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SEXUAL MISCONDUCT

It is difficult to write about what a monastic superior can or should do, canonically, in the event of sexual misconduct by a member of the monastic community. First of all, each situation contains different factors which require a different response. The response may vary depending upon: 1) whether the accusation comes from the abused, a third party, or an attorney; 2) whether the accusation is a civil claim or a criminal charge or both; 3) whether the accusation involves an isolated incident or is part of a series of incidents; 4) whether the accusation involves an incident in the distant past, more recent past, or present; and 5) whether the incident involves child abuse or vulnerable adult abuse or sexual exploitation of an adult.

It is necessary to take into account the various actors and entities involved in an accusation of sexual misconduct. There is the alleged victim who needs understanding and usually counseling. There is the accused monastic who needs to be curtailed to avoid further incidents of abuse, but also needs support and evaluation plus counseling. Eventually, decisions must be made about the person's future work and even membership in the monastery. There is the diocesan bishop who must be concerned about pastoral and public implications, as well as diocesan liability if the accused monastic works in a parish, chaplaincy, school or other diocesan institution. There is the general public that needs understanding and education and which may be divided between support for and condemnation of the accused. There is the monastery as a civil corporation which must be concerned with its civil liability, future exposure, and reputation. Finally there is the monastic community whose members have various feelings about the sexual misconduct and about the accused monastic.

These various factors, actors, and entities associated with an accusation and an affirmative determination of sexual misconduct make it impossible to outline a specific course of action to be taken by a monastic superior. In this article, therefore, I propose to present the various options open to a monastic superior. The superior, however, in consultation with others, including a canon lawyer, the attorney for the monastery and the psychological evaluator, must decide specifically what immediate and longer term actions must be taken.

Diocesan Procedure

Most of the published materials and the discussion about what to do with a person accused of sexual misconduct have dealt with a bishop's response when the person is a diocesan priest. In order to understand the difference between a monastic superior's options and a bishop's, and the difference in relationship between an accused diocesan priest and the diocese as compared to that of an accused monastic and his or her monastery, it is necessary to summarize first the canonical options available to a bishop in a case of sexual misconduct.

A diocesan priest is incardinated into a diocese. While in canon law and theology some may analogize this to a marriage bond, in civil law it probably is considered an employer-employee relationship. In civil law this means that if the bishop removes the priest from a position of employment, this may be enough in some authority's view to preclude future liability. While according to canon law, the diocese must provide support for the priest unless the priest is legitimately dismissed, the diocese is not responsible for the priest's debts, legal fees and judgments, and other expenses.

These facts do influence the choices made by a bishop. The bishop may respond immediately by initiating a penal investigation (canon 1717ff.). The initiation of the canonical investigation permits the bishop to temporarily remove the accused from office and ministry, and to impose or prohibit residence in a place (canon 1722). This removal, which can include a prohibition against exercising priestly ministry, is not subject to an appeal since it is not a canonical penalty, but merely an administrative removal pending an investigation. The Code of Canon Law does not set a time limit for the completion of the investigation, so the bishop could continue the removal and the prohibition until the final outcome of any criminal or civil procedures. Nevertheless, if the bishop continues the investigation for a lengthy and indefinite time, the accused priest could appeal the abuse of canonical procedures. After the conclusion of the penal investigation, the bishop could issue an administrative suspension (canon 1342) or initiate a canonical trial of dismissal (canon 1395 and Book VII).

In many instances, the bishop does little else canonically than temporarily remove the priest in the hope that the accused may just disappear. If the bishop, however, wishes to formally end the relationship of the accused with the diocese, the bishop must initiate a full canonical trial following the numerous and often difficult procedures of Book VII of the Code of Canon Law. If a trial is instituted before a three-judge panel and all the requisites of law are followed, and the court issues a decree of dismissal, this decree is effective without confirmation of a higher Church authority unless the accused appeals the case. There is no necessity for the approval of the Apostolic See for the decree to become effective.

The bishop cannot force the accused to have psychological evaluation and treatment since this violates the right of conscience. The bishop, however, can require the priest to seek psychological evaluation and treatment as a condition for continuing in active ministry.

Monastic Superior's Canonical Authority

It should be simple for a monastic superior to act in the case of sexual misconduct by a perpetually or solemnly professed member. After all, there is monastic obedience. The superior should be able to order the monastic to cease the activity, to order the monastic to a new place of residence or to treatment, and to forbid the exercise of ministerial functions in the case of a priest. That should take care of the problem, at least canonically.

However, things are not that simple and easy. While a monastic accused of sexual misconduct does not have the protections of office and ministerial rights which a diocesan priest has, a monastic does have rights. Further, the monastic is more radically incorporated into the monastic community than is a diocesan priest into his diocese. Since a monastic does not have money, the monastic is dependent upon the monastery for financial assistance for legal and psychological expenses. Thus the monastery would have to pay the attorney's fees incurred by an accused monastic in a criminal case and in a civil suit. In the latter instance, the monastic's attorney should be different from the monastery's attorney to prevent conflict of interest.

By virtue of monastic obedience, the accused monastic is bound to follow all legitimate commands of the monastic superior. Thus the superior can restrict the privileges and permissions of the monastic. The superior cannot, however, take away the monastic's rights within the monastery, such as the right to vote or to stay in an elected office, as on the council of seniors, without following the penal procedures of Book VII of the Code. In addition, the superior probably cannot force the monastic to live at any other place than the monastery since the monastic has the right to live there. This right, however, is debated by some authorities.

The superior cannot force the monastic to seek psychological evaluation and treatment since this would be a violation of the right of conscience (see canon 220 on privacy). If the monastic refuses to go for psychological evaluation and treatment, the superior could restrict the monastic to the monastery and deny the monastic certain permissions.

Exclaustration/Departure

In some instances it may be advisable to encourage the accused monastic to request a three-year indult of exclaustration (canon 686.1). The effect of the exclaustration is to temporarily sever the relationship between the monastic and the monastery. While remaining a member of the monastery, the exclaustrated monastic loses certain rights within the monastery and the monastery is not responsible for the monastic. Thus legal liability for future actions of sexual misconduct by the monastic is reduced, if not terminated. After three years, however, the monastic would have to return to the monastery unless an extension of the exclaustration were obtained from the Apostolic See.

In some instances, the monastic should be encouraged to seek an indult of departure (dispensation) from the monastery (canon 691). Such an indult is relatively easy to obtain unless the monastic is a priest. A monastic priest must be dispensed not only from his monastic profession but also from his priestly obligations by the Apostolic See. While a dispensation from priestly obligations is difficult to obtain, it seems that the Apostolic See is willing now to grant such a dispensation in the case of a priest guilty of sexual misconduct. While applying for a dispensation, the monastic should be granted the indult of exclaustration to protect the monastery during the period of processing the petition.

The ultimate authority of the monastic superior against an accused monastic is to proceed with dismissal of the monastic from the monastery. For a monastic the procedure is administrative rather than judicial as in the case of a diocesan priest. However, to initiate the dismissal process, the acts of sexual misconduct must have occurred no longer than five years ago, the canonical statute of limitation (canon 1362.1.2). In such a case the monastic committed sexual misconduct, the monastic must be dismissed from the monastery unless the superior finds that the harm done by the monastic can be repaired. Even in that instance, the monastic may still be dismissed (canon 695.2). If the monastic committed the sexual offense with force or threat or sexual offense publicly with a minor below the age of 16 (one or the other usually would be the case in a sexual misconduct case), there is no need to give canonical warnings threatening dismissal. Rather, the monastic superior gathers the evidence and provides the monastic with the accusations and the proofs and gives the monastic the right of defense (canon 695.2). The superior then forwards the acts to the president of the monastic congregation or federation who, acting collegially with the council, considers the proofs and decides by secret ballot whether or not to dismiss the monastic. If the president and council vote to dismiss the monastic, the acts and decree of dismissal must be forwarded to the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life for confirmation. If the Congregation confirms the dismissal, the president notifies the monastic who then has ten days to appeal the decision to the Congregation. If no appeal is taken, the decree becomes effective ten days after notification and the monastic is dismissed. This procedure should not be undertaken without consulting a canon lawyer since there are various elements which must be exact or the procedure is invalid.

If the monastic leaves the monastery voluntarily or involuntarily, the monastery must provide the monastic with financial assistance (canon 702.2). In the case of sexual misconduct there is probably need to provide assistance for job retraining if the monastic is in a helping profession. Employment in such instance will be difficult. If the monastic is middle-aged, or older, the monastery should consider giving the monastic financial assistance toward retirement.

When an accusation of sexual misconduct is presented to a monastic superior, the superior must not only be conscious of the needs of the victim and the accused, but also of possible litigation. Thus if the superior investigates the matter, the superior must realize that the information acquired in the investigation must be given to the other parties upon request if a suit is initiated. The material is discoverable. Thus in any investigation, the superior must keep in mind that the accused monastic has a right to refuse to cooperate in the "monastic investigation" in order to protect himself or herself against future criminal or civil litigation. To protect both the monastery and the monastic, some monasteries have a civil attorney conduct the investigation. Such materials should be protected under the attorney privilege.

Authority of the Diocesan Bishop

The diocesan bishop can take canonical action against a monastic who is accused of sexual misconduct. If the monastic is working in a diocesan ministry such as a parish or a school, the bishop, after informing the monastic superior, can remove the monastic from the office without any reason (canon 682.2). The bishop can prohibit a monastic cleric from exercising ministry within his diocese, but not within the monastery itself (canon 681.1). The bishop can also prohibit the monastic from living within his diocese, although this would seem to be limited by the monastic's right to live at the monastery.

Practical Advice

It should be obvious that dealing canonically with the situation of a monastic accused or guilty of sexual misconduct is not easy. Canon law provides some authority for the superior to use to protect the monastery and future victims. But it should be obvious that the legal remedies are so complicated or limited that they should be employed only when solutions to the situation cannot be achieved by mutual agreement between the superior and the accused monastic. Whatever is done, the superior must not only realize that the superior has an obligation to protect the name and the assets of the monastery, but also has the obligation to minister to the victim and his or her family and to the accused monastic.

The reason for beginning from a canonical perspective is to demonstrate how few legal options are open to a superior. What is more, canon law offers little guidance in this matter. Thus, rather than hide or become lost in a canonical forest, a superior, and the monastic community, must deal with the issues of sexual abuse and sexual exploitation directly and openly. It is my hope that this article will give some insights on how this may be done.

Personal experiences and the news media have brought attention to the problem of sexual abuse and sexual exploitation within the Church and within monastic life. Most, if not all, of the publicly known cases involve male abusers. Recently, however, women religious are having to face issues of abuse and exploitation caused by members of their communities. Thus, it can and must be admitted that the Church has a serious problem and this problem involves monastic communities, directly and indirectly. Members of monasteries have sexually abused and exploited persons. An ability to admit rather than hide this fact is the first and underlying foundation necessary to deal adequately with the general problem, as well as an individual case. To hide facts, to cover up a case, to buy off a victim, continues the code of silence about sexual abuse and the tribal secrets of monastic and ecclesiastical life.

Monastic life is a particular way of walking the journey of life. A monastic, and a monastic community, must embrace both the joys and the struggles of the human journey to God. The ancient monastic realized this and wrote about it. The desert monastic stories are replete with human struggles, including sexual struggles. Monastic writers have taught about the sexual struggles involving opposite and same sex relationships. Late twentieth-century monastics encounter these same struggles. The admission of this may not only help monastics to deal honestly and openly with sexual abuse and exploitation, but it may also refocus monastic life from an institutional and hierarchical orientation and image to a more basic purpose of monastic life-the search for God by individuals living and supporting one another in cenobitic community.

Sexual Abuse and Sexual Exploitation

Sexual abuse is the subjection of, or any attempt to subject, a child or a vulnerable adult to any sexual act. A common understanding of a vulnerable adult is a person who, because of physical or mental disability or dependency on institutional services, is particularly vulnerable to abuse or neglect. In simplified terms, sexual abuse involves a person who is unable to give legal consent.

On the other hand, sexual exploitation is the subjection of, or any attempt to subject, an adult to a sexual act by a person in a superior or authoritative position. Such an act involves the use of power to coerce the victim into sexual activity.

For a monastic, sexual abuse and sexual exploitation involve the abuse of the trust placed in the monastic, which can involve other members of the monastery. Such misconduct is more than a moral issue of abuse because society places a great deal of respect, trust and authority in members of a monastery. Such misconduct can also become an issue involving professional, ministerial integrity. It is not surprising, therefore, that society judges the monastic not only by common moral standards, which include an aspect of forgiveness, but with religious and professional standards which might require the withdrawal of the right to practice a profession.

Dealing with a Sexual Abuse Case

There are four major components in dealing with an accusation of sexual abuse or sexual exploitation against a monastic: the victim, the perpetrator, the local community, the general public.

1. The Victim

The primary concern must always be for the victim. Policies must state this clearly. Actual practice must observe this. The victim and the perpetrator are not on an equal standing in care and concern, even though moral consideration may encourage understanding and forgiveness for the perpetrator. The perpetrator has violated a personal and professional trust.

Almost everyone who comes forward with an accusation of sexual abuse or exploitation has truly been harmed. The details of the situation may be enlarged in the victim's memory because of other factors, such as fantasy or previous experience of harm, but the basic claim must generally be respected, at least initially. If such credence given the victim, the monastery should offer financial assistance for counseling or other such needs of a victim. This offer of assistance can be given even while the investigation of the facts is taking place. Counseling can go a long way in establishing the truth in doubtful cases of abuse or exploitation.

An intervention team, or an advocate for victims, is helpful to provide support and to investigate allegations. If the monastic superior, or anyone from the monastery, tries to assist the victim, confusion of roles is often the result: is the monastic official seeking to protect the monastery, to protect the monastic, to silence the victim, or to assist the victim?

If an allegation is made through an attorney, dealing with the victim is difficult. A personal meeting with the victim is usually precluded. The offer of assistance can be curtailed by the practice of the insurance carrier. Assistance usually should be offered in any case, but it will be negotiated by the attorneys of the parties.

2. The Accused Monastic

The monastic superior, or someone else on his or her behalf, must interview the accused monastic. This may seem a straightforward and reasonable procedure, but it is a procedure fraught with difficulty. Facts learned in this interview are discoverable in a lawsuit and can be used against the monastery and the accused monastic. And while ascertaining the truth, the superior must respect the rights of the accused monastic while protecting the liability exposure of the monastery.

When a monastic is accused, the superior ought to provide a support person, or otherwise become informed of a person upon whom the accused gains support. This person can become a confidant and guide for the accused, especially if the allegations become public.

The accused should be required to have a psychological evaluation as soon as possible. This procedure is advisable even in cases of possible false accusation, since the evaluation can assist in establishing the innocence of the accused. The evaluator needs to know all the facts and issues concerning the allegation, or other serious difficulties of the monastic. Information must be supplied by the superior to the evaluator. Following the evaluation, the accused should undertake any recommendations made by the evaluator. In addition, restrictions on the activities of the accused may be necessary, including employment, contact with various groups or persons, and travel away from the monastery. The reality of the situation might preclude any reassignment to a position of parochial ministry or teaching if the allegations prove to be true, and in any case, a return to pastoral ministry or teaching will depend upon treatment recommendations, an aftercare program, and, realistically, public perception and acceptance.

3. The Local Community

In the event of allegations of sexual abuse or exploitation, the monastic community itself becomes a victim. As victims, members of the community may have mixed emotions of support, condemnation, sadness, anger and bewilderment toward the accused. They will want to know how to react upon first meeting with the accused. They will want to know how to respond to the victim. In addition, community members will wonder how to face the public. To deal with these issues, a community meeting is best, especially in the event of a lawsuit or a public media announcement. This community meeting should be confidential. The community must hear the facts first and be allowed to speak or ask questions. Monastics living away from the monastery need to be informed. Meeting and sharing information is a time of bonding and healing for the members of the community. Some monasteries have found it wise in certain situations to have voluntary small-group therapy sessions. What is becoming increasingly apparent is that a community needs healing, not only psychologically and sociologically, but liturgically, through a ritual of healing. Men may deny the effects of the accusation and women may grieve, but within a community which professes the living power of God's Word in ritual, healing needs to be ritualized.

If the accused monastic ministered in a parish or a school at the time of the abuse or exploitation, or has served in such a ministry and is highly regarded, a prepared public statement should be read to those institutions. In addition, a parish or school meeting should be held so that people will become aware of the fact that the monastery is not attempting to cover facts. At such a meeting, people are given the opportunity to express their concerns.

4. The General Public

If the accusation is to be made public, the monastery should prepare a written statement for release. The statement must be guided by openness and honesty, but also by the realities of a lawsuit. The monastery should have only one designated spokesperson. All other members of the community, including the superior, ought to refrain from public statements. Media persons do understand the channeling of a statements and comments through a single spokesperson.

Conclusion

While each allegation of sexual abuse or exploitation may require specific and adapted responses, each monastery should have a general policy outlining the response. The monastics, and the public, will then know how the monastery will respond. The monastery can be held accountable to an expected standard of behavior, and each new superior will have guidance based upon past experience. Responding to allegations of sexual abuse or exploitation is multifaceted and it is difficult. The monastic community must realize that it cannot find all the resources for response within its own membership. Furthermore, the response must be guided by more than the advice of attorneys. Various monastic and religious communities have learned, through practical trial and error, the many different facets of response, the availability of outside resources, and the methods which have worked. The Church, and monasteries within it, must face issues together. The journey to God is accomplished only with the help of many brothers and sisters.

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Note: Since the above was written, the US Conference of Catholic Bishops has produced and revised two important documents:

The Charter for the Protection of Children and Young People (Office of Child & Youth Protection, © 2005).

Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons (Office of Child & Youth Protection, 2006).

Father Dan is working on a revised and updated version of the above chapter.

 

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