Max-Weber-Institute of Sociology
Max-Weber-Institute of Sociology
Almost 10 years earlier, in 1982, the church superiors had already issued a prohibition for him to participate in vacation trips with young people and to visit the public pool with them. But this was revoked in 1983 at the priest’s instigation. When the suspicions did not subside, further disciplinary measures took place. Under threat of criminal proceedings under canon law, the accused was entrusted with new tasks in the pastoral care of the elderly under certain conditions. But he vehemently refused, until in 1992 he was finally relieved of his duties as subsidiar in the pastoral care of young people in his previous parish – and was subsequently appointed subsidiary of another parish. This led to a dispute between the then Archbishop Meisner of Cologne and the accused.
The Legal Opinion
In a consultation in 2018, which was scheduled on the occasion of the legal opinion of the law firm Gercke and Wollschläger presented on March 18, 2021, the responsible vicar general, the right hand of the archbishop, said that there is no evidence of indecent assaults. This had been treated as a possible violation of the utter and perpetual continence for the sake of the Kingdom of Heaven (can. 277 CIC/1983) specified in canon law. In § 3 of the corresponding provision, one reads: “The diocesan bishop is competent to establish more specific norms concerning this matter and to judge particular cases concerning the observance of this obligation.”
One case, many cases
This case, as described in the legal opinion, is typical of the way the Catholic Church deals with a large number of cases, not only in the Archdiocese of Cologne. We had already reported on a study of the abuse cases in the entire (German) Catholic Church at another point (see “The Scandal Behind the Scandal – Why the Church Provided New Victims to Abusive Priests”). The current report indicates that in the past of the Archdiocese of Cologne, sexual abuse occurred in 31.8% (100) of the 314 files examined with suspected cases, severe sexual abuse in 15.3% (48), and violations of the physical proximity and distance relationship in 16.9% (53) (Gercke et al. 2021, p. 51). These offenses are criminally relevant and must be investigated. But the Archdiocese of Cologne, like other dioceses, has often failed to do so. Judicial criminal proceedings were only very seldom carried out. Only in 44% of the cases on record were those affected questioned, and in 45% were the accused questioned. More often, disciplinary measures were applied, as in the case described above.
While a transfer of the accused cleric to another parish was made in only a few cases- in contrast to the Germany-wide study (see “The Scandal Behind the Scandal – Why the Church Provided New Victims to Abusive Priests”) – other disciplinary measures, such as release from duty or a forced resignation from office, were used more frequently in the episode described above. Overall, the church handled the abuse allegations according to its own rules, as might be expected, and in doing so – if one follows the legal opinion – was guilty of some violations of duty. The catalog of duties formulated by the legal opinion according to legal aspects includes, among other things, a duty of preliminary investigation and reporting, a duty to sanction, to prevent further acts, and to care for victims.
How can we explain these violations of duty?
We do not want to excuse or justify anything with such an attempt at explaining, but only provide answers to the question of how it could have come to this. After all, we are dealing with possible criminal acts, which have a high moral appeal. Since we do not assume that the Catholic Church is composed of a majority of sadists in its executive level, this question is highly charged. Of course, we could say: They just wanted to cover everything up. This may also be partially true, but it seems insufficient as an explanation in view of the files that are now publicly available.
The organization of faith
For example, in his speech at the Eucharistic celebration at the conclusion of the Child Protection Conference at the Vatican, February 21-24, 2019, Pope Francis proclaimed:
“Consecrated persons, chosen by God to guide souls to salvation, let themselves be dominated by their human frailty or sickness and thus become tools of Satan.” He further asks: “So what would be the existential “meaning” of this criminal phenomenon? In the light of its human breadth and depth, it is none other than the present-day manifestation of the spirit of evil. If we fail to take account of this dimension, we will remain far from the truth and lack real solutions.”(Address of his holiness Pope Francis at the end of the eucharistic concelebration).
He previously suggested such a line of interpretation of the abuse cases and allegations, in which the abusers are described as victims and instruments of Satan. Not only are they thus placed under the primary responsibility of the Church, but their pastoral treatment as tempted, prodigal sons is also suggested. They can repent, be healed and led back to the right path only in the bosom of the church.
The management of the confession
But other organizational features also stand out. At its core, the Catholic Church is an administration in which theologians are in charge. Theology as a profession occupies a monopoly position in it. Theologians hold all leadership positions. All bishops and cardinals have studied theology, not seldom degrees and university positions up to professorship. Jorge Mario Bergoglio himself, the current Pope, studied Catholic theology, among other things, and became a lecturer and even rector of the San Miguel Faculty of Theology. This distinguishes the church, for example, from the setting of mixed professions in the corporate sector. As a profession, it claims a mandate to deal with problems autonomously, i.e. it alone claims to define what kind of faith is guiding and how abuse should be interpreted and dealt with internally on this basis.
At the same time, however, it is also characterized by an excessively bureaucratic structure. In this respect, it is similar to many other organizations. And this is where the typical pathologies of bureaucracies emerge, which are also important for explaining this way of dealing with allegations of abuse in the past. If one follows the legal opinion, it means admitting that their oversight andexercise of controlwas responsible for the failures and breaches of duty in dealing with the allegations of abuse.
Bureaucracy and its pathology
Ambiguities and legal uncertainty: With regard to the rules for dealing with allegations of abuse and the associated legal issues, it became apparent that since 2000 there have been a large number of new regulations with unresolved legal issues, which are still unclear in many respects today (Gercke et al. 2021, p. 295). For example, the 2002 guidelines explicitly specified, with regard to the sanctioning of offenders, that if the offense was proven, the offender should be punished by the cannon law. But the 2010 guidelines onward no longer included the mandatory duty to sanction. In addition, according to the legal opinion, major problems in dealing with possible cases of sexual abuse by clerics also were “an unclear normative structure, a lack of awareness of the need to comply with the law, and a massive ignorance of the law on the part of those in positions of responsibility.” (Gercke and Stirner 2021, p. 24, translation K.H.).
The delay of the proceedings: In this tangle of various rules and legal ambiguities, the highest authority, the Congregation for the Doctrine of the Faith, was of little help. Once a report had been made to Rome, it became the “mistress of the proceedings” and was supposed to rule on the next steps (Gercke et al. 2021, p. 300, translation K.H.). But in the few cases in which allegations of abuse were reported to Rome, the outcome was often sobering, according to the perception of those in positions of responsibility. Often, the Congregation for the Doctrine of the Faith, despite its competence, had not suspended the statute of limitations or, in any case, had judged inappropriately leniently. According to the legal opinion, some of the interviews gave the impression that the Congregation for the Doctrine of the Faith “could not keep up” with the large number of reported cases, so that it did not make sense to report every case to it (Gercke et al. 2021, p. 283, translation K.H.). Although the legal opinion also states that there is an obligation to report under cannon law, it regularly did not occurr due to the inactivity of the higher authorities, according to the statements of the responsible executives.
The organized lack of competence: On the basis of this inactivity, a confusion of competence and responsibility arose in which no one apparently felt really responsible or wanted to be responsible. Even after new norms came into force, the duty to report to the Congregation for the Doctrine of the Faith in fact played almost no role in the practice of the Archdiocese of Cologne for a long time. “With regard to this duty – as, moreover, with regard to the duty to initiate a preliminary investigation – a general “feeling of incompetence” prevailed for a long time.” (Gercke et al. 2021, p. 282, translation K.H.). This is a well-known phenomenon of bureaucratic organizations: Simply no one feels responsible for areas that are not clearly defined, or everyone wants to avoid an assignment of responsibility.
The lack of leadership: Accordingly, the “tone from the top” was also not clear and effective enough to avoid breaches of duty in dealing with the allegations of abuse. Thus, the legal opinion states very clearly: “In the course of the hearings, the experts had to determine that the vicar general and the archbishop were not always clear about their duty to report to Rome.” (Gercke et al. 2021, p. 295, translation K.H.). And further: “The experts learned in the course of the hearings that the persons in charge did not necessarily ask themselves the question of a duty to sanction the disapproved behavior. Motives guiding action in dealing with cases of sexual abuse were, in particular, prevention and the solution of the personnel question (“What do we do with the accused?”).” (Gercke et al. 2021, p. 301, translation K.H.). Nothing more needs to be said about this.
Muddling through: The non-codified disciplinary or service law obviously opened up a great scope of action, which the executive personnel used at their own discretion in the sense of the profession, without regularly considering the criminal law side as well. According to the legal opinion, the archbishop usually drew from this “pool” of options for action without any reference to concrete norms.
Failure of Organization
In the legal sense, the legal opinion rightly speaks of an organizational failure: In most cases, there is organizational fault because poor organizational structures are not discovered due to a lack of control measures or because no reaction is undertaken to detected deficits. Organizational fault exists all the more if no organizational structures are created from the beginning in order to fulfill a specific duty (Gercke et al. 2021, p. 330).
In a sociological perspective, it is not only organizational failure that can be identified here, but also an effect of bureaucratic organizations: They repeatedly lead to the same pathologies, and often lack the means to remedy them. The fact that this was also the case in the Catholic Church, and not coincidentally in this field of abuse, is tragic. But it was a catastrophe in the making, and the Church would do well to think of ways to remedy these pathologies in the future. Simply replacing personnel, which is indeed necessary, is not enough.
With regard to the case of the two boys described above, the legal experts conclude as follows: “Regarding the reports received from 1992 onwards, Archbishop Dr. Meisner is to be accused of conduct in breach of his duty in that he did not make any efforts to clarify the reported breaches of conditions and consequently did not take any measures to prevent them in the future. In this respect, he violated his duty to avoid a potential further risk to minors. […] Children and adolescents, whose protection from the accused was apparently still considered necessary by those responsible – otherwise Archbishop Dr. Meisner would not have repeated the conditions from 1992 in 1993 – continued to be within the accused’s reach, according to the received notifications. It would have been possible to take harsher measures.” (Gercke et al. 2021, p. 347f., translation K.H.).
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Gercke, Björn et al. (2021). Gutachten: Pflichtverletzungen von Diözesanverantwortlichen des Erzbistums Köln im Umgang mit Fällen sexuellen Missbrauchs von Minderjährigen und Schutzbefohlenen durch Kleriker oder sonstige pastorale Mitarbeitende des Erzbistums Köln im Zeitraum von 1975 bis 2018. Verantwortlichkeiten, Ursachen und Handlungsempfehlungen. Accessed on 24/04/2021.
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Vatican (2019). Address of his holiness Pope Francis at the end of the eucharistic concelebration. Accessed on 24/04/2021.