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Kavanaugh, priests, and giving the Devil benefit of law

Without due process, a benighted tribalism will eventually overtake us—perhaps even a Hobbesian war of all against all, bellum omnium contra omnes.

U.S. Supreme Court nominee Judge Brett Kavanaugh pauses as he testifies before a Sept. 27 Senate Judiciary Committee hearing on Capitol Hill in Washington. (CNS photo/Jim Bourg, pool via Reuters)

In a memorable speech from Robert Bolt’s famous play A Man for All Seasons, Sir Thomas More argues with his son-in-law, Will Roper, about the need for law, even for the most hardened of criminals. To Roper’s claim that he would cut down every law in England to reach the Devil, More responds,

Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down… do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

More’s reflection on the necessity of law is pertinent for our times. The Wall Street Journal, for example, recently ran an editorial entitled “The Presumption of Guilt”. The piece argued that, for some, the “sexual-assault allegations [against Supreme Court nominee Brett Kavanaugh] should be accepted as true merely for having been made.” According to this way of thinking, “the burden is on Mr. Kavanaugh to prove his innocence.”

The editorial goes on to say that the American notion of justice and due process is such that “an accuser can’t doom someone’s freedom or career merely by making a charge.” If that were possible, then anyone could be ruined on a whim or through a vendetta. The editorial warns that, if we do not protect the traditional system of justice, “the new American standard of due process will be the presumption of guilt.”

Other newspaper columnists have underscored the truth of this message. Daniel Henninger, for example, presses the argument: It’s clear that the “accusation [against Kavanaugh] can be neither proved nor disproved.” But failing proof, one baseless accusation after another can simply be piled up against an opponent. The proper description for this way of acting is not justice or due process, but “the mob in the Roman Colosseum, turning thumbs up or down on the combatants.”

Anyone not blinded by ideological bias knows that these assertions are true. But has anyone taken notice of how closely the objections to the Kavanaugh case parallel how accused priests are currently treated in the Catholic Church?

Given the McCarrick revelations and the Pennsylvania grand jury report, today hardly seems the time to defend priests. On the surface, at least, a veil of sexual malfeasance has encircled the Catholic clergy. But as the citation from Bolt’s play makes clear, even the Devil himself is entitled to the rule of law. If we forget this, or if we ignore it because we are blinded by outrage, then justice can no longer prevail for any of the accused, no matter the crime. Without due process, a benighted tribalism will eventually overtake us—perhaps even a Hobbesian war of all against all, bellum omnium contra omnes.

As it presently stands, Catholic priests are suspended from their ministry because of a “credible accusation”. Credible simply means “not impossible”—that is, an incident could have possibly occurred. And many of the accusations leveled against priests, like those leveled at Kavanaugh, are from decades ago. In most cases, no evidence can be brought forward one way or another because none exists either to verify or falsify an allegation.

But priests accused of sexual abuse, even if the accusation remains unsubstantiated, are doomed men. They can no longer exercise public ministry, are forbidden to occupy diocesan property, and lose their sole source of income. Doomed is indeed the right word—and all on the basis, often enough, of accusations alone.

I write this because many are wringing their hands that Brett Kavanaugh has been treated unjustly. As William McGurn has written, “Mr. Kavanaugh must now do the impossible: prove an assault never happened.” True enough. But, in the midst of their panic in 2002—when policies were crafted with PR in mind, not natural justice or Catholic theology—bishops demanded the same thing of priests. Like Kavanaugh, many priests have subsequently claimed that they were falsely accused. But to no avail. Few have spared a thought of justice or due process for these men.

In sum, anyone complaining that Brett Kavanaugh is being treated unjustly should have the courage to look again at the American bishops’ Charter for the Protection of Young People (Dallas Charter) and how priests have been similarly treated. Some have argued that, while the Charter is flawed, it has stemmed the tide of abuse in the Church. But at what cost? Even if only a few dozen priests have been falsely accused and unjustly deprived of their ministries, is this acceptable collateral damage? No human being with a rightly formed conscience could answer that question affirmatively. As the fictional Sir Thomas More presciently recognized, once laws are cut flat, no man can stand upright against the Devil. Brett Kavanaugh is finding this out now. Catholic priests, sadly, have known it for a long time.

As the Catholic Church seeks to climb out of the swirling waters of sexual malfeasance—waters that have pulled the bishops themselves into its vortex—now is the time to rethink radically the Charter’s norms and to establish a just policy which is applicable to all clergy, bishops, priests and deacons. Only this kind of serious and transformative reform will restore the confidence and trust of Catholic priests and people alike in the Church’s leadership.

About Msgr. Thomas G. Guarino 3 Articles
Rev. Msgr. Thomas G Guarino is professor of theology at Seton Hall University. His book The Disputed Teachings of Vatican II (Eerdmans) is due out in October, 2018.

31 Comments

  1. “Credible”, in the context of clerical problems, has always been interpreted by me as “having been investigated”, and that further public scrutiny in a court of law was not necessary and could only bring down crushing public disgrace on the accused. Rarely have I heard of injustice, and then only by rumor. Please tell me I am wrong.

    • The author of this article has given the correct definition of “credible” in the language of the Church when it is applied to accusations of abuse – both for priests and for teachers at Catholic schools.

    • You are wrong. The situation is as Msgr. Guarino describes it. Any time a POSSIBLE or PLAUSIBLE accusation is made (i.e., the priest cannot prove he was a thousand miles away) the priest’s life is over. He is out on his ear.

    • Mr. Collins,
      The Dallas Charter of 2002 unleashed a torrent of injustice which has destroyed many innocent priests’ lives. A “credible accusation” judgment can be made on the flimsiest of testimony i.e. identifying the priest’s name and parish correctly. Incredibly, it is as simple as that. Additionally, the operating principle in diocesan structures when dealing with accusations is to ALWAYS BELIEVE THE ACCUSER. Priests are not afforded the presumption of innocence and the character of the accuser is never permitted to be questioned when trying to establish the merit of the charges.
      I know of what I speak: I am a priest and my priest friend of several decades has experienced this living hell for the last 10 years while firmly maintaining his innocence.

    • Under the rubric of “Zero Tolerance” which can be better describes as “Protection of the Church from Scandal,” the Catholic hierarchy has thrown priests under the bus and paid out $billions to accusers. In addition, the Church has not come to the defense of accused priests in a court of law, and worse, has condemned them without evidence and used them as scapegoats in order to avoid investigation of bishops and cardinals. An example is the case for the New Hampshire archdiocese facilitating the false accusations and imprisonment (for 70 years) of Fr. Gordon MacRae. Read about it: http://www.thesestonewalls.com/case-history/

  2. “Without due process, a benighted tribalism will eventually overtake us—perhaps even a Hobbesian war of all against all, bellum omnium contra omnes.”

    Tribalism, in the form of identity politics, is already here.

  3. As a Viet-Nam veteran, I remember the guilt-through-accusations from the 1970s.
    As a public-school teacher, I know the drill now – often by fellow Catholics.
    As a Catholic, yes, the same old drill.

  4. Having reluctantly ordered the FBI to investigate the latest charges against Kavanaugh Trump has changed his tune after the Sept. 27th Senate hearings. What could be the raw reason that the Senate Judiciary hearings became a circus? Trying to remain not too cynical the man who blocked the case of Merrick Garland, McConnell, pleaded with the president to allow an extension of one week for the FBI investigation, something he should have done weeks before. Is Kavanaugh guilty of any charges? Is Dr. Ford lying? So far no one knows.

    What we do know is that Kavanaugh has admitted to drinking while in High School, sometimes to excess. We do know is that Kavanaugh has demonstrated a lack of control. We do know is that Kavanaugh was complaining about the OTHER SIDE, (Democrats and Clintons), are responsible for a “left” wing conspiracy to destroy his good name. We do know is that Kavanaugh did not show calmness and control when asked how heavy he drank.

    Well my Republican cohorts say it really doesn’t matter anyway… McConnell and Grassley will make good and will vote to place the Judge on the SCOTUS.

    • I find it incredible that so many people (including Republicans) have asserted that Ford’s testimony was credible. She doesn’t know how she got to the party; doesn’t know the town or the street; doesn’t explain why she used a second-floor bathroom when, presumably, there must have been one on the first floor; doesn’t say what the reaction of her friends was to her speedy (and presumably, tearful) departure was; doesn’t say how she got home. That is credible? And Fr Guarino’s point is that very similar situations have condemned priests.

      • Not to mention that if what she has said is true – which I very much doubt – she left her “best friend” alone in a house with four boys, two of whom just tried to rape her, and without warning her friend.

        I don’t find her credible, I find her either delusional or a liar.

      • Thank you Father. As usual, spot on. And thanks also to the author of this article – I know of one fine priest run out of his parish by the feminists in the congregation – via a “whisper campaign ” of allegations. They did not care for his orthodox sermons.

    • “Credible simply means “not impossible”—that is, an incident could have possibly occurred. ”

      Is that the official definition of “credible?” Because I keep seeing that word used regarding accusations against priests, and I have been wondering, “Credible to whom? Based on what evidence?”

    • There is only one reason a person would compose such a vicious, skewed summary of Kavanaugh’s testimony. That person is pro-abortion. In fact, there’s only one reason a person would be a Democrat and/or hostile to the Republicans. That person is pro-abortion.

  5. In the secular context of sexual abuse, justice can never be served because the laws of God are not a part of our judicial system. It is based merely on the laws of man and as such, are based upon the changing mores of society which have increasingly accepted all vices as virtues while all virtues are vices.

    In the context of sexual abuse in the Church, IN PRACTICE, it operates exactly like the Godless secular state. Leaders establish laws that no one, IN PRACTICE, abides by and thus makes them absolutely worthless. Unless and until the leaders of the Church are converted to the one, true faith, because they are either heretics or apostates, they will remain exactly like their godless, secular counterparts where laws are simply words on paper.

  6. Nominee Kavanaugh has been investigated by the FBI 6 times, and nothing like these allegations has been turned up.

    When Senator Feinstein met privately with Judge Kavanaugh she had the accusatory letter in hand. A decent person would have asked him about the accusations at that time and a PRIVATE investigation could have been launched, and this (ongoing) disgraceful episode could have been avoided.

    All of this can be easily understood once one understands that the Democrats’ key word is simple – delay.

  7. I think this is a well-reasoned position. Spiritual blindness: Seeing only good, and ignoring or denying the existence of evil OR seeing only evil and denying or ignoring the existence of good. Spiritual sightedness is: Seeing both good and evil and being conscience of both. We are in the clerical abuse scandal because initially Catholics only saw good in a priest. Now the fear is we see only evil in priests. Allowing due process (discernment) is prudence, wisdom, and the only way to restore faith.

    • Judge Kavanaugh has already been the subject of 6 previous FBI investigations and nothing of this sort has turned up, or even been hinted at.
      Senator Feinstein had the letter from Dr. Ford in her possession when she met Judge Kavanaugh privately but made no mention of it, which in my opinion would have been the decent thing to do. Had she asked him about it then another investigation could have been made – privately, as Dr. Ford initially expressed to the Senator. Instead, the Senator leaked the letter with just 3 days to go before sending the vote to the entire senate.
      As for her denying knowing how the letter was leaked, that is easily explainable – the old political maxim goes like this: Uberling to underling “Do what you have to do but don’t tell me so I can say I didn’t know.” Left unsaid – “If you get away with it I owe you, if you get caught I don’t know you.”
      Wherever he is at this point, it is fair to say that Saul Alinsky is mightily impressed with the democrats’ putting into practice some of his prime precepts, and Senator Joesph McCarthy is probably pretty impressed too.

  8. Msgr. Guarino’s article is the most courageous and insightful I’ve read in quite a while. As Fr. Stravinskas reminds us, the point Msgr. Guarino is making is that the Dallas Charter, adopted by the American bishops in 2002 in response to the clergy sex abuse crisis, “condemns priests” unjustly, without due process, and on the sole basis of unsubstantiated and inadequately scrutinized accusations.
    For this and other reasons I have long been highly skeptical of the Dallas Charter, despite its frequently being touted as evidence that the bishops have ‘done something’ to make the Catholic Church a ‘safe’ place. We have a Church bristling with state-of-the-art secular policies and protocols, yet determined at all costs to avoid the politically incorrect fact that its abuse crisis still remains chiefly rooted in homosexual acts. We have a Church willing to throw priests under the bus on minimal pretext, while shying away from speaking truth about chastity and Catholic teaching with faith and boldness and unity. In this state of affairs our Church is anything but safe.

  9. The Bishops and seminary directors of the US (and worldwide) are the primary creators of “this vortex.” They are NOT being sucked in. They engaged in systematic coverup of sex abuse.
    They have sown their he wind…and they will reap the whirlwind.

    At the same time, I do agree that Msgr. Guarino is correct that innocent priests have been falsely accused and their rights of legal defense unlawfully violated…BUT yet again…this is also the work of the same Bishops, led by Theodore McCarrick, who crafted the deceitful and abusive Dallas policy…which Cardinal Dulles very candidly criticized when it was trotted out by McCarrick et al.

    Msgr. Guarino fails to put his finger on the main problem: the Bishops and seminary directors who systematically covered up cases of adult sexual offenses of sodomy, fornication, adultery, forcing the systematic coverup of sexual abuse of minors…to protect the secrets involving the former offenses.

  10. Your article mentions accusations against priests in this current climate…

    What most laity (it appears) are angry about are not the individual accusations against priests but the documented cover-up by bishops, cardinals, up to and including the pope (both when he was in Argentina and now as Pope).

    While you are right that we should still hold the maxim of innocent until proven guilty, there is too much documented evidence at this point to suggest that the offending bishops, cardinals, and yes even the pope are remotely close to innocent of the coverups they are being accused for.

    How about we address that?

  11. I am glad to see this timely article. Based on my own experiences as a Catholic, there are two things I am sure of: 1) The Church is in the grip of homosexual molesters. 2) Many innocent priests are being swept up in this evil, falsely accused and unjustly condemned.

    • Yes. And criminal actions are not the only problem, and sometimes it even seems as if they’re not the majority of it. There are some of those, and they should be dealt with but certainly not in this if-you’re-accused-you’re-guilty atmosphere. But if there were no criminal actions in the civil realm at all we would still have the evil of the “consensual” actions that cry to heaven for vengeance. That to me is the worse problem.

  12. Just look at what happened to father Gordon McRae and the article written by Dorothy Rabinowitz. This speaks for itself about the situation of priests falsely accused.

    • Yes, and falsely accused is not the only problem; deficient legal process is also to blame as in Fr Gordon’s case which was heavily polluted by religious bigotry, political ambition and greed.Then there is the case of Fr Avery and the consequent charging of Msgr Lynn. There is a lot of muck that will hit the fan when this case is re-tried.The legal system is not beyond reproach and the system of plea-bargaining makes for a travesty of justice, causing many innocent persons to be imprisoned. In the case of priests, it is a situation of ‘heads, I win: tails you lose.’ It is a completely no-win situation. Imagine being offered a couple of years if you plead guilty and over 50 years imprisonment if you are actually innocent and refuse to lie that you are guilty. Americans, hang you heads in shame!!!!1

  13. In all this talk about ‘cover-up’ I fail to see any reference to the individual’s requirements concerning calumny and detraction, and none concerning repentance and mercy. Basically, what I detect is a witch-hunt and an attempt to bag as prey anyone seen as ‘the enemy’ and vicariously connected to someone who might be guilty of something or anything – to bring them down by fair means or foul.I wonder how the Lord, the just Judge, will judge these people when their time comes in the eternal Court of no-appeal. Another thing that raises its head is our ridiculous and childish belief in the infallibility of the justice system.

  14. Ayoung man must think twice about becoming a priest today.How easy it is for anyone accusing a priest of misconduct and abuse if this person wants to destroy of a priest and make money out of it.And that poor priest cant even count on his own to defend himself.He is completely rejected like a criminal.No wonder there is a shortage of priest.Look how they have bean treated!

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