Model Policy Policy for Dioceses, Eparchies, and Religious Orders in the USA
REPORTING, INVESTIGATING, AND HANDLING CLAIMS INVOLVING ALLEGED CLERICAL SEXUAL ABUSE AND SEXUAL MISCONDUCT
1.0 PURPOSE
1.1 General Purpose. This Policy is intended to address the process and procedures for the reporting, investigation, and administration of clerical misconduct claims received by the [D/O].[1]
1.2 Caring for Persons. Above all else, given the ultimate purpose of canon law is the care for souls (cf. c. 1752), this policy keeps as its number one priority the care for all those who are involved in any way in any accusation of misconduct.
1.3 Restoring the Pastoral Relationship. The [D/O] recognizes that sexual misconduct by clergy and others violate the God-given human dignity of the person harmed, and, for clergy, is a severe betrayal of the pastoral relationship. It is seriously sinful and has lasting consequences for the victim and the victim’s family, for the Church community at large, and for the individuals involved in or impacted by the sexual misconduct.
Comment: This provision tracks the language in the Archdiocesan Policy for Addressing Allegations of Sexual Misconduct by Clergy in the Archdiocese (hereafter, “LAP”), Paragraph I, Introduction. The LAP supplied part of the foundation for this Model Policy, though this Policy differs in many ways from the LAP and does not reflect in any way the policies or procedures of the Archdiocese of Los Angeles.
1.4 Pursuing Justice. The primary goal of the [D/O] is to address complaints of sexual misconduct justly and promptly.
Comment: This provision tracks the language in the LAP, paragraph I, Introduction.
1.5 Receiving Complaints. Another goal of the [D/O] is to assure complainants that their complaints will be treated fairly, seriously, and compassionately. The [D/O] recognizes that victims of abuse typically sustain profound emotional and psychological harm and that harm may influence whether, when, and how they report complaints. The [D/O] is committed to receiving complaints without hindrance to the complainant and with due respect, allowance, accommodation, and spiritual support.
Comment: This provision reflects the priority given to receiving complaints openly and compassionately in view of the unique emotional and psychological challenges they face.
1.6 Respecting the Rights of the Accused. Another goal of the [D/O] is to assure members of clergy that complaints against them will be treated fairly, seriously, and compassionately. The [D/O] recognizes that accusations of abuse present profound emotional, psychological, and reputational challenges to a member of the clergy, and to the member’s family, friends, and local community. The [D/O] is committed to handling complaints so as to allow for the presumption of innocence and the protection of one’s name and with due respect, allowance, accommodation, and spiritual support.
Comment: This provision reflects two basic rights under canon law and civil law: the presumption of innocence and the priority given to protecting the good name of the clergy member, which are basic rights under canon and civil law. For this reason, the Latin term “investigates” (meaning “the one who is being investigated") may be preferable to the English term “accused,” which is arguably more prejudicial. Not all complaints are true and members of the clergy must know that they have the right and opportunity to defend against complaints. Moreover, the wider community has an interest in knowing that a clergy member will be treated fairly, because of the member’s special relationship with that community and because of the disruption and scandal presented to that community through the mere existence of a complaint.
1.7 Interests in Conflict. The procedures herein therefore aim to address two critical interests that are often in conflict: (a) The need to investigate, evaluate, and address claims by victims against perpetrators; and (b) The need to protect, defend, and absolve individuals who are wrongly accused of misconduct.
Comment: The Policy appears against the backdrop against many historical factors, including, but not limited to the incidence of sexual abuse, the suppression of reports, the distrust of complaints, a reluctance to apply canon law, the insensitivity to victims, the fear of adverse publicity, the hostility of various forms of media, and the unjust protection of privileged ecclesiastics. All such factors create powerful incentives to advance one or the other of the two interests identified in this provision, because they either promote the interests of a perpetrator over a victim or they denigrate the good name of one wrongly accused. Both interests are important; both are often in conflict; and a fair policy should recognize the existence of the conflict.
1.8 Need for Prayer. Because of the serious issues at stake in the investigation and handling of sexual abuse claims, the [D/O] strongly entreats all individuals charged with implementing and administering this Policy to proceed with their duties, not only generally, but on each case-by-case basis, only after a period of personal prayer.
Comment: We should take seriously our Lord’s command to “Pray always.” See Luke 18:1. But especially so in this context, because the complaints are so serious, the stakes are so high, and they go to the core of the Church’s mission – the salvation of souls and the protection of the priesthood. A diocese or religious order would be most remiss if it also failed to recognize the import of Ephesians 6:12: “For we are not contending against flesh and blood, but against the principalities, against the powers, against the world rulers of this present darkness, against the spiritual hosts of wickedness in the heavenly places.”
2.0 UNDERLYING PRINCIPLES.
2.1 Importance of Chastity. The fundamental principal underlying the basis for this Policy is the Church’s understanding of chastity. As the Catechism of the Catholic Church explains (cf. n. 2348): “All the baptized are called to chastity . . . All Christ’s faithful are called to lead a chaste life in keeping with their particular states of life. At the moment of Baptism, the Christian is pledged to lead his affective life in chastity.”
Comment: The Policy exists solely and exclusively for the purpose of addressing sexual claims. All such claims, therefore, are claims addressing some breach of an individual’s call to chastity. While such claims certainly implicate the civil order, they are, in the Church’s view, a violation of the commands of faith.
In the Latin Rite, a public acceptance of celibacy is made by all candidates for the priesthood and by unmarried candidates for the diaconate in the Rite of Ordination for the diaconate itself. Every deacon, priest, and bishop of the Church swears an oath upon taking an ecclesiastical office to follow and foster the common discipline of the Church and to maintain the observance of all ecclesiastical laws, including those relating to human sexuality.
2.2 Scriptural Mandate. Jesus Christ established the Church and He offered explicit guidance on how grievances between members should be addressed within it:
“If your brother sins against you, go and tell him his fault between you and him alone. If he listens to you, you have won over your brother. If he does not listen, take one or two others along with you, so that “every fact may be established on the testimony of two or three witnesses.” If he refuses to listen to them, tell the church. If he refuses to listen even to the church, then treat him as you would a Gentile or a tax collector.” (Matthew 18:15-17; Revised NAB.)
Comment: To whatever extent Canon law and civil law issues exist regarding a complaint of clergy abuse, the complaint remains fundamentally a grievance generally made by one member of the Church against another member or even a non-member. The passage in Matthew makes clear that a process of some kind must be recognized to allow for complaints to be made, heard, and resolved. That passage therefore serves as a general guidepost to this Policy, which offers a process for complaints to be made, heard, and resolved.
2.3 Ecclesial Authorities. This Policy is based on the applicable provisions of canon law, as well as on numerous other broader policies:
(a) Congregatio pro Doctrina Fidei. rescriptum ex Audientia subrogating Sacramentorum Sanctitatis Tutela/2010 Congregatio pro Doctrina Fidei, 11 October 2021, Communicationes 53 (2021) 437–445;
(b) The Charter for the Protection of Children and Young People (the “Charter”), USCCB June 2002; revised June 2011; third revision approved June 2018;
(c) The Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons (“Essential Norms”), USCCB November 2002; with approval by the Congregation for Bishops December 8, 2002, became particular law for the dioceses of the United States; revised edition effective May 15, 2006; third revision approved June 2018);
(d) Francis. Apostolic letter motu proprio concerning the procedure for removing bishops and those equivalent to them in law from office on account of negligence Come una madre amorevole, 4 June 2016. AAS 108 (2016) 715–717;
(e) Francis. Apostolic letter motu proprio instituting new procedures for the preliminary investigation of allegations of the sexual abuse of minors or other vulnerable persons involving prelates Vos estis lux mundi, 7 May 2019 (“VELM”), Communicationes 51 (2019) 23–33;
(f) The statement of the USCCB in Affirming our Episcopal Commitments, approved by the Bishops of the United States in June 2019; and
(g) Dicasterium pro Doctrina Fidei. Vademecum on Certain Points of Procedure in Treating Cases of Sexual Abuse of Minors Committed by Clerics, 5 June 2022, Communicationes54 (2022) forthcoming (“Vademecum”).
Comment: The first six of these citations appear in the LAP.
2.4 Ecclesial Commitments. In view of the authorities noted in Section 2.3, the [D/O] will:
(a) Treat all allegations of sexual abuse and misconduct seriously (See Charter, article 5), and never deal with a problem of sexual abuse or misconduct on the part of a cleric solely by moving him to another ministerial assignment (see Charter, article 14; Essential Norms, norms 8 and 12);
(b) Respect the rights of all involved, both persons claiming to have been mistreated and clerics who are accused (see Charter, article 5; Essential Norms, norms 13, 6, 8);
(c) Extend the ministry of the Church to ensure that those who have been victimized will be assisted through their trauma and suffering toward genuine healing;
(d) Ensure that members of the clergy who have been adjudicated as guilty of sexual abuse are held responsible for their actions, including the possibility of restrictions on future ministry, up to and including exclusion from further ministry (see Charter, article 1);
(e) Ensure that members of the clergy who have been adjudicated as innocent of sexual abuse are treated as innocent and will enjoy the return of their good name and their ministerial functions (Charter, article 5);
(f) Educate clergy and people about the problem of sexual abuse (see Charter, article 12);
(g) Educate people about the problems of false charges and assure clergy that their rights will be recognized;
(h) Continue to perfect screening procedures and educational policies for those training for the ordained ministry (see Charter, articles 13, 17);
(i) Cooperate with civil law enforcement and those who may be prosecuting sexual abuse, including compliance with reporting procedures governing sexual abuse (see Motu proprio, Come una madre amorevole, Article 1; Motu proprio, Vos estis lux mundi, Articles 1 and 19; Charter, article 4; Essential Norms, norm 11 and the Congregation for the Doctrine of the Faith, Circular letter, Tra le importanti responsabilità, May 3, 2011 to assist episcopal conferences in developing guidelines for dealing with cases of sexual abuse of minors perpetrated by clerics).
Comment: While the substance of these subparagraphs is taken from the LAP, subparagraphs (c), (d), and (e) are separated to reflect the separate issues presented – the rights of complainants, the rights of those adjudicated guilty, and the rights of those adjudicated innocent. Moreover, special emphasis needs to be provided to distinguish between two kinds of people accused – those who are adjudicated guilty and those who are adjudicated innocent. Subparagraph (g) is warranted to give assurance to clergy that their rights will be honored.
2.5 Goods Sought. The [Principal],[2] in his capacity as shepherd, must seek the good of all.
2.5.1 The [Principal] must seek the good of the complainant. A complainant who has been abused will have suffered, and will continue to suffer, emotional and psychological trauma. The [D/O] aims to help victims find healing, clinically and spiritually.
2.5.2 The [Principal] must seek the good of the person accused. An accused may or may not be adjudicated guilty of an accusation. An accused is innocent until proven guilty (cf. c. 1321, § 1). A person who is accused has a natural human right to his good name, a right specifically recognized by the Church in the Code of Canon Law (cf. c. 220). Such a right does not end with one's death.
2.5.3 The [Principal] must seek the good of those adjudicated to be innocent. Such clergy have experienced the trauma of a false accusation and the negative and often long-lingering public perceptions that accompany it. Their reputation should be restored to the maximum extent possible, even after death.
2.5.4 The [Principal] must seek the good of those adjudicated to be guilty. God desires “all men to be saved to come to the knowledge of the truth” (1 Tim. 2:4). This includes those who are adjudicated guilty, irrespective of how heinous their actions may have been. 2.5.5 The [Principal] must seek the good of all other clergy; indeed, diocesan bishops are required to protect the rights of diocesan clergy, with “special solicitude” (c. 384). Other clergy members need to know that they will be afforded due process if accused of misconduct, and the opportunity to clear their names if adjudicated innocent, even after death.
2.5.6 The [Principal] must seek the good of the faithful. This includes the need for the faithful to know the following:
(a) That Canon Law and other applicable Church policies are being enforced;
(b) That reports of sexual abuse or misconduct will be taken seriously, and investigated thoroughly, and that no impediments to the reporting of sexual abuse or misconduct exist;
(c) That while reports may be made irrespective of time, such reports will be subject to the provisions of canon law, including especially those relating to applicable periods of prescription;
(d) That actions will be taken if warranted to protect against immediate and future harm;
(e) That due process is afforded both the alleged victim and the cleric being investigated;
(f) That Church personnel are cooperating with civil law enforcement authorities and exercising their own independent authority;
(g) That justice has been administered;
(h) When a member of the clergy has been adjudicated innocent.
2.5.7 The [Principal] must seek the good of his own office. His office demands that he allow to remain in office only those clergy he is confident will minister properly, who will not abuse or mistreat those to whom they minister, and whowill not participate in activities or conduct inconsistent with this policy, the Charter, the Essential Norms, Come una madre amorevole, Vos estis lux mundi or other particular policies of the [diocese or order] adopted to implement those pronouncements.
Comment: Policies often identify various interests at stake in relation to an accusation of misconduct. But they are often mixed together without specific identification. The above provisions make clear to identify each of the particular interests at stake, because the Policy aims to take them all into consideration.
2.6 Immoral Conduct and Criminal Conduct. Entrusted with the spread of the Good News, the Church condemns all sexual misconduct. While all such conduct is sinful, only certain types of misconduct may be subject to this Policy, which aims to address the reporting and handling of violations subject to the following criteria.
2.6.1 Some Sexual Misconduct may amount to an ecclesiastical crime. Canons 1378, 1394, 1395, 1398, and 1399 detail actions that may give rise to an ecclesiastical crime.
2.6.2 Some Sexual Abuse may also amount to a civil crime under the laws of the state. Examples include sexual abuse of a minor or of a vulnerable adult or possession of child pornography.
2.6.3 Some Sexual Misconduct may not amount to an ecclesiastical or civil crime, but may nevertheless be deemed inappropriate, scandalous, potentially criminal, or violate professional boundaries or Catholic moral teaching.
2.6.4 All reports of Sexual Abuse or Sexual Misconduct will be reported to the Ordinary or his delegate, as described herein. All reports will be investigated by the person selected by the Ordinary according to canon law, and as described herein.
Comment: This provision aims to distinguish between the different kinds of sexual abuse or misconduct. First and foremost, it distinguishes between conduct that may be immoral but is not reportable under this Policy. Second, this Policy notes that while certain types of conduct may be reportable and may constitute an ecclesiastical crime, only some such conduct is also punishable by civil authority.
3.0 DEFINITIONS.
3.1 “Allegations” means the details obtained by the Ombudsman under Section 4.3 (Duties Upon Receipt of Report).
Comment: This definition is controlled by the information that the Ombudsman and/or Investigator obtains in the preliminary investigation and ensures which individuals are notified of that information.
3.2 “Child Pornography” means any representation of a minor, regardless of the means used, involved in explicit sexual activities, whether real or simulated, and any representation of sexual organs of minors for primarily sexual purposes.
Comment: See Vos estis lux mundi Title I: Article 1, §2; LAP, Section III.
3.3 “Cleric” means any priest or deacon subject to the ecclesial authority of the [D/O].
Comment: This definition, as written, includes only clerics. Should there be a desire to include non-clerics (e.g., seminarians, postulants, novices, or even members of the lay state employed in church ministries), further canonical and civil implications will need to be examined.
3.4 “Committee” means the committee appointed by the [Principal] that is authorized to consider and make findings on Allegations according to the charter the Committee is granted by the [D/O];
Comment: The Committee serves as the fact-finding body for the Principal. While the Principal retains sole discretion to confirm or reject any findings of fact made by the Committee, the Committee serves as the Principal’s delegated authority to undertake review of the Allegations and make a recommendation as to their merits. Committee members need not be employees of the [D/O], but should be knowledgeable about complaints, processes, and procedures. Professionals may also be recognized, so long as they represent a spectrum of offices engaged in such reviewing activity, such as retired police officers, criminal defense attorneys, and human resources personnel, and those familiar with the criminal process. The Committee must act only in accord with the authority granted it by the Ordinary. Due consideration should be given to the participation in Committee meetings of the diocesan Promoter of Justice, insofar as the holder of that office is bound to provide for the public good, which includes vigilance in the overall administration of justice and the protection of the rights of all interested parties, especially the cleric being investigated (cf. c. 1430).
3.5 “Complainant” means an individual who makes a Report and who claims to have been the object, or who claims to represent one who has been an object, of Sexual Abuse or SexualMisconduct by a Cleric.
Comment: The definition is used to distinguish between those who make Reports and those who make Complaints. One who makes a Report may simply have information about Sexual Abuse or Sexual Misconduct, but not be a victim; a Complainant is made by one who claims to have been a victim (or to represent a victim).
3.6 “Complaint” means a Report made by a Complainant to the Ombudsman.
Comment: See Comment to definition of Complainant.
3.7 “Credible,” with respect to a Report or a Complaint, means that the Committee has found, according to the procedures set forth in Section 4.13, that a reasonably cautious person would believe that the Allegations probably occurred and that the accused is the one who performed it, such that a subsequent penal process is warranted.
Comment: This definition ensures that Reports will be deemed “credible” only when the procedures set forth in Section 4.0 are followed. This definition is intended to satisfy the canonical standard of “saltem veri similem,” (cf. c. 1717), namely, that there is a "semblance of truth" to the accusation. The Vademecum from the Dicastery for the Doctrine of the Faith ("DDF") issued in June 2022, in this respect, uses the related phrase “fumus delicti.” The subsequent penal process, whether judicial or extra-judicial, will determine whether the person accused is culpable according to the canonical standard of moral certainty. Cf. cc. 1342 and 1608.
3.8 “Investigator” is the person duly appointed by the Principal to carry out the work of a preliminary investigation under c. 1717, in accord with canon law, for allegations concerning Sexual Abuse, and/or the person responsible for investigating allegations concerning Sexual Misconduct, in accord with the charter of the Committee. This person may or may not be the same individual identified as the Ombudsman.
Comment: The Investigator is not seeking “evidence,” strictly speaking, because during the period of investigation there is not yet a canonical trial or an administrative procedure. Rather, the Investigator must collect “indications” of i) facts, ii) circumstances, and iii) imputability, concerning such questions as whether the ordinary has jurisdiction, whether a minor was involved, whether a period ofprescription applies, whether the alleged act is attributable to the alleged author, and whether the act is prohibited by law or precept.
The investigator should assemble “indications” according to cc. 1530-86 CIC83; i.e., that could include any or all of the following:declarations (by the parties),documents, statements from “informants” (NB: not “witnesses”), who should be sworn (c. 1548, c. 1562) and who should be told to maintain confidentiality (c. 1455), experts, “access and recognizance” (as in visiting the place of the alleged act), and presumptions (of law). Regarding confidentiality, cf. the Instruction on the Confidentiality of Legal Proceedings, Dec. 6, 2019.
While outside sources of information may be collected during the preliminary investigation - police reports, grand jury reports, news stories, or even civil or criminal judgments from secular courts - care must be taken to ascertain their relevance for any canonical proceeding, given the different standards of proof, methods, and the ends of civil law. (Cf. Vademecum, n. 36).
3.9 “Minor” means any person under the age of eighteen, or who is considered under canon law to be the equivalent of a minor.
Comment: See Vos estis lux mundi Title I: Article 1, §2; LAP, Section III; canon 97.
3.10 “Non-Consensual Adult Relations” means non-consensual sexual conduct between adults.
Comment: This definition is intended to include those whose actions are not criminal under civil law, but may nevertheless constitute an ecclesiastical crime.
3.11 “Ombudsman” means the individual duly appointed by the [Principal] to receive Reports and Complaints.
Comment: This is the individual charged with receiving Reports and Complaints. A diocese or religious order or community has already likely identified the title of this individual, which may be used here instead of Ombudsman. The term is offered here because of its well-known secular meaning. The canonical implications of naming a member of the diocesan curia (e.g., Promoter of Justice, Vicar General, Episcopal Vicar, or Judicial Vicar) need to be carefully explored before such an individual is named. This person may or may not be the same individual identified as the Investigator.
NB: Renumbering will be required after this point if 3.12 is removed as suggested.
3.12 “Report” means any information, knowledge, or claim made by any person about Sexual Abuse or Sexual Misconduct involving a Cleric.
Comment: See Comment to definition of Complaint.
3.13 “Sexual Abuse” means any external offense contra sextum (that is, an offense against the Sixth Commandment) that involves–
(a) Minors;
(b) Vulnerable persons; or
(c) Child pornography.
Comment: The term Sexual Abuse includes separately defined terms, all of which include conduct that may amount to a civil crime.
3.14 “Sexual Misconduct” means any external offense contra sextum alone or with others and includes even consensual misconduct between adults that does not necessarily rise to the level of a canonical delict or a civil crime.
Comment: The term Sexual Misconduct is broader than Sexual Abuse, because it includes all misconduct, irrespective of whether it arises to the level of criminal conduct either civil or canon law or constitutes Sexual Abuse.
3.15 “Vulnerable Person” means any person in a state of infirmity, physical or mental deficiency, or deprivation of personal liberty which, in fact, even occasionally, limits their ability to understand or to want or otherwise resist the offense.
Comment: See Vos estis lux mundi Title I: Article 1, §2; LAP, Section III.
4.0 INITIAL PROCEDURE.
4.1 Processing of Reports. All Reports and Complaints should be referred to the Ombudsman for handling. Any individual who receives any information that may be deemed a Report should notify the Ombudsman immediately.
Comment: This provision ensures that the Ombudsman will receive all Reports and Complaints. The phrase “Subject to the discretion of the Ordinary” could be added to this 4.1, (and elsewhere), if the Ordinary desires to retain such discretion in individual circumstances. He may, on the other hand, wish to adopt the default position contained in the Model Policy, providing for such discretion to be circumscribed as detailed. In any event, the Ordinary retains the power to adopt, modify, or reject the Model Policy as he sees fit in the exercise of his duties under canon law.
4.2 Receipt by Ombudsman. The Ombudsman is responsible for receiving all Reportsand Complaints.
4.3 Duties Upon Receipt of Report. Immediately upon receiving a Report or a Complaintthe Ombudsman shall attempt to obtain the following details (“Allegations”):
(a) The date and time of the Report or Complaint;
(b) The identity and contact details of the Complainant;
(c) The identity of the Cleric;
(d) The substance of the Sexual Abuse or Sexual Misconduct, including dates, times, and locations.
Comment: This provision specifies the initial duties of the Ombudsman upon receiving a Report or Complaint of either criminal or non-criminal conduct. While the ultimate determination of whether a Report or Complaint has at least a semblance of truth (often described as not being “manifestly false or frivolous”) belongs to the Ordinary, he may be assisted in this decision by the Ombudsman, among others.
4.4 Anonymous Reports or Complaints. The Ombudsman shall generally not process Reports or Complaints of Sexual Misconduct where the individual reporting the Allegationsrequests anonymity. The Ombudsman shall advise the individual (where possible) that the [“D/O”] cannot investigate allegations of sexual misconduct when the complainant remains anonymous. The Ombudsman shall also advise the individual of the right to report such allegations to the appropriate law enforcement authority. If a Report or Complaint of Sexual Abuse is made anonymously, the Ombudsman may proceed with an investigation, as described below, but only with the greatest of care, given the increased risks of fraudulent claims (cf. Vademecum, n. 11).
Comment: Law enforcement authorities will not generally proceed with investigations or charges based on anonymous complaints; ecclesial authorities should not proceed either. Similarly, while law enforcement authorities may take actions based on anonymous tips, nothing in this Policy prevents Church authorities from so acting, too. Consideration should also be given to intermediary reporting mechanisms in lieu of simply anonymous reports or complaints.
4.5 Report of Sexual Abuse. In the event of a Report or Complaint of Sexual Abuse, the Ombudsman will immediately notify the following individuals of the Allegations:
(a) Law enforcement authorities in the jurisdiction in which the conduct is alleged to have taken place;
(b) The [Principal];
(c) The Cleric who is the subject of the Report or Complaint, together with the information required in Section 4.7 (Notice to Cleric);
(d) Those representatives who meet notice requirements set by a liability insurance company for the [D/O].
Comment: The provision ensures immediate notification to all individuals with a need to know of the Report or Complaint. The Cleric should also be given immediate notice as a matter of fairness, generally speaking, although there is no explicit right in canon law to be informed of an accusation at this stage in the process. Further, because of important liability insurance coverage implications, the designated insurance representative may also need to be notified. The Principal is bound to follow special procedures with respect to allegations of the sexual abuse of a minor or a vulnerable adult by a cleric. Essentially, the Vademecum from the DDF made it clear that the DDF has to be involved early and often. As the Vademecum states (#19), even in cases when an Ordinary determines that an allegation of a delicta gravioramanifestly lacks the semblance of truth, such determination should ordinarily be communicated to the DDF.
4.6 Report of Sexual Misconduct. In the event of a Report or Complaint of Sexual Misconduct, the Ombudsman will immediately notify the following individuals of the Allegations–
(a) The [Principal];
(b) The Cleric who is the subject of the Report or Complaint together with the information required in Section 4.7 (Notice to Cleric);
(c) Those representatives who meet notice requirements set by a liability insurance company for the [D/O]. Comment: This provision addresses reports of Sexual Misconduct, which, by definition, excludes civil or criminal conduct. The Provision ensures immediate notification to all individuals with a need to know of such conduct.
4.7 Notice to Cleric. In giving notice to the Cleric as provided in Sections 4.5 and 4.6, the Ombudsman shall undertake the following steps.
4.7.1 The Ombudsman must first endeavor to meet the Cleric in person or to arrange for a telephonic conversation, first having duly informed the Cleric of his rights under both canon and civil law, as per the text below. In that meeting or conversation, the Ombudsman will apprise the Cleric verbally of the information that will be provided in writing as set forth in subsection 4.7.3. Email, text messaging, or other electronic communication is generally discouraged for purposes of this first contact. “You have the right to remain silent. Anything you say can and will be used against you in a civil or criminal court or in a canonical administrative proceeding or judicial process. “You have the right to an attorney. If you cannot afford one, the [D/O] will pay for one of your choosing. “You have a separate right to a canonical advocate under canon law. If you cannot afford one, the [D/O] will pay for one of your choosing. “You cannot be required to sign any document, take an oath, undergo a polygraph test, or submit to any type of mandatory psychological evaluation that can be used against you in the public forum. “You are also under no obligation to talk to me or the Investigator, and at no point during this process will you be required to confess. “Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me or invoke your right to remain silent and first seek counsel?”
Comment: Because of the unsettling nature of the allegations being made, such news is best delivered personally in the first instance. This approach accords with the dignity to be afforded the accused Cleric who, as a matter of canon law and civil law, is deemed innocent until proven guilty. The Ordinary may certainly elect to retain personal responsibility for giving notice to the Cleric if he so chooses, and may in the exercise of his discretion choose to retain, modify, or delete the provisions above regarding the payment of canonical and/or civil legal counsel for the accused Cleric.
4.7.2 The Ombudsman must provide the Cleric with a copy of this Policy at the earliest opportunity, if not at any in-person meeting. Provision of an electronic copy is allowed if it follows the in-person meeting.
Comment: Clerics should not be presumed to know the provisions of this Policy. Due process requires that they be apprised of their rights and what to expect as they proceed through the process.
4.7.3 At or after the initial meeting with the Cleric, the Ombudsman shall advise the Cleric in writing of the following:
(a) All details of the Allegations made in the Report or Complaint against the Cleric;
(b) That the Ombudsman –
(i) Is the official representative of the [D/O] to receive Reports and Complaints, including this Report or Complaint against the Cleric;
(ii)Does not represent the Cleric or the Complainant;
(iii) Has made no determination on the credibility of the Allegations;
(c) That, if the Allegation concerns a matter of alleged Sexual Abuse, the Committee will hold a meeting to determine the credibility of the Allegations at which –
(i) The Investigator will present all factual indicators arising from his preliminary investigation;
(ii) The Cleric will have an opportunity to appear and to contest the Allegations, either personally or through a representative or attorney of the Cleric's choice;
(iii) That the [Principal] will have sole authority to accept or reject the Committee’s finding on credibility and, if the [Principal] finds the Allegations not to be credible, the matter will be dismissed in accord with the provisions of canon law. If, however, the [Principal] finds the Allegations to be credible, then the required canonical proceedings will continue as described in canons 1718, et seq.
(d) That, if the Allegation concerns a matter of alleged Sexual Misconduct, the Committee, subject to its charter of authority the Committee has received from the Ordinary, will hold a meeting to determine the credibility of the Allegations at which –
(i) The Investigator will present all factual indicators arising from his preliminary investigation;
(ii) The Cleric will have an opportunity to appear and to contest the Allegations, either personally or through a representative or attorney of the Cleric's choice;
(iii) That the [Principal] will have sole authority to accept or reject the Committee’s finding on credibility and, if the [Principal] finds the Allegations not to be credible, the matter will be dismissed in accord with the provisions of canon law. If, however, the [Principal] finds the Allegations to be credible, then he may proceed as described below.
(e) That, to the extent Allegations concern Sexual Abuse, law enforcement authorities will likely be involved and the [D/O] is obligated to cooperate, and will cooperate, with those authorities.
(f) That, because Canon law is involved, the Cleric should know that –
(i) Ecclesial authorities may be considering the Allegations;
(ii) Those authorities may consideranything the Cleric says in response to those Allegations; and
(iii) The Cleric’s acknowledgement of this notice, and any waiver thereof, must be in writing under Canon law;
(g) That the Investigator may wish to interview the Cleric regarding the Allegations as part of his investigation at a mutually-agreed time and location and with any representatives the Cleric wishes to have present, but that the Cleric has a right to decline any interview or to condition it on the presence of a canonical advocate and/or procurator and/or civil attorney, without any prejudice to his rights;
(h) That the Cleric is, or is not, subject to any temporary terms of removal from public ministry and what those terms are, as the Ordinary determines.
Comment: This provision seeks to safeguard at least a minimum amount of basic due process for the Cleric in the wake of an Allegation. It also recognizes the possibility that parallel investigations may occur between civil and Church authorities and that statements and evidence obtained by either authority is potentially usable by either authority. Clerics should be advised that cooperation with Church authorities in their investigation may be used against them in civil law enforcement proceedings.
The [D/O] may consider establishing a defender’s office, whose duty would be to organize and supervise the Cleric’s canonical defense, and which may rely on non-priest canonists or civil lawyers to present the Cleric’s case to the Committee.
4.8 Exceptions to the “Notice to Cleric” Provisions. Notwithstanding the provisions of Sections 4.5, 4.6, and 4.7, the Ombudsman, in his discretion, may dispense with any of the notice requirements therein when:
(a) He has evidence, beyond the Report or Complaint itself, that a Cleric would present an immediate, harmful risk to the Complainant, the Cleric, or others upon receipt of such information;
(b) The Cleric is in a medical condition that would present an immediate, harmful risk to the Cleric if he was informed, except that such notice shall be provided as soon as such risk ceases;
(c) The Cleric lacks sufficient mental competency to understand the Allegations, except that such notice shall be provided to the extent mental competency is recovered.
Comment: This provision recognizes commonly-accepted exceptions to notice requirements.
4.9 Temporary Restriction On Public Ministry Upon a Report of Sexual Abuse. A Cleric may be temporarily restricted from public ministry, subject to the discretion of the [Principal] according to the requirements of canon 1722, on the basis of a Report or Complaint of Sexual Abuse. If the [Principal] exercises his power under canon 1722, he shall explain to the Cleric in writing the specific facts justifying his temporary restriction on public ministry. A Cleric shall not be so restricted on the basis of a Report or Complaint of Sexual Misconduct, unless the [Principal] decides otherwise in rare situations of extreme gravity.
Comment: According to the principles of fundamental fairness and due process, temporary restrictions from office are justified only when criminal conduct has been alleged and there is an immediate risk of harm to the common good. Restrictions on office are not required for non-criminal conduct, and can have a deleterious effect on the reputation of the accused, which ultimately will be the responsibility of the [Principal] to restore (cf. c. 128). While Sexual Misconduct may eventually result in a violation of an ecclesiastical law and thereby entail suspension of faculties, mere allegations alone are not enough to warrant that suspension.
When deciding whether to temporarily restrict a Cleric based on a Report or Complaint of Sexual Abuse, the [D/O]’s decision should not reflect—and should affirmatively disclaim—a premature judgment about the Cleric’s guilt or innocence, since this is to be established only by an eventual penal process aimed at verifying the basis of the accusation.(See Vademecum¶ 45).
4.10 Rights During any Period of Temporary Removal. If the Cleric is temporarily removed from public ministry under Section 4.9, the [Principal]may, according to the provisions of canon law, impose other restrictions he may deem necessary, so long as the Cleric is provided with the following rights:
(a) Uninterrupted provision of housing, food, communication, reasonable travel, and other basic living arrangements comparable to those the Cleric enjoyed before being temporarily removed (cf. c. 281);
(b) Exercise of sacramental faculties, however limited;
(c) Referrals and financial support for appropriate medical services, mental and emotional care, and legal assistance;
(d) Confidentiality on the part of the [D/O]. This includes, but is not limited to, a prohibition on the public release of the name of the accused Cleric before the allegations are proven, unless the [Principal] determines in rare situations of extreme gravity that the immediate protection of the common good requires such disclosure.
Comment: The [Principal]has wide discretion, under canon law, to determine what conditions should be imposed on the Cleric. At the same time, because such actions are taken solely on the basis of Allegations, the Cleric is entitled to basic living and sacramental necessities at the diocese or religious order’s expense. Also, while the diocese or religious community should respect the confidentiality of the Allegations, the Cleric should have the option of keeping those Allegations confidential or not to the extent the Cleric wishes to defend his name publicly, subject to any mandatory reports that must be made under civil or canon law.
4.11 Referral to Committee. After providing the notices in accordance with Sections 4.5, 4.6, and 4.7, the Ombudsmanshall notify the Committee of the Report or Complaint in writing and include any other information the Ombudsman deems relevant, including preliminary statements from the Cleric, the Complainant, and others.
4.11.1 If the Allegation concerns Sexual Abuse, the Committee shall proceed as its charter indicates, assisting the [Principal] with a determination as to whether the Allegation meets the probability standard as discussed below in section 4.13, thus paving the way for the [Principal]'s further action under c. 1718; that is, by means of either a judicial process or an extra-judicial proceeding.
4.11.2 If the Allegation concerns Sexual Misconduct, the Committee shall proceed as its charter allows, pursuant to the procedures described in section 4.12:
Comment: This paragraph 4.11 and its two subparagraphs make clear that the Committee must never exceed the scope of its authority. Thus, if an Allegation concerns alleged Sexual Abuse, the Committee's work ends with the recommendation as to the probability of the Accusation to the [Principal], who alone bears responsibility for the next step in the canonical process or procedure. If an Allegation concerns alleged Sexual Misconduct, the ultimate decision regarding a Cleric's fitness for ministry rests with the [Principal] alone, subject to the requirements of canon law. An aggrieved Cleric has the right to pursue administrative recourse against such a decision with the Dicastery for the Clergy, and must be advised of that right.
4.12 Initial Action by the Committee.Once the Committee receives the Report or Complaint as indicated in Section 4.11.2, the Committee must advise the Clericin writing that –
(a) The Cleric has the rights stated in Section 4.7.1;
(b) The Committee has received a Report or Complaint from the Ombudsman concerning the Cleric;
(c) The Cleric is entitled to all information that the Investigator presented to the Committee, and that the Committee is presently providing the Cleric with all such information;
(d) The Cleric will be entitled to a reasonable time to prepare for a hearing before the Committee, which time the Committee will propose to the Cleric and allow the Clericopportunity to agree;
(e) The Cleric will be entitled to be heard at the Committee hearing and to present whatever evidence and testimony the Cleric wishes, and through whatever assistance the Clericwishes, including canonists and civil attorneys.
(f) Entertaining Cleric’s requests for timing of a meeting, which shall not be unreasonably denied, the Committee shall convene as soon as practicable - and in no event later than thirty (30) days after the date of the Ombudsman's receipt of the Report or Complaint- and consider all information the Committee deems relevant, pursuant to the provisions of Section 4.13 below.
4.13 Committee Meeting. In determining the probability of the Allegation, the Committeeshall proceed as follows:
4.13.1 The Committee is not limited in the number of meetings it convenes on the matter, or the information it considers, provided it gives due consideration to the interests identified in Section 1.7 (“Interests in Conflict”).
4.13.2 As soon as practicable upon consideration of the facts presented and interests at stake, the Committee should determine whether the Allegations are Credible. The Committee shall detail its findings and the reasons for them in writing.
Comment: Given the risk of serious and lasting harm to the reputation of the person accused, the Committee's determination must not be unduly delayed. Worthy of note is the guidance offered by the DDF in their 2022 Vademecum which, while strictly speaking relates only to claims of clerical sexual abuse of minors, is nevertheless generally applicable: “It is recommended, for the sake of equity and a reasonable exercise of justice, that the duration of the preliminary investigation correspond to the purpose of the investigation, which is to assess the plausibility of the notitia de delictoand hence the existence of the fumus delicti. An unjustified delay in the preliminary investigation may constitute an act of negligence on the part of ecclesiastical authority” (Vademecum, n. 66 - emphasis supplied). In addition, under Art. 1, § 1 (b) of VELM, an Ordinary who neglects to carry out (e.g., with undue delays) the required canonical investigation could be subject to penalties, including removal from office (cf. c. 1378).
4.13.3 Allegations are deemed Credible when a majority of Committee members so agree; allegations are deemed not Credible, when a majority of Committee members so agree.
4.13.4 Committee members must be familiar with basic principles of canon law, and become knowledgeable about credibility assessments through consultation with professionals who make such assessments. Committee members may not, however, delegate the responsibility for their assessments of credibility to others or presume that anyone who appears before them is more credible or more thorough in their work than any other witness, including active and former law enforcement officers.
Comment: Assessment of the Allegations is a critical component to the investigation. The Investigator is charged with the duty to collect factual indications (they are not items of “evidence,” strictly speaking), the Committee is charged with the duty to evaluate such indications and make a finding of credibility, the [Principal]has sole discretion on whether to accept that finding and to determine the appropriate temporary disposition of the Cleric.
Naturally, credibility assessments should not be based on whim or intuition, but on a rational assessment of facts presented. Moreover, Committee members should be taught how professionals make similar determinations. Not all facts may justify a finding of credibility, such as when details of the accusations are lacking, contradictory, or without obvious support. In any case, Committee members have broad discretion in determining whether Allegations are Credible and its definition has support in civil law. See e.g. 42 C.F.R. §455.2 “Credible allegation of fraud.”
Committee members may receive factual indications from active or retired law enforcement officers. Information from such witnesses should be judged by the same standards used to evaluate the information supplied by any other witness. No deference should be given to such witnesses simply because of their background, as this would improperly delegate to them the responsibility for making credibility assessments.
4.14 Notice To [Principal]. Immediately after the Committee has deemed the AllegationsCredible or not Credible, the Ombudsman shall notify the [Principal] who, in his discretion, must accept or reject such findings or take other action to allow for a determination of whether the Allegations are Credible or not Credible.
Comment: This provision ensures that the ultimate decision-making authority resides with the Principal.
4.15 Contact With Cleric. Nothing shall prevent the [Principal] from meeting with or contacting the Cleric personally and separately apart from investigation of the Investigator or Committee involvement. The [Principal] should advise the Cleric, however, that none of their communications (except those under seal of confession) will be privileged and immune from civil or canonical discovery.
Comment: This provision recognizes and confirms the ultimate pastoral relationship that should exist between the bishop or superior general and the Cleric. No procedure should prevent a Cleric from meeting with his bishop or superior general about any aspect of the Allegations made against the Cleric.
[1] “D/O” refers to the diocese or religious order or religious community, as the case may be.
[2] “[Principal]” refers to the applicable archbishop, bishop, superior general, abbot, or governing leader of a religious order or religious community. This person is generally the responsible “Ordinary” for purposes of canon law.