Civil Underenforcement Due to Law’s Purpose Being Unexpected

By Nick Levinson

Civil law enforcement can be maddeningly weak. Survivors can be clear and emphatic about what they say happened, what they say happened can be clearly against the law, survivors can inspire public sympathy and can be persuasive in testifying, the law can have sanctions built in that are powerful enough generally to deter the violative conduct in the future and by other people, the efforts to seek enforcement can be highly visible, the law can have supermajority support across the society, and single failure to enforce can be discounted, yet when failures to enforce are repeated enough to appear to be the norm questions about why have to go deeper.

One explanation may be that the real purpose of the law is something other than what people are told is the purpose.

This may be most visible with laws of private institutions that effectively overlap a society’s public laws. Even if the private position is not law, it can affect public law promulgated by other authorities. A case in point is the Roman Catholic Church’s demand for priestly celibacy and a complementary proscription on extramarital sex in the face of widepread acknowledgment of priestly sex with individuals in their proximity. While sexual harassment, abuse, and assault and adult sexual relationships in which the participants have conflicting expectations are no more likely within this particular faith community than outside of it, what draws public scrutiny to this faith community are the unusual characteristics that the Church assigns priests to locations without the location’s local managers being allowed to screen or choose their leaders and that the Church demands celibacy of most of its priests until their death, creating an apparent conflict between the reported sexual violation of the public laws and the duty of celibacy.

The purpose of celibacy is what explains the persistence of the stream of violations. Theological purposes are usually put forth. An official statement includes a secular reason, based on the desire of the Church to relocate a priest on short notice without concern for a wife or children of the priest, because there wouldn’t be any.

Another secular purpose, however, may underlie the theological and, indeed, may have driven the development of a theological purpose partly as a distractive cover beneficial to the Church. The Church and its member institutions reputedly own vast amounts of corporeal property that is relatively liquid, i.e., convertible into local media of exchange, or that, if illiquid, is relatively easy to put to private use. Often there are legal restrictions and some of those may be practicably insurmountable, but there may often be ways to engage in private conversion or use without being functionally denied. Statistically, this likely happens with some percentage of Church assets. Compared to the control some other national and multinational institutions maintain over assets, the Church’s controls may not be very tight. To the extent that priests cause that leakage of assets, it may be to their personal benefit. If so, because of the high respect for priests of the faith in many nations, prosecution by a secular government may be difficult and thus unlikely. And because the Church reportedly has had difficulty for decades recruiting priests, terminating a priest’s priesthood may be a difficult decision to make and thus unlikely.

Complicating this is the problem of priests raising children of their own. The parents in priestly families, like almost every parent, will want the best for their children and, like almost everyone, will often identify the best as expensive. That requires money.

Assets of the Church will face a new drain. While exceptionally heavy drains could lead to offending priests being told to leave their priesthoods or being prosecuted, unexceptional drains will be normal, and thus can hardly be sanctioned at all. Education, such as exhortation and a lot of yelling, will have some effect, mainly in reducing exceptional drains, but not enough to avert the new higher normalization, in which even non-parental priests and nuns will be encouraged, or even subtly required, to help themselves, too, in order to cover the takings by parental priests.

Along come cases of sexual abuse of children by priests. If they do not or cannot result in pregnancy and have little or no publicity and if the Church’s main concern is with nondiversion of corporeal assets and maintenance of public confidence in the Church’s priests, then that abuse would be of less concern than that which turns priests into fathers in the secular sense.

Someone who said he is an attorney said that cases of sexual abuse by priests are expensive to investigate. That suggests that defendants resist extensively, do so with the advice of attorneys, and can afford it. While almost anyone accused of committing sexual abuse is likely to spend a large amount of their resources to defend themself by asserting the falsity of the charge, in Church cases both the priest would want to defend himself and the Church, which may not separate the accused priest from the institution, would want to defend itself, raising the question of the Church’s motivation underpinning expensive self-defense and in not separating the priest from the institution when many a high-profile business or government agency would separate a similarly-accused executive from itself. If plaintiffs tend not to have the money to pay for those investigations, attorneys who take those cases are likely to depend on contingency fees. Contingency cases tend to be risky and tend to need time from the first contact by a potential plaintiff until the defendant pays. This encourages such an attorney to favor cases with large potential payoffs and shun cases with only small payoffs. A jury or judge that believes that the law was technically violated but that no harm was done might award only nominal damages, perhaps only a dollar or two. The plaintiff’s age and gender at the time or times of the alleged abuse are likely to be considered by the jury. Juries tend to be more offended by same-sex abuse than by opposite- or different-sex abuse and Roman Catholic priests are always male; therefore, juries tend to be less offended by abuse of girls or women than of boys or men. Juries, and there may be good legal ground for this, tend to be more offended by abuse of minors than of adults (absent mental disability) and therefore juries tend to be less offended by abuse of women or men than of girls or boys. Thus, lawyers are encouraged to focus on abuse of boys. The younger the child, the more offensive to most juries will be the abuse. In short, lawyers prefer, and likely can afford, cases on behalf of young boys and very young girls, generally preteen and younger. Few of them can get pregnant. Secrecy reportedly is usually demanded by the priests allegedly having sexual contact with them. Thus, the Church is less concerned about such priestly misconduct, the Church’s property and reputation being less affected. As a result, the Church declines to sanction the behavior and is more rewarded by denying there is misconduct. Doing both would virtually admit guilt on the part of the Church, so priests inclined to sexual abuse or relationships contrary to the implications of celibacy, a duty of chastity, and the spirit of the ban on extramarital sex may feel free to indulge their inclinations.

That leaves some survivors understandably conflicted because of the contradiction between what they were told during their time with the Church, which they may continue to believe with Church encouragement, and what they experienced, which they are discouraged from believing happened. That can leave some survivors with cognitive uncertainties and some understandably enraged.

It also leaves the law, its real purpose, and its supposed purpose unchanged, lying in wait for the next hesitancy or failure to enforce.