speaking, law follows more often than leads in cultural change.