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EXECUTIVE SUMMARY part 2
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SIGNIFICANT CANONICAL CONSIDERATIONS
Because of the nature of canon law, as opposed to Anglo-American Common
law, there is a perceieved closer relationship between the proposed
canon law questions and the following discussion of canonical issues.
This discussion is not an attempt to provide definitive answers to
these important canonical issues. This information on the canonical
dimensions of these problems provides a general context within which
to work with each specific case.
CANONICAL ISSUES
1. Investigation of Complaints
When a bishop receives a complaint that a priest or deacon has engaged
in sexual misconduct with a minor child, this complaint should be
discreetly investigated at once.
a. The obligation rests with the bishop himself and should not be
delegated to another person. This bishop may see fit to involve trusted
advisors in the process, but he should supervise and directly participate
in the investigation himself. (A private response from the prefect
of the Congregation for the Clergy in 1983 referred to the bishop
s obligation to directly involve himself in disputes regarding priests.
The response stated that this duty is not to be delegated.)
b. The Code of Canon law provides a basis for an investigation in
chapter I, "The Preliminary Investigation," of Book VII, Part IV,
"The Penal Process." These canons (cc. 1717 1719) offer wide discretion
to the bishop in the investigation of complaints. The second chapter,
"The Course of the Process," (cc. 1720-1728) outlines the manner of
proceeding if the preliminary investigation shows that there is probability
that a canonical delict was committed.
c. If the bishop follows the basic procedures outlined in cc. 1717
1719 he need not move to the next phase, a trial. He may simply want
to go on record indicating that the canons provide for a process whereby
complaints may be investigated. Such a course of action could be advantageous
if the civil courts require proof of responsible action by the Church
authorities in light of complaints. Following the canons to some extent
shows two things: the church has a mechanism for protection of the
rights of the faithful (cf. canon 221).
d. The notary: canon law allows lay persons and non-ordained to hold
the office of ecclesiastical notary. yet canon 483, 2 stipulates that
in any case which couldInvolve the reputation of a priest, the notary
must be a priest. Consequently the person keeping the record of a
preliminary investigation or indeed any process, Including the penal
process, involving these cases must be a priest.
2. Canonical Delicts
For those bound to perpetual continence and in sacred orders, a number
of canonical delicts (crimes) may be committed in the course of sexual
misconduct. Canon 277 refers to the cleric s obligation of perfect
continence as well as his obligation to act and relate prudently to
persons.
-canon 285, 1: the obligation to shun anything that is unbecoming
the clerical state.
-canon 1395: this canon refers to offenses against the sixth
commandment by clerics. It deals with concubinage and sexual concourse
with women and related scandal In the first paragraph and with other
related offenses, including those involving force, threats and offenses
with children. The canon sets no specific penalties but merely refers
to "just penalties not excluding dis missal from the clerical state."
canon 1387: solicitation in the confessional. A priest who solicits
in the confessional or under the pretext of confession for a sexual
act is to be punished with penalties up to and including dismissal
from the clerical state.
canon 1378: this canon refers to canon 977 (the absolution of a partner
in a sexual sin is invalid except in case of danger of death). A priest
who commits this delict is automatically excommunicated and the absolution
is reserved to the Holy See.
-canon 1389: this canon deals with the general abuse of ecclesiastical
office or power. The crime is to be punished in relation to its severity.
Clerics who have sexual concourse with women, men or children are
obviously liable to canonical penalties since such actions constitute
the matter for canonical crimes. There are other issues related to
these crimes however and the fact of commission of a crime should
not be isolated as the major issue.
The canonical legislation on sexual misconduct indicates that such
actions are contrary to the cleric s essential obligations. The law
makes no distinction between performance of such acts while carrying
out ecclesiastical duties and those perpetrated at other times. These
actions are contrary to the cleric s very way of life and consequently
he is obliged at all times.
3. Canonical Penalties Applicable
Although canonical penalties are ordinarily applied at the conclusion
of a trial or process, the unique nature of certain forms of sexual
misconduct, especially sexual abuse of minor children, should preclude
such an approach under most circumstances.
In certain cases, the perpetrator might find himself excommunicated
automatically, such as when he absolves an accomplice.The preferred
method of applying appropriate canonical penalties in such cases would
be by way of administrative decree, issued by the Bishop, The penalty
referred to is suspension of the priest from all sacred functions,
ecclesiastical offices and duties.
* * * a. Administrative Leave: after the initial report has been made
and the Ordinary has decided that an investigation is justified, he
should proceed according to cc. 1717-1719. accused is simply that..
.his guilt has not yet been determined. The canons provide for a kind
of "administrative leave" (canon 1722) whereby the priest or deacon
nay be asked to leave his residence and cease all public ministerial
functions. This type of action by the bishop is not only advisable
but should be routine. AT THIS POINT THE PRIEST OR DEACON SHOULD NOT
BE SUSPENDED Suspension is a canonical penalty which leads to a presumption
of guilt. This could be misconstrued in civil courts and used to the
disadvantage of the church.
The priest or deacon has been accused of a delict which is actually
a manifestation or result of a highly compulsive disorder. Although
the actual effects of invoking canon 1722 may be similar to a suspension,
the act whereby these effects take place is not a suspension. There
is no process required beyond that mentioned in the canon. It would
be well to explain to the accused that such action is for his benefit.
Suspension as a canonical penalty may be imposed by decree for a period
of time, following the procedures outlined in the Code, or it may
be imposed perpetually but not by decree. A perpetual or indefinite
suspension can be imposed only after a canonical trial. In any case,
suspension should only be used after the priest or deacon s guilt
has been determined. If the accused is convicted and imprisoned, he
could well be suspended for the duration of his incarceration. Such
action might be advisable to avoid the appearance of tolerating the
actions of pedophiles (but at the same time treating them with compassion).
If it is determined, in conjunction with clinical advisors, that a
priest or deacon can and should not exercise the ministry again because
of the nature of his affliction or its severity, then laicization
must be seriously considered. In the meantime it would be well to
suspend the priest or deacon.
b. Removal from office: Although removal from office (associate, pastor,
etc.) or transfer is not a penal procedure but an administrative procedure
the law provides for such actions if the ordinary believes that he
has sufficient reason and that it redounds to the good of the faithful.
Canons 1740-1752 set out in detail this procedure as well as the recourse
against a decree or removal or transfer.
The ordinary, upon encountering a case of sexual misconduct, might
give consideration to invoking the canons regarding removal in conjunction
with those pertaining to penal procedures.
Nevertheless it is imperative to clearly understand that transfer
or removal isolated from any other action is far from adequate and
could in fact lead to a presumption of irresponsibility or even liability
of the diocesan authorities by civil courts. In short, those presumed
to be guilty of sexual misconduct, especially if it involves child
molestation, must never be transferred to another parish or post as
the isolated remedy for the situation.c. Laicization: Canon 290 states
that although sacred ordination, once validly received never becomes
invalid, a cleric (priest, deacon or even bishop) loses the clerical
state in three instances:
- when a judgement of a court or administrative decree declares the
ordination to be invalid
- when laicization is lawfully imposed as a penalty
- when laicization is imposed by rescript of the Holy See.
Declaration of the invalidity of ordination is extremely rare and
quite difficult to prove since it involves the intentionality of both
the recipient of holy orders and that of the ordaining prelate. Allegations
of lack of fitness for celibacy would not constitute solid basis to
pursue such a matter.
Although the law includes dismissal from the clerical state (laicization)
as a possible penalty for the offenses mentioned in canons 1387 and
1395, this penalty may rot always be imposed on those guilty of sexual
crimes not excluding pedophilia. Canon 1324, 1, 1 , 2 , 3 indicates
that the penalty prescribed by law or precept must be diminished if
the culprit had only imperfect use of reason; lacked use of reason
because of culpable drunkeness or other mental disturbances of a similar
kind; acted in the heat of passion which, while serious, nevertheless
did not precede or hinder all mental deliberation and consent of the
will, provided that the passion itself was not deliberately stimulated.
As is obvious from the above paragraph, it is possible to dismiss
a cleric from the clerical state if he committed canonical crimes
involving sexual mis-conduct. Yet is he acted under the influence
of one or more of the conditions mentioned in canon 1324 it is not
possible to impose the extreme penalty allowed, namely dismissal.
Dismissal may be prudently considered when it is obvious that the
cleric in question will not be able to fulfill the duties of the clerical
state and sacred order, even to a minimal degree, because of his compulsion
for illicit sexual activity. In such cases this course of action might
prove to be the most beneficial for the person and for the church.
It would effectively lighten the liability and responsibility of church
authorities for the actions of a cleric who is proven to be completely
incorrigible. The decision to proceed toward dismissal should be made
in conjunction with expert canonical counsel as well as well-founded
clinical advice on the man 's situability for the clerical state.
It may happen that situations arise when dismissal is seen to be the
only viable course of action but when, at the same time, a court process
is ill-advised or impossible. In such cases only the Holy See has
the power to issue a rescript whereby a priest or deacon is reduced
from the clerical state. It is possible for the Holy Father to ex
officio laicize a man when it appears that no other course of action
is advised. In such cases the cleric s local ordinary should prepare
the petition for laicization and send it, together with all pertinent
material, to the Congregation for the Doctrine of the Faith. The relative
urgency of the case will determine the alacrity with which the case
is handled in Rome. *** Laicization requests arising from pedophilia
will be given serious consideration by the Congregation for the Doctrine
fo the Faith (for priests) and the Congregation for the Sacraments
(for deacons).
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