By Rev. Michael X., J.C.L.
With the shocking news confirmed that Pope Francis rejected outright a request of the United States Conference of Bishops for him to open an apostolic investigation into the sulfurous claims made by Archbishop Viganò against ex-Cdl. Theodore McCarrick, many are saying that without such a Vatican investigation, the truth will never be known. The fact that the request was even made of the Roman Pontiff implies that only he has the power and jurisdiction to investigate violations alleged to have been committed by bishops, archbishops and cardinals.
Contrary to that edulcorant narrative, however, is a far different truth. The 197 diocesan bishops of these United States, like all of the world's 5,492 diocesan bishops, do not need such a fiat on the part of the Supreme Pontiff or any Vatican official in order to investigate allegations of sexual crimes and protect the minors and seminarians under their care from monsters the like of McCarrick — they never have.
Cardinals historically have been deemed by the faithful to be "Princes of the Church." Canonically, only cardinals, of all of the Church's 1.3 billion faithful spread throughout the world, are able to vote and be elected to the Throne of St. Peter.
Canon law, for centuries, has always afforded special statutory protection to them to the point where, once upon a time, a cardinal was widely held as being incapable of being convicted of a canonical or civil crime unless a certain number of witnesses bore sworn and corroborated testimony against him: specifically, 72 witnesses if the accused were a cardinal-bishop; 44 if he were a cardinal-priest; and 27 if allegations were brought against a cardinal-deacon (cf. Antonius Matthaeus, De Criminibus, lib. 48, tit. 15; c. 2 and c. 3, C. II, qu. 4).
Perhaps it is out of fear of incurring the wrath of the Pope or even then-Cdl. McCarrick that he has been, for all intents and purposes, virtually "untouched" by hierarchs for the almost 50 years during which he is alleged to have committed sexual abuse of minors and seminarians.
While in modern times, 72 witnesses are not required to convict a cardinal, it is true, however, that canon 1405, § 1, 2° of the current Code of Canon Law states:
It is solely the right of the Roman Pontiff himself to judge in the cases mentioned in can. 1401: 1° those who hold the highest civil office of a state; 2° cardinals; 3° legates of the Apostolic See and, in penal cases, bishops; 4° other cases which he has called to his own judgment.
Although judgment of any cardinal or bishop in a criminal canonical matter is reserved to the Roman Pontiff, either personally or by papal commission granted to another tribunal such as the Roman Rota, nothing — absolutely nothing — has prevented any diocesan bishop from investigating within his territory the grave allegations of sexual crimes that for decades have been regularly attributed to McCarrick, no matter what his rank was at the time.
The 1983 Code of Canon Law, like its 1917 predecessor, imposes an obligation upon a diocesan bishop to open a criminal investigation whenever any information appearing to be true reaches him indicating that a canonical crime has been committed within his territory. Canon 1717 states:
Whenever the Ordinary receives information, which has at least the semblance of truth, about an offence, he is to enquire carefully, either personally or through some suitable person, about the facts and the circumstances, and about the imputability [personal responsibility of the alleged offender], unless this enquiry would appear to be entirely superfluous. [my emphasis]
Some might object that the allegations pertaining to then-Cdl. McCarrick were so "incredible" to believe that no American bishop could possibly be blamed for not having inquired into mere "rumors." The truth of the matter is, however, that the majority of bishops knew that Reverend, then Bishop, then Archbishop and finally Cardinal McCarrick was an active sodomite who engaged in open predation and forced seduction of vulnerable seminarians and clerics well aware of the power differential between hunter and prey. Some of them were raised through McCarrick's influence to the episcopacy and even cardinalate only to become hunters of young men themselves — and his protectors.
While no diocesan bishop could claim the power to summon or judge then-Cardinal McCarrick, all of them had the duty and indeed power, alone and jointly if necessary, to investigate the persistent rumors and credible allegations of sexual misconduct on the part of "Uncle Ted," and then, in accord with the norm of can. 1718, turn over the results of their penal canonical investigations into McCarrick's sexual crimes to the Roman Pontiff, the Congregation for the Doctrine of the Faith and Congregation for Bishops for due adjudication and punishment.
The latest news is that the USCCB "has opted" for investigations to be conducted by lay experts into the dioceses of New York, Washington, D.C., Newark and Metuchen to find out just how Theodore McCarrick was able to rise as high as he did. The real question, however, is why all four bishops currently leading those dioceses — Cdl. Timothy Dolan, Cdl. Donald Wuerl, Cdl. Joseph Tobin, and Bp. James Checchio — as well as any other bishop who received information pointing to the commission of sexual abuse or its cover-up within his territory failed to comply with the norms of canons 1717–1718 CIC when they could have.
Like any diocesan ordinary, American bishops have always had all the power in the world needed to investigate any verisimilar rumor or report of sexual abuse committed within their territories by any cleric, without distinction and take action to protect minors and seminarians as necessary. They simply chose not to do so.
"The fault, dear Brutus, is not in our stars, but in ourselves, that we are underlings."