The Competing Claims of Canon and Civil Law to Accessing Diocesan Secret Archives

Stephen Braunlich, Catholic University of America

Abstract

The fallout from Catholic clerics’ sexual abuse of children has continued, despite the best efforts of bishops to respond effectively, and has led to ongoing criminal and civil actions. Central to the protracted fights have been questions of compelled disclosure of diocesan secret archives: What records did the Church keep? Can they be discovered? Does the First Amendment provide protection? What is the role of privilege? Does the public have a right to everyman’s evidence, or is some protected because it comes from a religious organization? I ultimately conclude that while the rules of discovery and evidence do not protect the Catholic dioceses from compelled disclosure of secret archives, the First Amendment may, depending on the federal circuit within which the diocese sits.

The first step to answering these questions is to fully understand each side’s claims. I begin by reviewing the canon law applicable to the abuse crisis and the role of canon law in Catholicism’s history, tradition, and teaching. For the first time the extensive licentiate and doctoral theses of America’s only canon law school are tapped to understand the Church’s position. The focus then turns to the rules of discovery and evidence that apply to accessing diocesan secret archives. The conclusion is that the rules of discovery and evidence do not offer protection to the diocesan secret archives. However, I then break new ground by considering the federal courts of appeals’ post-Smith splits in free exercise jurisprudence. This reveals that access to diocesan secret archives should be protected in some circuits. The article’s conclusion raises other areas for further research, and notes potential changes coming in canon law that would alter how dioceses allow access to their archives.