Epistemic Institution Design Part Two: Pedophilia and Pathology

It’s been a few months since I promised a series of posts on the Catholic Church and epistemic institutional design, but I have been working on it. As the Pope marks the end of the aptly named “Year of the Priest” today, I thought I’d return to it.

In this post, I will show that the very same year that Ratzinger watched a priest he protected from prosecution for child rape finally get convicted of child rape, he wrote a letter invoking the “ordinary universal magisterium” (i.e. infallibility) to claim that homosexuals, which for him includes pedophiles who target boys as young as 11, ought to be treated by the pastorate rather than prosecuted.

Let’s turn to the treatment that he demands for homosexual persons, which as I will show comes with a claim to infallibility because it has the consensus of the bishops and is ratified by the infallibility of the Pope:

“We would heartily encourage programmes where these dangers are avoided. But we wish to make it clear that departure from the Church’s teaching, or silence about it, in an effort to provide pastoral care is neither caring nor pastoral. Only what is true can ultimately be pastoral.The neglect of the Church’s position prevents homosexual men and women from receiving the care they need and deserve.

An authentic pastoral programme will assist homosexual persons at all levels of the spiritual life: through the sacraments, and in particular through the frequent and sincere use of the sacrament of Reconciliation, through prayer, witness, counsel and individual care. In such a way, the entire Christian community can come to recognize its own call to assist its brothers and sisters, without deluding them or isolating them.”

Now, the 1986 letter is in part aimed at preserving the repudiation of ordinary homosexuality. (That’s the “deluding” horn of the dilemma.) However, the letter would apply equally well to what the Church has always thought of as homosexual “ephebophilia” rather than pedophilia, which is attraction to adolescent boys, defined as 11-and-above. This distinction is built into the Catholic doctrine of “the age of reason.” As Phillip Jenkins describes it, this failure to internalize the Church’s doctrine on reason is the source of the confusion:

The Chicago study also found that of the 2,200 priests, just one was a pedophile. Now, many people are confused about the distinction between a pedophile and a person guilty of sex with a minor. The difference is very significant. The phrase “pedophile priests” conjures up images of the worst violation of innocence, callous molesters like Father Porter who assault children 7 years old. “Pedophilia” is a psychiatric term meaning sexual interest in children below the age of puberty.

But the vast majority of clergy misconduct cases are nothing like this. The vast majority of instances involve priests who have been sexually active with a person below the age of sexual consent, often 16 or 17 years old, or even older. An act of this sort is wrong on multiple counts: It is probably criminal, and by common consent it is immoral and sinful; yet it does not have the utterly ruthless, exploitative character of child molestation. In almost all cases too, with the older teen-agers, there is an element of consent.

Of course, there’s a reason we’ve set age of consent laws higher than puberty, and there’s a reason statutory rape is still rape. Abusing one’s authority to take advantage of someone who cannot give informed consent actually is a problem. According to many Catholics, it’s specifically a homosexual problem:

Moreover, roughly 85% of all misconduct cases involve priests and boysSo there is also a very obvious homosexual issue at work….

Not so obvious to me, but this is why Ratzinger’s desire to prevent “isolating” such unfortunates has a troubling double meaning: for homosexuals, it means welcoming gay Catholics to participate so long as they acknowledge that homosexual activity is a sin. For pedophiles, it means preventing the intervention of temporal authority. Because the letter would apply equally well to what the Church thinks of as homosexual desire for adolescents, the criminalization of statutory rape threatens “isolation” from the “entire Christian community.” Many of the calls to prevent violence in the 1986 letter also have a double meaning: what sounds charitable and reasonable in ordinary homosexual situations takes on a new and troubling connotation when applied to pedophiles who do not wish to be subject to incarceration and punishment by secular authorities for their crimes. (Yet look at the Catholic Church’s response to Uganda’s proposed Anti-Homosexual Bill….)

Remember that Ratzinger wrote this letter the same year that Father H, the pedophile priest Ratzinger helped to protect from prosecution, was finally convicted of crimes he committed six years after Ratzinger’s office prescribed a course of therapy, and the priest was returned to pastoral work. Notice that Ratzinger does not recommend criminal prosecutions in this letter, despite the failure of therapy six years earlier in Father H’s case. We’ve since had confirmation that what Ratzinger wrote publicly in 1986 became, through his intervention, the official, though secret, policy for pedophilia in 2001:

Pope Benedict XVI faced claims last night that he had ‘obstructed justice’ after it emerged he issued an order ensuring the church’s investigations into child sex abuse claims be carried out in secret.

The order was made in a confidential letter, obtained by The Observer, which was sent to every Catholic bishop in May 2001.

It asserted the church’s right to hold its inquiries behind closed doors and keep the evidence confidential for up to 10 years after the victims reached adulthood. The letter was signed by Cardinal Joseph Ratzinger, who was elected as John Paul II’s successor last week.

Rather than treating the pastorate as a mandatory reporter, like teachers and doctors, Ratzinger’s secret letter demands that they preserve the anonymity of abusive priests and silence the victims on pain of excommunication.

All that remains is to demonstrate that the 1986 letter was meant to be infallible.

Contrary to popular belief, infallibility is not reserved only for rare moments of Ex Cathedra. In fact, the Pope frequently speaks in ways that are meant to be infallible, especially when issuing papal bulls. Ex Cathedra statements usually concern the metaphysics of Christian doctrine, but the Pope also speaks infallibly on other moral topics. Here’s how that works:

“an act of the ordinary papal Magisterium, in itself not infallible, witnesses to the infallibility of the teaching of a doctrine already possessed by the Church.”

The Pope then claims the right to speak infallibly and exercises that right on a semi-regular basis on matters of public political concern, so long as the new pronouncement “witnesses to the infallibility” of a previous pronouncement. It’s simple logic: start with infallible premises, use infallible inferences, and you’ll reach infallible conclusions. Two examples in the last twenty years include the reiteration that euthanasia is murder and the exclusivity of the priesthood to chaste men. (The latter may be irrelevant to the discussion at hand, but that irrelevance is hardly self-evident.)

What’s more, the Pope is not the only source of infallibility in the Catholic Chruch. There are times when the Bishops of the Church can create a consensus, either by gathering together in a doctrinal Council or by creating agreement through correspondence and drawing up statements of unanimous support. This is the “ordinary universal magisterium,” which is also infallible:

“The term ordinary universal Magisterium means an exercise of the Church’s teaching office where there is complete agreement, or fairly close to complete agreement, among the Catholic Bishops of the world that a particular doctrine is certainly true, but without a solemn definition.

[… T]he ordinary universal Magisterium is infallible. The fact that the bishops are ‘dispersed throughout the world’ (in the words of Vatican II) does not make any difference.”

In these times, too, the Church claims infallility for its pronouncements, which are ratified and signed by the Pope.

We wouldn’t normally expect pronouncements about the specific treatment of ‘homosexuals’ (i.e. pedophiles) to be a matter of infalliblility, except for Ratzinger’s 1986 letter:

[The Congregation for the Doctrine of Faith] wishes to ask the Bishops to be especially cautious of any programmes which may seek to pressure the Church to change her teaching, even while claiming not to do so. A careful examination of their public statements and the activities they promote reveals a studied ambiguity by which they attempt to mislead the pastors and the faithful. For example, they may present the teaching of the Magisterium, but only as if it were an optional source for the formation of one’s conscience. Its specific authority is not recognized. Some of these groups will use the word “Catholic” to describe either the organization or its intended members, yet they do not defend and promote the teaching of the Magisterium; indeed, they even openly attack it. While their members may claim a desire to conform their lives to the teaching of Jesus, in fact they abandon the teaching of his Church. This contradictory action should not have the support of the Bishops in any way.

Remember that Ratzinger letter was meant to supply specific recommendations based on the 1975 “Sexual Ethics” declaration, which claimed:

“At the present time there are those who, basing themselves on observations in the psychological order, have begun to judge indulgently, and even to excuse completely, homosexual relations between certain people. This they do in opposition to the constant teaching of the Magisterium and to the moral sense of the Christian people.”

When the Bishops in the 1975 declaration invoked the “constant teaching of the Magisterium,” they were not simply invoking the “ordinary magisterium,” which can be mistaken or fallible. They invoked the “ordinary universal magisterium,” which is infallible, even though Ratzinger did this before he took the office of Pope. Merely by representing the Congregation for the Doctrine of Faith, then Archbishop Ratzinger could not lay claim to infallibility for his recommendations, which though signed by the Pope would only constitute “ordinary Magisterium.” But by piggybacking on the “universal ordinary Magisterium” of the 1975 declaration, Ratzinger borrows their general claim to infallibility for his specific prescriptions. By invoking the ordinary universal magisterium, Ratzinger chastises all those who would question his words in that 1986 letter, either in the diagnosis or in the treatment.

So Ratzinger, in 1986, infallibly advocated the treatment of sexual abuse with a multipronged approach that addresses “all levels of spiritual life” as a substitute for temporal criminal investigations, which would only “isolate them.” This, then, is not simply a matter of eliminating bad apples: it is an institutional crisis in which the Church will be forced to choose between fundamental commitments. In my next post, I will try to lay out the choice confronting the Roman Catholic Church.

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