After Illinois: What does the AG report recommend, and can it work?

The Illinois abuse report makes a number of policy recommendations, but will dioceses take them up, or take a pass?

On Tuesday, the Illinois attorney general released a long-awaited report into clerical sexual abuse of minors in the state’s dioceses. 

Illinois AG Kwame Raoul speaks at the press conference, May 23, 2023.

Like similar reports released by attorneys general in other states in recent years, it details an appalling history of clerical abuse in the state over decades. It also outlines institutional efforts to cover up instances of abuse, minimize the experiences of victim-survivors, and shield dioceses from potential liability. 

The report made headlines for its dismal statistics: 451 “credibly accused” clerics and nearly 2,000 victims across the state’s six dioceses — prompting comparisons with the landmark 2018 report from a Pennsylvania grand jury which helped ignite a still-ongoing era of renewed scandal in the U.S. Church.

At a press conference on Tuesday, Illinois AG Kwame Raoul deflected questions inviting him to compare his findings with those of similar reports issued in other states, noting repeatedly that it would be a disservice to victims to compare the scale of their collective experiences as if there was some kind of “competition” between investigations.

Instead, Raoul said he considered the distinguishing feature of his office’s report to be the nearly 50 pages of recommendations to dioceses on their interactions with victim-survivors and future handling of sexual abuse complaints.

More than 20 years after the U.S. bishops issued the Dallas Charter and USCCB Essential Norms, Church policy and law have been continually updated. While civil authorities have frequently made recommendations for ecclesiastical reform, they have often included obviously unworkable proposals, like the violation of the sacramental seal of confession in relation to abuse cases. 

So, what has the Illinois AG recommended, and how workable are his proposals? Well, some would seem more easily implemented than others.

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Separating diocesan offices

The first recommendation from the report’s concluding section is that “Dioceses should separate diocesan offices responsible for providing support to survivors from offices investigating child sex abuse allegations, ensuring that no investigator has a role in survivor support.”

This would seem, on the face of it, a reasonable idea. The AG’s report notes that expecting someone acting in an investigative capacity for the diocese to serve as the first or even main point of contact for a victim-survivor presents considerable scope for conflicting priorities.

The report says that survivors, especially those in a fragile or vulnerable state, require someone from the diocese wholly dedicated to their welfare. 

While many diocesan workers, canonists, and victim-survivors’ advocates would likely agree with this observation, it’s worth noting that the report frames the role of an investigator as, essentially, working on behalf of the diocese to mitigate its liability and possible legal exposure.

That may indeed have been an observable phenomenon in some of the historical cases considered by the Illinois AG. If so, however, it would point to a double failure by the diocese in those cases, but one that would seem to amplify the importance of the AG’s proposal.

Investigations into possible instances of clerical abuse of minors are not merely internal personnel matters. Clerical sexual abuse is a canonical criminal matter, and when it involves a minor victim it is part of a legal process overseen directly by the Holy See. 

The investigator is, for sure, meant to have an objective perspective on the accusations as they look for possible proof, but not with a view to protecting the diocese, whose own actions could also come under the scope of a canonical criminal investigation.

It is also worth noting that, in recent years and especially following the scandals of 2002 and the ensuing reforms, it is not unknown for the conflation of the role of investigator and concern for victims’ welfare to create the opposite problem to the one identified by the AG: That investigators approach allegations from a position of sympathy and with a presumption of credibility for the accuser. 

While this is perhaps an understandable reaction to recent decades of scandal, the impartiality of the investigative role needs to be preserved from both sides if it is to have any true utility. 

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Private investigators

That utility could also be served, at least in part, by another of the report’s recommendations: That “dioceses should contract with an independent private investigation firm to investigate child sex abuse allegations.”

In practice, many U.S. dioceses already contract with independent firms to investigate such allegations, and others employ former law enforcement officers either full time or on a case-by-case basis to conduct inquiries.

But while employing someone with forensic experience who is independent from the diocese to conduct investigations has clear benefits, the experience sometimes has had (at least anecdotally and in some places) mixed results. 

Priests in some dioceses have noted that independent investigators, while not favoring the diocese or looking to minimize an allegation, can at times appear to be acting on a presumption of guilt against the cleric and with an expectation that they must deliver at least some evidence of some kind of misconduct as a justification for their efforts. 

Again, a preliminary investigation into an allegation of clerical abuse is, canonically speaking, a legal process that is meant to conform to canonical legal norms. While independence and experience in law enforcement are undoubtedly valuable attributes for an investigator, ensuring that the investigation conforms to canonical expectations would also seem to require some measure of expertise.

For example, a preliminary investigation is meant to establish only if an alleged act of abuse is plausible, clearing the absolute minimum bar of possibility and not showing itself to be manifestly false or frivolous. 

The Holy See has repeatedly warned U.S. dioceses that the collection of more than the evidence needed to clear that first legal hurdle, let alone using the extra evidence gathered to reach an extra-legal determination of an allegation’s credibility, can be prejudicial to a later canonical process.

Of course, concerns about due process and the right of accused clerics to an effective legal defense can appear (at best) to be secondary concerns in the context of a decades-long litany of crime and institutional indifference such as the one presented in the Illinois report. 

But as many Church-watchers have long observed, the abuse crisis became systemic in American dioceses in great part because of a culture of disregard for canonical norms and process. Most canonists and experts agree that any long-term effort to ensure it never happens again hinges on the acceptance of procedural norms and their rigorous application.

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Uniform definitions

The lack of a consistent approach to investigating, evaluating, and even discussing allegations across dioceses was itself flagged by the AG’s report, which also recommended that dioceses adopt uniform definitions of the term “child sex abuse,” as well as “uniform terms and standards relating to child sex abuse investigation outcomes.”

The report points out that, even among the six dioceses of Illinois, there is no standard definition of which actions constitute sexual abuse of a minor by a cleric. Nationally, the disparity is even greater, especially when taken together with the Holy See’s own legal definition of child sexual abuse, as distinct from other behaviors involving minors which may not constitute the crime of sex abuse per se, while still warranting investigation and intervention.

Similarly, dioceses across the country routinely use terms like “credible” and “substantiated” to describe allegations following an investigation, but these are defined in different ways.

The definition of these standards themselves varies from the canonical minimum of a finding of “not manifestly false or frivolous” to a determination of proven on the preponderance of the evidence collected. 

Advocates and experts broadly agree that the problems created by these disparate terms and usages have also affected victims-survivors, who have reported confusion and disappointment when their accounts are described as “substantiated” but do not necessarily result in the laicization of a cleric following a full canonical process.

While the Holy See has repeatedly reminded American bishops that it is inappropriate and prejudicial to use terms like “credible” and “substantiated” to describe allegations prior to a legal process that has returned a verdict, the likelihood of such language being dropped entirely by chanceries and diocesan review boards seems remote. 

Given that, the Illinois AG’s recommendation for the standardization of terms at least across the dioceses of a single state would strike many as helpful.

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Disclosing prior allegations

Depending on how it is put into effect, the standardization of terms could also make another of the report’s recommendations easier to adopt.

“Diocese policies should require that, upon inquiry, the existence and number of prior child sex abuse allegations against a cleric will be disclosed,” the report recommends. 

While the proposal is framed as being a support to victims who are considering coming forward for the first time, allowing them to learn if their abuser is already the subject of other accusations, it is a suggestion that would likely enjoy near universal support.

Having read how clerics in different dioceses were, in decades past, moved from parish to parish despite being subject to a series of accusations of abuse, many would argue that the faithful have the right to know about such allegations against their own pastors.

But, for such a policy to be workable, there would likely need to be some qualification of the implied baseline expectation of any and all accusations being disclosed on request. 

Most Catholics would feel they have a right to know if they have been assigned a priest with multiple accusations that have at least passed the minimum assessment of not being obviously false or frivolous. 

But accusations are sometimes levied against clerics which, on investigation, prove to be either materially impossible or obviously vexatious. 

It would seem to run counter to the interests of justice to require the perpetual public disclosure of obviously false allegations against clerics, as it would in cases where, despite an initial finding of plausibility, a priest is exonerated of an accusation following a full canonical process.

Bearing this in mind, the proposal from the Illinois AG begins to look less appealing, especially given that, as the report observes, current practice across all Illinois dioceses is to always confirm on request  “whether other substantiated allegations have been made against that cleric.”

Leaving aside the problems with the term “substantiated,” the current inter-diocesan policy distinguishes at least between those allegations that merited investigation and those which were obviously false. Many would probably have serious reservations about the AG’s proposal to treat the two as the same for public reporting purposes.

If clearly spurious accusations are treated as the same as real complaints of abuse, it would undermine the general credibility of the disclosure system.

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Anonymous reporting

The AG’s report also recommends that “Diocese policies should explicitly permit survivors to report abuse anonymously, using their own name, and/or through third parties.” 

This will likely strike many people working in chanceries and for wider ecclesiastical reform as another common-sense proposal. Indeed, in the wake of the 2018 McCarrick scandal, the USCCB helped to coordinate a national, independent reporting hotline where abuse allegations can be made anonymously. But the extent to which anonymous reporting is accommodated in individual diocesan policy may still vary.

While anonymous and third-party reporting can be essential mechanisms for some survivors to first begin the process of reporting what they have suffered, they would seem to require some qualifications in order to be both just and effective. 

While a survivor should be able to report their experience anonymously, some minimum level of information would seem to be necessary in order to trigger an investigation, including the basic circumstances of time, place, and some context of the alleged abuse.

But the current need for anonymous reporting mechanisms in the Church isn’t limited to abuse survivors. 

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Whistleblower protections 

The AG’s report also calls for diocesan policies to “expressly prohibit all forms of retaliation, intimidation, coercion, or adverse action against any person who reports child sex abuse or cooperates with an investigation relating to child sex abuse.”

So-called whistleblower protections have featured in papal reforms in recent years, including the motu proprio Vos estis lux mundi, updated earlier this year. But despite their inclusion in the universal canon law, bringing them into effective practice remains a work in progress.

In cases where investigations into alleged abuses are mishandled, it is often left to diocesan officials and employees to make a report of negligence (or even deliberate interference) in the process, including against their ultimate employer and superior, the diocesan bishop.

Given the Holy See’s inconsistent approach to dealing with allegations against bishops under the norms of Vos estis, and its general lack of transparency across all cases, there is little to inspire confidence among chancery officials that making a complaint would not invite reprisal, whatever the motu proprio might say. 

Anonymous reporting mechanisms would seem to have a wider utility than even the AG’s report argues for.

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Overlapping functions

One problem with many secular recommendations to Catholic dioceses is the multiple roles, administrative and pastoral, which Church leaders have to balance — for good or bad.

The issues created by these overlapping functions can often lead to difficulties in implementing what many Catholics would otherwise view as obviously good ideas.

For example, the Illinois report recommends that “bishops should offer to meet privately with survivors.” Some bishops, notably Albany’s Bishop Edward Scharfenberger, do so regularly. But many other bishops report that while they understand the pastoral urgency of meeting with survivors, it isn’t episcopal reticence which prevents them from doing so.

While bishops are the chief shepherds of their dioceses, they are also the functional CEOs of the diocese as a civil legal entity. With many state legislatures opening windows in the statute of limitations for civil suits in abuse cases, diocesan lawyers often offer strenuous objections to such meetings, or at least insist on strict limits on what the bishop can or cannot say to an abuse survivor because of the possible liability implications.

While bishops may want to meet with survivors in many cases, and make the kind of heartfelt apologies that those who have suffered abuse have a right to expect from the Church, doing so could have severe civil legal implications.

The AG’s report opened with the recommendation that pastoral support and survivor welfare provision be distinctly separate roles from investigating and evaluating allegations. The bind for bishops is that their office requires them to sit at the top of both, with their rival demands on them to say and do different things in different contexts. 

Threading that needle isn’t always easy, or even possible. At least for now.

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The weight of past scandals

Like other states’ reports, the findings in Illinois relate largely to crimes committed in the 1970s and ‘80s. The AG concluded, as have most others, that “the Church in general and the Illinois dioceses in particular, have made great strides regarding child sex abuse prevention, investigation, disclosure, and survivor healing” in recent decades.

Part of the difficulty for the bishops of Illinois, and across U.S. dioceses, in trying to implement many new processes and policies is working under the weight of historical scandals they often had no personal part in creating. 

As 20 years of progress become 30, 40, and eventually 50, and reforms continue to drive the number of new allegations down, it’s possible that bishops will gain more room to maneuver pastorally. 

So far, they have been trying to shake out a new system, built to answer the sins of the past and constructed under its long shadow. The real test of their efforts will be how well it answers the demands of the future.