Sunday, June 20, 2010

Crime and Punishment in the Catholic Church

Part II)

THE Catholic community in Quezon City was shocked recently by the much-publicized excommunication, inflicted by the diocesan Bishop on an impostor-priest. The person had been serving in the diocese of Cubao─especially in Christ the King Parish at Green Meadows Subdivision─for a good part of a year, but was recently discovered to have never been ordained as he claimed he was in Europe. The scandal was exacerbated by the fact that this “fake priest” displayed a lot of positive external qualities (always properly dressed, well-spun homilies and pious liturgical celebrations), and of course administered the sacraments (including celebrating the Mass daily and hearing Confession). Several questions have been asked by disturbed faithful: Is it that easy for somebody to simulate being a sacred minister and victimize the faithful? Can the bishop punish so severely? What is excommunication ferendae sententiae? To answer these questions thoroughly, we started our discussion with a backgrounder on the Penal Law of the Church in the previous issue of CBCP Monitor.

We now pick up the thread of that discussion to conclude this article.

Types of Each Kind of Canonical Penalties

As we saw in Part I of this article, there are two kinds of canonical penalties: censures and expiatory penalties.
a. Types of Censures

The Code of Canon Law speaks of the excommunication, the interdict, and the suspension (cc.1331-1333).
1) Excommunication was defined in the CIC 17 defined as a censure by which a person is excluded from the communion of the faithful, with the inseparable effects enumerated in the canons. These inseparable effects were summarized in the old c.1331.
2) Interdict is a censure by which the faithful, without losing communion with the Church, are prohibited some goods (i.e., those expressly enumerated in c.1332). The new Code only recognizes the figure of the personal interdict, which is configured analogously to the old minor excommunication, so called because it did not directly affect the communio but only some of its effects (i.e., those explicitly enumerated).
3) Suspension is a censure exclusive to the clerical state, by which the exercise of the power of Orders, the power of gover¬nance, or of an office—as well as the right to receive specific goods—is prohibited partially or totally.

b. Types of Expiatory Penalties

The prolific enumeration of such penalties in the CIC 17 is now reduced to what is established by c.1336 and the specifica¬tions of cc.1337-1338 as follows:
1) Specific expiatory penalties: restriction of freedom of residence (cc.1336, §1, 1° and 1337), penal transfer to another office (c.1336, §1, 4°) and dismissal from the clerical state (c.1336, §1, 5°; cf. cc.290-291).
2) Generic expiatory penalties: Privation of or specific prohibitions against the exercise of the power of governance, office, tasks, rights, privileges, faculties, graces, titles or decorations (c.1336, §1, 2°-3°).
3) Others to be established by Law.


Excommunication is the archetype of ecclesiastical penalty, for its direct relation to a concept which is fundamen¬tal to the whole ecclesial penal system: the communio. Communio is the vital habitat of the faithful as such. His participation in that communio has an ontological root (baptism), which obviously cannot be lost; but it has a two-fold projection: a) A mystical dimension, which supposes sanctifying grace and charity: the faithful communicates with and in the Church as Mystical Body. b) A juridic dimension, by which the faithful is united to the Church as a visible society, and which is expressed in a series of juridic relations (rights and duties of the faith¬ful as such).

The Juridic Dimension of the communio is what can be affected by the privation which constitutes the canonical penal¬ty: a privation which presupposes a constitutive act by the legitimate authority and which affects the enjoyment of certain rights.

Though the infliction of excommunication does not judge regarding the mystical dimension of communio (i.e., on the sin¬fulness of the act), it is only inflicted in the most serious offenses, which ad extra presupposes the existence of a certain rupture of the mystical communio (mortal sin). The direct effect of excommunication is the loss of communio in its juridic dimension. As a consequence, the effects in the sanctioned faithful are the follow¬ing:

1) For non-declared latae sententiae penalties, this pecu¬liar manner of sanction has implications in the good name of the excommunicated person. Since the fact that gave rise to the excommunication may not be publicly known—in which case the danger of scandal is substantially reduced—, the Law only urges its observance to the extent that such does not imply self-incrimination or auto-denunciation by the offender. Hence, the peculiar regimen of this type of sanction as regards its effects:
a) The excommunicated cannot actively participate in the celebration of the Eucharistic Sacrifice, or in any other ceremony of worship.
b) Neither can he celebrate the sacraments or sacra¬mentals, nor receive the sacraments.
c) Neither can he exercise any ecclesiastical office, ministry or function; nor legitimately carry out acts of govern¬ment.

2) For ferendae sententiae or declared latae sententiae penalties, the above effects are aggravated in the following terms:
a) The offender who tries to actively participate in the celebration of the Holy Mass or in any other ceremony of worship should be rejected, or the liturgical ceremony interrupt¬ed, unless a serious reason warrants otherwise.
b) Any act of governance (cf. c.135) by the offender is invalid. In the case of a parish priest, his assistance in a canonical wedding, though not strictly an act of governance, is also invalid (cf. c.1109).
c) The enjoyment of privileges previously acquired is prohibited.
d) The offender cannot validly obtain any honors, office or other function in the Church; nor posses the fruits of such honors, office, function or pension.

Zeroing in on the Green Meadows Affair

1) Is it that easy for somebody to simulate being a sacred minister and victimize the faithful?
Can.903 stipulates: A priest is to be permitted to celebrate [the Holy Mass] even if he is unknown to the rector of the church, provided he presents a letter of recommendation issued by his ordinary or superior within the year, or provided it can be prudently judged that the priest is not prevented from celebrating. In practice, every priest has a little document (like the old LTC Driver’s Lincence) which is called a celebret, which attests that he is of good standing and can therefore be allowed to celebrte the Eucharist.

In the case of the Sacrament of Penance, it is further required that a priest has the faculties to hear confession in a given circumscription. The local ordinary alone is competent to confer upon any presbyters whatsoever the faculty to hear confessions of any of the faithful (c.969, §1), and such faculty to hear confessions is not to be granted to presbyters unless they are found to be qualified by means of an examination or their qualifications are evident from another source (c.970). Furthermore, the Code stipulates that the local ordinary is not to grant the faculty to hear confessions habitually to a presbyter, even one who has a domicile or quasi-domicile in his jurisdiction, without first consulting with his [the presbyter’s] ordinary, if possible (c.971).

In principle, therefore, it should not be easy for anyone to pose as a priest and administer the sacraments─especially to celebrate Mass and to hear confession─if all the cautions stipulated by Canon Law were followed.

2) Can the bishop punish so severely─as happened in the Green Meadows Affair?

Can.1378, §2 is very clear: The following incur an automatic (latae sententiae) penalty of interdict: 1º one who has not been promoted to the priestly order and who attempts to enact the liturgical action of the Eucharistic Sacrifice; 2º a person who attempts to impart sacramental absolution or a person who hears sacramental confession when one cannot validly give sacramental absolution [e.g., because of lack of valid ordination].

Can.1378, §2 therefore clearly establishes an automatic interdict, but not an excommunication, for the offender in the Green Meadow’s affair. However, the same c.1378, in its §3 also establishes: In the case mentioned in §2, other penalties including excommunication can be added in accord with the seriousness of the offense.

Clearly, the local ordinary in this case─in the exercise of his solemn office as pastor of the flock─had judged the offense of special seriousness to warrant the infliction of the heaviest canonical penalty of excommunication, ferendae sententiae (by decree).

Thursday, June 3, 2010

Canonical Process for Alleged Sexual Abuse of Minors by Clerics

(Part I)

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 more the erring clerics than the aggrieved parties; (3) that the Church conceals such allegations from the civil authorities. In the interest of the truth─which the responsible faithful should know how to proclaim in the face of such crude attacks against the Holy Father himself─let us tackle these issues systematically in two installments of this column.

The Church Law against the Sexual Abuse of Minors by Clerics

Contrary to the first charge, the Church has long had laws on the books that address this crime. Even before the codification of the Church laws in 1917 and in 1983, sins against the Sixth Commandment with a minor were also considered as criminal acts. From 1917 onwards, the Church promulgated concise legal norms that stated this and that imposed penalties on clerics guilty of such heinous crimes.

In April 2001, Pope John Paul II issued a law stating that, from then on, the Congregation for the Doctrine of the Faith (CDF) in Rome, headed at the time by Cardinal Ratzinger (the future Pope Benedict XVI), would have sole Church authority over such crimes, which were referred to as graviora delicta or “serious crimes”, giving the title to the aforementioned legal document.

Prior to 2001, the crime would have been generally dealt with on the local level by the diocesan bishop. The CDF would have been involved if the offense had occurred on the occasion of the celebration of the Sacrament of Penance (confession). Otherwise, the case would have gone for a second hearing (appeal from the diocese) to the Congregation for Clergy or the Tribunal of the Roman Rota, depending on how the allegation had been resolved at the local level.

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

1st Stage: Preliminary Investigation.

The Code of Canon Law stipulates that the first steps after receipt of an allegation of the commission of an ecclesiastical crime are usually taken by the local bishop. If the priest against whom an allegation is brought is a member of a religious order, his superior might takes the first steps instead. Any allegation that has the semblance of truth (i.e., not manifestly false or frivolous) undergoes what is referred to as a preliminary investigation.

The bishop appoints an investigator, who has the obligation and the authority to collect the facts and circumstances surrounding the allegation, so that the bishop can make a determination about its truthfulness and what further action he would recommend to the Congregation for the Doctrine of the Faith. The investigator often uses the expert services of others to assist with the investigation. In the United States─where the procedural norms are more developed because of the spate of allegations in the past decade─the bishop also makes use of the services of his Diocesan Review Board, a panel of experts, to help him review the allegation and associated information. The bishop and investigator are careful not to interfere with any civil investigation into the accusation that might take place. The investigator and others who assist in the investigation may be laypersons. In the Philippines, the few cases that have prospered beyond the gossip stage have involved an investigation by the parish pastoral council, admittedly a not very discrete body given the number of people involved.

During the preliminary investigation, the accused enjoys the presumption of innocence and his good name must not be illegitimately harmed. This is a fundamental norm procedural law, also in the law of the state.

The charge of foot-dragging and secrecy leveled on the Church, especially in the United States, is gross calumny. According to the Essential Norms─the law on sexual abuse of minors for the dioceses of the United States─the investigation should be conducted promptly and objectively. The Essential Norms also require the bishop to follow all civil reporting laws when the allegation concerns the sexual abuse of minors. It further requires Church officials to cooperate with civil authorities in their own investigations. Moreover, the bishop exercises his power of governance in other ways to make sure that no harm comes to the minors during this phase of the preliminary investigation.

2nd Stage: Involvement by the Holy See

The Congregation for the Doctrine of the Faith (CDF) has the sole competence in resolving allegations of sexual abuse of minors committed by clerics. But this competence does not “kick in” until a case is referred to it by the local bishop (or religious superior in the case of religious clerics). The bishop makes the decision as to whether a case will be referred to the CDF based on the result of the Preliminary Investigation.

In most instances, unless the allegation proves manifestly false, it must be reported to the Congregation. The Essential Norms require a bishop to report all cases to the CDF once he has sufficient evidence that the sexual abuse of a minor may have occurred.

The CDF then reviews the material and makes a decision on what the next steps might be. The decision is based on the material gathered during the preliminary investigation and on the observations and recommendations of the bishop regarding the allegation and what might be a suitable way to address it.

The next steps could include several options depending on what materials the CDF received. Among them, the CDF could authorize the bishop to hold a trial locally or to address the allegation through a simplified, administrative penal process. It could also hold a trial in Rome at the offices of the CDF. In the clearest and most egregious cases, the CDF could refer the matter to the Pope for immediate dismissal of the cleric (see below for more on this). It might also happen that more information is needed before a decision can be made. This would require the bishop to gather the information and forward it to the CDF. The CDF could also confirm, if the facts and circumstances warranted it, that there is not sufficient evidence of the commission of an ecclesiastical crime.

As to the charge of slowness of the Holy See to address such cases of alleged sexual abuses of minors, it must be kept in mind that the CDF would normally have knowledge of the accusation only when it is reported to the Congregation by the bishop or religious superior.

Finally, as to the specific attacks on Benedict XVI regarding his slowness in acting in such cases, we have to point out that the Pope does not normally get involved, since the CDF handles these cases. The Pope does not supervise the daily activities of the Congregation nor become involved in particular cases as they are being processed.

Meanwhile, what of the Cleric accused?

A common complaint is that the clerics accused of such crimes are allowed to perpetuate their criminal acts while the process is taking place, and such processes could take ages. While this could happen in isolated cases, the usual thing is for a bishop to withdraw a cleric from active ministry pending the outcome of an investigation of the allegation. This is done primarily to assure that minors are not in danger should it prove true that the cleric had committed acts of abuse.

On the other hand, it must be emphasized again that the cleric enjoys the presumption of innocence. This should be made clear by the diocese to the public. If the allegation is unfounded, the bishop must strive to repair any illegitimate damage to the good reputation of the priest or deacon. [To be continued.]