Legal consequences of the bishop as boss

The Low Countries have been in the news again when it comes to legal actions against the Church and her shepherds. A group of victims of sexual abuse by priests has filed an appeal with the International Criminal Court in The Hague against Pope Benedict XVI and Cardinals William Levada, Tarcisio Bertone and Angelo Sodano. The victims hold these four men – the current and previous prefect of the Congregation for the Doctrine of the Faith and the current and previous Secretary of State – responsible for their abuse and wishes them persecuted under international criminal law. I am not that well-versed in criminal or canon law, but I have the distinct impression that the International Criminal Court has no legal jurisdiction in the Vatican, and neither can it arrest people without any form of evidence.

In the meantime in Belgium, another group of victims has filed an appeal against the Belgian bishops and superiors of religious orders. They claim that the bishops are the employers of priests and should also have acted against religious orders, although the bishops have no jurisdiction over these. Add to that the fact that the Belgian court has previously stated that priests are not employed by bishops.

At first glance it is logical to assume that the bishop is indeed the priests’ boss. He is, after all, the highest cleric in a diocese, and the priests owe him obedience, as per their vows at ordination. But on the other hand, a bishop does not get to choose his personnel, so to speak. The diocese that he is appointed to, is not his property, nor can it be run like a company. Sure, like an employer, a bishop may discipline or promote a priest, but that is done for the needs of the diocese and the faithful, not because of the personal accomplishments of the priest in question (although these do play a role in deciding what priest would be best in what position, of course).

Canon 384 of the Code of Canon Law describes the relation between a bishop and the priests of his diocese:

“He is to have a special concern for the priests, to whom he is to listen as his helpers and counsellors. He is to defend their rights and ensure that they fulfil the obligations proper to their state. He is to see that they have the means and the institutions needed for the development of their spiritual and intellectual life. He is to ensure that they are provided with adequate means of livelihood and social welfare, in accordance with the law.”

As in the original meaning of the word episcopus, the bishop is depicted here as an overseer, one who provides for his priests so that they can provide for the faithful entrusted to them. Furthermore, Canon 391 describes the powers of a bishop in his diocese:

“The diocesan Bishop governs the particular Church entrusted to him with legislative, executive and judicial power, in accordance with the law.”

Just like the state is not the employer of the citizens, but has legislative, executive and judicial power over them, the bishop is not the employer of the faithful, be they priests or laity. Canon 393 then, summarises this as follows:

“In all juridical transactions of the diocese, the diocesan Bishop acts in the person of the diocese.”

In essence, the bishop is never bishop for himself. He is, in many ways, the diocese, and certainly has to act in its – and its faithful – interests.

Claiming that the bishop and the priests of his diocese have an employer-employee relationship is a gross misrepresentation of the facts. A bishop oversees, and does so for the wellbeing of the faithful. The priests are his helpers in that respect. The bishop is the first among equals, but with certain duties and obligations to ensure the unity, formation and salvation of the faithful for which he is responsible. This is not the relationship that an employer has with his employees.

Can the bishops of Belgium or the pope and his cardinals be held accountable for the crimes committed by other priests and religious? Not automatically. They do have an obligation to act against the crimes they are aware of, in the ways that canon law permits. Being unaware is not a reason to be tried, although in some cases it may be proof of a culture of silence or simple naivety. And as for the claim that the bishops and cardinals undertook active steps to hide the evidence? Well, let that first be proven, before heads start rolling.