CS0802

Programme concentrated classes “Les Sorbiers” 6-9 March 2008

Session 1 Rik Torfs. Role of the Advocate Session 2 Anthony Bawyn. Session 4 William Richardson Session 5 Rik Torfs. Session 6 Anthony Bawyn. Session 7 Rik Torfs. Seminar Peter Coertzen Session 07 ?? Session 08 Rik Torfs. Session 09 Anthony Bawyn. Session 10 Rik Torfs. Seminar Pieter Coertzen. Session 11 Anthony Bawyn. Session 12 Rik Torfs.

Capita Selecta: “Sexual Abuse and Penal Law” (B0B16A)
(Master in recht religie en samenleving - Master of Law Religion and Society) (coordinator: R. Torfs) – 20h
Individual preparation 9 h
A. Bawyn (AB)– 6 h
R. Williamson (RW) 2 h
P. Coertzen (PC) – 3 h

Process Law of the Church (B0B11A; B0C20A: Master of Law Religion and Society) (R. Torfs) – 26h
Process Law of the Church – Second Licentiate) (R. Torfs) – 26h
Kerkelijk strafrecht (Master in recht religie en samenleving) (R. Torfs) – 13h
A. Bawyn (AB) – 7,5h
Individual preparation –12h
R. Torfs (RT) –17,5h
R. Romain (RR) –2
Castel les Sorbiers, rue des Sorbiers 241, B-5543 Heer sur Meuse
Anthony E. Bawyn - 78-82, 90-92, 96-99 - studies in Leuven - Huysmans promotor.

Thursday 6 March
Torfs:

1. process law,
   

2. indirect punishment - Jean Werkmeister two articles on holy communion of the divorced. on PCAILT declaration of 2004.
   

3. Role of the advocate, tribunals secundum and praeter legem. Church tribunals tended to be restricted to marriage practice - other elements become increasingly important.
   

4. Process Law and current legal questions - will secular process law intrude in the law of the church.
   

5. Secrecy Religion and State Norms.
   

Bawyn:

1. Procedural law working toward penal law.
   

2. The effect of the Sexual Abuse on development of process. Prescription, imputability, change of competence. Hard cases make bad law.
   

3. Due process or other ways of avoiding trials. More creative possibilities going forward.
   

4. Perspectives: as parish priest and tribunal practitioner rather than academic, the precision may be lacking but it should be more pragmatic. Happy to becoming from diocese that is working hard on 7-8 sex abuse cases coming back from Rome.

Session 1 Rik Torfs.

Canons 1400-1752. Discusses competent forum, grades and types of tribunals, the roles in the trials, time place, etc. Parties in the case. 1501-1670 Contentious trials - almost never used (penal and marriage procedures are more often used). You have to combine these norms with those of marriage and penal norms (dignitas connubii - which is just an instruction, but it is also making significant innovations, e.g. adding concern for noncatholic partner marriage law in nullity cases. Language groups have quasi-personal parishes - dutch in brussels, poles in england. A few dozen penal trials in the US. There was a proposal for one penal tribunal in the US to gather the expertise. Most tribunals are unable to organize a penal trial properly. At the end there is administrative process.

Role of the Advocate

1. Qualifications: doesn't have the same skills necessary for the judge. Judge has to be canon lawyer (Dispensation possible, but they are reluctant and only for a limited time, and may not renew.)

• Canon 1483 Advocate must be competent, but need not have a degree. Catholic, unless permitted otherwise approved by bishop, Doctorate, unless otherwise competent, approved by the bishop. The approval is discretion, but there is a legitimate expectation and there may be recourse if they are refused. Marriage procedure seeks to uncover the truth - advocate gives the implication of defending a person or position. Ceremony after the annulment should be a more serious - but if the annulment is real, this should not be. An advocate must speak the truth, but it might be the part of the truth that is in favor of a particular position.
  

• 1060 Marriage has the favor or the law. Burden of proof is often the end of story.
  

• Nullity procedure is not really a legal question, but a pastoral one. In a marriage trial the plaintiff is the petitioner - the defender of the bond (this person isn't advocating truth, but the bond), and a third party the other spouse. Advocacy also important in Canons 1663, 1723,
  

• Outer Circle - no theological influences, and no involvement of church authorities. Intermediate circle with theological influences but no involvement of the authorities. Inner circle. Theological influences and involvement of the authorities. Where does the advocate play a part? Advocate was disallowed by the signatura and Raymond Burke agreed and expanded right to exclude advocates. Outer circle is the area of contentious trials - not much at stake theologically and authorities not involved - it must be equals if it is contentious, e.g. benefices in canon 1272. Few problems for having an advocate.
  

• Intermediate circle - matrimonial process, there are theological issues, but there is no true involvement of the church authorities. Compensation of the advocate by the parties or by the tribunal may make a difference in what they do. The advocate seeking the truth may be betraying the client. There is the interest of the client, and there is the desire of the client which may not be in his best interest. In canon law you can fire your advocate. In some tribunals the advocates will go against the will of the advocate. In other cases, and with other canonists, they will will no go against the desires or will of the client. You should tell the client which role you are playing. The advocate's role isn't really spelled out in the code. Collective subjective contention may may be a better way to find the truth that than by everyone trying to be objective.
  

• Inner circle is penal trials and hierarchical recourse. Authorities are involved in various ways. The advocate asks for the revocation of the decision taken by a bishop. In the stage before formalization of the hierarchical recourse, there is no right to an advocate. So the personal relationship may prevail over the right to an advocate. Advocate may create discord. But if the relationship is bad, the bishop will be even more reluctant to have an advocate. The advocate doesn't have an independence as a profession. But these people don't really exist, and often those that do exist are on the payroll of the bishop.
  

• 1)Incardination may incorporate the conflict (it lies within the incardination relationship. The incardination is strong enough to embody and solve the conflict. 2) There may also be two parallel circuits: incardination remains, and it is partly in the incardination relationship, and also outside with an advocate. Bishop says it is important to have an advocate - the bishop continues along both paths, we're 'friends' but we also have a formal conflict. (1743). The conflict was seen as a step on the way to hierarchical recourse. Formal meeting with advocate; then an informal pastoral chat. This leads to problems. 3) Instead, set aside a part of the incardination relationship that is now part of the formalized conflict. It would be like in sexual abuse, as long as a civil process is underway, the canonical process is suspended, and that is not part of the incardination relationship. Once the conflict is formalized, informal process is suspended. (This also happens in the civil side.)
  

• 1433, 1435
  

Session 2 Anthony Bawyn.

• Introductory remarks - Canons in book 7: there are over 100 and the penal process only has 15 canons. Part five won't be discussed.

• Process of a trial in canon law. Procedure is to defend rights, resolve a controversy, search for truth, declare facts. Laws show justice in a plurality of similar cases. Trials determine justice in a particular case.
  

• Aspect of the power of governance, often juridically. Competence is bishop or tribunal. Appeal may be mandatory (marriage) or optional.
  

• Types of trials: Ordinary or special - ordinary is contentious with all the canons, the special are penal, marriage, administrative. Major structure isn't used much, but special procedures are apended to this.
  

• Parties: marriage - it is the spouses (marriage cases were abandoned and a promoter of justice picked it up and completed it without the parties). One who posses the right of defense. (De facto scandal with divorce and remarriage.) Procedure is not subject to dispensation.
  

• Process of trial in canon law. Introduction of the case: libellus; citing the parties; joinder of the issue. Proof: gathering proof, declarations, witnesses and documents, experts and presumptions. Publication, conclusion and pleadings; Judicial Decision; Challenging the judgement with appeal, complaint of nullity or restitutio. The nullity can always be challenged later - but in penal process, the final decision is settled: res judicata.
  

• Special processes: 1) Matrimonial cases - Marriage nullity, separation of the spouses, ratified but not consumated; presumed death. 2) Invalidity of the Reception of Holy Orders; 3) Penal cases only 15 canons. Possibility of administrative decree, special notes: a) importance of preliminary investigation Canon 1717 to determine 'credibility', b) advocate for the accused, c) imposition of preventative measures Canon 1722 - even penal-like measures can be taken - when, when, temporary measures may be as bad as complete sanctions, d) accused always speaks last, has last word, e) innocent party has right to see that a judgment completely absolves him, Canon 1726, f) reparation of damages, compensation. Dignitas Conubii. Some of the things we follow now 'religiously' are either motu proprio or from CDF procedures.
  

• Administrative tribunal can use oral process. Administrative decree can be used, but there is a question whether this is truly an administration of justice de facto. Neither administrative or judicial is easy, but one may choose administrative because it is preceived to be quicker.
  

• Who are all these canons for - some of these things take on more detail and sophistication when they have to do with priests or internal hierarchical structure. There is no sense they will be used on anyone but clerics.
  

Penal Procedure in Particular

• More than one method is possible: 1) Judicial trial and 2) Administrative process.
  

• Outline of Penal Procedure (see Woestman). Main steps are preliminary investigation, process stage, repairing damages.
  

• Preliminary Investigation: Canons 1717-1719 (Ingels 1999)
  

• The ordinary can do this, it need not be the bishop himself. Critical for conducting a principle instructions which can be used during the penalty phase. Ordinary receives information with semblance of truth about an allenged offense. If the preliminary investigation is well carried out, then it makes it easier later on, you don't have to retake all the evidence. What do we mean by credible? Look at the facts of the complaint, circumstances surrounding the offense; and imputability of the accused. The accused can be heard but this is not the formal interrogation. As a result, the forum of pastoral action of the bishop may be confused with the legal forum. It is reportable. (There isn't a presumption of innocence in the code, but neither a presumption of guilt; also there is a presumption of imputability.) Jenkins: Charter and Norms 2 years later. Administrative decree can't impose perpetual penalties - so you have to go with judicial trial for that. Perception of justice can be improved by diligent response.
  

• Decisions of the ordinary 1) can we start a penal process? 2) is it expedient? (it's expensive in time and resources.) 3) Must a judicial process be used - if certain penalties are sought, the process may be penal. "Only after determining that scandal cannot be sufficiently repaired, justice restored and the offender reformed by correction or pastoral care, does the ordinary decree the penal process." A very subjective decision - the secular court may also put pressure and eliminate some scope of actions. Also CDF puts pressure. The choice not to punish is limited. CDF norms are partly contra legem, non contradiction would say that at some point the change in the law should be acknowledged.
  

• Scandal - means publicity, letters, money, pragmatic / mechanical approach to scandal. Defacto scandal comes from divorce and remarriage. 2000/June 24. That scandal (communion for divorced remarried catholics) exists even if such behavior no longer causes surprise. Scandal is a troubled concept - is it an objective reality, does it even depend on the subjective feeling fo the people. Civil scandal is everyone is horrified; Canonical scandal is if everyone isn't horrified - or is there the additional element of thinking it is okay now. Can a person respect the tradition and still question its ongoing relevance - the subject of scandal may be something that admits of change. In some points canon law is amoral, other times, it enforces moral law.
  

• Consul two judges or experts before issuing decrees. Is it expedient to resolve the question of damanges without a trial?
  

• Process Stage: Penal extra-judicial (administrative) procedure 1) inform the accused and allow for defense; 2) weigh proofs with two assessors; 3) Issue decree after certainty of the delict is established and prescription has not run. Is a part of this that these are crimes against males? What about with women? The accused has been dealt with informally - here they are the accused in law. Decision, reasons, basis.
  

• Judicial Process Stage Promoter of Justice presents the libellus to the judge. Limits in Canon 1722 can be imposed at this point. Remind the accused to find an advocate or get an assistance from the court. Joinder of issues and seeking proofs and depositions. All preliminary period is brought in. Both sides permit the names of witnesses. Challenges to the presumption of imputability - appearance of a crime means the person is guilty. Reinstruction of the case if needed. Promoter and defender can submit briefs at the end. Either side can appeal. Accused is not bound to confess and no oath is administered. Right to non-self-incrimination. Canon 1324 talks about mitigatio of imputability. For validity, the accused must accept renunciation - but then the fact is not established - it remains in limbo. Accused writes or speaks last. Judge must absolve an innocent party 1726. How much does victim impact affect the outcome.

Friday 7 March

Session 4 William Richardson

• Legal position of Irish Church -

• Crimen is an instruction to implement the 1917 code and then the new code. Explanation of use of instruction to implement law rather making new law and decrees. First focus is dealing with solicitation in confession. Secret internal norm - not to be published or augmented by commentary - Gravely obscene act of priest with male, minor or animal. 1962.
  

• Solicitation definition 1741 definition. Solicit penitent for obscene act, even outside confession, by any communication, even nonverbal. Competence lay with the ordinary where priest resides. Quick turn around of cases. Anyone can have recourse to holy office, but doesn't deprive locals of jurisdiction. Religious priests weren't prosecuted, but crimen doesn't exempt them. Bishop can delegate, but no interested parties. There is consideration that there would be a stable system for dealing with this but this is simply not the case in Ireland. As far as possible court ministers had to be priests - no interested parties - sometimes you have to go to neighboring diocese to find competent personnel.
  

• Confidentiality - perpetual secrecy of the holy office (oath of confidentiality explains this, no pain of sanction, different decrees of secrecy). Urging victim to reveal the crime lest it go unpunished and cause greater damage. Denunciation: denouncer made oath to speak the truth, it should be brief, clear and decent, there was no interest in concent by the victim (which instead was a focus of civil prosecution). Denouncer signs and the receiver and notary witness and sign. Then all vow secrecy. Variations allowed.
  

• Bishop's response - consult with promoter of justice, determine whether crimen applies. If they don't agree, refer the case to the holy office. If they agree, put record in secret archives if no crime, or start investigation if there is basis. 1) previous history of accused even on other matters; 2) consistency of crime; 3) .... Administrative leave may be given. Bishop receiver of accusation, witnesses would be called who knows both accuser and accused. If they can't be found, an abbreviated procedure was used, and extra judicial investigation. If witnesses corroborated, the denunciation was considered true.
  

• Response 1) If there was clear non-guilt, the documents were destroyed; 2) if non-guilt, but not clear, retain documents; 3) if something went wrong, but no process required, the bishop acted in his dicretion; 4) if probable cause, the full process was begun.
  

• Beginning the process. 1711-1725 (1917 code). Judge to exort the accused to confess. The accuser was treated gently; the accuser was more harshly treated. If confession, then notary to be present, a sentence could come from that. If denied, or less than complete confession, then process began. Danger of witness intimidation to be avoided (sequestering of accused allowed, and no recourse).
  

• Reaching Judgment. Allow defense by advocate. 1) certain of crime: condemn. 2) if certain innocence: declaration of innocence. 3) if doubt, dismiss the charge.
  

• Penalty: suspension from celebration of mass and hearing confessions - deprivation of benefices and dignities - prevented from receiving them, and degraded (laicized). With minor, man or beast, was concidered lesser crime. In 1983 dismissal from the clerical state was introduced.
  

• 1622 Document began this line of documents. It was an ongoing problem in the 19th century, as evidenced by documents. Moral theology manuals should provide information about this matter. Broad interpretation of the crimes is given, in opposition to the normal practice of interpreting them strictly. Pastoral and juridical process is conflated here. Presumption of unlawful intention even in lesser acts, e.g. a hug or kiss. The document itself was hidden, but there were sufficient references in public documents to determine its contents.
  

• Irish situation: 2002 inquiry to be set up. Diocese of Berns 100,000 people, all catholic 121 secular priests, 10 religious priests. Determine accusations and adequacy of response, reasons for any inadequacy and determine communications with civil authorities. 100 allegations 1962-2002, 21 priests involved (6 died before allegation, 3 died since). Response varied over time. Expectation of civil society play in to response. Bishop 1 - Hurley - transfer, then treatment. However, he reappointed those unsuitable. He also ordained unsuitable candidate. Comaske - bishop 2 - saw that cleric should step aside, and bishop didn't compel him to step aside; bishop himself was an alcoholic and suffered from depression. Successor bishop cleaned up the existing allegations.
  

• The situation would have been better if the existing code had been followed. Screening wasn't done. No mentoring after ordination. No understanding of the systematic nature of child abuse. Records not properly made or kept, no chancellor. Allegation and denial was all that existed in the cases. Harsh treatment of accusers was common. The report didn't understand the history of crimen. Many questioned saw not a proper balance of rights between priest and the common good.
  

• Canon law seen as an inadequate way of handling cases; Tribunals weren't prepared to handle penal cases. "This was seen as something very extreme and something that wouldn't be used, so people didn't study it."
  

• Imputability was used by bishops as a way out - worst predators were not imputable and therefore not punishable. Therapeutic paradigm - abdication of responsibility to therapists. Some dioceses withheld important information from therapeutic centers. Second opinions were sought if a poor report was given by one therapist. There was also a marketing strategy by therapeutic centers wanting to have a cure record to obtain repeat business. The complex of disease, sin and crime. Some rely too heavily on the advice of civil lawyers - in appropriate defenses - confidentiality agreements, blaming the victims, distancing themselves form priests as independent contractors.
  

• History of insurance shows the bishops understood the concern. Reassignment could cause liability, so they increased coverage. No risk analysis, claims basis. Bishop required to immediately remove and treat; no reassignment without a clean report from therapist. 1996, too many claims so diocesan policies terminated, moneys put in national trust fund.
  

• Black hole from mid 60s-1983. Canon law was taught not so much as in existence at the time, but as it was expected to come into effect. Debate about the value of coercion as a part of church law. In the religiously homogenous society, the penalties would be reinforced by the social mores. Some argue for merely disciplinary code with no sanction. Most did however agree in accord of the perfect society notion, that some penalties were necessary, though there was consensus that they should be reduced in number. 1975, Provost saw increasing load of marriage cases, but foresaw that there wouldn't be competence for penal trials.
  

• Conclusion - there was a canonical system in place to deal with the problem since 1622 and subsequently updated. The procedures weren't hidden or secret and were commented by canonical authors, though it was primarily regarding soliciation. But some places applied it inadequately: no records, poor leadership, poor screening; fear and reluctance to use the existing process; process not taught; failure to recognize criminality. Statutory investigation of Dublin Archdiocese 84-04. Two documents from bishop's conference and religious conference, one by a committee of mainly social scientists, another documents lists guiding principles among which canon law is not found. Due process is thrown out in view of protection of children. The bishops are returning to sources that have not served them till now with the possible addition of civil lawyers. The deeper crisis is a crisis in the role of the bishops.
  

• Confidentiality agreement - It was required by civil lawyers - maturity of signatories wasn't considered.
  

Session 5 Rik Torfs.

• Manifest obstinate sinners: not the mafiosi, but the divorced remarried. Jean Werkmeister Revue de Droit Canonique 1998 59-79. and 2001, 373-399 - which should have been a retraction, but was an expansion. Declaration of 24 June 2000 (A reaction to the first Werkmeister article.)

• Common understanding that divorced remarried cannot receive commonion is incorrect.
  

• Sources 1917 Code, Familiaris Consortio 1981, 1983 Code.
  

• Social evolution of the family: earlier it was production unit, e.g. for a family farm or family business. It often isn't a consumption unit any more in many cases. What keeps people together is conjugal love and children - though these are not always present.
  

• Divorce has been present for a long time, and is spreading. Until the 1960, remarriage is not common, but it is more common now. There is a multiplication of the effects of divorce with regard to remarriage - both may enter into a new union which is irregular and the new partners are then in an irregular marriage so from one divorce, there are two couples in irrregular situations. 10% of catholics are effected.
  

• 1917 code - divorced and remarried were excommunicated - this is a penalty, can't receive certain or all sacraments. Various penal sanctions given for those who were considered bigamists. A vindictive penalty: infame de droit was latae sententiae - not god fathers, irregular for orders, prohibition for ecclesiastical income, couldn't administer goods of the church, no holy communion. Perpetual sanction, not dispensable, even by the holy see. Second medicinal penalty - personal interdict was not automatic - the ordinary had to give a monitum - couple must separate and civil divorce. If the couple refused, they got one of two penalties: excommunication or interdict which was minor excommunication. There was also the peccatores publici were publicly unworthy and this expression appeared in various canons of 1917 code. They were not accepted, due to a public and manifest sin provoking scandal. After penance and repair of scandal, they could return. Refusal communion was a common part of the penalty structure Canon 915 in current code.
  

• Familiaris Consortio - often invoked to refus communion to remarried divorced. Paragraphs 79-84 covered pastoral action in irregular situations: divorced-remarried, free unions, separated-not remarried. Cohabitation aren't necessarily covered by 915. The legal value of the exhortation - in and of itself, it isn't an imposition of norms, but an indication of direction and orientation. If there was an intent to issue binding norms, they could have been included in the code issued two years later. Most commentators however, don't question the canonical value of the text. But even if a law, the later code would prevail over it. Werkmeister sees it as a stage in the reflection on the matter. Important elements of the text: pastoral concern and charity are encouraged, tone is milder than 1917 code, Pope says divorce remarried are in objective contradiction to the community of love in the Church. Christian faithful would be confused by this. One way out is separation, another solution is continence; but continence doesn't appear publically - though not forum internum, it is impossible to prove. Boniface 8th - the general principles of law - regulae juris 1298: Odia restringi - et favoris convenit ampliare. Suppose the continence, don't assume the intercourse - a canonical principles conforming to a pastoral attitude.
  

• Code of 1983: Many modifications of the previous text; the new code didn't treat explicitly the case of remarried divorced people. Bigamist is left aside by the legislature, infamous behavior is no longer used. Excommunication and interdict can be applied in clearly defined cases, see canons 221 and though 1399 which are less severe than 1917 code. Many other things are punished: bringing up kids non-catholic Canon 1366. If there is no crime, see canon 843.1 Sacred ministers can't deny the sacraments to those who ask for them, are disposed and are not prevented by law. also, canon 213 the faith have the right to be assisted from the spiritual riches of the church. Situations that are exceptions are 1) Ordination 1041 - divorced, remarried can't be ordained; 1047.2.1, 2) Marriage 1085 - bound by the bond of a prior marriage cannot validly marry. and 3) Eucharist Canon 912 says people have the right to eucharist. Canon 915 excludes 'others obstinately persevering in manifest grave sin. Those excommunicated and interdicted who are declared. But this introduces a subjective manner - if it is latae or ferendae there is a difference, though the crime is the same. Marzoa says the unambiguous that divorced remarried people are grave sinners, with no substantiation. Mens legislatoris is mentioned is the last element of interpretation in the case of unclear norms. Mens legislatoris could include the second Vatican council. Some say that you always consider mens legislatoris - even if text and context is clear, but this is in contradition to the explicit text of Canon 17. This is a complex situation. An alternate text was proposed: 1980 text those are not admitted who commit a delict and persever in it. This followed 1917. In that case, criminals are denied communion and divorced remarried were considered criminals. The schema was commented by two persons: Florit - it is too vague and Palazzini - you are clearly restricting the scope of application, excluding public sinners. But the official position was that it was all just as before - which was not true. Ultimately the text changed again.
  

• Public refusal of communion is an important matter - but the criteria are now vague. Travers says it requires mortal sin. Manifest grave sin is not a clear category. They need to take sin - which is internal forum - and make it manifest so that it is external forum. It is a weakening of the forum internum. Manifest may mean public and causing scandal; scandal is no there explicitly, though it was in the 1917 code. "What provokes a scandal in a community of faithful may not cause scandal in another community; refusing community itself may cause scandal." Another difficulty is the lay distributor of communion - how is this person going to correctly canon 915, admitting ad argumentum that the priest can make the distinction. There is also the obstinate perseverance is also required in canon 915. Werkmeister says the monitum is required if there is going to be obstinacy determined, see also canons 751, 1364. (Cocopalmeri - opposed to positivism which is a hidden form of relativism. Four main words in the text that appear side by side, perhaps this is an extra caution.)
  

• The other element is the personal decision to receive the sacraments. Canon 916 requires the person to be free of grave sin - a matter of internal formum. Is there a subjective right of the divorced remarried, given not just 915 but also 916. Can the priest absolve the divorced remarried. 1993 German pastoral letter distinguishing between official authorization to go to communion, which cannot be given, and authorization in conscience which can be given in the name of tolerance and equity in an individual and personal way. This is not described in detail - the priest doesn't give permission, but let's the person determine. Many pastoral matters are taken into consideration of the matter - more moral commitment is required. CDF responded negatively, given the grave nature of the subject, it said that the individual conscience could not be allowed to decide. But the German bishops responded by saying they agreed, but there are nuances regarding access to holy communion which has to do with pastoral practice in particular cases. We gave pastoral advice not a norm, and nothing prohibits application of our advice. In practice this meant a continuation of the practice.
  

• Werkmeister ends praising Belgium where the bishops published a letter on divorced and remarried 1995: supporting the preeminent role of the personal conscience. It does not belong to the minister to public refuse communion except in the case of provocation and grave scandal. But the case of provocation would require refusal of communion, even in areas outside the issue of divorced remarried.
  

• Three conclusions 1) divorced and remarried are no longer a separate legal category; 2) we are today in an ambiguous situation; 3) we should examine in more detail the posture of divorced remarried - examine old exceptions and new situations. With mobility today, catholic can just go elsewhere for mass - so the internal conscience is the only forum is the only one always available and informed to make a decision.

Session 6 Anthony Bawyn.

• Introduction - penal law was basically out of favor, leading up to the new code. DePaolis - not many sentences by the Rota, so not much jurisprudence. Vatican Council also promoted a change in mentality.
  

• Penal Substantive Law - the church reserves the right to punish. The mission is salvation and the penitential system is part of that: forgiving sin and preventing sin: repairing scandal, restoring justice and reforming the offender. There must be maintained the distinction among sacramental, pastoral and penal. Determine the result you're trying to reach - is it reform, or punishment. If you want to punish, then don't pretend it's for medicinal purposes.
  

• Distinctions: 1) Sins and offenses. There are moral and juridical functions in the church. Power of governance sometimes has overlap of these for expediency purposes. E.g. Sacramental confession for abortion can remove latae sententiae penalty. 2) Internal & external forum to be distinct - external forum is penalty forum. 3) Penitential path and disciplinary path; 4) Disciplinary forum in general versus the penal forum - formal limit of rights to help the person.
  

• Offense is "externa et moraliter imputabilis legis violatio cui addita sit sanctio canonica saltum indeterminata - teh external morally imputable violation of the law to whihc is added a canonical sanction, at least an indeterminate one. Privation of a good for the correction of the offender and punishment of the crime - individual and common good at stake.
  

• Establishment of penalty - legislator determines what penalty will be, executive can threaten or impose.
  

• Who can be punished? One who has committed external violations - who is morally imputable 1321.
  

• Penalties: 1) excommunication means deprived of sacramental life of the church but only till lifted; 2) interdict; 3) suspension. Expiatory penalties are punishing or depriving of clerical state. Remedies and penances - there is an element of penance and spiritual counselling and real deprivation. One can really ask what they are for and what the real effect is in the lives of individuals. It would be good to get the response from people who have lived under these sanctions - what is the real subjective effect on the person punished.
  

• How imposed? Canon 1341 says that these are imposed as a last resort. The contemporary world wants to rush right away to the penalty. There is judicial and administrative process. An extrajudicial decree / avoiding process is not unknown. Avoiding process has been not so much a lawful avoidance, but a fear of the process and a rush to results. Canon 1343 and following show what a judge can do: if there is discretion, the judge can modify the penalty or impose a penance - there is nearly always the possibility to lessen the punishment.
  

• If formal imposition, then formal remission should be given. Prescription wouldn't make a penalty expire, but wouldn't be liable if it has run.

Sex abuse crisis in the US - development in penal law.

• Mid 80s in Louisiana had a number of allegations and the transfer of abusers. Close to 20 years of public evidence regarding the crisis. Newfoundland also had a problem. Administrative dismissals in 1998 with the help of CDF and intervention of Holy Father. Archdiocese of Boston 2002 - extent of abuse, reassignment, ineffective response of bishops, ordinary catholics came to know extent of problem. Dallas norms 2002 where bishops working with priests, abused minors, parents, educators and civil authorities. Charter and Essential norms developed and quickly criticized.
  

• Relevant sections of the code - reputation, due process, general norms on issuance of acts, prescription, rights of individual, discretion of judges.
  

• Relevant documents -
  

• Crimen Solicitationis
  

• Pastor Bonus 1988
  

• Motu proprio: Sacramentorum sanctitatis tutela. Juridic value of motu proprio - high level legislative document - more serious crimes - sexual abuse of a minor; profanation of the Eucahrist; attempted celebration or simulation of Eucharist; solicitation; absolution of an accomplice; recording and transmission of confession; prescription and derogation from prescription reserved to CDF. This has been the typical domain of CDF and Holy Office for a long time. Types of response given: 1) permission for penal trial; 2) permission for administrative decree of dismissal; 3) imposed dismissal. Right of defense in the third case - no further right other than the fact that after the initial process, the accused's advocate can submit a votum. Administrative imposition of permanent expiatory Contra 1432.2.
  

• Letter of CDF On More Grave Delicts Reserved to the Same CDF. Functionaries must be priests, diocesan responsibles immediately send acts to the CDF. On allegation, 1) introductory investigation, 2) review board consultation, 3) this is sent to the US. Diocese retains a copy of the acts.
  

• Audience with US Cardinals 23 April 2002. Basically a spiritual conference, some lines used in Dallas documents.
  

• Audience of pope granting faculty to derogate from prescription. Dispensation positive effects - dispensation frees from the application of the law. Derogation is on the level of the law itself. Prescription extinguishes an action - so it does not exist - so prosecution is invalid.
  

• US Bishops - Charter and Essential Norms. 1) Written policy; 2) assistance for the abused; 3) review board - unique to the USA situation; 4) promoter of justice (works with review board - he is point of continuity between bishop and review board - writes votum); 5) cooperate with civil authorities; 6) carry out all provisions of the code, e.g. administrative decree to remove from office; decree of restriction of living, etc.
  

• Audience of Pope John Paul II - modified working of modu proprio - grants CDF authority to dispense from: 1) Requirement for priests for certain officials; 2) Requirement of a doctorate in canon law. Also dispense from article 17 in order to: 1) refer a case directly to the Holy Father for the ex officio dismissal from the clerical state; 2) Treat a case under the summary process of Canon 1720 by the ordinary who can ask the CDF to impose dismissal by decree. Also in Article 17 graviora delicta reserved to CDF may only be tried in a judicial process - i.e. if it is remanded to a diocese for process.

How does the Penal Process Work? - Dulles, how did the Essential Norms work and Renkens and Beal Response

Informal use of power and pastoral tools

Session 7 Rik Torfs.

Vatican Response PCAILT - declaration but not authentic interpretation - to Werkmeister - It is unbelieveable, but there are some who still believe 915 doesn't apply to divorced remarried, notwithstanding FC 84 and CCC Arguments are

• no grave sin
  

• no warning is necessary for obstinence
  

• The prohibition is of its nature a matter of divine law and not a matter of positive law. One should examine himself first (1 Corinthians)
  

• Scandal exists even if there is no longer surprise since no surprise may make it more necessary for pastors to act.
  

• Grave Sin:
  

• understood objectively (subjective imputability is not at stake) Using moral theology categories, but giving it in a legal context - a legal sin and a moral sin. Legal has to determine it based on facts.
  

• persistence is not after warning, but for a suitable time
  

• manifest character of grave habitual sin. Commentaries discuss how many people need to know. If people separate or decide for continence then the situation does not exists.
  

• 3) Pastors must try to explain to the norms so people don't show up for communion. 4) No dispensations since it's divine law.
  

• Lower status of this document was chosen rather than authentic interpretation.
  

Werkmeister's second article. Many responses to first article - canonical method is interesting: some deductive others inductive.

• Travers - 1995 The Jurist. Examines letter of CDF against German bishops - not compatible with 1983 code which doesn't allow systematic exclusion of divorced remarried. Michiels said Mens Legislatoris should be an inherent part of law. Most say only if text is not clear. Sin meant by 915 is always mortal sin: serious matter, deliberate consent and absense of contrition. If it is grave sin, then you can't say all married divorced are in grave sin and so you can't systematically exclude them. The code leaves room for subjective evaluation - where as CDF is for objective evaluation - all are sinful.
  

• Myers of Peoria says St. Paul identified spouses' love with love of Christ for the church. (But this is an analogy.) For this reason divorced communion is implicit doubt of presence of Christ in the Eucharist and doubt of indissolubility of marriage. So catechism is superior to canon law because it contains authoritative norms for pastoral organizaton and legislative text. This is not consistent - The promulgating document is legislative text, but Catechism is not. He confuses the vehicle with the freight. Since 915-916 deal with sacraments so you have to interpret with divine law - another novelty. Quotes without critique - the eucharist can't be given to those publically unworthy - pearls before swine. But the category doesn't exist in 1983 code. Remarried divorced are publicly unworthy as per catechism #1650.
  

• Travers again revokes his earlier position. Pope decided in the above issue in 1997 in a speech, 84 of FC is answer. However, is not authentic interpretation, but discourse on the matter, but without intent to legislate.
  

• Gramunt of Kenya/Uganda region of Opus Dei Studia Canonica 2001 - Commented on PCAILT - should start from and understand well divine law. Magisterium interprets divine positive law through word and tradition. Church is governed juridically by non legal divine law. Formalism has to be overrulled - even if human law is misunderstood it has to be understood in the light of divine law. What is the nature of the refusal of communion. Minister evaluates as unworthy so I can't give communion - is this jurisdiction, no because some don't have jurisdiction, it is the minister applying to himself the duty of refusal. If he gives it he is committing a crime 1399, 1389.2 - and culpable negligence is required here. Penal trial could be used. As divine law, no exception is possible.
  

• Paul Declerck Revue Theologique Louvaine 2001 - Origin of prohibition is the impossibility to receive absolution if you are still in the relationship. Reconciliation cannot bring reconciliation here. Shouldn't there be a procedure to obtain the reconciliation - Jesus Christ condemned divorce but not remarriage. Now the church condemns the remarriage, not the divorce. 1) after divorce - communio non plena; 2) reconciliation; 3) remarriage minor. A more inductive approach.
  

• Analysis of the approaches - Declerck is inductive with sociological method, he doesn't start from canonical norms but from the theological significance of reconciliation and the pastoral concern. Gramunt starts from the opposite position and overrules canonical interpretation. This basically overrules the entire system of canon law. Gramunt says eastern and western codes are one corpus - however, then they would be one code. But what about Ex divine law: religious freedom, and goals of marriage. The weakness of divine law is that God doesn't say it but people say it for God. Deductive reasoning but postulates are doubtful. 1) regarding indissolubility being a divine law - me epi porneia, the exception for incest, or illegitimate relationship has been subject to divergent readings over time. What was forbidden in the past was repudiation, not divorce as we know it now. So over time, the situations change, and when we try to transpose the norms, there is not a good fit. Scripture and tradition do not clearly express the divine law as it would be applied today. 2) The construction is very artificial - Gramunt and Myers never analyse the history of teachings - they say it was always taught that.... without analysing this. No difference is made between CIC and CCEO if you say everything is divine law. 3) Cathechism isn't superior to code, but it is a different types of document, e.g. argument between faith and science. 4) Things are more nuanced than authors allow. The church didn't control marriage till the 900s. Shepherd of Hermas tried to adapt to civil laws and mores of the times. He legitimized repudiation and imposed it in case of adultery - since it fit in the civil context. So how can it be said that no evolution is possible - in fact evolution is part of the system.
  

• Conclusion 1) if no difference between 1917 and 1983, why a new code or a new norm. 2) If there is no difference, why two codes CIC and CCEO. 3) There is no penal sanction for divorced remarried so isn't there some pastoral significance to this. Central argument in the deductive arguments is that the church has no choice - it is God's decision - but isn't it more fair to recognize that all these cases do involve the choice of the church to be more or less severe. It may be an abdication of responsibility. In the current western reality, notwithstanding the official discourse, it is often much nicer to the people than it is in theory.
  

• On its face, 915 doesn't seem to apply to divorced remarried, and could apply to others.

Seminar Peter Coertzen

Law of the Dutch Reform Church - church discipline - the Church Order 1998. There is a new 2007 edition but the norms are the same. Much like other churches in the reform tradition, e.g. there are 8-10 reform churches in South Africa.

• Theological foundations of the church order.
  

• The kingdom of God which is not synonymous with church.
  

• Church as a witness to Christ
  

• Headship of Christ
  

• Word, Holy Spirit and Officers in the Church
  

• Upbuilding of the church
  

• Indicative - what we are in Christ, and Imperative - what we should be in Christ.
  

• The church starts from local church communities with their members. - See Onclin

Saturday 8 March

Session 07 ??

How does the process work - Lages, Studia 2004; Kaslyn Jurist 2005; Ingels Studia 1999.

• The following is related to Lecture 1 above with particular emphasis on the new norms and current practices.
  

• The initial investigation is quite important for setting the tone: Eight questions for CDF:
  

• Has a delict been committed - there might be something sinful under 1395.2. Is it an external violation?
  

• Is it a violation of the 1395.2?
  

• Is it an action - There may be things that are inappropriate, but are not actions. If someone is on the way to commit a delict and has taken some step toward the declict and has the intention to do it, this may not be enough. 1328.2. It might still be punishable, but it is not a delict here.
  

• Is it imputable? Important point.
  

• Was it by malice or negligence? Investigation required - it isn't a difficult determination. The accused may not be aware - do we use the reasonable person standard. There is a lot of room. Culpa and dolus - Negligence would be a 'guilty' negligence - criminal negligence perhaps.
  

• Was it committed by a cleric? Seminarian would not be a cleric, but is seen by the public as a cleric. The person may be a cleric when the accusation comes - but this says 'committed by a cleric.'
  

• Was it against a minor? Age of majority has changed over time.
  

• Can one take action (prescription)? Computation should be done carefully - this has changed over time.
  

• Canon 1717.1 the accusation at least seems to be true. Single allegation has little factual basis, but multiple accusations against a single cleric may increase credibility. In additional Climate of strong societal antagonism may also increase credibility without any objective increase of credibility. Hopefully the CDF can take a more 'objective' view, away from the societal pressure. What about punishing false allegations.
  

• Canon 1718 sufficient evidence exists to proceed. Whether the case is old or there just aren't the witnesses to support the allegations.
  

• Caring for the alleged victim. Charter addresses the issue and Essential Norms require the appointment of someone to provide pastoral care. Someone with at least enough distance to have the appearance of independence. Jurisdiction place of crime, ordinary of the victim, domicile of the accused (probably incardination place).
  

• Caring for the accused. Notification of the accused and internal and external forum issues. Document meeting. Make it clear what their rights are.

Session 08 Rik Torfs.

Secular Law side of Sexual Abuse - penal liability from abuse and from confidentiality and negligent supervsion. Professional secrecy in abuse cases. Bishop of Bayeau (Picard case) penally prosecuted for failure to reveal. European Convention on Human Rights.

• Article 6.1 - equitable, public process
  

• Article 6.2-3 Presumption of innocence.
  

• Article 8 Protection of private life - nuanced for public persons, etc.
  

• Article 9 Freedom of Religion - right and exceptions which are necessary in a democratic society, legality and proportionality. Believe what you want, but the public manifestation of that may be regulated in view of the public order.
  

• Article 10 Freedom of Expression
  

• Article 14 Non-discrimination in the application of other rights.
  

• Professional secrecy - we have almost nothing on this in the European Convention, but there may be protection in the national forum. Even the penitent can't break the seal canonically. Because if they ask for defensive breaking; then it will be seen negatively if they don't ask for it - perhaps you are hiding something. There is nothing regarding professional secrecy of clergy.
  

• Similar cases relating to professional secrecy. Private / private - when you are treated medically, you have the right to know how you are being treated. Do you have to be informed, or do you have the right to ask to be conformed. In EU, full information need not be given if you don't ask for it. Private / public
  

• Klass v Germany 1972 - Sado-machistic activities, in private houses with at least one minor. Cameras are allowed in public places to see who was entering, but also in the house, given the seriousness of the crimes. Necessary in a democratic society, especially with minors present.
  

• Roeden Schmitt v Luxembourg 2003. Journalist protecting sources. Freedom of expression is strongly protected since it is a right of the society, but there are nonetheless limits.
  

• K v Austria 1992 Right of a witness to remain silent, this witness was also accused of another crime. This is protected under Article 6 due process and Article 10 the right not to express.
  

• Plin v France 2004 Miterand was sick and his doctor published a book after the fact and after the information was known.
  

• Nimetz v Germany 1992 Protection of privacy extends to protection of relationships with colleagues and professional and commercial activities. Search warrant for professional advocate - the house is assimilated to the private house. Search was made without any witness.
  

• Kopp v Switzerland 1998 Attorney's phone lines were tapped because the wife was suspected of organized crime. Found in favor of the advocate. Additional controls are needed in the analysis of the two interests.
  

• Bishop of Bayeau, Pican - Convicted by the court of Coen. He didn't warn the authorities of bad acts and sexual acts of a priest who was convicted for 18 years. Claimed professional secrecy but the court rejected it. Bishop's investigation included interview with priest and information from parents of victims. 3 months suspended sentence, but it was convered by amnesty. There is a requirement to report, but it is not clear if there is a professional privilege. Court accepts the conversation with priest was protected as part of his role as bishop - but the court said that the investigation wasn't covered.
  

• Gerard Gonzales - Southern France Human Rights expert. Other Strategies: 1) on article 6 - could have invoked the privilege against self-incrimination. 2) Protection of private life. 3) Freedom of religion - protect the whole conversation is limited to forum internum and this should be seen as freedom of religion. Freedom of religion is absolute - it is limited in its external manifestation. Manifestation of religion can be limited, but only for the purpose of public order and safety. French penal law whoever knew of sex abuse of a minor and didn't report is liable. Advocate never has to reveal information regarding sexual abuse.
  

• Can a priest stop the confession - there may be a use of the sacrament to screen their wrongdoing. Priest can stop the confession, but should walk out. Screen brought in in the 17th century to protect the confessor.
  

• Bishop holds all the power, he simply has to been careful with procedure.

Session 09 Anthony Bawyn.

• Review Board consultative and advisory; Reviews evidence gathered and recommends to ordinary whether accusation appears to be true. Review evidence again after initial investigation is ended.
  

• Investigator - powers of an auditor, considers types of proof needed.
  

• Promoter of Justice is suggested to be involved in the work of the review board.
  

• Options for the CDF (see above)
  

Key Canonical Issues Being Discussed: in particular, concerns raised by Cardinal Avery Dulles and subsequent response by Msgr Ronny Jenkins. This is in 2004 after some initial experience by with the Norms.

• 15 Principles of Dulles
  

• The presumption of innocence is being deemphasized in the view of public perception of guilt and in favor of the common good. The dismissal is a rescript, a favor which hasn't been asked, and doesn't have to be used Canon 71. The ex officio dismissal of holy father seems to really restrict the right of defense. Accusation makes bishop limit priest's right to attend priest gathering. This harms the appearance of common good.
  

• Definition of Sexual Abuse relies too much on commonly understood notions from moral theology - there is too much room for ambiguity. Offense against the sixth commandment. E.g. Canon law is more general - but should we distinguish sin from criminal behavior.
  

• Proportionality - zero tolerance mentality leaves no room for proportionality. We always respond is okay, but saying punishment is always dismissal is the same is not proportional. Three strike rules. Renkins says there are some ipso facto consequences in the code - particular law has created a determinate penalty (which can't be done by particular law).
  

• Retroactivity - Injustice of applying laws from 2002 to offenses committed in the past Essential Norms don't allow explicitly retroactive force. A diocesan bishop can address a past action but not impose a penalty on ex post facto application of current law.
  

• Prescription - Recall this is different from statute of limitations. Jenkins: Possibly two short in sexual abuse cases because of difficulty to come forward after trauma of abuse. Can be a tool for establishing justice. - Beal procedures have shortcuts which are detrimental to good justice. With regard to reveiw boards, they have conflicting tasks: protect the interests of children and evaluate guilt.
  

• Oversight and therapy - the ability of priests to consult the bishop for problems is not possible.
  

• Confidentiality - What is protected? In old speak, secret archives were considered protected, but no more. Will priests trust bishops.
  

• Settlements don't resolve issue of guild; common practice was not mentioned in the Essential Norms. Since we want to avoid trials, do we really want to resurrect dead actions.
  

• Remuneration of the accused is not addressed by Essential Norms - this should be addressed.
  

• Access to trial - the right to trial is not always possible or timely; the problem remains, this won't be helped by change in prescription.
  

• Virtual laicization and laicization - Dulles argues against prolonged interim measures. Jenkins agrees. Some temporary measures which may have been just at the time become unjust with the passage of time.
  

• Reinstatement almost unheard of.
  

• Universal legislation - geographical justice is problematic - Also need for equitable treatment. Some prosecute on things beyond sex abuse.
  

• Dulles is emotionally direct - Ecclesiologist without training in canon law.
  

Informal use of power - proactive dialog with the media is helpful. Remaining true to our theology. Choosing to relate pastorally to the victim: what do they ask of the Church, offer councelling, direct involvement by bishops.

Session 10 Rik Torfs.

Church tribunals secundum and praeter legem.

societas perfecta is replaced by ius perfectum - communio is hard to apply juridically. Is the new model, the absense of the old (negative canon law like negative theology). After the council, 1) limit of the work of the church rationis materiae - more material fields were more abandoned and the specifically elements were more a focus. 2) The scope of activity doesn't change, they are just classified differently. Tribunal officials exercise the care of souls according to German case. The canonist becomes a theologian who is a legal amateur, because training is more theological than juridical. Increase right of defense clear distinction between parties and decisions makers - independence of the judiciary.


Expanded judiciary of the church could include prevention and special dispute resolution procedures, in addition to marriage and penal tribunals. This could also bridge to civil legal services. The two axes would flow to 1) an increasing separation of powers and increasing autonomy of the judiciary and 2) an increasing contact with secular law. This would be increasing in the canonical forum, the special procedures and at the outer level the preventive role.


1) Legal department is structured at the diocesan level, but not all of its sections are necessarily restricted to a single diocese. 2) Substantial development of the legal department must not infringe universal law. Also work for the conforming of canonical practice with the constrictures of civil law. 3) The legal department is not made superfluous by the existence of inter-diocesan legal departments. Proper coordination is important. 4) The internal organization of the legal department combines the demands secundum legem and innovative thinking praeter legem. Think of LRCR / NATRI / OGC.

Seminar Pieter Coertzen.

The process creates a zone of safety and neutrality rather than things festering.
Article 61 - 1) Investigations are by the applicable church council - for officers it is proper to the presbytery. 2) it can come by way of adverse rumor, written complaint, report from official activies to the church council (new duty to report). 3) Before investigation, determine if it is a sin subject to church discipline and attempt reconciliation, otherwise the official investigation proceeds. It may be a dispute among members, so that is handled as such.

Written statement is given to the accused - if other things come to light, that can't be simply added, but may become the subject of a second accusation. The crafting of the application must be clear and must be approved by the accuser - the sin must be alleged with specificity, given names of witnesses and documentary evidence.


Investigation may be by separate committee of at least five members at least tone wo elders from the congregation and at least from the wider church. Confidential. If the church council does it itself, it can call experts.


Suspension Interim measure can be taken. This has been challenged in civil courts. New church rule says they have to appeal within the church first.


Investigatory committee can be replaced if there is a demonstration of incompenence or interest. A preliminary or side investigation can be given to sub group. This group shouldn't draw conclusions or make recommendations.


Procedure must appear personally and may be assisted by another member. This is a pastoral intervention - they don't want to make it a court case. All may question one another. If anyone refuse to appear, the investigation continues in their absence (unless for good reasons, continuance is allowed). Member of the investigating body cannot be absent then rejoin; If the loose the underlying office, they remain on the investigating body.


Deliberation is done without the parties present.

Problem of witness intimidation?
Response of the accused to the investigation, etc. is the person moved to reform?
People go to civil authorities if not satisfied?
Article 62
Reprimand or bar from communion or confession, excommunication, suspension of other privileges, e.g. officers. Need a certificate of membership to change churches. Office bearers can also be suspended with or without other sanction. Always seen as temporary. The church commits to continuing to try to shepherd them back or excommunicating. Suspension can include a withholding part of remuneration. If dismissed from office, he could still be called to another congregation. He could be further suspended from any ministership. He could further loose his License to minister. It is difficult to come back after that.

Sunday 9 March

Session 11 Anthony Bawyn.

Due Process in Contemporary Practice

1969 - there was concern about how to make due process work - CLSA model procedures


1983 - Code


1991 - CLSA committee on due process - final report.


John Beal on self-limitation of bishops. Weakland decided to abide by whatever they decided. Process was very long, and perhaps too excessive. Brundage gives the main ideas of the process


Appeals of CDF - Detroit Dispute Conciliation Procedure.

Session 12 Rik Torfs.

Lutheran Heretic - in Denmark

Heretic requirements - Obsinate denial or doubt of things that must be believed by divine and catholic faith.


1990 Balasuria at conference in Leuven. Wrote Mary and Human Liberation - Contained statements incompatible with catholic faith. Bishops admonished catholics not to read the book. Admonishment is the start of building a file for obstinacy. Balasuria asked bishops to demonstrate what was wrong. Error continued to be spread. 1994 CDF sent to superior general the list of errors and a request to retract errors. Balasuria restated and said the CDF misunderstood. November 1995 CDF issued profession to Superior General centering on the issues in question - Ad hoc document. 1996 Balasuria signed solemn profession of Paul VI, to which he added his own statements, invoking canon 218 on freedom of theological research. They attacked his profession, based on his assertion that the Vatican 2 evolved doctrine. They said sign in 3 weeks. Bishops conference of Sri Lanka mentioned that Balasuria went to state mediation against these actions. July 1996 procurator of OMIs transmitted the information that Balasuria suspended civil actions hoping for re-evalution of his case in the church, and appealed to the Signatura. They said they weren't competent, Evangelization also said it wasn't competent. 1996 CDF said the situation couldn't be allowed to continued and they published the situation. Called to nuntiature in Sri Lanka and read the notification that would be made public. He asked for his own letter to be delivered to the pope. In the name of the Holy Father, the Secretary of state said the Holy Father had followed the situation and was in accord. CDF was compelled to publish against Balasuria.


- Balasuria doesn't recognize the uniqueness of Christian Revelation and points out development of doctrine and points out the historical and cultural influence on this development, in this way it is on the level of professional theological reflection. Based on this relativization of dogma, he has his own description of Mary and her role. In publishing this, the CDF must say he has deviated from Catholic Faith and as such has incurred latae sententiae excommunication. Jan 2, 1997.


- There was a lot of discussion, but the discussion was about conditions of signing the profession of faith. A year later, there was a decree of reconciliation from the Archbishop in Sri Lanka, but it is somewhat a middle position. Balasuria made the Paul VI profession, stating that it was the same as the CDF profession. Balasuria also made a statement of reconciliation to be published in the Catholic Paper. For the future he will submit writings on faith and morals for imprimi potest and imprimatur. Since everything is fulfilled as required by CDF (which is not clear) he is declared reconciled.

Lutheran Case in Denmark - The case is somewhat different because of the official status of the Lutheran Church in Denmark. At issue was a local pastor - Snedsted. Public speaking about baptism - the trinity is not acting in baptism, but it is only a promise to turn to Christ. This was referred to secular court, but they hadn't dealt with heresy in decades. 600 pages of theology and 69 pages of transcripts of hearings. ADR was attempted. Ad hoc tribunal was constituted with one judge and two theologians. He had the assistance of a court appointed theological advocate and an advocate. He lost and appealed. He claimed the tribunal was not independent. 59 percent of the clergy opposed the double role of prosecutor and judge. Some wanted only theologians, but the jurists are competent to protect due process and procedure. Procedure should be left to lawyers, and the content to the theologians. But is procedure is also theologically informed. But Luther wanted to hand over all the administrative work to the state - then later there was a later move to have a confessional canon law.