Beal, J.
“Hiding in the Tickets of Law: Canonical Reflections on Some Disturbing Aspects of the Dallas Charter”, America October 7, 2002, pp. 15-19.
This text will help situate the reader within the intense months of the sexual abuse crisis in the United States, between the meeting of the bishops in June 2002 and the completion of both the Charter and Essential Norms at the end of that year. It is interesting that, even before the serious implementation of penal procedure in this particular area began, Beal offers a weighty critique of what has been discussed so far.
Canonical Issues in Due Process - Brundage.
Brundage, T.T. “Canonical Issue in Due Process”, Proceedings of the canon Law Society of America 63 (2001), pp. 37-48.
This author reports to the Canon Law Society of America on the work already done in some dioceses in the United States to implement a due process plan.
How can we overcome ecclesiastical “structural deficiencies” that prevent the proper administration of the justice within the church. In other words, what are some practical structures that move the church’s theology and values pertaining to justice from the arena of theory to the arena of reality?
I. Historical background; How did we get to where we are now?
Interchange of civil and canonical notions of due process. On Due Process from 1969 CLSA adopted by NCCB for implementation by individual bishops in 'due process plans,' e.g. mediation and arbitration. 1983 code scaled back administrative tribunals. More work was done, including 1991 report, titled: Protection of Rights of Persons in the Church; 1993 CLSA committee 1) To establish pilot projects 2) To provide for the training of personnel involved in the project; 3) To evaluate the effectiveness. Milwaukee experience seen as deterent and positive for 2 trials in 3 years.
The archdiocese’s due process efforts were structured as follows: 1) Parish grievance committee; 2) appeal to archdiocese department; 3) submit to due process office sends to tribunal or resolves; 4) administrative tribunal with oral contentious process with judgment and damages; 5) archbishop; 6) Holy See.
II. On-going Developments - In 1997 Signatura requested norms of operation, and then asked them not to use the term administrative tribunal, they changed it to court of equity. No cases appealed to civil courts.
III. Canonical Issues in Due Process.
A. Avoiding litigation, judicial or administrative: canons 1713-1716 methods of avoiding trials in Part III, Book VII in the section entitled "certain special processes" could be construed as a suggestion to avoid trials using the ordinary contentious judicial process.
Canon 1733 (removal of pastors) exhorts disputants to mediate a conflict by seeking "an equitable solution by common counsel, possibly using mediation and the efforts of wise persons to avoid or settle the controversy in a suitable way."
He says society does not necessarily share the principle of the common good as paramount when it comes to the application of rights, both personal and communal, and he sees disputants as reluctant to seek common ground that mediation offers.
B. Careful Attention to the Type of Recourse (Administrative versus Judicial Recourse)
Judicial trials are procedurally cumbersome. Administrative doesn't have these layers, but the protection they afford is also lacking. Canon 1400 states a judicial trial should be used for 1) the vindication of rights (canon 220), 2) the declaration of juridic facts (nullity), and 3) penalties for crimes.
Recourse against acts of administrative power canon 1400.2 is only for administrative acts, likc church renovation, suppression of a parish, employee decisions. Some controversies can be appealed judicially or administratively. E.g. violation of contract is violation of rights, and an administrative act, going to administrative tribunal or administrative superior.
C. Due Process in Cases of Recourse Against Acts of Administrative Power - Diocesan "council or office" allowed if bishop chooses. Should a decision be presented in a form other than a formal decree, it may still be considered a decree for purposes of administrative recourse. Administrative recourse has specific rules 1) must seek revocation or emendation of the decree in writing from its author; 2) within the peremptory time period of useful (utilium) days. Careful documentation is crucial.
D. National Due Process Norms - Canon 1733, §2 says the conference of bishops can determine that each diocese establish in a stable manner a due process office or council. Perhaps it would be opportune for the USCCB to establish national due process norms. Experience is there, best practices could be culled, recognitio would be required.
IV. Concluding Thoughts.
A. Take every case seriously and always provide a path for appeal within the local church - this avoids dissatisfaction and possible civil recourse. Contrary to popular belief, there is recourse within the church.
B. Provide a level playing field for disputants - The church preaches justice very well but is not always proficient at applying justice internally, especially with people employed by the church. While there is no question that a bishop has the authority to disregard decisions of his due process structures, it may be important to consider the wisdom of doing such.
C. Never forget that we are a church - Before there was canon law, there was the church, the Body of Christ. Canonists need to remind themselves constantly of these realities if their practice of law is to be a form of pastoral ministry. Most due process issues are fundamentally human relationship and ecclesial issues prior to becoming canon law issues. People approach the church as a church and not as a legal entity. People seek a source of spirituality, a place where they are replenished by Word and Sacrament. In short, people expect the church to be the church. When the church fails to act as church, but rather acts out of need to be legally and technically correct, then the church fails itself.
Due process efforts in the church need to listen to people's complaints (c. 212, §2), need to encourage abundant apologies (despite what civil attorneys may recommend), and at times accept the Cross of being misunderstood and maltreated, all the while seeking to serve one another in the ministry of reconciliation and peace.
DePaolis
DePaolis, V. “Penal Sanctions, Penal Remedies and Penances in Canon Law”, in Dugan, P.M. (ed.) The Penal Process and the Protection of Rights in Canon Law: Proceedings of a conference held at the Pontifical University of the Holy Cross, Rome, March 25-26, 2004, Collection Gratianus, Montreal, Wilson & Lafleur, 2005, pp. 145-182.
This well-known author in the area of penal law and Secretary of the Apostolic Signatura gives a concise overview of the substantive penal law of the Church.
General Considerations.
Penalties in the mission of the church. Canon 1311 affirms the coercive power of the church, Canon 1312 says it may be medicinal, expiatory, remedies and penances. Penalty and offense / offender are linked.
Penalties derive from the church's saving mission; its roots lie in the penitential path. The saving mission is accomplished by preaching, but also by coercive means.
Means for accomplishing the church's saving mission include sacramental, pastoral and penal means. We must distinguish 1) sin and offense; 2) internal and external forum 3) penitential and disciplinary path; 4) disciplinary forum in general and penal forum; and 5) disciplinary measures and penal measures. Means may also be distinguished as pastoral, moral, disciplinary and penal. Penal law should be written, specifying offenses and, with a greater or lesser specificity, the penalties.
Sphere of penal law is the public sphere where the offense is a danger to ecclesiastical discipline. Not everything that is prohibited is an offense and not everything without a sanction is lawful. Three levels: moral, juridical and juridical-penal.
Special characteristics of penal law. Most of canon law binds in conscience, but doesn't carry a penalty.
Notion of Offense – CIC 1917: canon 2195.1: Nomine delicti delicti iure ecclesiastico, intelligitur externa et moraliter imputabilis legis violatio cui addita sit sanctio canonica saltem indeterminata. 1) external violation; 2) pre-existing penal provision providing at least in indeterminate sanction; 3) grave sin. Ignorance of a sanction is merely a mitigating factor. The fact that there is an external physical aspect is no longer sufficient in itself; this has to be accompanied at least by a minimum of public awareness of the offense having been committed. Every violation contains its own penalty, in a falling from grace.
Notion of Penalty.
Penalty is a deprivation of the goods of the church, namely Faith, Sacraments and ecclesiastical governance. Deprivation makes salvation more difficult.
Particular Characteristics.
Types: obligatory or discretionary; determinate and indeterminate; medicinal and expiatory; latae and ferendae sententiae.
Medicinal seen as personal and Expiatory seen as social.
Latae and Ferendae Sententiae – East has never had latae sententiae penalties.
Penalties in the economy of the canon law system: extrema ratio: last resort.
Significance of the penal sanction – it is not the sanction that gives validity to the law, the law binds without sanction. “The law obliges because it is rational, and it is rational because it obliges.” Both good will and sanctions give order to the system. 1983 code limits but doesn't eliminate sanctions, and limits use of penal precepts 1321.2.
Discretion of sanctioning authority. Canon 1341 is fundamental for understanding penal law – urges penal process as a last resort for repair of scandal, restoration of justice and reform of the offender. The sanction can almost always be lightened. But canon 1348 provides that even in the absence of law or guilt. Three constitutive elements of an offense: external violation, grave imputability and legality. There is some reluctance to use judicial process, partly from lack of trained personnel, but judicial process should be a way of arriving at justice.
Penalty must be remitted through intervention of the competent authority. No one 'brings penalty on themselves' it must be imposed through law and process. Excommunication doesn't exclude from the Church, but from the goods of the church.
Penal remedies and penances. Remedies should prevent the offense. Four types in the 1917 code: monitio, correptio, praeceptum and vigilantia; the last two were dropped in the 1983 code. Monitio for those who probably committed and offense and correptio for those whose conduct may lead to offense.
Penances can be accepted or not, even if imposed. They can substitute for the penalty or remit it. Canon 1722 allows interim sanctions and is problematic as is 1348 which provides for punishment without law.
Sin in the Penitential Life are distinct from penal law. Absolution has effect that is not purely juridical, it's goal is forgiveness, not penalty. Penalty always pertains to the power of governance, ecclesiastical discipline and the external forum. Though Jesus preached non-violent all-inclusive love, the church and its leadership finds it necessary to protect itself through violence and exclusion.
Administrative Measures – From this aspect, the administrator just does what is best, in their judgment, for the proper functioning of the organization.
Final Observations – penitential path reconciles a person with God, the disciplinary path keeps church order. Penal law instead tries to reform the offender, repair the scandal and restoration of justice (order).
Kaslyn
Kaslyn, R.J. “Three Legal Texts and Their Interconnection: An Overview”, The Jurist 65 (2005) pp. 119-145.
This author addresses the connection between the Essential Norms enacted by the United States bishops, motu proprio Sacramentorum Sanctitatis Tutela, and the Code of Canon Law. Kaslyn’s article reminds the reader of other areas of Canon Law that the sexual abuse crisis touches.
USCCB issued Essential norms. CDF issued More Grave Delicts & Sacramentorum sanctitatis tutela.
Ecclesiological Foundation - Church is the Sacrament of Salvation. Also the norm of law is imporant in protecting the rights of both victim and alleged perpetrator.
Canon 9 Laws regard the the future - Essential Norms 2003 - shouldn't be retroactive. But CDF can overcome Statute of Limitation problems.
Canon 22 Incorporates civil law into canon law. Right to privacy remains. Civil criminal verdict doesn't replace canonical process for dismissal, but it may take documents from the civil process.
Canons 35-58 Decrees should be issued correctly.
Essential Norm 9 - penalties can be added administratively, but this should be.
Canon 58 - A singular precept not imposed by a legitimate document ceases when the authority of the one who issued it expires. So an oral precept expires with the office of the issuer.
Canons 184-196 Loss of ecclesiastical office - procedures must be followed. Office can be lost by expiration or by law. Also removal of pastors.
Canons 197-198, Prescription.
Canons 200-202, Time.
Book II.
Canon 220: No one is permitted to harm illegitimately the good reputation which a person possesses nor to injure the right of any person to protect his or her own privacy.
Canon 221 - Right to vindicate rights, judged in equity, no penalty without law. Also right to counsel 1481, 1723.
Canon 273-289 rights of the clergy.
Canon 281 - right to remuneration consistent with their condition and social assistance. This is not quid pro quo, payment for service. Even if penalized, or dismissed, he gets support. Independent employment would lessen diocesan obligations.
Canon 384 protect rights and obligations of the clerics and spiritual and intellectual formation. This has to be balanced with the duty toward victims and their vindication.
Canon 586 A just autonomy of life is acknowledged and to be protected by the bishops.
Canon 678 Religious subject to bishop in care of souls, worship and apostolate.
Book IV.
Canons 1008-1054 Sacrament of orders - elements for validity and liceity. Irregularity and Impediments for reception and exercise of orders. Canon 1041.1 prohibits ordination of someone with certain psychic conditions, 1041.2 prohibits exercise of orders in for someone with psychic conditions. But establishing this is problematic without the individual's free and informed consent.
Book V - Church goods for Church purposes.
Canon 1255 - Particular church is a juridic person capable of owning and administering property.
Canon 1256 - Temporal goods are owned by the juridic person that holds title. Corporation sole isn't a proper way to hold goods. Parish goods belong to parish, not to the diocese.
Book VI Sanctions.
Canon 1341 says judicial or administrative process is used only after non-penal means.
Canon 1321.1 proposes elements of a delict: No one is punished unless the external violation of a law or precept, committed by the person, is gravely imputable by reason of malice or negligence. External act may be automatically imputable.
Canon 1350 - even in penalty, or dismissal support obligation remains.
Canon 1353 - Appeal or recourse suspends the penalty. However, administrative leave isn't covered.
Canon 1362-1363 Prescription - extinction of penal action after the lapse of time, due to fading of evidence. 1918-1983 5 years. 1983-1984 18years + 5 years. 1984 and following up to age 28 of victim.
Book VII.
Canon 1481.2 in a penal trial the accused must have an advocate.
Canon 1620 the trial is irremediable null if the right of defense was denied.
John Paul II Decisiones Article 17 (Ssa) given extenuating circumstances such as criminal conviction, dismissal can be more streamlined. Eliminate requirement of priesthood to make sure judges are qualified.
More Grave Delicts Gives particular procedures for cases of grave delicts. Some cases are reserved to the CDF, e.g. delicts against the sacraments and sexual abuse by clerics +.
Essential Norms - standardization of procedures and thus permits oversite. Requires 1) written policy 2) assistance coordinator 3) review board. Process begins with allegation, 1) Diocese to cooperate with civil authorities and comply with canon law 2) care for good reputation and privacy of all; 3) if there is grounds, case is submitted to CDF; 4) interim measures may be taken; 5) dispensation may be requested by cleric or bishop; 6) lead life of penance and no public ministry or presentation as priest.
Conclusion - Strong efforts must be made to redress sex abuse scandal without violating the rights of the accused. Law is there to provide justice.
1. What has the occurrence of the sexual abuse crisis among the clergy in the United States done to the contemporary practice of penal law? - made it move from preferring false negatives to false positives.
2. Since the development of penal law and procedure following the sexual abuse crisis among the clergy in the United States, how has (canonical) competence and authority in these matters shifted among Church officials? - bishops to canonists?
3. What are some possible methods for resolving disputes: either directly addressed by the Code or, at least, not prohibited? Pastoral approach.
