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. 



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    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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