Anthony St. Louis-Sanchez is an auditor and assessor for the Diocesan Tribunal of Colorado Springs. He is currently studying canon law through St. Paul University, Ottawa. Anthony received his BA with a major in philosophy, magna cum laude, from St. Mary’s University, Minnesota, and his MA in theology with a concentration in dogmatic theology, summa cum laude, from Holy Apostles College and Seminary, Connecticut. Anthony lives in Colorado Springs, Colorado with his lovely wife, Maria, and their two daughters.
The Sexual Abuse Crisis and the Application of Penal Law in the Church
The Catholic Church has been shaken by the sexual abuse crisis of recent years. Many voices in society are calling for reform, transparency, and justice. The deficiencies and sins of the Church have been put on public display, and the bishops are on high alert. Any credible allegation of sexual abuse of a minor by a priest must be dealt with swiftly and decisively. If a bishop fails to act quickly, with full transparency to civil authorities, the financial stability of his diocese may be at risk and the bishop himself may be subject to criminal prosecution.[i] As of March 2012, eight archdioceses or dioceses have filed for bankruptcy because of large settlements awarded to abuse victims.[ii] Others are forced to close churches and combine parishes.[iii] Certainly, victims of sexual abuse have a right to justice and fair settlements, especially when the negligence of church officials was a factor in their abuse.[iv] And without a doubt, the common good is at grave risk when pedophile priests are allowed to prey on victims.
In order to protect the common good, the bishops must utilize the full force of the law. In fact, the protection of the common good is one of the main functions of law. Unfortunately, some bishops are still failing to use all of the means available to them. Specifically, some bishops are failing to use the laws of the Catholic Church to help restore and protect the common good. For many years bishops have neglected using the penal precepts of the Code of Canon Law to coerce offenders.[v] This situation may be due to several factors. Prominent among them is the fact that in canon law the preference is to use canonical penalties as a last resort. Canon 1341 of the Code of Canon Law states:
An ordinary is to take care to initiate a judicial or administrative process to impose or declare penalties only after he has ascertained that fraternal correction or rebuke or other means of pastoral solicitude cannot sufficiently repair the scandal, restore justice, reform the offender.[vi]
Apparently, some bishops see in this a justification for relying solely on civil means when clergy are guilty of sexual abuse of a minor. In fact, it might seem that if the civil government imposes a penalty upon a cleric, then the scandal has been repaired and justice restored. Moreover, a bishop can effectively remove the priest from ministry, permanently, without having to initiate any canonical process. One might presume that once civil penalties have been imposed and the cleric has been put on permanent administrative leave, the Church has nothing left to accomplish by initiating an ecclesiastical penal process. This paper challenges this presumption through a survey of the most recent developments of canon law and argues that the faithful implementation of canon law is required to protect the common good.
In the not so distant past, pedophilia was treated much differently than it is today. This was true of how the Church, as well as society in general, approached pedophilia. At first, pedophilia was seen under the auspice of sin. According to this view, a priest who abused a minor needed to repent of his sin and reform his life. Bishops saw the matter in the same way.[vii] However, in the twentieth century it began to dawn on society that pedophilia was more complex than a mere sinful desire and action. With the rise of the psychological sciences, the common wisdom was that pedophilia could be cured through therapy and other psychological treatments.[viii] Bishops availed themselves of these remedies as a way of correcting abusive priests.[ix] As soon as the psychological expert reported to the bishop that the priest was no longer a danger and could return to ministry, they did, in fact, return the priests to active ministry. Unfortunately, these psychological means proved inadequate and dangerous to the common good. After the widespread failure of psychological means to cure pedophilia, it became clear that pedophilia required penal measures to coerce offenders and protect the common good.[x]
Despite the harsh criticism of recent years, the bishops in the United States were forerunners in enacting reforms of ecclesiastical law to help protect the common good. In the Code of Canon Law, which was promulgated in 1983 as the universal law of the Roman Catholic Church, the crime of sexual abuse of a minor only applied if the minor was not yet sixteen years old at the time of the abuse.[xi] Moreover, the statute of limitations for such a crime was only five years.[xii] This meant that if a priest abused a sixteen year old, or if the abuse happened more than five years in the past, the priest could not be punished for sexual abuse of a minor, according to Church law. It was the bishops of the U.S. who first raised an objection to these low standards. In November of 1993, ten years after the Code of Canon Law became universal law, the bishops of the U.S. wrote to Rome and requested that the law in the U.S. be changed. Rome responded favorably, and in April of 1994 the law in the United States was updated.[xiii] Now, a minor was considered to be anyone under the age of eighteen—instead of sixteen—and the statute of limitations was changed to ten years, but the clock only started ticking once the minor turned eighteen. Therefore, the statute of limitations would not expire until the victim turned twenty-eight.
And so, the bishops in the United States made an important step forward in 1994 towards legal reform to better protect the common good. However, this new law was only operative in the U.S. But with the increasing numbers of alleged abuses, it became clear that further reform was needed for the universal Church. In 2001, Pope John Paul II issued an important motu proprio, Sacramentorum Sanctitatis Tutela (henceforth called the SST document) which defined sexual abuse of a minor to be a “more grave” crime, in the Church.[xiv] The effects of these new norms extended the age of minority to those under eighteen, and the statute of limitations was extended to ten years.[xv] These were the same changes which the U.S. bishops enacted seven years prior. But now, the SST document made this the new law for the universal Church. The SST document also reserved the crime of sexual abuse of a minor to the Congregation for the Doctrine of the Faith. This meant that the local bishops had to send these abuse cases to Rome; they could no longer be handled independently by the local church. This indicated the seriousness with which Rome considered these abuse cases. Moreover, even though the statute of limitations was only ten years, the Congregation for the Doctrine of the Faith has the power to dispense entirely from any statute of limitations.
In 2002, in the heat of the sexual abuse crisis in the United States, the U.S. bishops issued the “Dallas Charter” in which they established particular norms and publicly apologized. The Charter states:
As bishops, we acknowledge our mistakes and our role in that suffering, and we apologize and take responsibility for too often failing victims and our people in the past. We also take responsibility for dealing with this problem strongly, consistently, and effectively in the future.[xvi]
The seventeen articles of the charter detail responsible steps that dioceses will take in the future for the protection of the common good. The Charter commits the bishops of the U.S. to a policy of “transparency and openness…[and] vigilance.”[xvii] The Charter also mandates, “that even for a single act of sexual abuse of a minor…the offending priest or deacon will be permanently removed from ministry.”[xviii] Even though this zero tolerance policy sounds good for the protection of the common good, it has been criticized because, “After a long period of almost totally ignoring canonical sanctions, they have now determined to impose in every case the most serious sanction foreseen, removal from ministry.”[xix] In fact, the U.S. bishops are accomplishing this removal from ministry without utilizing the judicial or administrative penal processes of the Church. Boccafola states:
In the last few decades, especially in the United States, a new phenomenon seems to have emerged, that of a priest who has no ministerial assignment…the obex preventing the priest from exercising ministry is a prohibition on the part of his bishop or superior, and such a prohibition is not characterized or recognized as a penalty or punishment.[xx]
In canon law, the most severe punishment for a cleric is dismissal from the clerical state, which cannot be imposed automatically.[xxi] Admittedly, the Dallas Charter does not automatically dismiss guilty clerics from the clerical state, but permanent removal from ministry is functionally equivalent to dismissal from the clerical state. Therefore, even though the Dallas Charter takes a firm stand against sexual abuse of a minor, this norm seem to be contrary to the Church’s own law. And so, unlike the norms of the SST document which develop the law in accordance with canonical principles, the Dallas Charter, in some ways, undermines the principles of canon law.
Even though the abuse crisis first came into widespread public view in the United States, it was not confined to the U.S. In the years following 2002, the crisis spread throughout the Church.[xxii] In a climate of increasing pressure and calls for further reform, Pope Benedict XVI issued a revised version of the SST document in May of 2010.[xxiii] This revised document implemented many improvements in the universal law of the Church concerning sexual abuse of a minor. The statute of limitations was extended to twenty years, notwithstanding the right of the Congregation for the Doctrine of the Faith to eliminate all statutes of limitations.[xxiv] Also, according to the revised SST document, a person who is over the age of eighteen but who is also developmentally disabled is considered to be a minor if sexually abused.[xxv] Moreover, possession of child pornography has been included as one of the “more grave” crimes.[xxvi] With these changes, the Church is sending a clear message: sexual abuse of a minor, in any form, will not be tolerated.
The most recent development of law has not yet come to light. Rome is currently preparing a complete revision of the penal laws of the Church, which constitutes book VI of the Code of Canon Law. A small group of officials have been working on this revision. In September of 2011, a first draft of the revised law was sent out to the Faculties of Canon Law in universities around the world. The professors of canon law at these universities have reviewed the draft and sent their comments back to Rome. It is unclear when, exactly, this new law will be promulgated and take effect, or if there will be a further draft before the law is finally promulgated.
The motive behind the new law is precisely to get bishops to use the penal laws of the Church. The introduction to the draft states:
In truth, swift changes in society and in human behavior seem to require an appropriate recalibration of the current penal norms in the Church.
…[Bishops] have used the canonical penal system too sparingly in exercising their responsibility of governance, sadly not because the faithful are substantially keeping the prescriptions of the law, but rather for two fundamental reasons: firstly, because of an erroneous way of understanding the role of the penal sanctions in the Church, as if it were opposed to the prevailing needs of charity; secondly—this also must be admitted—because of some defects in the current canonical penal system.
The revision foreshadowed therefore tries to stimulate ecclesiastical authorities so that they make use of the penal discipline as often as it seems opportune.[xxvii]
It should be noted that the scope of this revision is much larger than the fine tuning of the law which we have already seen in the SST document. The hope is that the whole system of penal law in the Church will become more accessible and useful in this revision. Clearly, Rome sees a need for bishops to use penal law more than it is currently used.
The Common Good
And so, from the preceding historical survey, we can see a divergent trend between the development of penal law in the Church and the reaction of some bishops in the face of increasing societal pressure. On the one hand, the Church has been revising and promulgating laws to better protect the common good. On the other hand, some bishops, including many in the U.S., have reacted strongly to societal pressure. This reaction includes a heavy reliance upon the civil authorities to punish the offender, coupled with an automatic permanent removal from ministry. Due to the combination of these factors—the civil punishment and permanent administrative leave—there seems to be little reason to make use of the canonical system of the Church. This raises some important questions. Is there any need for the imposition of a canonical penalty if the offender is justly punished by the civil authorities and permanently removed from ministry? In other words, is there some kind of ecclesiastical common good which the civil authorities are unable to protect and restore by imposing punishments of the civil government? Moreover, does the imposition of canonical penalties—including, if it is warranted, dismissal from the clerical state—somehow restore the common good better than placing the cleric on permanent administrative leave?
In order to approach an answer to these questions, we must note that it is precisely for the protection of the common good that the Church is equipped with her own Code of Canon Law. St. Thomas Aquinas states that “Law is nothing else than an ordinance of reason for the common good, promulgated by him who has care of the community.”[xxviii] And so, the protection of the common good is essential to law. The reforms in the law, which we have already seen—whether particular norms for the U.S. or those in the SST document—, were specifically enacted so that they could respond to the current situation facing the Church, and specifically to protect and restore the common good. In fact, the Church began developing her own laws even from her birth in the apostolic age. Therefore, there seems to be some kind of genuine ecclesiastical common good which civil laws do not protect or restore. Otherwise, we would expect the Church to defer to civil legislation, where such legislation exists.[xxix]
In order to understand the nature of this ecclesiastical common good, we need to better understand, in general, the idea of the common good. The common good can be defined as “the sum total of the conditions of social life enabling groups and individuals to realize their perfection more fully and readily.”[xxx] Central to this definition of the common good is the notion of perfection. Perfection is an essential aspect of nature, because perfection is always the perfection of nature.[xxxi] For human nature, knowing and loving God is the ultimate perfection.[xxxii] This perfection of human nature is not a perfection specific only to Christians or Catholics because this telos is inscribed in the very nature of the human person. Therefore, God is the perfection of every human person. However, it is obvious that the perfection of the human person is not possible in this life, but can only be achieved through the beatific vision.
This understanding of human nature and the perfection of human nature is alien to the secular society in which we live. And so, the laws of society are designed only to promote the perfection attainable in this life. This means that the conditions of social life which should enable the human person to reach his or her ultimate perfection are beyond the protective scope of the civil laws. The civil laws are only concerned with protecting the common civic good, which could be defined as the conditions of social life enabling groups and individuals to realize the perfection attainable in this life more fully and readily. And so, civil laws fall short of protecting the true common good, namely, that common good which enables groups and individuals to attain the ultimate perfection of the human person, i.e., eternal life with God.
In order to attain our ultimate perfection, i.e., the beatific vision, we need the Church. Through baptism one is incorporated into the Church.[xxxiii] And thus, through baptism we are united to the body of Christ in a unique way. This unique unitive principle is called the communion—communio—of the Church. Communio is that which binds us together in Christ and forms a special supernatural bond common to all believers. The communio of the Church is not something extrinsic to our ultimate perfection, but essential to it. The close connection between communio and our ultimate perfection is expressed in the maxim, “Outside of the Church there is no salvation.”[xxxiv] And so, the true common good is that communio which enables the person to achieve his or her ultimate perfection more readily.
Unfortunately, when crimes are committed within the Church itself, the very fabric of communio is harmed. By handing offenders over to the civil authorities without taking any canonical action, despite the fact that they are permanently removed from ministry, the bishops are failing to protect and restore the communio of the Church. Therefore, “While letting the state courts make the appropriate trials and decision in criminal cases of antisocial sexual behavior, the Church needs to intervene in due course to apply the canonical sanctions.”[xxxv] This necessity is based on several factors. First of all, the faithful need to be assured that the Church is the community in which they can safely pursue their ultimate perfection. This reassurance cannot be accomplished by the imposition of civil penalties. Civil penalties reassure people that civil society is a safe environment to pursue the happiness attainable in this life. Therefore, justice demands that the penalties of the Church be utilized.
Moreover, when priests are retained in the clerical state but without any ministerial duties, the very structure of the ecclesiastical community is disorganized. Dismissal from the clerical state is a means of restoring ecclesiastical order. On the other hand, sometimes dismissal from the clerical state is not appropriate or justified. We must remember that the three purposes of penal law are: to repair the scandal, to restore justice, and to reform the offender.[xxxvi] If the cleric is able to be reformed by other penal remedies and the cleric wishes to remain in the clerical state, then dismissal might not be the best course of action. This does not mean, however, that the cleric should have any contact with children if he is guilty of sexual abuse of a minor. But, in fact, a cleric pursuing a life of prayer and penance could be very beneficial to ecclesiastical communio.
In deciding which penal sanctions to apply in a given case requires bishops to have a keen pastoral sense. In fact, bishops can demonstrate their pastoral care for the wellbeing of the community and the offender by utilizing the penal laws of the Church.[xxxvii] Too often, law and charity are seen as being mutually exclusive. It is assumed that ministry in the Church requires a certain pastoral approach which is antithetical to the strict application of law. But this is a fundamental misunderstanding. Law and pastoral charity go together. The final canon of the Code of Canon Law, which in many ways sums up the whole Code, states, “the salvation of souls…must always be the supreme law in the Church.”[xxxviii] And so, the application of law and pastoral charity are two sides of the same coin. Perhaps the revision of book VI of the Code of Canon Law will enable bishops to rediscover this truth.
Aquinas, Thomas. Summa Theologica of St. Thomas Aquinas. Second revised edition. 1920. http://www.newadvent.org/summa/
Boccafola, Kenneth, E. “The Special Penal Norms of the United States and Their Application,” in The Penal Process and the Protection of Rights in Canon Law, ed. Patricia M. Dugan. Montreal: Wilson & Lafleur, 2005.
Caparros, Ernest. “Criminal Law Protection of the Human Rights in Civil and Religious Societies,” in The Penal Process and the Protection of Rights in Canon Law, ed. Patricia M. Dugan. Montreal: Wilson & Lafleur, 2005.
Cessario, Romanus, O.P. Introduction to Moral Theology. Washington D.C.: CUA Press, 2001.
Code of Canon Law: Latin-English Edition. Trans. by the Canon Law Society of America. Washington, DC. 1998.
Denzinger, Henry. The Sources of Catholic Dogma. Trans. Roy J. Deferrari. Fitzwilliam: Loreto, 1955.
Flannery, A. ed., Vatican Council II: Conciliar and Post-Conciliar Documents, Vol. 1, revised ed. Collegeville: Liturgical Press, 1992.
Woestman, William H. Ecclesiastical Sanctions and the Penal Process. Ottawa, Faculty of Canon Law, second edition, revised and updated, Saint Paul University, 2003.
[i] Recently, Bishop Finn of Kansas City has been faced with charges for failure to report sexual misconduct to the civil authorities. See: http://www.msnbc.msn.com/id/45311411/ns/business-stocks_and_economy/t/catholic-bishop-had-no-duty-report-child-abuse-lawyer/
[ii] The archdiocese and dioceses which have filed for bankruptcy are the following: Portland: http://www.catholicnews.com/data/stories/cns/0702198.htm; Tuscon: http://www.cbsnews.com/2100-201_162-644899.html; Spokane: http://seattletimes.nwsource.com/html/localnews/2002111403_diocese07m.html; Davenport: http://www.cbsnews.com/2100-201_162-2079538.html; San Diego: http://www.signonsandiego.com/uniontrib/20070228/news_7n28diocese.html; Fairbanks: http://www.ktuu.com/ktuu-judgeapprovesbankruptcypla-11879828,0,7087276.story; Wilmington: http://abclocal.go.com/wpvi/story?section=news/local&id=7071141; Milwaukee: http://www.jsonline.com/features/religion/112878494.html.
[iii] Among many other churches closing throughout the U.S., the Bishop of Cleveland closed 50 churches, but members of 13 of these churches appealed to the Congregation for Clergy which decreed that the church closings were invalid because the bishop failed to follow proper canonical procedure. See: http://www.usatoday.com/news/religion/story/2012-03-08/vatican-ohio-church-closings/53420812/1.
[iv] On March 26, 2012, the trial began for the former Vicar of Clergy of the Archdiocese of Philadelphia who has been accused of covering up multiple incidents of sexual abuse of a minor by priests. See: http://www.cnn.com/2012/03/26/justice/pennsylvania-priest-trial/index.html
[v] Boccafola states, “The bishops, in fact, hardly ever applied the penalties envisioned by canon law…” (258).
[vi] Canon 1341 of the Code of Canon Law. This canon indicates that the application of penal laws have three purposes: to repair scandal, to restore justice, and to reform the offender.
[vii] According to Boccafola, “Often many American bishops, especially in the decades after the Second Vatican Council, seemed not to be conscious of any duty on their part to apply the penal provisions of canon law. Considering the matter merely as one of a priest’s sin and his repentance…” (260).
[viii] Boccafola states, “As time went on and society evolved, problems which had been considered principally in the context of sin and repentance, began to be considered under the aspect of illness and recovery” (260-261).
[ix] For a recent review of such practices see: http://www.nytimes.com/2009/04/03/us/03church.html.
[x] This analysis of the way in which pedophilia was treated applies not only to the Church but society at large. In the United States, individual states only passed legislation against sexual abuse of a minor in the twentieth century, and the Federal government first enacted the important Child Abuse Prevention and Treatment Act in 1974.
[xi] Canon 1395 §2 of the Code of Canon Law states, “A cleric who…has committed an offense against the sixth commandment of the Decalogue…with a minor below the age of sixteen years, is to be punished with just penalties, not excluding dismissal from the clerical state if the case so warrants.”
[xii] Canon 1362 §1, 2° states, “an action arising from the delicts mentioned in cann. 1394, 1395, 1397, 1398…have a prescription of five years.”
[xiii] See the Rescript of the Secretariat of State in Woestman pp. 270-271.
[xiv] See the Apostolic Letter issued Motu Proprio, Sacramentorum Sanctitatis Tutela, of Pope John Paul II in Woestman, pp. 300-309.
[xv] Article 4 §1 of the Norms states, “Reservation to the Congregation for the Doctrine of the Faith is also extended to a delict against the sixth commandment of the Decalogue committed by a cleric with a minor below the age of eighteen years.” And article 5 states, “Criminal action for delicts reserved to the Congregation for the Doctrine of the Faith is extinguished by prescription after ten years… However, in the delict mentioned in art. 4, §1, prescription begins to run from the day on which the minor completes the eighteenth year of age.”
[xvi] Quoted from the Preamble of the “Charter for the Protection of Children and Young People,” in Woestman p. 340.
[xvii] See the Charter in Woestman, pp. 340-348.
[xviii] Article 5 of the Charter.
[xix] Boccafola, p. 278.
[xx] Boccafola, pp. 277-278.
[xxi] See canon 1336 §2 of the Code of Canon Law.
[xxii] In the years following 2002, there have been outbreaks of the sexual abuse crisis in the media in Canada, Germany, Belgium, and Ireland.
[xxiii] This new revision of the norms can be found at: http://www.vatican.va/resources/resources_norme_en.html.
[xxiv] Article 7 §1 of the revised SST document.
[xxv] Article 6 §1, 1° of the revised SST document.
[xxvi] Article 6 §1, 2° of the revised SST document.
[xxvii] Quoted from an unpublished introduction to the proposed revision of book VI of the Code of Canon Law.
[xxviii] Summa Theologica I-II, q. 90, a. 4.
[xxix] It is not foreign to canon law to “canonize” civil laws. For example, concerning contracts in the Church, canon 1290 says, “The general and particular provisions which the civil law in a territory has established for contracts and their disposition are to be observed with the same effects in canon law insofar as the matters are subject to the power of governance of the Church unless the provisions are contrary to divine law…” See also canon 22. Therefore, it seems reasonable that the Church could “canonize” civil legislation concerning criminal behavior, and hand offenders over to the civil courts, exclusively.
[xxx] Second Vatican Council, Gaudium et spes 26.
[xxxi] “The end is the total good, especially the good for human beings or integral human perfection…. the human person embraces a particular good that contributes to human fulfillment.” (Cessario 2001, 19).
[xxxii] “God constitutes the objective happiness of every person.” (Cessario 2001, 24).
[xxxiii] See canon 96 of the Code of Canon Law.
[xxxiv] Lateran Council IV, in Denzinger 430.
[xxxv] Caparros, p. 221.
[xxxvi] See canon 1341 of the Code of Canon Law.
[xxxvii] In fact, there is a distinct difference between the canonical system and the civil system in terms of how penalties are determined. Caparros states, “…the penal canon law approach is first of all inspired by charity and oriented towards the conversion of the person having committed the antisocial act, while state criminal law, in spite of the general presumption of innocence, does not have the flexibility of the penal canon law” (Caparros, p. 209-210).
[xxxviii] Canon 1752 of the Code of Canon Law.