The Scots have the advantage over us when it comes to verdicts in criminal prosecutions, in that in addition to 'guilty' or 'innocent' a jury can also determine that a case is 'not proven', which is generally taken to mean 'guilty, but we can't prove it'. One wonders if the possibility of this verdict would have altered the decision taken in the case of Reverend Mark Huberty, which was decided in Ramsey County Court this morning.


The 'not proven' option would have provided an elegant solution to the legal dilemma that this case (and others like it) presented. For, there is no question that Father Huberty engaged in sexual activity with his accuser. The only question for the criminal court was whether she consented to the acts and whether that consent was valid (it would be invalid if she was found to have consented to sexual contact in the course of receiving spiritual guidance, counseling, or support). As such, trying to determine the validity of consent often involves discussion of religious doctrine and practices to the extent that such prosecutions are open to excessive entanglement and other First Amendment challenges. The fact that the other two prosecutions of Archdiocesan clergy on similar charges both resulted in guilty verdicts that were then overturned in whole or in part probably had as much to do with the verdict in the Huberty case as anything that was argued in court. It is juridically messy when the criminal courts are put in the quandary of having to determine whether a priest's actions are criminal, or merely sinful. 

More to the point, the secular courts should not be put in such a position, nor would they be if the leadership of the Archdiocese of Saint Paul and Minneapolis had been able to muster the testicular fortitude necessary to resolve these matters before they had deteriorated to the level of the filing of criminal charges. This was abundantly clear in the case of Father John Bussmann, who never, ever, should have been readmitted to priestly ministry. A similar argument can be made in the case of Father Wenthe, who was prosecuted shortly before the expiration of the statute of limitations in whole or in part because the Archdiocese violated its commitment to the victim, who had declined to prosecute earlier on the belief that he would never be assigned as pastor of a parish. Apparently this pledge was not communicated to Archbishop Nienstedt, as he promptly assigned Wenthe as pastor of not one but two parishes. It was also not communicated to Father Wenthe, at least not until his lawyer (also Paul Engh) secured his Archdiocesan personnel file during the discovery process. Imagine the outrage on the part of both parties when they learned that it all might have been avoided had Wenthe declined the assignment, which he hadn't sought to begin with.  

I am not sure what, if any, contact the Archdiocese had with Father Huberty's accuser before she determined that she would pursue criminal prosecution. But, the fact that similar accusations had been made earlier, and the behavior was allowed to continue for nearly a decade beyond that, suggests that once again the Archdiocese did not meet its obligations either to the women or the priest. What amazes me (or maybe most amazes me?) is that this was allowed to continue at a time when the Catholic Church was reexamining and narrowing its understanding of sexual consent in ways that often surpass the standards of most criminal jurisdictions in the United States, Latin America, and Europe. 

With this in mind, one can see how it is possible to argue that the most important prosecution of Father Huberty has not yet occurred. The Archdiocese released a statement indicating that he would remain 'on leave' until an Archdiocesan board completes its internal investigation, but there is a canonical process that should be employed as well. This case, more than any other action, might be the first real test of the Archdiocese's vaunted new procedures, new attention to canonical matters, and new approach to misconduct. Let's hope they, and the people administering them, are able to pass muster. 



 
 
I am hearing concerning rumors that the investigation into the personal conduct of Archbishop Nienstedt is entering a new phase, whereby a defense attorney is being given the opportunity to question the individuals who have made complaints without those individuals having the benefit of legal counsel or an explanation of their rights in the process.

The reports I am receiving are vague at this time. However, I wanted to post this notice so that any one who receives such a summons can be prepared. I strongly encourage those individuals to seek legal help prior to responding or appearing in response to such a request. Also, I would remind them that canonical processes are often documentary in nature. If you are asked to respond to questions, you can ask that the questions be sent to you in writing, and you may respond in kind after consulting with an attorney. 

As I mentioned in a previous post, canon law is based on the civil law tradition rather than common law. As such, canonical processes are inquisitorial in nature rather than adversarial.  In a canonical process, the questioning of witnesses is entrusted to the impartial turnus selected to adjudicate the matter rather than to opposing counsel. The attorney(s) for the defendant can certainly propose questions for the turnus to ask, and can object if the turnus declines to follow a particular line of questioning, but Perry Mason-esque cross examination is not a part of the canonical process. 

It is unclear who has hired the attorney conducting this round of questioning, as well as for what purpose. It is also unclear who is paying for it. 

I would be intrigued to learn if this is a result of the (unconfirmed) visit of Bishops Piche and Cozzens to Rome at the beginning of November.

I will post additional information as I receive it. 

 
 
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In a week when much attention has been paid to the financial operations of the Holy See (mainly due to an article by Cardinal Pell, Prefect of the Secretariat on the Economy, in the Catholic Herald), the Archdiocese of Saint Paul and Minneapolis took steps to reassure priests and donors that contributions to its annual campaign, the Catholic Services Appeal, would not be used to pay for litigation or abuse related expenses, but instead would support 17 ministries that, according to the fifty-four pages of material distributed at a meeting in New Brighton, have no other money to fund' them (see materials below, page number 1).

Frankly, I don't buy it.

The Archdiocese is clearly very intent on presenting the Catholic Services Appeal, its foundation, and the ministries it supports as something separate from the scandal-ridden and allegedly nearly bankrupt Central Corporation. Once again though, I think the Archdiocese's statements in comparison to its actions demonstrate that this separation is little more than 'smoke and mirrors', and I will explain why.

First, the Catholic Services Appeal foundation is being presented as an independent tax exempt corporation, with the materials provided last week also stating that it is an '501(c)3 listing on [sic] the USCCB' (materials, page 1). In other words, the Appeal Foundation is an independent 501(c)3 that receives its tax exempt status through the group ruling of the United States Conference of Catholic Bishops (USCCB). However, the group ruling only applies to organizations that are 'operated, supervised, or controlled' by the Roman Catholic Church under which they are listed. In this case, that would be the Archdiocese of Saint Paul and Minneapolis. Prior to being included under the group ruling, an attorney must review the Articles of Incorporation and Bylaws of the organization to ensure that the necessary control is maintained by the diocese. In general, the control requirements are met through provisions regarding the appointment of members of the corporation, and through dissolution clauses and other provisions regarding operations.

I would be more likely to accept the idea that the Foundation operated independently of the Archdiocese if it had sought independent tax exempt status. However, to secure my donation the foundation leadership would also have to change. It is simply not plausible to me that an organization under the governance of the brother-in-law of one of the bishops is independent (Tim Healy, the foundation President, is the brother-in-law of Bishop Cozzens). Canon law seemingly agrees, since 'persons related to the Bishop up to the fourth degree of consanguinity or affinity' are prohibited from serving on finance committees (canon 492, 3).

If nepotism isn't enough cause for concern, let me give you a couple of other things to consider when you are deciding whether to donate to the CSA. The materials provided state that the 'CSA Foundation assures a separation of funds so they will only go to case designated recipients and not to abuse related legal or other expenses' (materials, page 4 (labelled page 1). Again, I don't buy it. Giving to the CSA might not involve providing money to attorneys or for legal settlements, but it will certainly involve providing money to clergy who have been accused of acts of abuse.
By its own admission the CSA Foundation designates funds to Indian Ministries (which employs Deacon Joseph Damiani, who I discussed in an earlier post), as well as for hospital chaplains. Please refer to my Affidavit in the Doe 1 case, pages 79 and 80, where I discuss the Archdiocese's practice of assigning men who have been accused of sexual abuse as hospital chaplains (and also note that I exempt religious order priests from my critique of chaplains appointed by the Archdiocese). These are only two examples of the ways in which CSA funds will be used to support 'other expenses' relating to abuse by clergy. Had I more time, and more column space, I could list others.

Finally, I disagree with the Foundation's claim that 'many of these ministries do not have the capacity for fundraising and would not exist without your support' (materials, page 1). With the exception of those 'ministries' which are actually offices or responsibilities belonging to the Central Corporation (evangelization, chaplains, and marriage and family life), you can contribute directly to the other organizations without having to go through the CSA and its Foundation, and many (like the Saint Paul Seminary,
Catholic Charities, and Saint Paul Outreach) have robust in-house development programs. You also can contribute directly to elementary or high schools, or to the parishes that operate programs such as deaf ministry (just be sure to indicate that you do not want your contribution used to pay Archdiocesan assessments).

Given the stated costs of running the Foundation (apparently $800,000), giving directly to the organizations it claims to support would provide you (and them) with more bang for your buck.
Giving directly would not fund the ministries run by the Archdiocese, but really isn't that the point? I have no intention of providing financial support to clergy offenders, nor am I willing to pay for hospital chaplains and similar services until I am convinced that the clergy assigned to those positions are good and honorable men capable of serving in those roles in a manner that is a credit to the Church and a legitimate help to those in need. Until the Foundation, and the Archdiocese by which it is controlled, can demonstrate that, they can save their postage by not sending me any more pledge cards or donation requests.


 
 
I suppose I should apologize in advance for returning to a subject that I have already discussed (namely, Thomas Reese’s post on the ‘firing’ of bishops and the need for due process of law in the Catholic Church), but this topic is one that has irked me for years. As someone who prosecuted penal cases in the years following the adoption of the Charter for the Protection of Children and Young People and the Essential Norms, I am used to hearing complaints about a lack of due process. Most of these complaints, in my experience, have been ill informed and without any basis in fact or law. The fact that a particular individual is unhappy with a verdict is not proof that his rights were violated.

I probably would have been more likely to let this topic go had I not been reading Robert Harris’s ‘An Officer and a Spy’ at the time that Father Reese’s article appeared. Harris’s novel is a fictionalization of the story of Georges Picquart, a colonel in the French Army who turned whistleblower over what has come to be known as ‘the Dreyfus Affair’. The trial, degradation, imprisonment, and eventual reinstatement of the Jewish Army Officer Alfred Dreyfus was one of the seminal events of the fin de siècle, and as someone who wrote her doctoral thesis on the evolution of law and legal procedure during this time, you can understand that this matter has always held my interest. However, I find Harris’s novel compelling for another reason. His description of Picquart’s moral dilemma when faced with overwhelming evidence of Dreyfus’s innocence as well as the refusal of the Army to revisit the case, and the consequences of Picquart’s decision to pursue justice regardless is so similar to what I experienced in the Archdiocese of Saint Paul and Minneapolis that sometimes I have found myself wondering if he was writing of my experience instead. I recommend Harris’s book, just as I recommend the Dreyfus case as an example of a true violation of due process and consequent miscarriage of justice. When one considers the fate of Dreyfus, wrongly imprisoned for four years and held in solitary confinement on Devil’s Island, one can truly grasp the importance of due process protections.

Due process is a concept in English common law that originated with the Magna Carta and spread throughout the British Empire. It prohibits the government (or King) from applying a punishment without the accused being informed of the accusation and of the evidence against him. This principle was enshrined in the US Constitution in the 5th and the 14th amendments. The Due Process Clause of the 5th amendment states that no person shall "be deprived of life, liberty, or property, without due process of law."

The European civil law systems have a similar tradition of respecting the right of defense, although in France, and in other non-socialist European justice systems, I believe they generally prefer to speak of the ‘right to equal process’. The basic principles are the same as in the common law understanding of due process, but the ways in which the right of defense is understood substantially and procedurally are different. There are other notable differences between common law and civil law traditions (especially regarding the concept of certainty of law), with the latter often referred to as an inquisitorial system while the former is an adversarial one. Canon law is both a system and a source of the civil law tradition, although this nuance is often overlooked, especially in the United States.  Instead, advocates and participants in penal processes have attempted to impose common law principles on canonical courts and to interject the same into conversations about legal protections in the Church. When these efforts are unsuccessful, the processes are automatically declared to be unjust or lacking due process.

But is this justified? The Dreyfus case is an example par excellence of the cruelty and injustice of condemning a man on the basis of evidence of which he is ignorant, and obviously all systems of justice would be wise to ensure that their procedures have adequate protections to guard against such abuses. Yet, none of the examples that Father Reese provides in his article (or which I provided in my previous post) indicate a situation where the bishop is unaware of what has called his leadership into question (provided he is mentally competent). Moreover, there are significant differences between secular and religious legal systems, especially as relates to a system’s source, scope, and the type of sanctions it is able to impose. It is worth remembering that the Catholic Church does not have the ability to impose most recognized forms of external punishment: unlike secular legal systems, the Church in this day and age cannot execute, imprison, or even fine an unwilling offender.

One only has to remember the failed effort to confine Archbishop Milingo to an Argentine monastery to understand the limits of the Church’s legal reach and its (in)ability to penalize errant bishops. Removing a bishop from his See, or asking for his resignation, does not result in his imprisonment or even a loss of income (his former diocese must continue to support him).  Therefore, one can question the proportionality of demanding elaborate, time-consuming, and expensive judicial processes to guard against the arbitrary and capricious removal of men from positions which were bestowed upon them through equally arbitrary and capricious processes (consider that Pope Francis conferred the See of Chicago, his first major American episcopal appointment, upon a man whom he has never even met).  

That is not to say that I believe that all of the complaints about a lack of fundamental fairness in the Church’s processes are false. I absolutely believe that the way that the Charter was implemented in Saint Paul and Minneapolis from approximately 2003 till 2008 was unjust, unnecessary, and damaging to both victims and accused. And, I believe that what is quietly taking place here today, purportedly because of the external review of clergy files, indicates a similar lack of concern for fundamental issues of legality and fairness. But, I think before we complain about a lack of due process, or advocate for better due process protections in the Church, we need to consider carefully what rights due process is meant to guarantee, as well as what a violation of due process truly looks like.

 

    Author

    Jennifer Haselberger is a canon lawyer who served as the Chancellor for Canonical Affairs in the Archdiocese of Saint Paul and Minneapolis until April of 2013, when she resigned in protest of the Archdiocese's handling of sexual misconduct by clergy.

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