The current phase of the Vatican’s response to the long-running sexual abuse scandal in the Catholic Church began when Archbishop Carlo Maria Viganò made stunning allegations that Pope Francis had appeased a known abuser (former Cardinal Theodore McCarrick). Viganò’s most recent jeremiad contains a remarkable admission. His first letter had claimed that Pope Benedict XVI had placed canonical “sanctions” on McCarrick, which were then lifted by Francis. In the newer letter, he walks back that claim, admitting that Benedict had not specifically invoked canon law or its procedures. Nonetheless, he argues, Benedict had placed restrictions on McCarrick’s activity, which amounted to the same thing as canonical sanction, in his view. To haggle over that difference, he claims, is “pure legalism.”
This latest letter, then, presents us with the spectacle of a Catholic archbishop discoursing on internal church governance and complaining that others are paying too much attention to the specifics of the law. This seems strange, as no institution seems more rule-bound and “legalist” than the Catholic Church. What is going on here? In this short reflection I will suggest that Viganò’s offhand remark shows us a deep truth about the legal culture of the Church, and of the other “legally exceptional” spaces (such as the military and the university) in which sexual abuse has run rampant.
The nature of internal church governance and the relationship of Christians to political authorities have been matters of debate since the origins of Christianity. In the Middle Ages, for instance, the Church often refused to recognize the authority of the sovereign on church grounds (as in the invocation of “sanctuary” to protect wanted men). In the wake of the Reformation, when “church” and “state” took on recognizably modern forms, church-state conflict in our sense became possible, and common. Among other matters, during the past four centuries, the Church has from time to time refused to recognize the authority of state or empire over the stations of the human life course (birth, marriage, sex, commerce, and death).
Such conflict has been more muted in the twentieth century, as the Catholic Church mostly no longer seeks holistic control over social or individual lives. While church-state tensions today are clearly not as existential as in the past, they do survive in new forms. The Church, for instance, continues to claim authority over reproduction and education, often putting it into conflict with the state.
Another area of conflict concerns internal church administration. It is one thing to allow the secular state to govern the marketplace, and quite another to allow its tentacles into the Church itself. To combat that tendency, the Church has struggled to centralize its own internal codes. Most importantly, a Code of Canon Law was promulgated in 1917, whose revised form is still in effect today. In essence, the code is designed to regulate the internal affairs of the Church, focusing on the ordained. The code does not assert a form of diplomatic immunity. It is, however, parallel to and often in conflict with the prerogatives of civil law. One obvious example is the so-called “seal of confession,” explained in canon 983. This stipulates that the confessional is an inviolable space, and that the priest cannot divulge what is disclosed therein—even if such information would save lives, or would protect the innocent from incarceration.
Since it has its own legal architecture, the Catholic Church has a complex and sometimes antagonistic relationship to secular law. In this it is not alone. Historians have shown how many institutions have challenged the hegemony of the nation-state, which claims to have a monopoly on legal authority but in reality does not. Indigenous communities, corporations, and universities, to name just three of many, have internal administrative codes that intersect in highly complex ways with the putative sovereign. Jurisdiction turns out not to be a zero-sum game. This is not always a problem, necessarily. Sometimes, this “lumpy” form of sovereignty can be emancipatory, as when contemporary activists draw on the concept of sanctuary to contest the state’s ability to deport immigrants.
And yet it seems to be true, too, that legally liminal spaces like these are breeding grounds for sexual abuse. This can take many different forms. On the battlefront and at the immigration detention facility, norms are in place that are often ignored given a lack of oversight and the near-powerlessness of the victims. Native American reservations, to take another example, are rife with sexual assault, largely because their legal architecture does not give native courts the jurisdiction or resources to pursue assailants (most of whom are outsiders). These spaces of sexual abuse are not only to be found, though, at the shatter zones of imperial expansion. College campuses are another example. Here, as in the military and on the reservation, an independent judiciary is often tasked with investigating sex crimes, and with equally abhorrent results.
The Catholic Church, therefore, is just one institution of many in which legal exceptionalism provides cover for extralegal abuse. The issue is not so much the formal content of the codes. Canon law, like some university or corporate codes, is perfectly well equipped to deal with sexual abuse, even if it might do so differently than sovereign law (whose record on this front is not sterling). Canon law as such is quite clear about the evil of sexually abusing children (canon 1395), and especially after the introduction of the Dallas Charter in 2002, the infrastructure for a superior Church response was in place. At the same time, nothing in canon law precludes the involvement of the civil authorities: the question is not addressed, falling outside the scope of canon law.
The issue, therefore, is not that the legal codes of the non-sovereign are necessarily weaker (although that might sometimes be true). The issue, instead, is that those tasked with enforcing those codes might be even more lax than the civil police because that code does not have the backing of the state. It might be, in other words, that even those tasked with enforcing those rules might not see them as “real law.”
This brings us back to Viganò’s letter and his complaints about “legalism.” His comment demonstrates that he does not view canon law as a legal code that should be followed to the letter, but more as a guiding spirit whose particular application is wholly up to the judgment of the men in charge. In other words, Viganò seems to have internalized the secular view of church law, according to which it is not legitimate law. Irrespective of the truth or falsity of his specific allegations, he thus colludes in the creation of legally uncertain spaces in which abuse thrives.
Commentary on the sex abuse crisis often presents the Catholic Church as a hidebound institution governed by strict codes of silence that end up protecting predators. That medieval image can blind us to the ways in which the crisis points to a broader one that is cropping up wherever men accumulate private power amidst confusing and overlapping legal regimes. Instead of thinking about the sex abuse crisis in a long diachronic frame, we might think about it in a broader synchronic one. The Church, after all, is one of many institutions that had sought to sidestep the sovereign gaze of the state, and one of many in which that attempt created spaces outside of law in which predatory men can escape punishment.
As a historian and a non-Catholic, it is certainly not up to me to declare what should or will happen. I can suggest, though, what history teaches. The peculiar legal history outlined above has led to public scandal in the past. The debate over Catholic complicity with fascism has obscured the fact that the more longstanding complaint about the Church is that it was a den of sexual vice and perversion (recall Marquis de Sade’s imagined monks). That complaint led, most famously in the German Kulturkampf, toward an erosion of the Church’s institutional authority, and toward increasing church-state antagonism. That might be in the offing now. History suggests that the encounter would be a messy one, and one that would cause as many problems as it solved. Decades into the sexual abuse scandal, though, it might be a necessary one nonetheless.