Restorative Justice and Clergy Abuse

Several people sit in chairs in a "healing circle" discussing instances of abuse by clergy.My trip to Rome in spring 2016 triggered a return visit this past November, when I again taught a segment of a certificate program addressing the Catholic sex abuse scandal.

The Pontifical Gregorian University’s Center for Child Protection offers the four-month graduate certificate program to religious sisters, brothers and priests from around the world who are assigned to head up Protection for Children offices. The program goals: to teach how to deal with past abuse and prevent further incidents.

I spent a full day with 19 students representing four continents. While there were some language barriers to overcome, the group was able to comprehend the power of Restorative Justice (“RJ) presented in different contexts — particularly its value regarding sexual abuse within the Church.

I explained how in past clergy abuse cases, it is not often possible to bring victims and offenders face-to-face in dialogue because many offenders are in denial, deceased or too old, with limited memory. We, therefore, explored the hope that RJ offers in addressing “secondary victimization” by members of the Church’s hierarchy.

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Restorative Justice and the Language of Hope

Professor Janine Geske standing at a podium with an open laptop as she addresses an audience in Germany.Regardless of one’s language, Restorative Justice (“RJ”) translates as hope. That was evident from my experience in Germany last October at a conference hosted by the University of Göttingen, which was titled “Victim Orientation in the Criminal Justice System: Practitioners’ Perspectives.”

I was invited to be one of the keynote presenters at the two-day conference. My presentation to the attendees — most of whom were criminal justice professionals including probation and parole agents — addressed how the United States actively uses RJ processes within the criminal justice system. Oh, and my presentation was the only one in English, with real-time translation provided in German through the marvels of headset technology.

I have become used to speaking internationally, so the language difference is not a daunting barrier for me, especially given the immediacy of RJ as an understandable concept and successful tool. I described the process and impact of victim/offender dialogue sessions in cases of violent crime and the value of restorative circles, particularly for schools and community organizations. Although Europe does not have much experience in using circles, I could tell that the conference attendees were eager to hear more about that process and about victim/offender dialogues in the context of juvenile RJ. As usual, most of my explanations were told through the stories of actual cases. I know that by describing the poignant experiences of real victims and offenders, the audience will better understand the transformational experience of an RJ process.

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Completing the Revolution

Painting depicting a Revolutionary War scene of a young drummer boy, an older man, and another soldier playing the fife as all three march across a battle fleld. Prof. David Strifling rightly draws our attention to what he terms “the quiet revolution” taking place in Wisconsin administrative law.  As deputy legal counsel for the governor several years ago, I was privileged to be a foot soldier in that revolution, which sought to reinvigorate core constitutional principles around the separation of powers, government transparency, and executive responsibility.  Thus far, the revolution has primarily been fought in the legislature (primarily through 2011 Act 21 and 2017 Act 57) and the executive branch (especially the Governor’s Executive Order 50 and the Attorney General’s opinion 01-16).

The Wisconsin Supreme Court will soon have its opportunity to join and accelerate the revolution when it hears and decides Tetra Tech v. DOR (Court of Appeals decision) and LIRC v. DWD (Court of Appeals decision) (scheduled for argument Friday, December 1).  These cases both present core questions of agency deference, institutional competence, and judicial power – in short, the opportunity for the Court to supplant its current doctrine with a new approach.  As evidence of the sea change that these cases could mark, consider that the Wisconsin Institute for Law & Liberty, Wisconsin Manufacturers & Commerce (leading 10 other business groups), and the Wisconsin Utilities Association all have filed amicus briefs in Tetra Tech making thoughtful arguments as to the value and validity of agency deference.

I have recently posted to SSRN a paper that delves into the past and future of deference in Wisconsin’s jurisprudence.  Originally intended to complete my trilogy of Marquette Law Review articles on interpretation of the Wisconsin Constitution and Wisconsin statutes, the timeliness of these cases has instead prompted a shorter essay which tackles the important questions raised in Tetra Tech with an eye toward the fundamental principles which should guide the Court’s decision.  Ultimately I conclude that the current scheme conflicts with constitutional first principles, the statutes, and common sense.  I believe the Court should deep-six its doctrine and start anew with the standards set forth in Wisconsin’s administrative procedures act (Ch. 227).  Please read the essay to see why.  And we’ll all be watching closely as these cases move forward.  Just because the revolution won’t be televised (I’ve never seen an episode of Law & Order or Suits concerning administrative law) doesn’t mean it won’t have significant implications for law in our state.

Daniel Suhr is a 2008 graduate of the Marquette University Law School.

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