Our Church has fortunately become increasingly alive to the need for robust professional standards and the many ways in which relationships of trust and power can be abused. However, as the canonical term ‘vulnerable person’ suggests, disabled people (especially those with intellectual disability) as well as children are currently regarded primarily as objects of protection. This has been driven by an understandable desire to protect those who cannot uphold their own rights. Unfortunately, it has the potential to exacerbate the power imbalance which we disabled people often experience in a Church whose instincts are often already hierarchical and where disabled people have only recently become recognised as members of Christ’s Church rather than objects of its care.
I shall suggest that the problem with this model is that it does not recognise that all of us will be or have been, at some stage in our lives, in need of protection from those who are in a position to exploit us. None of us, adult or child, is an object of care but each of us is rather a collaborator in the vineyard of the Lord to the limits of our capacities, one in and through whom God is present in the world.1 What has been missing from the discussion has therefore been an understanding of protective standards as universally applicable in a Church where each of us is a firstborn child of God (Heb 12:23). Finally, I shall suggest some practical implications of this paradigm shift.
Bringing the exiles home
As Pope Francis famously commented, ‘Many persons with disabilities “feel that they exist without belonging and without participating”. Much still prevents them from being fully enfranchised.’
The need to bring home these exiles can be seen to stand in some tension with the need for protection where they are unable to make or express decisions unaided, whether for reasons of physical or mental disability. How is one to reconcile the recognition of vulnerability with the need to see us as truly ‘us’ not ‘them’ — as co-responsible labourers rather than as objects of care?
Canonical contradictions
One helpful starting point might be the interesting divergence between two recent pieces of canonical legislation on the prohibition of sexual offences against adults deemed in need of special protection.
The new Book VI of the Code of Canon Law which deals with canonical offences expands the delict of sexual offences against minors to a ‘person who habitually has an imperfect use of reason or with one to whom the law recognises equal protection’.
It is clear that the intention here is to protect those who (due to some permanent mental incapacity) are not recognised as being able to act on their own behalf. This stands in a long tradition, stretching back to pre-Classical Roman Law, that those in need of protection due to diminished mental capacity, must be represented by others.
In contrast, however, the updated motu proprio Vos estis lux mundi defines ‘vulnerable person’ as follows: ‘any person in a state of infirmity, physical or mental deficiency, or deprivation of personal liberty which, in fact, even occasionally, limits their ability to understand or to want or otherwise resist the offence’.
While such a contradiction in legislative provisions obviously causes difficulties in applying the law, that is not the issue I wish to dwell on here. Instead, I would like to explore the definition in Vos estis and suggest that it is one which is much more appropriate in a safeguarding context as it allows disabled people to be protected without turning them into powerless wards of others.
‘When I am ministering as a priest or a lawyer, for example, it is I who am the powerful person in the relationship. By contrast, when I am being picked up off the floor after an epileptic seizure or reliant on someone else to transport me because I cannot drive, then I am most definitely the one in need of protection.’
From incapacity to power imbalance
At first sight, the Vos estis definition looks similar to that in the Code by focusing on inability. Indeed, while ‘deficiency’ is arguably a word laden with judgment (few of us with disabilities would see ourselves as deficient!), the terms ‘infirmity’ and ‘deprivation of personal liberty’ are much broader.
Aside from youth or physical or mental impairment, many people might suffer from ‘infirmity’ or ‘deprivation of liberty’ for a variety of reasons — not all of which are physical by any means. Such terms might well be used, for example, to describe the recently widowed spouse whose depression makes her more vulnerable to sexual exploitation or the immigrant whose liberty is restricted by lack of rights or knowledge of her host country’s language.
In addition, unlike the definition in the Code, the Vos estis definition explicitly provides that the issue may be short-lived or occasional rather than permanent. The widow may integrate her experiences and find her grief less incapacitating or the immigrant may gain citizenship and become more assured in her new country.
As Vos estis itself notes, what is at issue in determining whether one is ‘vulnerable’ is one’s ability to ‘understand, to want or to resist the offence’. In short, what it seeks to address is a power imbalance, a situation where — for any number of reasons — the victim is rendered less able to prevent the offence.
Indeed, the question of power imbalance is central to many understandings of safeguarding. My own Province of the Society of Jesus, for example, provides in its preamble to its Code of Conduct that ‘all people can be at risk at times and for various reasons. It is upon us all to be mindful of where Power Imbalances lie and that people can be at risk.’ A power imbalance is, in turn defined as ‘a situation where one person or group has a significant advantage over another that enables them to coerce or mistreat another for their own ends’.
A similar concept is also found in Codes of Conduct in such diverse fields as medicine, the civil service, and youth work.
Similarly, most, if not all, legal systems have institutions discouraging the exploitation of the (temporary or permanent) vulnerability of another, whether this be by way of setting aside contracts concluded under duress or fraud or criminalising such conduct. Canon law, of course, is no exception.
Disability and power imbalance
The importance of reframing the issue as one of a power imbalance cannot be overstated. This is because it takes the question of safeguarding out of the realm of ‘us’ protecting ‘them’. Neither safeguarding nor disability are matters which one group can decide for another. Because all belong to one Church, we are each obliged to protect each other to the best of our ability, to avoid mutual exploitation and live as a people of love, as brothers and sisters in Christ (‘Fratelli tutti’, as Pope Francis, quoting another Francis, said).
Accordingly, some of us will be in constant need of protection, others will not. Nevertheless, it is a self-evident truth that no-one can truthfully say that they will never be on the weaker end of a power relationship. All of us were children once and many of us will age.
The limits imposed by disability and impairment will likewise create power imbalances in some areas and not others. When I am ministering as a priest or a lawyer, for example, it is I who am the powerful person in the relationship. By contrast, when I am being picked up off the floor after an epileptic seizure or reliant on someone else to transport me because I cannot drive, then I am most definitely the one in need of protection.
We disabled people have known of these contradictions for a long time. Mutual aid among disabled people was a well-established phenomenon long before Covid-19 reared its spiky head, although it expanded hugely then, especially as most governments made it clear that we were well towards the bottom of their priority lists. Those who could drive, for example, provided transport to those who could not. In turn, many who were assisted in this way could, for example, provide the drivers with food and research skills. As those of us who submitted The Church is Our Home to the consultation for the Synod on Synodality noted:
The active presence of people with disabilities can help the Church overcome the efficiency- based and marginalizing mentality of today's society. It is what Pope Francis recently called a true ‘magisterium of fragility’. Seeing the fragility of one's brother or sister leads to reflecting upon one' s own and on the fact that we all — some more, some less — need the help of others. Contact with fragility strengthens one's faith, because it is precisely in weakness that God shows His love and mercy. Our presence may help transform the actual situations in which we live, making them more human and more welcoming. Without vulnerability, without limits, without obstacles to overcome, there would be no true humanity. In particular, after the Covid-19 pandemic disproportionately took its toll on those with disabilities, the Church has much to learn from the mutual help that communities of people with disabilities have offered to one another.
Once again, we are reminded that disability itself is a social phenomenon. What excludes people from society is not impairment as such, but rather society’s denial of access to people with given impairments. It follows that the power imbalances which attend disability represent concrete decisions to exclude (or, more realistically, not to include), whether it be by denying physical or sacramental access or by preventing people from gaining the assistance they need to make decisions. These may not be of the same order of exploitation as sexual abuse but nevertheless legitimise disability as a ground for excluding people from society and a meaningful sense of belonging. Given that we, as Church, proclaim that our very identity as community is sacramental, we cannot afford to exclude any of our members.
In short, the road to authentic safeguarding lies in belonging. While the older canonical model of disabled people as wards certainly provides a measure of protection from sexual and other abuses, it assumes that we are foreign bodies, never really included into the Church in which we are baptised.
By contrast, more effective protection lies in a model of safeguarding, suggested by Vos estis, which recognises all of us as brothers and sisters — all both sometimes in need of protection and sometimes able to provide it. Such a model recognises that there will be times and areas where anyone’s limits mean that they are vulnerable to exploitation and abuse but also that they, too, might be on the other side of a power imbalance.
Indeed, such a model not only looks at the actual circumstances in which protection is required (and therefore allows that protection to be better tailored) but also allows the acknowledgment of a broader reality of disability as a social phenomenon which prevents those of us with impairments from being fully recognised as belonging to a Church of Us, not ‘us’ and ‘them’.
Fr Justin Glyn SJ, General Counsel of the Australian Province, was appointed by Pope Francis as consultor to the Dicastery of Laity, Family and Life.
Main image: (Getty images)