This is going to sound really strange coming from me, i.e., coming from someone who has been a life-long fairly radical devotee of the First Amendment, in particular, of both the Amendment’s religion clauses: the “establishment” clause and the “free exercise” clause. But the recent publication of the grand jury’s findings regarding six Pennsylvania dioceses in the matter of priest pedophilia has caused me to radically reassess my attitude toward the latter clause, especially given that two of the six dioceses in question attempted to have judges quash the grand jury proceedings. In particular, I now believe that, for the most part and because of an arguably well-intentioned but exaggerated deference toward the “free exercise” clause, the Nation has pretty much allowed the Church to regulate itself. I have four suggestions for dismantling this pernicious regime whereby secular authorities have permitted the “free exercise” clause to gradually become a suicide pact. I recommend implementing the following:
o Mandatory psychological profiling of candidates for the ministry – and also, periodically, of those in active ministry
I mean “ministry” in the broadest sense: any form of professional religious ministry, whether ordained or not, pertaining to minor children. In this regard, I have a question: do there exist personality tests / inventories / profiles that specifically target latent pedophilic tendencies in the person being tested? Not repetitive hand-washing compulsions and neuroses. Not propensities for hoarding. Not susceptibility to panic attacks. Not the fortune-cookie / National-Enquirer-tabloid psychoanalytic methodology that seems to form the basis of, e.g., MBTI. Rather what I am asking is this: do there exist such tests that target pedophilic tendencies as specifically as measles vaccinations target measles and not chicken pox? I do not know the answer to that question. But if such do exist, legislation should be passed requiring churches of all denominations to perform such inventories on any and all ministerial staff, both ordained and non-, to isolate individuals with such pathologies. Granted, such inventories will not detect all such people. No test is perfect. No single test is dispositive, so all tests are susceptible to “false positives”. But there is no chance that people predisposed to pedophilia will be detected in the absence of appropriate testing.
o Require by law that, on a diocese-by-diocese basis, all dioceses submit regular – probably annual – reports to law enforcement authorities concerning the assignment and reassignment of all ministerial staff, ordained and non-, to relevant secular law enforcement agencies. Included as attachments should be copies of all psychiatric evaluations of ministerial personnel who have been subject to such assessments. Confidentiality will be maintained to whatever extent is consistent with the identification of incipient pedophilia.
At present, such reassignments only come to light after a particularly lurid epidemic of child abuse has already occurred – often years or even decades after the fact and therefore long after the damage has been done – and even then often when the episcopal leadership of the diocese has been coerced into submitting such reports to, e.g., district attorneys and their assistant DAs. Even then, sometimes such disclosures only follow the widespread revelation of the existence of the scandal by the local media. A classic example of this latter process is the by-now-iconic investigative reporting by the Boston Globe’s “Spotlight” staff in 2001. As matters stand now, it should be obvious that we can no longer afford to discover child abuse retrospectively. If more aggressive government intervention in Church administration is necessary — as it clearly is — then so be it. The government has a clear “compelling interest” in ensuring the safety of children, and, while certainly the “least restrictive means” should be employed toward that end, it should be clear by now that “least restrictive means” should not mean “no restrictions whatsoever”, as has more or less been the case up to now.
One objection to these reporting requirements might be that the relevant secular law enforcement authorities would be buried under a mass of text. But contemporary text- and data-mining applications can easily handle such Big Data tasks, especially when those applications are run on computer platforms of currently available processing power. I routinely used such applications to process such large volumes of data when I was a web developer and data-base designer for Boeing – and I retired in 2010. So you can imagine what the software and hardware are capable of now, over eight years later, especially when used in conjunction with artificial-intelligence capabilities. In fact, much of this task could be automated, though never without human supervision / intervention. Yes, there would be jurisdictional issues (e.g., borrowing bandwidth on FBI computers by local law enforcement). Yes, there would be technical issues. Yes, there would also be constitutional issues gravitating around the 4th Amendment and “unreasonable search”, and certainly coordination with the judiciary would be necessary to ensure that appropriate legal boundaries were respected. (Perhaps existing exceptions to the “exclusionary rule,” e.g., “exigent circumstances” or “inevitable discovery,” could be leveraged to address these issues. The 4th Amendment is no more a suicide pact than the “free exercise” clause.) But given that the goal is to discover trends conducive to child abuse before such occurs, I am confident that such issues could be effectively addressed. Given the urgency of the task, a way would be found.
Investigators, both journalistic and legal, would know quite well what signs to look for that would indicate potentially problematical situations vis a vis certain parishes and certain individuals. One of several such symptoms comprises priests that habitually play “musical parishes” in a given diocese, or even “musical dioceses” across church administrative districts. One of the recurrent motifs of the pedophilia crisis – as usual, discovered only after the fact and after the damage has been done – is that priests with tendencies toward the sexual abuse of children tend to be shuffled from parish to parish within a given diocese, or even from diocese to diocese within a general, given geographical area. Such were the findings of the “Spotlight” reporters in Boston in 2001. Of course, such shuffling could occur for reasons other than pedophilia – emotional crisis, alcohol addiction, substitutions occasioned by priest shortages, etc., etc. – and the surveillance performed by such reporting would only mean that there was smoke. Was the smoke the result of the bishop’s attempts to deal with priests’ pathologies? Or was the smoke due to something as benign as travel necessitated by itinerant ministries? (I myself used to travel from parish to parish in Seattle doing adult education in systematic theology and Church history!) That determination would require old-fashioned shoe-leather investigation.
o Remove all statutes of limitations on all sex crimes, especially those perpetrated against minor children, and by law prohibit plea bargains whereby the local episcopal leadership of a given diocese may “roll” on his subordinate priests in exchange for blanket prosecutorial immunity
This is a subject awaiting the attention of a cadre of latter-day enterprising “Spotlight” reporters. I consider it passing strange that, in the (by now) almost 20-year history of the pedophilia crisis – i.e., almost 20 years counting from the first “Spotlight” stories, and that 20-year number is almost certainly a risibly gross underestimate: the Pennsylvania case reportedly covered some 70 years – during that entire sweep of time, several priests have been indicted, tried, convicted, and imprisoned for child abuse. However … never in all that time has any member of the episcopal leadership – any bishop, any archbishop, any cardinal – been convicted of such, much less spent an hour behind bars. (The only exception to that previous statement is Cardinal Anthony Bevilacqua of the Philadelphia Archdiocese, who was indicted, but who died before his trial. So my statement as it stands is strictly accurate. Cardinal McCarrick’s resignation does not count because that was a purely canonical penalty, not due to secular law.) This situation begs to be accounted for – as would be the case if all of Al Capone’s speakeasy proprietors went to jail while Capone himself remained free. Therefore …
o Hold bishops — in fact, the entire episcopal leadership of any Church diocese — to a degree of criminal liability at least equal to that levied against priests in cases of pedophilia, utilizing all legal instruments up to and including prosecution under RICO statutes
Speaking of remaining free, any bishop indicted on charges of pedophilia or of conspiring to facilitate same should immediately surrender his passport and be forbidden — if necessary by GPS monitoring — from traveling outside his home state. If this seems draconian, reflect that Cardinal Bernard Law escaped the United States during the Boston / “Spotlight” scandal and fled to the Vatican. This is all the more anomalous when you consider that, in all of the instances of pedophilia in churches, the episcopal leadership has played the role of coordinator of the entire elaborate conspiracy to both enable and to cover up what was happening. How do we justify putting the hookers behind bars even as we allow the hookers’ madams and pimps to remain free? I cannot speak for anyone else, but my intuition tells me that if bishops were required to trade vestments and mitres for prison orange, just like some of their priests, the pedophilia crisis would be addressed with much more zeal than heretofore. Organized crime is organized crime — in this case, trafficking in child porn — whether it is run from a jail cell, a massage parlor, a Godfather’s manse, or a Church chancery office.
If all the above seems violative of “free exercise”, ask yourself if you consider it “violative of ‘free exercise’” to have your church building inspected by, e.g., fire department personnel to determine the number, location, and configuration of smoke alarms. If you live in a region of the Nation that is exceptionally prone to earthquakes, ask yourself if you consider it “violative of ‘free exercise’” for building codes to require some degree of seismic resistance to be built into your church. Does it violate the “free exercise” clause for local health departments to add to building codes the requirement that a certain minimal level of sanitation be maintained in, e.g., rest rooms in public buildings, including churches? I think it is safe to say that most people do not consider compliance with such codes as unnecessarily – least of all, unconstitutionally – burdensome, even when such requirements are levied on churches.
Yet sometimes those same people object when local law enforcement becomes what the public considers to be “violative of ‘free exercise’” in requiring that church personnel be vetted in advance for fitness to interact with children. If allowing the government to regulate the number and type of flush toilets in a church building is consistent with the “free exercise” clause, why is allowing the government to assess the likelihood of child abuse by clergy and staff less so? Granted, priests are people, not flush toilets, but both harbor the potential to wreak harm and havoc, absent appropriate oversight. Airline pilots are people, too, but are not for that reason immune to the regulation of personal conduct that impacts their professional competence, e.g., alcohol abuse. Moreover, we do not wait for an impaired pilot to crash a plane, then afterwards pick up the body parts, and wonder what we could do to prevent future crashes after the fact. Church clergy and staff should be no different.
The history of the “religion” clauses of the First Amendment strongly suggests that the original intent of the Amendment was to concentrate on the tolerance of various creeds and doctrines in the Nation, not to isolate any church or religious organization from the consequences of misconduct vis a vis the surrounding society. Suppression of particular doctrines, dogmas, teachings, or theologies, or any preference for one set of such over another by the government, would certainly violate the “free exercise” clause in a “facial” sense. But not every issue is a matter of theology and dogma. On the contrary, there is a vast grey area, an interface where church and society meet and overlap, and within that area the government does have a “compelling interest” in taking steps to insure the safety and security of the larger society outside the walls of the church — in particular, the safety and security of the most vulnerable. Of course, there remains the correlative issue of the “least restrictive means” of achieving that “compelling interest”. That is an issue reasonable people can debate. But given that the safety of children is at stake, the “least restrictive means” criterion could justifiably be much more restrictive than heretofore, given the child-abuse history of the last several decades. For leaving the task of “policing” the church strictly up to the church — i.e., the de facto policy in most respects up to the present — has clearly not worked, and if anything, has been counterproductive to the very safety and security of the most vulnerable the government is solemnly obligated to protect. For upwards of a century, the Church has utterly and egregiously failed in the task of disciplining itself. Therefore, the secular government must step in and undertake the thankless task of doing for the Church what the Church has historically been unwilling to do voluntarily. It’s time to take stronger measures toward that end.
The fox has no constitutional right to be in charge of the hen house.
James R. Cowles
Pope Francis … “Signs Of The Times” … Public domain
Cardinal Law … Boston Archdiocesan archives … CC by 2.0
“Spotlight” reporters … BagoGames … CC by 2.0
Ayaan Hirsi Ali … Gage Skidmore … CC by SA 3.0
“Venus with a Mirror” … Tiziano Vecellio (circa 1555) … Public domain