When Should a Bishop Expose a Priest to Civil Authority?

By Dr. Jeff Mirus ( bio - articles - email ) | Apr 20, 2010

I promised in a recent message to comment on the question of whether a bishop should turn a priest guilty of some offense over to the civil authorities. The most prominent case calling attention to this question right now is that of a pedophilic cleric in France who was not turned over to the civil authorities by his bishop, and whose bishop was later praised for protecting his priest by Cardinal Castrillon Hoyos. (For our latest update on this story, see Cardinal Castrillon defends silence on abuse, invokes confessional seal.)

Before we discuss the relevant Church-State issues, I feel compelled to note that Cardinal Castrillon Hoyos has done the Church no service by the dubious defense that he was only upholding the seal of the confessional and that Pope John Paul II had approved the letter in which he expressed his support of Bishop Pierre Pican. In fact, the case of Fr. René Bissey would have been very simple if only the seal of the confessional were involved. In that case, the Bishop could not have divulged his priest’s guilt to civil authorities or to anyone else, including Cardinal Castrillon Hoyos. To the contrary, however, Bishop Pican had a good deal of knowledge about Fr. Bissey’s pedophilia through non-sacramental confidential discussions. At the very least, a careful Cardinal should have learned the details before issuing praise.

Although the confidentiality of bishop-priest discussions has apparently been protected by French law since the 1890’s, I leave this to legal scholars as it is largely irrelevant to the larger issue I wish to discuss. As a matter of principle, when and how should the Church expose priests to civil authority?

There are good reasons to be cautious. The Church does not and should not recognize the right of the State to interfere in her own affairs. In her own sphere the Church is a sovereign power, and the ability of the independent spiritual power of the Church to inform the police power of the State is important to social health. Thus in the Christian world ecclesiastical persons have always been treated somewhat differently by the State, and the Church has always tried to discipline and control her priests with minimal recourse to civil authorities.

Moreover, the State does not always make sound laws, promoting legitimate goods and prohibiting clear evils. The Church, which has a superior understanding of the moral law, naturally desires a certain independence of civil authority. In all her dealings, then, the Church has a strong vested interest in preserving a certain legal distance between herself and the State, and one of the purposes of Canon Law is to ensure the kind of tight management of ecclesiastical affairs that will minimize recourse to the power of the State. Overall, it is a healthy instinct for a bishop to be reluctant to seek civil recourse for handling problems associated with managing his clergy.

On the other hand, two factors militate strongly in favor of civil involvement in some cases. First, apart from the question of whether priests should be considered exactly like ordinary citizens, priests can and do sometimes commit crimes against lay people, who are not ecclesiastical persons and are certainly ordinary citizens. Second, these crimes can be either canonical (failure, for example, to conduct the liturgy according to the rubrics, thereby violating the rights of the faithful to one of the goods of the Church) or clearly civil (stealing, assault, sexual abuse, and so on). The State has not only an interest but a positive duty to protect its citizens against natural injury at someone else’s hands, whether the aggressor is an ecclesiastical person or not.

For this reason, the Church has often cooperated with the State in exposing her ministers to the civil law in those areas in which some clear injury has been done within legitimate civil purview. A priest who murders a layman or even another priest will certainly be exposed to civil law. In many cases, a priest who embezzles parish funds will be similarly exposed, though if restitution can be made quietly this might well be avoided. In cases of sexual abuse, the Church may be understandably reluctant to expose her priests to the civil law, perhaps because of the intrinsic uncertainty concerning facts and harm in such cases, and certainly because of the fear of particularly adverse publicity. But as sexual abuse is a legitimate civil crime, typically perpetrated against lay persons, right judgment suggests that exposure of guilty priests to the civil law will ordinarily be the most effective course of action.

Let me emphasize that a bishop’s primary moral responsibility in an abuse case is to make sure his priest is kept from doing any further harm. It may be possible for a good bishop to do this, as long as the priest is responsive to his authority, without calling upon the civil authority. For obvious reasons, this recommends itself whenever the bishop is not yet absolutely certain of guilt. But the key point to note is that the bishop is morally bound to do all in his power to ensure that no further abuse takes place. He is not morally bound, ipso facto, to seek civil redress. That is a question concerning effective action which will depend on a variety of factors, including the nature of the regime with which the bishop must interact. The decision to call in the civil authorities is not a matter of moral obligation, but of prudence.

Finally, taking a cue from the medieval period, it seems sensible to laicize a priest who is to be turned over to the civil power. People have frequently remarked on how the Church used to burn heretics, but this is not the case. The medieval Church “relaxed” wayward clerics “to the secular arm”, and it was in fact the civil authority that imposed these severe punishments, which it regarded as essential to the common good. In any case, if the Church wishes to wash her hands of a priest by turning him over to the civil authority in a ministry-ending sort of way, then it is best to make a formal transition from canonical to civil law through laicization. In the contemporary Church, pedophile priests frequently are—and quite properly—laicized. This promotes the proper use of the civil authority without reducing the authority of the Church’s own legal system.