“The mistake was made in 2011”

The Munich canon lawyer Elmar Guthoff has studied essential parts of the Cologne report on dealing with abuse cases. In the interview he speaks among other things about the role of Cardinal Woelki and slowly grinding Roman mills.

Interviewer: How did you perceive the expert opinion? Is it a big, right and important step in the matter of clarification of sexualized violence in the archdiocese?

Prof. Dr. Dr. Elmar Guthoff (Professor of Canon Law, University of Munich): I have read the essential parts of the report. The report is well structured, it deals with the mandate. The expert opinion develops its own methodology and it is then well implemented. This is all justified in detail and also still explained.

The files received from the archdiocese are also described, with all their shortcomings. Ambiguities are then addressed in hearings of then and now diocesan leaders. But these ambiguities are not always cleared up.

And then cases are presented, all of them that were in the files. This is at the heart of the opinion. Detailed here are the 24 cases with clear violations. The assessments are purely legal and well-founded. There are no moral condemnations and everything makes a very serious impression.

The assessment is not perfect, but it is important to remember that it was prepared in less than five months and is almost 900 pages long.

And to come back to your question – the expert opinion is a big, right and important step in the matter of clarification of sexualized violence in the Archdiocese of Cologne.

Interviewer: The expert opinion is as mentioned a purely legal expert opinion. Let's look at the canon law perspective. Is it a necessary, perhaps even inevitable step under church law to relieve Auxiliary Bishop Schwaderlapp of his duties?? And what does that actually mean?

Guthoff: Auxiliary Bishop Schwaderlapp has been temporarily relieved of his duties by Cardinal Woelki with immediate effect. One could say he was given leave of absence. He was not relieved of his duties and the leave of absence was not permanent, but provisional. So, theoretically, he could eventually return to his old duties. But that must be decided by the archbishop in due time.

Auxiliary bishop Schwaderlapp has the function of episcopal vicar in the archdiocese of Cologne. A bishop vicar is something similar to a vicar general only related to a specific area. Monsignor Schwaderlapp remains auxiliary bishop, but Cardinal Woelki has relieved this auxiliary bishop of his duties in the archdiocese of Cologne. You could also say he put it into temporary retirement. He has given him the tasks and he can also take them away from him again.

The expert report has accused Auxiliary Bishop Schwaderlapp of eight breaches of duty in dealing with reports of sexual abuse. And he was not only accused of these breaches of duty, they were also explained and justified in detail in the expert opinion.

But they have asked me about the appropriateness of this step. Cardinal Woelki has announced decisions, Auxiliary Bishop Schwaderlapp has been proven to have violated his duties. The cardinal has acted consistently and within the limits of his legal possibilities. As I said, that was consistent, but not inevitable. Nobody forced Cardinal Woelki to do it.

Legally this step would not have been mandatory, but it is also about the question of appropriateness. Cardinal Woelki has decided that it was appropriate to relieve Auxiliary Bishop Schwaderlapp of his duties. Everyone is allowed to have his own opinion on this. I keep my personal opinion out of interviews, because I give interviews only on the background of my professional competence.

Interviewer: In concrete terms, this means that Auxiliary Bishop Schwaderlapp can for the time being no longer perform confirmations and can no longer go on visitation trips. Now auxiliary bishop Schwaderlapp himself has also offered his resignation to Rome. Can a bishop be released from his episcopal office at all?? Or does a bishop not always remain a bishop, just as a priest always remains a priest??

Guthoff: I have just spoken about the functions that Auxiliary Bishop Schwaderlapp has in the Archdiocese of Cologne. Beyond that he is bishop. More precisely, he is an auxiliary bishop, and the technical term for this is auxiliary bishop. The Pope has appointed him auxiliary bishop. And as one reads, Auxiliary Bishop Schwaderlapp actually offered his resignation to the Pope. But this refers only to the office of the auxiliary bishop. The pope can now accept the resignation or refuse to accept it. Let us wait and see how the Pope decides.

But even if the Pope accepts the resignation, Monsignor Schwaderlapp remains a bishop. He would then be a bishop without office and function. He remains a bishop and will not be demoted to the priesthood. Ultimately, he would have the legal status of an auxiliary bishop whose request for resignation was accepted by the pope for reasons of age.

Interviewer: Let us now talk about the role that the Archbishop of Cologne, Cardinal Woelki, plays in this expert opinion. The law firm also says, citing renowned canon lawyers with whom it has worked, that the cardinal has committed no misconduct under canon law. How do you judge that after a first study of this extensive expert opinion??

Guthoff: Let me first discuss the canon lawyers involved in the preparation of the expert opinion. Ecclesiastical criminal law is not one of the easiest areas of canon law and therefore it was important to involve canon lawyers with regard to the preparation of the expert report. The experts have decided in favor of Helmut Pree and Stefan Korta. Mr. Pree is a retired canon law professor who is probably one of the most important luminaries in canon law. The name Pree vouches for quality and seriousness. In the past years, Mr. Korta has earned a good reputation as a lawyer in the field of canon law with serious work.

The opinion contains about 60 pages on ecclesiastical criminal law as such. And these explanations are of high quality. This has textbook character. Also in the evaluation of the 24 cases with regard to breaches of duty by diocesan officials, one senses the expertise in canon law.

But now let's move on to the 24 cases in which the expert report finds breaches of duty by diocesan officials. I am concerned with some cases that fell within Cardinal Meisner's term of office. Some of these cases were then presented to Cardinal Woelki again after he took office in Cologne. He arranged for them to be settled properly, with no breaches of duty.

For the time Cardinal Woelki has been active as Archbishop of Cologne, there is nothing in the expert opinion that could be charged against him personally as a breach of duty. The result of the expert opinion with regard to Cardinal Woelki then also turns out accordingly. Who reads the expert opinion, will easily understand this.

Interviewer: But there is now the so-called case O., which is discussed everywhere. In 2015, Cardinal Woelki allegedly failed to report a suspected case of serious sexual abuse against a Dusseldorf priest to the Vatican. Didn't he thereby violate the "normae de gravoribus delictis" in force at that time, in which it says in article 16: "Whenever the Ordinary or Hierarch receives at least probable news of a serious crime, he must, after conducting a preliminary investigation, inform Rome about it.".

Guthoff: I think, now a preliminary remark is called for. I do not know Cardinal Woelki. I never met him. I am not in a dependent relationship with him. I am an independent scientist who, on the basis of the information available to him, will answer your questions by applying his expertise.

This case O. Is treated as case 5 in the expert opinion. This case began in 2010. In 2011, the information that the person concerned was a victim of sexual violence in about 1977 becomes more concrete. This is a terrible story. But the person concerned did not want to make any further statements. But that would have been important. But in the files it is stated that he did not want to do this. The question is whether to inquire at that time. That was done. The person concerned has in fact twice said that he does not want to say anything. Should have probed further in 2011? I do not know. Or should his will have been accepted?

Please remember, the man was still severely traumatized by the experiences of sexual abuse. But in 2011 one could have called pastor O. nor could have questioned. He was already in failing health, but it would probably still have been possible at the time. And that has not been done. There was an omission here. But it was 2011 and Mr. Woelki was an auxiliary bishop and he was not responsible for handling the sexual abuse cases. The person concerned could not name any witnesses to the sexual abuse.

But the talk is of a janitor who almost caught them. What do you mean "almost" caught? "Almost caught" means "not caught". Thus this janitor would probably not have been a witness to the crime.

Now I come to 2015. In 2015 Cardinal Woelki then had the file presented to him. For three years there has been no contact with the person concerned. And he had twice stated that he did not want to say anything. Father O. Was not fit to be questioned in 2015. This was supported by medical certificates and so it is then also stated in the interviews. And as said, he has no witnesses to the sexual abuse. In 2015, the available information was sufficient for criminal proceedings against Reverend O. not from.

A preliminary investigation would not have brought any new findings according to the situation of the files of 2015. There was no danger of a repetition of the crime in 2015. And on this background, Cardinal Woelki decided not to pursue the matter further. Did not initiate a preliminary investigation. In 2015, such a preliminary investigation would not have yielded any new findings with regard to the perpetrator.

The expert opinion concludes that in 2015 there was no obligation for Cardinal Woelki to make a report to the Congregation for the Doctrine of the Faith. The norm you quoted requires a report after a preliminary investigation has been conducted. But there was no preliminary investigation done by Cardinal Woelki. That is not legally objectionable. Cardinal Woelki cannot be accused of any breach of duty at this point.

If any breach of duty can be found in the handling of this case, it was only in 2011, but not by the then auxiliary bishop Woelki. At the beginning of the year 2021, one read in the media that the person concerned was certainly ready for talks. I don't even want to pursue the question of the source of these statements. That would be speculation. Something else is important. These are statements from the year 2021. Cardinal Woelki, however, decided in 2015.

He could only decide in 2015 on the basis of the files at that time. And it said that the accused did not want to testify. Subsequent media reports cannot be made the basis of a decision from six years ago.

Interviewer: But now there is Christa Pesch, the commissioner for those affected, who says that Cardinal Woelki did not contact her in 2015 and also did not speak with those affected. In other words, in 2015, the victims were not even given a chance to speak, although they could have contributed to the processing and clarification of the case, according to the representative of the victims, who was in charge at the time.

Wouldn't that have been necessary to actually initiate a preliminary investigation?? It is not only about the repeat offender and the punishment of the meanwhile already seriously ill alleged perpetrator, but it is also about the affected persons, that the truth comes to light, that it is cleared up.

Guthoff: We must distinguish. I have also read this statement of Mrs. Pesch from 2021. In the files, which Cardinal Woelki had in 2015, there is nothing about it. Accordingly, there is nothing about it in the files in 2011. But the time to probe would have been 2011, not 2015. The decision was made on the basis of the files. 2011 I bring criticism, right. 2015 not. And information, I say again now, from the year 2021 cannot be used as a yardstick for a decision from 2015.

Interviewer: Now there has been a justified suspicion, otherwise the Archdiocese of Cologne would not have paid a considerable financial compensation. Is this suspicion not necessarily sufficient to then also be reported to Rome? Irrespective of the illness of the perpetrator – which you have already mentioned – or the statute of limitations, the wording of the order in the standard from Rome does not say that a suspicion of a crime must be reported without exception?

Guthoff: We must ame that the person concerned was severely sexually abused as a child. But we still have to distinguish two things: First, there is the recognition of the victim's suffering. And there was the justified suspicion, for example with regard to the year 1977. The victim's account was found credible with regard to the severe sexual abuse suffered, and for that he was paid a compensationmme.

As if money could make up for the consequences of sexual abuse. You can't get rid of these consequences for the rest of your life. But the payment of a sum is a symbolic act of recognition. And it is good that there are such payments, even if they can never make up for the suffering suffered.

The ecclesiastical criminal proceedings, in which the conviction of the perpetrator is at stake, are to be distinguished from this. In criminal proceedings, however, one needs certainty with regard to the perpetrator, and this did not exist. After all, it had not been proven that the sexual abuse of pastor O. was committed. Yes, there were indications in this direction. But there were also uncertainties.

To clarify the ambiguities, a renewed questioning of the victim would have been important. Possibly the suspicion of the perpetration would have been strengthened thereby. Possibly not. But perhaps another perpetrator would have become a suspect. We do not know because there were no further interviews. Above all, the accused should have been questioned. But that was no longer possible in 2015. Witnesses would also have been helpful, but they were not available.

Criminal proceedings cannot be conducted in every case. This does not constitute a denial of the suffering of the person concerned. This is not an acquittal for the defendant. But if the evidence is not sufficient, there can be no conviction. And if you know in advance that you can't get evidence sufficient for a conviction, then you don't have to conduct a preliminary investigation either.

This brings us to the question of the applicable norm that you referred to in your question. Which norm do you mean? There is a 2020 recommendation to report any suspicious case to the Congregation for the Doctrine of the Faith. But Cardinal Woelki decided in 2015. There was the recommendation of 2020 not yet. Canon law in 2015 contained no legally clear obligation to report a suspected case to the Congregation for the Doctrine of the Faith if there was no preliminary investigation. But once again: The mistake was made in 2011, not in 2015, and the mistake was not made by Cardinal Woelki.

Interviewer: Now there is no official communication from Rome that the Archbishop of Cologne, Cardinal Woelki, has done everything right from the point of view of canon law. Something like this would probably also be rather unusual. However, it is amed that Rome has acquitted him under canon law. How does it actually go on now? Will Rome follow the opinion of the Gercke law firm and the canon law experts in the opinion and not initiate an investigation against Cardinal Woelki?

Guthoff: A Roman certificate that one has done everything right in terms of canon law, unfortunately, does not exist. My students would like to have such certificates. Acquitted in court proceedings. But Cardinal Woelki was not under indictment in Rome. And what exactly is meant by Rome?

Cardinal Woelki has been called upon to review his conduct in the case of Priest O. Turned to the Pope at the end of 2020. The investigation you speak of is therefore already underway. The Pope has not dealt with it himself, and this was not to be expected. In the case of bishops, a referral to the Congregation for Bishops is obvious, which then cooperates with the Congregation for the Doctrine of the Faith if necessary. It could be gathered from the media that the Congregation for the Doctrine of the Faith, with regard to the handling of the case of Father O. Cardinal Woelki was not able to establish a breach of duty.

But the Roman mills sometimes grind slowly. I have not yet read anything about a decision of the Congregation for the Bishops. The Congregation for Bishops will not decide on the basis of the expert opinion. Decisions are also made here against the background of the decision of Cardinal Woelki 2015.

In addition, there is the aforementioned vote of the Congregation for the Doctrine of the Faith. It is possible that the Congregation for Bishops will then submit its decision to the Pope for approval. In the matter of Rev. O. no further steps are to be expected on the background of the available documents by the Holy See for Cardinal Woelki. I repeat again: he has done nothing wrong in 2015, legally speaking. The mistake was made in 2011, but not by then Auxiliary Bishop Woelki.

Interviewer: To what extent is canon law a right with "conditional reliability"?. Is it not the case that canon law is always in the hands of the user of the law, namely the church, and not in the hands of an independent authority, and is thus also only conditionally legally reliable, i.e. very elastic? Keyword separation of powers.

Guthoff: This is a question that should concern canon law at all times. One can say quite a lot about this. Ignorance of the law is never good. In Cologne it was shown that even some diocesan officials did not have the necessary knowledge of canon law.

The ecclesiastical criminal law is already extremely confusing. But with this alone one can probably not explain this ignorance of the law. Elsewhere it will be no better than in Cologne. In the past it was certainly often the case that it was above all the functionaries who had knowledge of canon law and not the ordinary faithful. And that was not good. Because church law must not degenerate into an instrument of domination. Law is always in the service of people. Law is for everyone. Law should be a help to people. Law is not just for disciplining.

We all have subjective rights, and the law should help us to enforce those rights. Everyone must be able to come into their own in the church. Everyone, not just the strong, not just the one who has the majority behind them. Everyone must be able to have his rights in the church. Everyone, i.e. you, me, the readers of this interview and also Cardinal Woelki.

The interview was conducted by Johannes Schroer.

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