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Catholic Church and Abuse Awareness: Judgment without a judge

2021-12-24T10:32:11.946Z


External lawyers are often responsible for alleged "processing" the treatment of cases of sexual abuse by clerics. Our author represents a victim - and considers this practice to be wrong.


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Stormy weather over St. Peter's Basilica in the Vatican

Photo: Alessandra Benedetti - Corbis / Corbis via Getty Images

State, Sin and Law

Accusatio, Damnatio, Venia.

Accusation, conviction, forgiveness.

As is well known, the Calvinist can hope for the forgiveness of his individual sins in eternity at the earliest. The good Catholic is better off, above all thanks to the sacrament of confession, which gives the deplorable failure of the animal, which by virtue of original sin, has come into the consciousness of being alone and responsible, a somewhat more humane dimension. The trained pietist considers so much softness to be blasphemous, because wherever he lives there is forgiveness at best in an equivalent exchange.

Having said that, the author, who was neither one nor the other throughout his life, is always astonishing why the Lutheran is still able to waft an ode of "progress", if one disregards the iron disciples of the god sent Donald T. Possibly they have a few more Third World shops and candles for world peace, and certainly a more gender-wise mix of staff, which makes a lot out of them these days. Above all, there is a strong love for the state as an ideal total capitalist and in general. That brings us to the topic once more, taking a seasonal detour.

The state, as we have known it for a few hundred years, deals with moral misconduct on the one hand and crime on the other in a rather differentiated manner. This is due, among other things, to the fact that the use of force to regulate morality, from blood revenge to so-called religious wars, has proven to be extremely obstructive on the way to the world's leading culture. The German person of the 21st century knows tax, traffic and mask offenders, but actually means something completely different with such begging terms, namely an appeal to the authorities to stop the proceedings against him as soon as possible in return for a tolerable fine. At best, it has something to do with morality, in the world of coffee gossip and language correction hysteria.

You notice that when one of the "sinners" is asked to surrender his driver's license for two months or to pay six percent interest on arrears on the tragically forgotten income tax. Then a howling and chattering of teeth begins, which begins at the local district court and can possibly be stopped by the Federal Constitutional Court. "I know my rights," the sinner yells to the marshal and also to the Sunday school teacher and the local investigative press. He means that he is asking to be treated kindly like a citizen, not like a wild enemy. So according to the law and not according to the morality of those who are spontaneously decent here and now. A constitutional state is a state that adheres to its own rules. In other words: the law either applies or not, either for everyone or not.Of course, it also has something to do with morality; but the constitutional state is not a garden of justice, as the salvation teachers of all stripes claim.

State, duty and guilt

Let us assume, hypothetically, that in the area of ​​responsibility of a school office, a police headquarters or a university clinic, serious "irregularities" have occurred over a long period of time and in many cases. Let us also assume that, as always, "rapid and unconditional" clarification is publicly demanded and promised. And let's assume that the following happens: After a while, the head of the education authorities, the chief of police and the medical director of the clinic hold press conferences at which lawyers appointed by them present the results of "internal investigations." It says: The senior studies directors A and B, the chief police officers C and D and the chief physicians E and F have continued to commit serious violations of duty. The teachers concerned,Police officers and doctors were moved by their superiors to places where they pose no danger to children, citizens and patients. Finally, try to imagine that ladies and gentlemen A to F all considered themselves innocent and that the allegations about their breach of duty were false.

If these examples seem too complicated for you, you can simply imagine that you are working as a senior physician or senior teacher and one fine day you get the message from a local law firm that they intend to publish in three weeks that they have committed serious breaches of duty; he has two weeks to comment in advance. Would you find that a bit strange? Maybe even outrageous? I believe that you are on the right track.

In fact, the following would (hopefully) happen: Flagitium Maximum (= greatest possible scandal)! Administrative Court, Press Chamber of the Regional Court, Ver.di! Interim injunction, damages, constitutional complaint! Because that's not how it works in a constitutional state. Whether a person in the public service is guilty of a violation of his official duties is not a question of the private "opinion" of the superior. Public service personnel matters are not a matter of personal accounting, external amusement, or private appraisers paid by lobbyists. In the constitutional state, things are not like Hempels' on and under the sofa.

For this reason, in addition to the criminal law that applies to everyone, there is a special disciplinary law for the public service. It is regulated in the disciplinary regulations of the employers (federal, state, etc.), contains sophisticated procedural law and strict requirements for the arrangement and effect of sanctions. The publication of a lord mayor in the official gazette that, on the advice of a lawyer recommended by his neighbor, he reprimanded the head of the municipal environmental office for breach of duty and transferred him to the regulatory office, is not planned. Not only the imposition of a disciplinary measure requires a procedure that complies with the rule of law, but also the publication of such a measure,that is a particularly serious encroachment on the rights of the person concerned.

Church, Canon Law and Constitution

What does all this have to do with the Catholic Church?

Most people in this country are currently less interested in the mystical symbolism of the virgin birth or the official charismatic problems of administering moral responsibility, but firstly the sexual abuse of children and young people by clerics, secondly the "reappraisal" of the same, and thirdly the gender-based denial of quotas.

First of all, there is not much that is new to say here. »Pastoral care«, educational leadership, the right to recognition of ethical authority to use in order to sexualise dependencies, weakness and trust and to abuse weaker people for sexually determined motives, on the one hand often fulfills the criteria of a criminal law and on the other hand is human perfidious and repulsive. We are, of course, somewhat astonished to note that the large number of "uncovered" cases almost all relate to offenses that have long been statute-barred and / or to perpetrators who have died many years ago. The omnipresent image of the (Catholic) Church as a "structural" organization of abuse does not really want to fit into the empirical findings on the here and now. It may sound cynical, but it would be criminologically revealing if once

Documenting

current

crimes and having them prosecuted.

Between the »MHG study« published in 2018 by the Association of Dioceses of Germany (Hellfeld result for 2000 to 2014: 3677 victims of sexual abuse of children and adolescents; 1670 accused clerics = that is 4.4 percent of all clerics in the German dioceses) and the An estimate (!) of 330,000 cases (in 70 years) published a few months ago in France opens up an extremely wide field of differentiations and results, including speculations.

Much, probably most of it, can no longer be explained with sufficient claim to validity.

In the last few years the discussion has therefore shifted almost entirely to the so-called "reappraisal", that is, to the investigation of responsibilities and "structural" errors in the investigation, persecution and consequences in the church organizations themselves. The accused and "perpetrators", um what we are dealing with here are not the often deceased perpetrators of long-time barred sexual crimes, but those in charge of personnel administration and pastoral care who found out about these crimes and had to decide how to deal with the reports and accusations. It stands to reason that, for a variety of reasons and in many forms, significant mistakes have been made here.

These errors are seldom in their part under criminal law. Of course, the state criminal law also applies to members of the Catholic Church; the CIC (codex iuris canonici) is of course not exclusive. Rather, it is almost always about violations of internal church rules and express duties, with flowing boundaries to moral postulates. That is what is mostly hidden behind the allegations of "cover-up", "concealment", hostility towards victims and indifference.

This brings us to a very central problem that by no means only concerns the Church and the dioceses.

According to Article 140 of the Basic Law, Article 137 of the Weimar Imperial Constitution (also) continues to apply to the Catholic Church.

It is therefore a corporation under public law.

It arranges its internal affairs "within the limits of the law that applies to all".

Like the Protestant regional churches, the Catholic Church is not a "state church," that is, not part of the state organization, but in some ways it is closer to it.

Above all, the rules of public law apply to them, at least accordingly, unless there are compelling reasons for belief in the content of the contrary (see "Quota" etc.).

Internal, external, modern?

What does that mean for the "coming to terms" with responsibility and guilt, provided that it does not concern organizational structures and rules, but the behavior of individual people belonging to the church?

How the Church deals with moral guilt internally is up to her.

The district court does not decide on absolution, but the confessor.

If this person breaks the secret of confession, this is a serious (intra-church) misconduct, which leads to criminal proceedings according to the cic before a church court.

This is where an extremely strange phenomenon sets in: if one follows the usual upsurges of emotions, popular analyzes and forum hysteria, the answer is clear: According to a majority, this church is an obscure parallel society anyway, whose officials often do not adhere to those moral regulations, which they at the same time preached to their members as being extremely binding. A classic pseudo-holiness, then, which, as soon as it is recognized, generates anger, disappointment and contempt and leads to the intuition that those who had no sympathy would not grant it either. To stand up for the constitutional protection of such allegedly unquestionably "guilty parties" is therefore unpopular and is often even considered to promote possible foreign guilt.

(Also) the German dioceses have chosen a way of “coming to terms” that seems quite astonishing. Instead of using the canonical procedures available to them to investigate the possible guilt of those responsible, they slipped under the gentle cloak of general social babbling and mindfulness culture while wailing, howling and gnashing their teeth: culpa nostra cannot be more maximal than that, as if you cut all the masts from the start and commissioned a few lawyers for a few million euros to publicly denounce the guilty!

This leads to such absurd situations as in the Archdiocese of Cologne, where the commissioning cardinal had to defend himself for years against the unsubstantiated accusation that he was "withholding" a private report because it allegedly incriminated some "perpetrator". His repeated allegations that he will not publish the report because it violates the personal rights of those affected is reviled with disbelief to this day. The more he tries to comply with the rule of law, at least retrospectively, the more furious the accusations against him for allegedly preventing justice become.

Other dioceses have therefore now resorted to even smarter exemption channels: They no longer agree in the contracts with private law firms that they themselves (i.e. the paying dioceses) publish the reports, but instead transfer the decision on this to the law firm. It is as if the clinic director or the chief of police in the above initial examples each call their private divorce lawyer and, at the expense of the clinic or the Ministry of the Interior, instruct them to investigate and publicly report whether and which official offenses doctors and police officers have committed.

The hats out of which the law firms are conjured up, who act as "experts" for decades of extensive internal church rule violations or processes of canonical proceedings, is not subject to any public control. »Announcements« and qualifications have not become known. And anyone who dares to criticize an expert opinion can feel like they belong to the group of alleged "cover-ups". Anyone who wants to help "someone like that" to proceed according to the rule of law certainly also wants to "mock the victims" (favorite accusation of the indignant outraged).

So here we are, dear readers, not talking about the guilt of criminals.

We do not even talk about the guilt of people who misunderstood or recognized the guilt of possible criminals, but covered it up because the good reputation of the institution, the hierarchy and an interest-based dogmatics were more important to them than their duties as officials and pastors.

Rather, we are talking about the degree of rights and personal protection that these latter people must be accorded, if there is any talk of "constitutional analysis" at all.

This is definitely not the place for drooling revenge shouts and cynical "they don't deserve it".

Because if these accused don't "deserve" it, none of us who are accused "deserves" it.

A corporation under public law may not authorize privately commissioned interest representatives to publicly assert the guilt of members of the church administration for serious breaches of duty without a legally binding determination of guilt in a procedure provided for this purpose. The publication of disciplinary measures against a civil servant requires that disciplinary proceedings, including the possibility of an appeal, have been carried out.

It seems to me that there is no legal basis for church officials to be publicly accused by private law firms of having committed serious violations of official duties and violations of internal church law.

At most, this would be legitimate if the relevant canonical procedures that meet the requirements of the rule of law have been legally concluded.

Not to keep such procedures available or not sufficiently clear and to compensate for this by the fact that vicars general conclude any private contracts with lawyers who appear to be “suitable” or “recommended” lawyers by anybody, in which these firms are granted the right to make private judgments under the name of “expert opinions “To blow into the world is adventurous.

outlook

For 25 years, business lawyers, criminal and constitutional lawyers have been discussing the limits, risks and requirements of internal investigations in companies. Some general rules have laboriously developed, on the observance of which the citizen can rely at least as long as large American law firms are not involved. In many other areas too, the enthusiasm for the outsourcing of guilt determinations to supposedly “neutral”, “impartial” external parties is clearly clouded. Of course, a law firm is not "impartial" when it is paid by one side.

It is good, correct and necessary that individual and organizational failures, so-called "structural" risks and causes for criminal offenses within the church organization as well as for inadequate, negligent, deluded handling of possible and actual perpetrators and victims are investigated and determined where possible is. On the other hand, the fact that society as a whole engages in outrageous acts or omissions from 50 or 30 years ago with holy zeal should be an occasion for critical reflection.

It is a mistake to suspend or consider to be irrelevant basic rules for the alleged "coming to terms" with what legitimizes the establishment of guilt and responsibility in the constitutional state in the first place. The attempt by the Catholic Church to submit by way of anticipatory obedience to a culture of public scandalization and private persecution is wrong, highly risky and unsuccessful. It cannot make itself so small that it could not even be possible to condemn this as the height of hubris.

The alternative is actually not that difficult: carry out internal church disciplinary proceedings or criminal proceedings that meet the rule of law in every respect.

Publish legally binding results if necessary.

Draw consequences.

Lawyers, media and zealots should observe and evaluate this critically.

Then everyone turns to the next tragedy.

Note:

The author works as a lawyer (of counsel) in the law firm Gauweiler und Sauter in Munich.

He represents the interests of a client in the procedure for an expert report that has been commissioned by a German diocese.

A legal dispute is not pending in this regard.

Source: spiegel

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