Rev. Msgr. Michael Higgins, M.A; S.T.D; J.C.D; C.A.D.C.
Diocese of San Diego, California.

Many priests both religious and diocesan have asked me to outline the rights of clerics in the code of canon law. In the United States today there is a sensitivity to individual and community rights. One indication of this is the backlog in the adjudication of cases in the civil court system. I will discuss two different cases and point out how canon law was violated and how two priests were unjustly treated.

Facts of Case One

The priest owned a rental and evicted the tenant. The tenant got angry and made an allegation to the bishop about sexual misconduct of the priest. The bishop never investigated the allegation. There was no contact by the bishop or any diocesan official with the priest. He received a letter from the bishop that he was suspended and that he could not function as a priest in the diocese. The letter did not give any reason for the suspension. There was no provision made for his support or medical care. The tenant later signed a document which said the allegation was fabricated.

Priests have the same rights as members of the laity. These rights are found in canons 208-223. Priests have additional rights because of their incardination into a diocese or an institute of consecrated life.

A suspension is a public act and it injured the good reputation of the priest. Canon 220 states that everyone has a right to a good reputation and a right to protect their privacy. Canon 1390:2 states that a person who injures the reputation of another can be punished with a just penalty, including a censure. An accusation can harm a priest's reputation and it should not be further impaired by the negligence of a bishop.

The bishop never contacted the priest and he violated canon 221 which upholds the right of defense. Such a right provides that a competent canon lawyer be made available, and have access to all the accusations and the evidence, and information about one's canonical rights. Pope John Paul II in 1989 said that one cannot conceive of a just judgment unless the right of defense has been given. In a penal trial, according to canon 1481:2, the accused must always have an advocate. A priest should not be formally accused unless his culpability for the crime is certain.

The letter did not make any provision for the financial support of the priest. Canon 384 points out that a bishop is obligated to protect the rights of priests and to provide for their support. Canon 281:2 provides for priest's welfare in the event of illness, incapacity, or old age. If a canonical penalty has been imposed, according to canon 1350, the priest still has a right to those things which are necessary for a decent living.

The accusation was fabricated and canon 1390 warns us of the possibility of false denunciation. The bishop never investigated to determine if the accusation was true or malicious. Accusations of sexual misconduct are handled in the same way as other situations. The rights outlined above such as the right of defense and the right to counsel are always to be applied in these cases.

There was no warning given by the bishop and canon 1347 stated that a suspension cannot be imposed validly (nequit valide) unless a person has been given a warning and a suitable time to repent, which did not apply as the priest never incurred moral guilt.

Solution of the Case. The priest was given no warning and did not observe the suspension. He continued to function as a priest and was hired as a priest in a state institution. For the next ten months I made attempts along with his civil attorney to resolve his situation with the diocese. Bad faith and a lack of fair dealing was experienced from the bishop and his diocesan attorney. Because of this and the one year statute of limitation, the civil attorney for the priest sent a letter to the Apostolic Pro-Nuncio and a copy to the bishop. The letter mentioned that if the case is not resolved within thirty days that civil action would be brought against the diocese. The bishop called the priest the next day to make an appointment. The priest refused to see him without me and his civil. attorney. It was resolved within two weeks in favor of the priest.

Facts of Case Two

The bishop made an appointment with a priest and told him that there is a complaint that he is very friendly with a female member of a family. The priest was not given any specific information. He was told that he must undergo psychological testing. The bishop also offered the priest an alternative that he would help him with the voluntary process of laicization even though the priest did not request it. The priest chose the psychological evaluation as he wanted to remain a priest. The priest was also told not to discuss his situation with anyone because of a possible lawsuit.

Some of the same principles outlined in the first case were violated in this case such as the right of defense. However, in this case you have the issue of psychological evaluation. Civil law forbids anyone to be forced to undergo psychological testing. It can only be done with a court order and in rare circumstances.

The Holy See constantly has defended the right of a person to refuse psychological testing. The Congregation for the Doctrine of the Faith said in a letter that a bishop cannot force a priest to undergo psychological testing. Likewise, the signing of the release of information cannot be forced. One bishop issued a suspension when a priest refused psychological testing. He appealed his case to the Holy See and the decision of the bishop was reversed.

Solution of the Case. The priest realized during the evaluation that he was receiving an injustice. He contacted me and a civil attorney. We advised him not to sign any authorization to release information to the bishop until we had a meeting with him. The priest was accompanied by his attorney when he had an appointment with the bishop. The bishop was adamant to see the priest alone but the priest refused. At the meeting the attorney insisted on seeing the evidence that the bishop had on his client. The bishop would not produce any evidence and said that the whole case would be dropped. The priest feels that the bishop was being vindictive because of an incident that occurred previously between them. The priest still works in the active ministry.

Under criminal law the defendant has a constitutional right to legal counsel. The diocese has an obligation to provide an advocate for the priest. Some dioceses and religious communities encourage priests to seek counsel and have agreed to pay for the service. In finding an advocate, it might be wise not to retain the services of a canonist from the diocese or religious community to which you belong. The canonist could be placed in a possible conflict of interests and it might be better to find another canonist.

Many dioceses, such as San Diego, do not have due process. Canon law provides for an appeal over the decision of the bishop and provincial. Canon 87:2 states that bishops do not have the power to dispense from penal and procedural laws and this includes the right to an advocate. Decisions of bishops and provincials can be wrong and the Holy See shows this by reversing many of their decisions.

A complete treatment of the question of rights in canon law would be impossible in these few pages. I have functioned as an advocate for over twenty years for priests. If a meeting is going to take place and possible accusation could be made, it is wise to bring another priest  or a civil attorney to the meeting. My suggestion to priests is that you do not allow yourself to be trapped. You might be told to keep everything confidential. However, this does not take away your right to discuss it with your friends and to seek canonical or civil counsel.

KNOWLEDGE OF YOUR RIGHTS is important today because many priests have experienced an abuse of power. It is my experience that some bishops and provincials are uncomfortable with the involvement of a civil attorney. Priests and bishops should look at the law as an advocate in pursuing justice within the priesthood and the Church.

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