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.

 


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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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