In the effort to tackle clerical sexual abuse, one step slotted for adoption by the U.S. bishops in their fall meeting was a new code of conduct for bishops, which would specifically address the issue of accountability not just for the crime but the cover-up.

Yet some experts dispute the need for a new code, saying the guidelines written out for all clergy in the 2002 Dallas Charter for the Protection of Children and Young People are valid for bishops too, if they are applied.

As the Baltimore meeting opened, the bishops were told by the Vatican to hold off on taking any action until after Pope Francis’s Feb. 21-24 summit on the abuse crisis with the heads of all bishops’ conferences, giving them time to take a new look on whether they actually need such a code.

Part of the reason the Vatican put on the brakes is reportedly due to several issues with canon law, with some critics feeling that the proposed new code was overly generic, leaving the specifics of what bishops would be accountable for unclear.

In an interview with Crux, Teresa Kettelkamp, a former head of the U.S. bishops’ Child Protection Office and a member of the Vatican’s Pontifical Commission for the Protection of Minors, said the charter is “a great document” for priests in terms of what is expected of them in abuse cases.

“I understand why the bishops did not put themselves under the charter, but I think they can also hold themselves to the same standards as the charter. I don’t know why they could not,” she said, and pointing to the proposed new episcopal code of conduct, said “we don’t need a separate code just for the bishops.”

“The codes of conduct within the diocese are more than adequate to cover the ministerial behaviors and boundaries of the bishops. They’re just good codes of conduct…and I think they are adequate for the bishops,” though there might be canonical difficulties, she said.

Father Fernando Puig, vice dean of the Canon Law faculty at Rome’s Opus Dei-run Pontifical University of the Holy Cross, sympathized with Kettelkamp’s position, but pointed to canonical holes that would have to be filled if the document were to be applied to bishops.

In comments to Crux, Puig said the code of conduct is more or less already spelled out in the 2002 charter. “The code of conduct already exists, we know what the practices are to minimize abuse and the practices that augment the danger,” he said, but cautioned that the entire charter “revolves around the bishop.”

In the charter, it is “taken for granted that the one who did wrong is a priest or a deacon, but not a bishop,” he said, noting that according to the norms, the one who investigates a priest or deacon in this case is the bishop. But if the bishop must be investigated, “Who is in charge of this process? The nuncio? The bishop from the neighboring diocese? The Congregation for the Doctrine of the Faith? The pope himself?”

Quoting a 2002 Episcopal Commitment that was published shortly after the 2002 charter, Puig noted how the bishops said they would “apply the requirements of the charter … to ourselves.” Although this is a good idea in theory, “How are they applied to a bishop?”

“It’s not clear, it’s not easy, because the norms are thought of for a case in which the bishop needs to control a priest or a deacon. But when the problem is the bishop who depends on the pope, this [only] works to a certain point.”

Church law stipulates that the pope is the only one who can adjudicate when a bishop is charged with misconduct, and he does this through three Vatican departments: The Congregation for Bishops, the Congregation for the Evangelization of Peoples and the Secretariat of State, which together oversee the world’s dioceses.

Puig said he believes the norms in the Dallas charter can be adapted to include measures for bishops’ accountability, but for this to be done, “it must be decided who’s the authority that guides these questions.”

Speaking to Crux, Monsignor Stephen Rossetti, a Washington-based psychologist and abuse expert at Catholic University of America, cited recent cases such as the Chilean abuse scandals that have gone to the Vatican, and rather than receiving a swift judgement, “the original investigations failed.”

This situation points to “a glaring problem,” he said, noting that for the most part, neither the Vatican nor local bishops have expertise in dealing with misconduct or negligence cases.

An expert adviser to the ad hoc Committee on Sexual Abuse that drafted the 2002 charter, Rossetti said experts need to step in and start prosecuting the continuous stack of incoming cases.

Similarly, Puig said it can often be difficult to prove negligence, because sexual abuse is a concrete action, whereas the line between diligent versus negligent behavior, and when the negligence began, is still obscure.

“There is no jurisprudence in the Church that says what negligence is, there are no precedents, specific cases, there are no precedents, so we are in front of something new,” he said, adding that in his view, the legal meaning of negligence must either be clarified or there has to be a case of dismissal for negligence that can be studied and evaluated.

Puig pointed to Francis’s 2018 motu proprio, “As a Loving Mother,” a legal text which established, among other things, that negligence resulting in serious harm was enough to remove a bishop from office.

“It’s an instrument which, according to me, still has not been applied,” Puig said. Though the pope has accepted numerous episcopal resignations in Chile, the reasons have not been made public, so they can’t serve as a formal case study, he said.

Rossetti praised the 2002 charter as “the most extensive and effective child protection program in the world,” adding that regular mandatory diocesan audits are part of holding bishops accountable.

“The charter is working, and the bishops are holding themselves accountable,” he said. “I have no doubt there are individual cases where bishops have failed to deal with cases well,” he said, “but it is inaccurate to say that there are dozens of bishops who have been negligent since 2002.”

Rossetti said that in his view, “the civil justice system is not doing its job” due to the complexity of cases and statutes of limitations, among other things, meaning “they are able to prosecute very few cases.”

Crimes of abuse ought to be dealt with in civil courts, he said, but cases reported by the Church “are almost always not prosecuted,” meaning the Church itself must investigate. Many dioceses lack the resources, so they also get backlogged.

Also on the table for discussion at Baltimore until the Vatican stepped in was the establishment of an independent commission tasked with investigating bishops who violated anti-abuse standards. Rossetti voiced his support, and said the Vatican ought to establish a similar, central office that responds “compassionately but also effectively.”

However, if a national body were created in the U.S., there is still the problem of who they would answer to.

Puig said the lay committee would work, but “only if they are instruments of the pope, not autonomous instruments, instruments that are not accountable,” since the pope is the only one who can make decisions on bishops.

Even if metropolitan bishops were to handle cases involving misconduct of pastors leading the suffragan dioceses, “this would be a novelty,” he said. He quoted canon 436 which says the task of a metropolitan is “in a way that faith and ecclesiastical discipline are observed, carefully, to inform the Roman Pontiff of abuses,” though the canon does not deal specifically with sexual abuse.