Combing the Canon

Pope Benedict XVI celebrates an evening vigil service in St. Peter's Square at the Vatican to mark the end of the Church's year of the priest, on June 10, 2010. A year that has been marred by revelations of hundreds of new cases of clerical abuse, cover-up and Vatican inaction to root out pedophile priests.Thousands of priest from around the world gathered in St. Peter's square in a major show of support for Pope Benedict XVI amid the clerical abuse scandal. During the ceremony Pope Benedict XVI strongly defended celibacy for priests but he didn't directly mention the clergy abuse scandal but he referred to what he called 'secondary scandals' that showed 'our own insufficiencies and sins.' PHOTO by Eric Vandeville/ABACAPRESS.COM Photo via Newscom

As we look into other defenses of the New York Times attack on Pope Benedict XVI, I want to acknowledge at the outset that we're getting a bit more into the weeds. In fact, some of these discussions might be more technical or murky than we normally encourage. I still think it's important to have the discussion because the public record is important. But if you are a normal person, you might just want to skip to the next post! Okay, the second defense of the Times article that I'd like to highlight came in Commonweal magazine. This defense is much more substantive than some of the other defenses we've seen and it's great in large part because it comes from Nicholas P. Cafardi, a prestigious canon lawyer and a professor of civil law at Duquesne who was quoted in the original article. He is on the U.S. bishops' National Review Board for the Protection of Children and Young People:

It is rare when issues of canon law make the front page of the New York Times and even more rare when the secular media gets their canonical issues right. But the Times story of July 2, 2010, "Church Office Failed to Act on Abuse Scandal," did just that. As the Times reported, it truly was a failure in the church's canon-law system that exacerbated, if it did not help to cause, the clergy child sex-abuse crisis in the United States.

It's worth noting that of all the critiques out there about the Times article, I haven't seen any serious critic argue that the piece is flawed because it was wrong to state that the 1922 canon really did apply. In fact, that hasn't really been an issue at all.

Most of the criticism has been with how the Times set up the article. To review briefly, that article asserted that it was wrong to say that the 2001 motu proprio from Pope John Paul II marked a major turning point in how the Church conceived of how to respond to the clergy sexual abuse crisis. The article also asserted that Benedict clearly had power to act but failed to do so and therefore, that his reputation on this matter is wrong.

So the criticism of the Times piece has largely been that these assertions are false.

I call them assertions rather than arguments because the actual reporting in the story contradicted the claims. If you wade through the 4,000 words, the 2001 edict comes off like a major turning point and Benedict comes off pretty much as his reputation indicates.

So what, exactly, did the Times get right in Cafardi's view? Well, Cafardi is on the side that eventually prevailed -- those who argued that the 1922 code should be applied. In fact, his own quotes in the Times story show that the issue wasn't clear. It also shows, contra what the Times itself alleges, that the ruling did indeed "cut through a morass of bureaucracy and handle abuse cases directly."

What he writes in Commonweal is fascinating, giving much more insight into how the 1922 code proponents prevailed over the perception that the 1983 Code of Canon Law should dictate how the Vatican handles these cases. But what he writes in Commonweal doesn't support the Times central arguments, again. For instance, he writes:

But lurking in the unreferenced and uncatalogued canonical database (yes, canon law is much more difficult to research than civil law because it lacks many of the organizational databases that civil lawyers have at their disposal) was a document that could have easily solved the statute of limitations problem. It was called 'Crimen Sollicitationis[.]'

You can either say that something was "lurking in the unreferenced and uncatalogued canonical database" or, as the Times does, that Ratzinger was dragging his heels while focused on hurting poor people.

Cafardi goes on to say that the document was first published in 1922 but:

it was published only in the loosest sense. It never appeared in the Acts of the Apostolic See or in L'Osservatore Romano, or any other place where a canon lawyer would go looking for the law. The fact that the Holy Office had jurisdiction over those crimes was very important, because crimes in the Holy Office's jurisdiction are unprescribable, that is, they have no statute of limitations. Yet that jurisdiction was also unknown!

And then he says that when it finally came to light, many canon lawyers thought it irrelevant since the 1983 Code had so re-ordered that area of law that it had been overruled.

Again, critics of the Times article aren't saying that this is not a fascinating issue to explore. They're saying that it is false to say, as the Times alleges, that the 2001 action by Pope John Paul II was not a major turning point in rationalizing the Church's response to clergy sexual abuse. And they're saying it's false to say Benedict clearly had power to act and didn't and that he was part of the problem in the Curia. As the Times reporting shows, this issue wasn't clear at all. And this Commonweal defense only confirms that.

In fact, here's how Cafardi ended his piece for Commonweal:

It is unfair to lay this contretemps at the current pope's door. He is a theologian, not a canon lawyer, and, like other laymen (nonprofessionals) in the field of canon law, he has to rely on what the experts tell him.

So as far as defenses go, I don't think this one responds to the actual criticism of the piece. Still, this is still one of the most helpful pieces I've read in a while and I encourage anyone who is actually interested in the larger issue to take a look.

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