Law, politics and media make abuse scandals different in U.S. than Chile

Law, politics and media make abuse scandals different in U.S. than Chile

Law, politics and media make abuse scandals different in U.S. than Chile

Protesters speak to television reporters while holding signs "Admit your crimes" in protest of the release of former priest Paul R. Shanley from prison July 28 in Bridgewater, Mass. Shanley, a major figure in the U.S. church's child sex abuse scandal, was sentenced to 12 to 15 years in prison in 2005 on multiple counts of raping and assaulting a boy in the 1980s. (Credit: CNS photo/CJ Gunther, EPA.)

An in-depth look at how a clerical sex abuse case like that of Bishop Juan Barros in Chile would play out in the United States.

NEW YORK — As Archbishop Charles Scicluna of Malta returns from his on-the-ground investigation of alleged sex abuse cover-up by Bishop Juan Barros of the Chilean diocese of Osorno, some American Catholics have likened this latest chapter of the Church’s clerical sex abuse scandals to post-traumatic stress disorder.

Following the Boston Globe’s Spotlight team’s devastating coverage in 2002 of years of sexual abuse and cover-up, the U.S. Catholic bishops adopted their Charter for the Protection of Children and Young People in June of that year to standardize guidelines for reporting and responding to sexual abuse allegations within the U.S. Church.

Since that time, the American Church’s “zero tolerance” policy for sexual abusers has been considered by many as the standard for other countries to model their own programs. Given the recent controversies of the Barros affair, however, more than a few Catholics have wondered how a similar situation would play out in the United States today—both within the Church and outside of it.

In essence, the answer would seem to be that speaking strictly in terms of internal ecclesiastical procedures, it’s not clear there would be a major contrast between America and anywhere else in a case in which the accusation against a bishop is not abuse itself, but cover-up.

However, fundamental differences between the U.S. and much of the rest of the world in terms of legal, political, and media pressures suggest that something like the Barros saga would, nevertheless, play out differently.

A Convoluted Case

In 2011, Father Fernando Karadima, who led a well-known Chilean parish, was found guilty of sexually abusing minors and sentenced to a life of prayer and penance. One of the priests close to Karadima was Barros, who had been a bishop for over 20 years. When Francis named Barros bishop of Osorno in 2015, protests erupted throughout the diocese and the country, featuring charges that Barros was aware of Karadima’s history of abuse and helped to cover it up.

Barros has adamantly denied the charges and has even offered his resignation to Francis. Not only did Francis reject the offer, but while in Chile in January, he doubled down on his defense of Barros, saying that he had never received evidence from his accusers.

When news surfaced last month that an eight page letter from a victim detailing Barros’ involvement was allegedly delivered to Francis in 2015 by Cardinal Sean O’Malley, head of the Vatican’s Commission for the Protection of Minors, it sparked new charges that the pope had mishandled the case and that Vatican reforms on sexual abuse were effectively null.

The Threat of Torts

According to Martin Nussbaum, an attorney who has represented multiple dioceses throughout the United States in sexual abuse cases and served as a consultant to the United States Conference of Catholic Bishops (USCCB), the U.S. civil law and the threat of tort-based liability claims is a system that both helps keep the Church accountable—but at times can be subject to abuse.

“One of the public policies supporting tort law is that it encourages good behavior (for example for people not to strike each other),” Nussbaum told Crux. “Our tort law would incentivize anyone, particularly individuals working with children, to make sure they’re safe.”

“The result is that our law has a teaching effect that if you don’t get this right, you may find yourselves in embarrassing discovery, scandal with the press, and damaging payouts,” advised Nussbaum.

In his experience, however, Nussbaum said that along with tort law incentivizing good conduct, he believes that goodwill is equally important.

He told Crux that he’s worked with “scores of bishops” and it was their dogged determination after the early revelations of abuse in the late eighties following the case of serial abuser Father Gilbert Gauthe that led most bishops to began to implement policies of zero tolerance within their dioceses, leading to the 2002 codification the USCCB’s Charter.

“What the bishops learned is to forget the idea that mental health professionals can fix ephebophiles and pedophiles,” said Nussbuam. “Zero tolerance has been the most preventive thing the Church has done.”

Yet Nussbuam also cautioned against what he described as the “big business” of abusing the system for the sake of payouts.

“There are boutique law firms that specialize in bringing sexual abuse suits and almost all of them began with Catholic sexual abuse claims,” Nussbaum said. “They became very wealthy doing it.”

Mario Paredes, who has advised both the Vatican and the U.S. bishops on Latin American issues for decades and is Chilean born-himself, told Crux that the legal situation in the U.S. does often influence the way sexual abuse cases are handled and that the Chilean system is qualitatively different.

“The legal system in Chile is very much based on the French legal system, and therefore it is very different from the British and American systems,” said Paredes. “That is to say, it is not the institutions but the individuals that are the ones likely to have to face consequences.”

He noted the irony that in Chile, “Father Karadima, who sparked the whole debate, was absolved by the Chilean system but was condemned by the Vatican.”

Paredes attributed the public outcry over sexual abuse in Chile not to the threat of legal pressure, but a growing distrust among the people of the institutional Church.

“In Chile, what happened is because the institutions of the Church — the episcopal conference of bishops and the local diocesan bishops — did not pay attention as they should have,” said Paredes. “The public began to feel that the Church was covering up in a very abusive manner and that’s what really exploded the anger of the people.”

Today’s Standards: Reporting Requirements and Reform

In the United States, no priest who has committed sexual abuse of a minor can exercise any public ministry in accord with the Church’s universal norms. In nearly 30 states, priests are also named in the civil law as “mandated reporters,” meaning they have a duty to report sexual abuse.

Should a Barros-type case play out in the U.S. Church today, post-2002, in most states a priest would be required to report said abuse allegations to both ecclesial and civil authorities.

Yet according to Sister Sharon Euart, who is the former executive coordinator of the Canon Law Society of America, legal recourse alone is not enough.

“After allegations of abuse have been made to Church authority, the Church has a responsibility to respond immediately with pastoral concern for the accuser offering a compassionate response of dignity and respect,” she told Crux.

Following his 2013 election as pope, Vatican reform on sexual abuse was considered by many to be on the list of essential requirements for Francis if he was to succeed in his goal of reforming the Roman curia.

In June 2016, Francis issued a motu proprio, a legal document issued under the pope’s personal authority, titled “As a Loving Mother,” outlining the canon law response for cases of sexual abuse involving bishops.

According to the motu proprio, a bishop can be removed from his office “if he has through negligence committed or through omission facilitated acts that have caused grave physical harm to others, either to physical persons or to the community as a whole. The harm may be physical, moral, spiritual, or through the use of patrimony.”

In a situation where a bishop is accused of  a cover-up, such as that of Barros, the 2016 motu proprio also says the bishop must be given a chance to defend himself from the accusations. Should the bishop be found innocent of the allegations made against him, it is also required that efforts be made to restore his reputation.

Yet some have argued that the closest parallel to the Barros case here in the United States illuminates a system very much working out the kinks of its own ambitions of reform.

A Parallel Case? 

In June 2015, Archbishop John Nienstedt and his top deputy, auxiliary Bishop Lee Anthony Piche, resigned their posts amid ongoing criminal charges against the Archdiocese of Minneapolis and Saint Paul for ignoring reports of sexual abuse.

Their resignations were made under the code of Church law that allows bishops to resign before they retire, either because of illness or some other “grave reason” that makes them unfit for office.

According to court documents from the complaint against the archdiocese, Niendstedt was well apprised of abuse allegations within his diocese — as was his predecessor Archbishop Harry Joseph Flynn, whom Nienstedt succeeded in 2008. Given that Neinstedt was brought on as a co-adjutor for Flynn before succeeding him after retirement, the parallels with the Barros allegations are not dissimilar.

Of particular relevance is the case of Father Curtis Wehmeyer.

Despite documented allegations against Wehmeyer, Nienstedt promoted him to oversee the merger of two parishes within the diocese. According to court documents, when he was informed of the promotion, Wehmeyer asked Nienstedt, “Are you aware of my past? Are you aware of my record?” Nienstedt is purported to have replied, “I don’t have to look into that stuff.”

Court documents, however, revealed that Nienstedt had been warned of Wehmeyer’s background preceding his promotion.

Wehmeyer was eventually defrocked and has since pled guilty to three charges of child molestation and multiple charges related to possession of child pornography.

The allegations against Wehmeyer and the cover-up on the part of Nienstedt and the Archdiocese of Saint Paul and Minneapolis came to light, in large part, due to a long-term investigation by Minnesota Public Radio and the testimony of Jennifer Haselberger who served as chancellor for canonical affairs for the archdiocese.

After Haselberger made multiple attempts to get archdiocesan officials to confront decades of abuse cover-up and warn against the Wehmeyer promotion and her efforts were ignored, she resigned and became a whistleblower in the case.

Despite the motu proprio being heralded for establishing global guidelines for removing bishops, some individuals like Haselberger have said they are not enough and grant too much leniency to bishops.

She points to the Nienstedt case as exhibit A that a resignation does not necessarily have any teeth or punishment.

“What were the consequences? The resignation he did, he offered it. Outside of the humiliation to make that offer, you don’t see a lot of penalties,” she told Crux. “He still attends meetings, he has his faculties as a priest.”

“He should have been a catalyst for a ‘Me Too’ movement within the Church,” she said, referencing the cultural movement sparked in 2017 to promote the widespread sexual abuse that occurs in entertainment, media, business, and other major enterprises.

Outside Accountability 

In Boston, Minnesota, and elsewhere, outside media has played a critical role in keeping the Church accountable — particularly through long-term, investigative journalism. This form of outside accountability spurred change that many observers have noted have benefited the U.S. Church and beyond.

According to Helen Osman, former secretary of communications for the USCCB and now president of Signis, the World Catholic Association for Communication, “When media outlets invest in quality, professional, investigative reporting —  which costs money and takes time, they are able to encourage leadership to be transparent and honest about the faults and weaknesses of their institutions and personnel.”

Osman told Crux that the decision to ratify the Charter in 2002 was highly unusual because it was an agreement to hold one another accountable as bishops.

“I’m not sure if an episcopal conference had ever done something like that before,” she said, “And that only happened because of intense media scrutiny, which happened because the media finally started listening to victims and their advocates, trying to verify their stories, etc.”

She also said that over fifteen years later, the Church is still figuring out the ramifications of the Charter. She told Crux that several bishops expressed dismay after the Dallas meeting in 2002 where the Charter was approved, “but the reality is usually that’s the only way institutions and societies experience a major change.”

Susan Gibbs, former communications director of the Archdiocese of Washington echoed those sentiments by Osman and told Crux, “the Church has made major strides toward prevention and response to child abuse, yet any organization – religious, athletic or school – has to remain vigilant and not become complacent.”

“High-profile situations around how abuse allegations are handled can serve as reminders to be vigilant and catalysts to make change,” she added.

Bishop Chris Coyne of Burlington, Vermont, who while still a priest, served as spokesman for the archdiocese of Boston in the aftermath of the devastating abuse revelations there, told Crux that abuse allegations anywhere in the world have a ripple effect and that the media plays an important role in that process.

“Because of the reality of news in the digital age, if something happens in Chile and there’s cover-up, it redounds in a cover-up to us,” said Coyne, who also serves as head of the USCCB’s Committee on Communications.

“As bishops, we’re well aware how important communication is in all of this. The bishops are aware of it, the conference is aware of it, but if something happens elsewhere, fingers will still get pointed. Everybody wants to paint in a broad brush.”

That accountability — through a combination of legal enforcement, media scrutiny, and internal reform — has led Coyne to believe that the U.S. Church has taken strong measures to ensure that priests that have even been close to sexual abuse will not be named for the episcopacy.

“As it’s been over a generation since 2002, and most of the cases of abuse were in the late eighties and nineties, we’re talking close to 30 to 35 years since we were in the height of the sin of abuse,” said Coyne. “As such, the candidates being put forward as bishops are pretty removed from that, in the sense of possibly being present during abuse or the possibility of being friends with an actual abuser.”

“The generational shift is so great that you’re not going to find many guys being put forward as possible bishops that would have been a priest then. Priests being considered as possible bishops now are about 25-30 years ordained,” Coyne told Crux.

“Given our history, it would be very rare that you’d find bishops in a region even considering anyone who would have a sniff of cover-up or knowledge of abuse whose name would be recommended for a terna,” Coyne added.

A “terna” is the list of potential candidates to be named as bishops put forward to the apostolic nuncio and then to the pope for consideration. In the Barros case, it is unknown whether his name was listed on a terna or if his appointment came from outside recommendations made by those close to Francis.

“We’re not going to be dealing with this here in the U.S. unless someone truly drops the ball,” said Coyne.

Yet despite the promise of accountability, transparency, and reform — either perceived or enacted — the shadow of the Barros case looms large not only in Chile, but in the United States, and throughout the global Church.

As Francis approaches his five-year anniversary, Paredes told Crux that until the issue of sexual abuse is properly addressed, it will upstage any other forward motion for the Francis papacy, regardless of location.

“It is so obvious that it will continue to dominate the conversation until the Vatican really draws a line very clearly in the case of Chile,” said Paredes. “With the lessons of Chile, I can dream and envision that much more drastic measures will be taken.”

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