Did Phoenix Bishop Go Too Far?

By Joe Feuerherd
National Catholic Reporter [Washington]
June 20, 2003

The agreement sparing Phoenix Bishop Thomas J. O'Brien from prosecution for his handling of sexual abuse allegations against diocesan clergy does not appear to violate canon law, though it skirts dangerously close to a line the church is generally loath to approach.

The key question: Did O'Brien abdicate responsibility for decisions and personnel that he has no right to relinquish under church law? Additional concerns have been raised that the agreement binds O'Brien's successors in ways not permitted under canon law.

Announced June 2, the accord between the bishop and the Maricopa County attorney's office requires the archdiocese to establish a "moderator of the curia" with responsibility for "dealing with issues that arise relating to the revision, enforcement and application of the [diocesan] sexual misconduct policy."

In addition, the Phoenix diocese is required to have a youth protection advocate who will report allegations of sexual abuse by dioces an personnel to law enforcement officials "independently and not subject to the consent of Thomas J. O'Brien, or any other diocesan personnel." The youth protection advocate is to be assisted by counsel whose advice "will not be subject to approval by anyone within the diocese including, but not limited to, Thomas J. O'Brien or any other priest."

O'Brien says the agreement is permissible under church law because he retains the internal authority to deal with priests accused of abuse.

"The new youth protection advocate and the moderator of the curia will scrupulously adhere to the letter of the law in reporting allegations," O'Brien said in a June 8 "open letter" to Phoenix Catholics. "I, however, am the only one who can remove a priest from ministry, and I will do so with the advice of the moderator of the curia and the youth protection advocate."

The agreement "seems to be within the realm of canon law," agreed Mercy Sr. Sharon Euart, "as long as the bishop has the final decision on the status and ministry of the priest." While "the question of the extent of [government] intervention has to be raised when the church is required by the state to establish a particular office," the concerns are minimized when the bishops have already committed themselves to take steps that closely parallel the Phoenix agreement, said Euart, a canonical consultant.

"I don't see any canonical problems with the O'Brien agreement," said another leading canon lawyer. "Some canonists think he should not have given up his authority, but he really did not give it up. He has delegated his authority, which is routine in canon law."

Still, the agreement has been fodder for conversation in canon law circles. "Some [canon lawyers] seem to think it's OK. Others believe it crosses the line toward violating the sacred relationship between a bishop and his priests," said a leading canonist in Rome.

Among the additional areas of concern: Does the agreement bind O'Brien's successor?

"I think you could argue it both ways," said the canonist. "It's interesting that the text is phrased as agreement 'between Maricopa County Attorney Rick Romley, Bishop Thomas O'Brien and the Roman Catholic Diocese of Phoenix.' As a canonist, I would be much more comfortable had that sentence stopped at O'Brien."

Nevertheless, he continued, "On the whole, what O'Brien has agreed to here seems canonically permissible, even if it's not foreseen by canon law."

Romley said he likely would have charged O'Brien with obstruction of justice for his role in assigning priests known to have abused minors to parishes in the diocese. Romley's office indicted six priests on sexual abuse charges the day the agreement was released.

As part of the agreement, O'Brien admitted fault: "I acknowledge that I allowed Roman Catholic priests under my supervision to work with minors after becoming aware of allegations of sexual misconduct," he said in a statement. Later, when the agreement was publicly released, the bishop backtracked and told the media that "it was never my intention to obstruct or interfere in any way. I certainly never intentionally placed a child in harm's way. To suggest a cover-up is just plain false. I did not oversee decades of wrongdoing."

It is unclear what role, if any, Vatican officials played in the decision to sign the agreement, though O'Brien indicated that, during the negotiations, he rejected the prosecutor's call for him to resign.

It is likely, said one canonist, that the Vatican's Congregation for Bishops and the Pontifical Council for the Interpretation of Legislative Texts will examine the agreement closely.


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