Tuesday, May 25, 2010

Canonical process for alleged sexual abuse of minors by clerics

Part II)

OF late the Catholic Church, and especially Pope Benedict XVI, has come under bitter criticism by the secular press regarding its handling of allegations of sexual abuse of minors by priests in several countries (notably in the U.S., Ireland, England and Germany). The accusations can be summarized into three: (1) that the Church has no clear-cut procedure for handling such allegations; (2) that the Church has a policy of being secretive about such cases, tending to protect the erring clerics more than the aggrieved parties; (3) that the Church conceals such allegations from the civil authorities.

In the previous issue of CBCP Monitor, we had answered all three accusations in part, when we tackled the procedure to be followed by the ecclesiastical authority─either the diocesan Bishop or a religious Superior─upon hearing of an alleged sexual abuse of minors by a cleric, i.e., the preliminary investigation and the transmission of the preliminary findings to the Congregation for the Doctrine of the Faith (CDF). Let us now look in detail at the ensuing canonical process to resolve such allegations.

The Canonical Process to resolve Allegations of Sexual Abuse of Minors by Clerics

1st Stage: The Instruction of the Case.

The canonical process─more technically called a written contentious process─is similar to the criminal trials that take place in some European countries, which follow a different legal tradition from the Philippines. Because of this, the canon law trial will not appear similar to those we might be familiar with in Philippine civil courts (which follow what is called an oral or summary contentious process). The main difference is that in the latter, the initial stage─which is the so-called instruction of the case or the gathering of evidence─is compressed into oral trials wherein all the evidence (including witnesses) are simultaneously presented before all the parties to the case; in the former, the witnesses are cited individually by the tribunal to make their depositions in private.

An ecclesiastical tribunal─the same one that normally handles marriage nullity cases─hears the case. It is composed of a panel of three judges. The accused has a canon lawyer, called an advocate, to assist in his defense. The prosecutor is referred to as the promoter of justice.

Witnesses, including possible victims, are called to testify. The judges, rather than the canon lawyers, question the witnesses singly and in private. Other forms of evidence are gathered, such as letters that might have been written. Everything is taken down in writing by the tribunal notary, and the actae are made available to both the accused and his advocate, for possible corrections.

2nd and 3rd Stages: The Arguments and the Judgment

After this the defense canon lawyer and the promoter of justice submit written arguments of their sides of the case. The judges then review the arguments and evidence carefully, deliberate together, and issue a judgment (verdict). If the finding is for guilt, the judges also impose a penalty (see below for types of Church penalties).

4th Stage: Automatic Elevation to the CDF and Possible Appeal.

Once the diocesan tribunal issues its decision, the decision goes to the CDF. Both the verdict (whether for or against guilt) and penalty (if the verdict is for guilt) may be appealed by either the accused or the promoter of justice of either the diocese or the CDF. If no appeal is lodged within a certain time frame, the sentence is final. If an appeal is lodged, another hearing of the case will take place by an appellate panel of judges. This may occur again at the CDF, or, with authorization of the CDF, at the diocesan or local level.

The CDF has its own supreme tribunal. The Pope himself does not sit personally as a judge on the tribunal of the CDF. He has several judicial courts or tribunals that administer justice: the CDF tribunal, the Roman Rota and the Apostolic Signature. The decision of the CDF─or any of the other tribunals of the Holy See─in an appeal of a judicial sentence of this matter is final.

Alternative Procedure: An Administrative Penal Process.

In cases where the evidence of the possible commission of sexual abuse is stronger, the CDF might authorize what is called an administrative penal process. Here, unlike a judicial trial, the bishop himself makes the decision regarding the charges brought against the accused. He considers the evidence with the help of two persons called assessors. They are experts in canon law or some other discipline necessary for a thorough evaluation of the evidence. The accused also has the opportunity to offer a defence. The bishop then issues a decree with his decision and suggested penalty (if he finds for guilt). This decree is also sent to the CDF for confirmation and the accused has the right to seek reconsideration of the outcome.

Canonical Penalties for Crimes of Sexual Abuse of Minors

Catholic Church Law provides a range of penalties for different crimes. For the sexual abuse of minors it provides for a just penalty that may include dismissal from the clerical state.

Immediate and Permanent Withdrawal from all Public Ministry

Contrary to the accusations in the mass media, the Essential Norms provides that in every case where a cleric admits to or is found guilty of the sexual abuse of minors he is immediately and permanently withdrawn from all public ministry. Nor may he present himself as a priest or deacon.

Thus, even if a member of the clergy is eventually not dismissed from the clerical state for having committed the crime of the sexual abuse of minors, his public ministry is still fully restricted in the light of the gravity of the offense committed.

In a very small subset of cases, where the guilt of the cleric is beyond doubt, the CDF may ask the Pope to directly impose a penalty... This might occur, for instance, when the priest himself has confessed to this or has been found guilty of the crime in a civil court of law. In the gravest cases, the CDF may request that the Pope to dismiss the cleric ex officio, that is, without a prior trial or any other type of formal legal process. In such cases, the Pope himself issues a decree dismissing the priest or deacon from the clerical state. There is no appeal of this decision by the cleric.

Other Possible Canonical Penalties and Penances

1) Dismissal from the Clerical State. Within the range of canonical penalties provided in Church Law is the dismissal from the clerical state. This is a permanent penalty imposed in response to the commission of an ecclesiastical crime. The legal status of the priest or deacon changes, so that he now has the status of a lay person, not a cleric. Hence, a priest dismissed from the clerical state may no longer exercise priestly ministry (including saying Mass), present himself as a priest, use the title Father or Reverend, hold pastoral and teaching positions in the Church, and receive the income he did as a cleric.

2) Suspension. Suspension of a member of the clergy is also a penalty imposed for violation of a criminal law. The effects of it are similar to dismissal from the clerical state inasmuch as the priest or deacon is not permitted to function in public ministry. However, suspension does not remove the cleric from the clerical state. He remains a member of the clergy even if he is not exercising any functions associated with it. Additionally, whereas dismissal is a permanent penalty, suspension is not. It is imposed so long as the reasons for its imposition remain. To offer one example, if a priest is suspended due to illegitimate behavior with a minor, the suspension remains in force, but would be lifted if the allegations are withdrawn or proven false.

3) Canonical Penance. The Essential Norms recognize that there might be cases where a priest or deacon has either admitted to a past act of abuse or has been found guilty of one, but dismissal from the clerical state does not occur. This could happen, for instance, when a priest is seriously ill or of advanced age. So a life of prayer and penance is imposed on the priest instead. In these cases, too, he is forbidden from all public ministry and from otherwise presenting himself as a priest. He is expected to dedicate his life to praying for victims and repenting of his past offenses. In this way, the Church seeks even here to prevent any future abuse and to repair the injustice that has already taken place.

Other Scenarios

1) Acquittal of the accused cleric. The presumption is that the cleric will be returned to the ministry if he is not found guilty. However, the outcome in a specific case depends on several factors that are particular to each case. It might turn out that even though a priest or deacon is not proven to have abused minors, other issues surrounding his ministry or behaviour might have arisen during the investigation that cause concern for the bishop. This might involve, for instance, unacceptable boundary violations or improper behaviour with adults. These situations would need to be addressed before the priest or deacon is returned to public ministry.

2) Cases where a priest or deacon is falsely accused of sexual abuse. Not all accusations brought to the ecclesiastical authorities turn out to be true. In all cases, a thorough investigation is made to ascertain the truth of the allegation. The rights of everyone must be respected during this phase. If this process determines that the accusation was false, the good reputation of the cleric needs to be repaired. The Essential Norms state that every step possible must be made to restore the good name of those who have been falsely accused and whose good reputation might have been illegitimately harmed.

Conclusion: Confidentiality vs. Secrecy

A final word on the accusation of secrecy is in order. The word secret as applied to the canonical process we have just described is a literal translation of the Latin word secretum. The better translation would be “confidential.” Church law does require that formal trials and other processes that lead to the imposition of penalties be dealt with confidentially. This is meant to protect the accused, the witnesses, and the integrity of the Church process. For instance, general members of the public are not admitted to the court proceedings. Although these proceedings are confidential, that does not forbid or even discourage anyone from reporting the underlying allegations to civil authorities. In fact, the opposite is true when it comes to the sexual abuse of minors. The Essential Norms strictly mandate that bishops follow civil reporting laws, and that they advise a person of his or her right to make a report to public authorities and support the person in doing so.

Saturday, May 8, 2010

Self-Service Holy Communion and Communion under Both kinds

I sometimes attend Mass in a Catholic university in Quezon City and my attention has always been caught by the way that Holy Communion is not administered by the priest celebrant, but rather taken by the faithful communicants from the ciborium which is just left on the altar. Quite often, not only is the ciborium left with the sacred hosts, but the chalice with the consecrated wine is left beside it, so that the communicants may receive the Eucharist under both species, either by dipping a host in the consecrated wine (intinction) or by simply sipping from the chalice . But what took the cake was when during a closed retreat conducted by the school and attended by my son, the participants received Holy Communion under both species by intinction and by the hand: the priest celebrant dipped the sacred host in the consecrated wine and laid the host soaked in the Blood of Christ in the open hand of the communicant. I would assume that whatever drops of the Blood of Christ would have remained in the palm of the communicant. Are these practices licit?

The Norms of 1973
The present norms regarding the reception of Holy Communion were originally contained in an instruction published in 1973 by the then Sacred Congregation for Divine Worship and Discipline of the Sacraments, entitled Immensae Caritatis. When dealing with Communion in the hand this document made no mention of the option of the faithful taking the host from the ciborium but simply stated:
“Ever since the Instruction Memoriale Domini three years ago, some of the conferences of bishops have been requesting the Apostolic See for the faculty to allow ministers distributing communion to place the eucharistic bread in the hand of the faithful. The same Instruction contained a reminder that ‘the laws of the Church and the writings of the Fathers give ample witness of a supreme reverence and utmost caution toward the eucharist’ and that this must continue. Particularly in regard to this way of receiving communion, experience suggests certain matters requiring careful attention.
“On the part of both the minister and the recipient, whenever the host is placed in the hand of a communicant there must be careful concern and caution, especially about particles that might fall from the hosts.”
On June 21,1973, the same dicastery, through a document entitled Eucharistiae Sacramentum, promulgated the new Rite for Eucharistic Worship and Communion Outside of Mass. The document insisted very clearly that whether the Eucharist is received on the tongue or in the hand, “Holy Communion must be distributed by the proper competent minister, who presents and gives the consecrated host to the communicant saying the formula The Body of Christ …”.

The Norms of 1985
In 1985 the Congregation for Divine Worship sent a letter to the president of the U.S. bishops' conference, drawing attention to the following points:
“1. Communion in the hand should show, as much as communion on the tongue, due respect towards the Real Presence of Christ in the Eucharist. For this reason emphasis should be laid, as was done by the Fathers of the Church, upon the dignity of the gesture of the communicant (…): the left hand is to be placed upon the right hand, so that the sacred host can be conveyed to the mouth with the right hand.
“2. Again following the teaching of the Fathers, insistence is to be laid upon the importance of the Amen said in response to the formula of the minister, ‘the Body of Christ’; this Amen is an affirmation of faith.
“3. The communicant who has received the Eucharist in the hand is to consume it before returning to his place, moving aside yet remaining facing the altar in order to allow the person following to approach the minister.
“4. It is from the Church that the faithful receive the Holy Eucharist, which is communion in the Body of the Lord and in the Church; for this reason the communicant should not take from the paten or container, as would be done for ordinary bread, but the hands must be stretched out to receive from the minister of communion. [Underscoring mine.]
“5. Out of respect for the Eucharist, cleanliness of hands is expected. Children need to be reminded of this.
“6. It is necessary that the faithful receive sound catechesis in this matter, and that insistence be laid upon the sentiments of adoration and respect that are required towards this most holy sacrament. (cf. Dominicae cenae, n.11). Care must be taken that fragments of the consecrated host are not lost (cf. Congregation for the Doctrine of the Faith, 2.V.1972: Prot: no. 89/71, in Notitiae 1972, p.227).
“7. The faithful are not to be obliged to adopt the practice of communion in the hand. Each one is free to communicate in one way or the other.” [Underscoring mine.]

The Instruction Redemptionis Sacramentum of 25.IV.2004
At the Solemn Mass of the Last Supper on Holy Thursday of 17.IV.2003, John Paul II signed his 14th encyclical letter, Ecclesia de Eucharistia, in which he stated that the Holy Eucharist “stands at the center of the Church’s life” (n.3), that “it unites heaven and earth” and “embraces and permeates all creation” (n.8), being “the most precious possession which the Church can have in her journey through history” (n.9).
To translate the theological and pastoral doctrine contained in that beautiful encyclical, the Congregation for Divine Worship and Discipline of the Sacraments issued the Instruction Redemptionis Sacramentum on 25.IV.2004. This is the latest and most complete Instruction regarding the celebration, administration and reservation of the Holy Eucharist. True to its juridic nature─an instruction─it does not really legislate anything new, but rather gathers in one heading erstwhile scattered legislation on the matter, exhorting those occupying capital executive offices (the territorial and personal Ordinaries in this case) to put them into practice.
The relevant texts are as follows: [Underscorings are mine.]
1) “Although each of the faithful always has the right to receive Holy Communion on the tongue, at his choice, if any communicant should wish to receive the Sacrament in the hand, in areas where the Bishops’ Conference, with the recognition of the Apostolic See has given permission, the sacred host is to be administered to him or her. However, special care should be taken to ensure that the host is consumed by the communicant in the presence of the minister, so that no one goes away carrying the Eucharistic species in his hand. If there is a risk of profanation, then Holy Communion should be given in the hand to the faithful.” [n.920]
2) “It is not licit for the faithful to take by themselves and, still less, to hand from one another the sacred host or chalice. Moreover, in this regard, the abuse is to be set aside whereby spouses administer Holy Communion to each other at a Nuptial Mass.” [n.94]
3) “The communicant must not be permitted to instinct the host himself in the chalice, nor to receive the intincted host in the hand. As for the host to be used for the intinction, it should be of valid matter, also consecrated; it is altogether forbidden to use non-consecrated bread or other matter.” [n.104]
4) “The chalice should not be administered to lay members of Christ’s faithful where there is such a large number of communicants that it is difficult to gauge the amount of wine for the Eucharist and there is danger that more than a reasonable quantity of the Blood of Christ remain to be consumed at the end of the celebration.” [n.102]
5) “Furtheremore all will remember that once the distribution of Holy Communion during the celebration of the Mass has been completed, the prescriptions of the Roman Missal are to be observed, and in particular, whatever may remain of the Blood of Christ must be entirely and immediately consumed by the Priest or by another minister, according to the norms, while the consecrated hosts that are left are to be consumed by the Priest at the altar or carried to the place for the reservation of the Eucharist.” [n.107]

The Grave Responsibility of the Bishops and Superiors

From the foregoing liturgical laws, it is quite clear that all the practices mentioned in the consultation constitute grave abuses to the most august sacrament of the Holy Eucharist. Furthermore, since all of them are specifically mentioned in an Instruction from the Holy See─which of itself is specifically directed to those in capital executive offices─there is an equally grave obligation on the part of the local Ordinary or the Ordinary of a religious Institute or Society of Apostolic Life concerned. We can end with the relevant norms of the Instruction:
1) “Whenever a local Ordinary or the Ordinary of a religious Institute or of a Society of apostolic life receives at least plausible notice of a delict or abuse concerning the Most Holy Eucharist, let him carefully investigate, either personally or by means of another worthy cleric, concerning the facts and the circumstances as well as the imputability.” [n.178]
2) “Any Catholic, whether Priest or Deacon or lay member of Christ’s faithful, has the right to lodge a complaint regarding a liturgical abuse to the diocesan Bishop or the competent Ordinary equivalent to him in law, or to the Apostolic See on account of the primacy of the Roman Pontiff. It is fitting, however, insofar as possible, that the report or complaint be submitted first to the diocesan Bishop. This is naturally to be done in truth and charity.” [n.184]