Loss of the Clerical State
By Reverend Gregory Ingels, J.C.D.
Canon law views the status of priests from three perspectives.
The first perspective is from the point of view of the sacred order
that he has received; the second addresses the faculties which he
enjoys; and the third views his relationship to his diocese or religious
institute as a cleric.
With regard to the first perspective, once validly
ordained, a priest's ordination never becomes invalid, even if he
loses the clerical state.1
With regard to the second perspective, a priest's faculties
are his "license" to exercise his ministry. Some faculties
are granted by the universal law of the Church; others are granted
by the bishop of the diocese to which the priest
is attached by reason of his ordination or by the bishop of the diocese in
which he is residing. For sufficiently serious reasons, a bishop can prohibit
a priest from exercising his faculties during the course of an investigation
into criminal misconduct.2 If this criminal misconduct is established through
a canonical penal process, a priest's faculties can be removed or suspended.
He still remains a priest and a cleric; this action simply means that he is
forbidden from exercising his priestly ministry.
With regard to the third perspective, a priest is attached
- the canonical term is "incardinated" - to the diocese
or religious institute for which he is ordained. This "incardination" which
occurs at the time of his ordination as a deacon is what constitutes
him a cleric.3
A priest can lose the clerical state. The effect of
this is a permanent separation from all ministry: he loses all rights
and faculties associated with the priesthood and is not authorized
to exercise ministry in the name of the Church; he is also dispensed
from all obligations arising from his ordination to the priesthood,
most notably the obligations of celibacy; and he loses his "incardination," that
is, the special bond or attachment to the diocese or religious institute
for which he was ordained.4
The clerical state is lost in one of three ways:5
(1) A priest can personally request a dispensation from the obligations arising
from his ordination. This is commonly known as a petition for "laicization," and
it is granted only by the Holy Father through a process which is conducted
by the Congregation for Divine Worship and the Discipline of the Sacraments.
Depending on the reasons for the request, it is usually granted within
six months of the presentation of the petition to the Congregation. However,
in urgent cases involving issues such as criminal behavior, a dispensation
can be granted within a number of weeks. This process must be initiated
by the priest himself.
(2) A priest can be dismissed from the clerical state
as a penalty for serious offenses. The law requires that such a dismissal
be conducted by a judicial forum, that is, before a diocesan tribunal
in accord with the legal procedures that govern criminal trials under
canon law.6 Certain crimes, such as the sexual abuse of minors, are
reserved to the Congregation for the Doctrine of the Faith. This
means that once the local bishop has completed his investigation
of the alleged crime, the results of this investigation must be sent
to the Congregation which will then judge whether the penalty of
dismissal from the clerical state can be imposed.7
Since this is done within a judicial process, the procedural
laws of the Church must be observed with regards to the rights of
victims, the rights of the accused priest, and the rights of the
diocesan bishop. Given the nature of any judicial process, this
can be a most time consuming procedure, at times taking years to complete.
(3) The Church has also provided for the administrative
dismissal of priests in the past for urgent reasons and only in grave
matters; and the use of this process has always been considered an
exception to the law. The most recent example of this process has
been the dismissal of priests through the offices of the Congregation
for Divine Worship and the Discipline of the Sacraments for proven
acts of misconduct involving the sexual abuse of minors. Certain
key elements have always been required in order to invoke this process:8
- The priest must specifically state that he is unwilling
to petition for laicization personally.
- There must be a criminal conviction associated with
the priest's sexual abuse of minors or a decision in a civil lawsuit
demonstrating his responsibility for this abuse.
- The priest who is going to be subjected to dismissal
must be afforded a true "right of defense." This means
that the priest must be given an opportunity of presenting a defense,
especially if he has pleaded to a lesser charge in order to avoid
criminal prosecution of a more serious charge. The same principle
applies if a settlement has been reached in a civil lawsuit and
the priest was never afforded an opportunity to respond to the
allegations and defend himself.
- A Promoter of Justice must prepare an opinion. The
person holding this office has the responsibility of assuring that
a proper process has taken place and that there has not been a
miscarriage of justice.
The question of dismissing a cleric or removing him
from ministry for allegations which are decades old is a significantproblem
for the Church. The current law of the Church provides for the imposition
of the penalty of dismissal through the judicial process only if
a provable offense is brought to the attention of church authorities
before the 28th birthday of the victim (10 years beyond majority).9
If a victim has reached his or her 28th birthday and has not reported
the offense, the Church's "statute of limitations" applies;
and a priest cannot be dismissed
from the clerical state or otherwise penalized in the judicial process on the
basis that the allegations have not been brought forward within the legally
provided period of time. These restrictions, however, would not apply to the
use of the third process, the administrative dismissal of a priest from the
clerical state.
At the moment, the process for the administrative dismissal
of priests for the sexual abuse of minors through the offices of
the Congregation for Divine Worship and the Discipline of the Sacraments
appears to be suspended.
This is a result of the Congregation for the Doctrine
of the Faith assuming competence in these cases. It is not dear at
the moment whether this process will be reinstated or what office
of the Holy See will be responsible for handling these cases.
Fr. Gregory Ingels, a canon lawyer, is the director
of formation for the permanent diaconate in the Archdiocese of San
Francisco. He also work as a Defender of the Bond for the archdiocesan
tribunal. He is the chair of the Canonical Advocacy Study Committee
of the Canon Law Society of America.
NOTES
- Canon 290 - Once validly received, sacred ordination
never becomes invalid.
- Canon 1722 - To prevent scandals, to protect the
freedom of witnesses, and to guard the course of justice, the ordinary,
after having heard the promoter of justice and cited the accused,
at any stage of the process can exclude the accused from the sacred
ministry or from some office and ecclesiastical function, can impose
or forbid residence in some place or territory, or even can prohibit
public participation in the Most Holy Eucharist. Once the cause
ceases, all these measures must be revoked; they also end by the
law itself when the penal process ceases.
- Canon 266
§1. Through the reception of the diaconate, a person becomes a cleric and
is incardinated in the particular church or personal prelature for whose service
he has been advanced.
§2. Through the reception of the diaconate, a perpetually professed religious
or a definitively incorporated member of a clerical society of apostolic life
is incardinated as a cleric in the same institute or society unless, in the case
of societies, the constitutions establish otherwise.
§3. Through the reception of the diaconate, a member of a secular institute
is incardinated in the particular church for whose service he has been advanced
unless he is incardinated in the institute itself by virtue of a grant of the
Apostolic See.
- Canon 292 - A cleric who loses the clerical state
according to the norm of law loses with it the rights proper to
the clerical state and is no longer bound by any obligations of
the clerical state, without prejudice to the prescript of can.
291. He is prohibited from exercising the power of orders, without
prejudice to the prescript of can. 976. By the loss of the clerical
state, he is deprived of all offices, functions, and any delegated
power.
- Canon 290 - Once validly received, sacred ordination
never becomes invalid. A cleric, nevertheless, loses the clerical
state:
1° by a judicial sentence or administrative decree, which declares the
invalidity of sacred ordination;
2° by penalty of dismissal legitimately imposed;
3° by rescript of the Apostolic See which grants it to deacons only for
grave causes and to presbyters only for most grave causes.
- 6. Canon 1425 - §1. With every contrary custom
reprobated, the following cases are reserved to a collegiate tribunal
of three judges: ...
2° penal cases: a) concerning delicts which can entail the penalty of
dismissal from the clerical state; ...
- 7. Congregation for the Doctrine of the Faith, Letter
De delictis gravioribus reservatis. May 18, 2001,
"... - A delict against morals, namely: the delict committed by a cleric
against the sixth commandment of the Decalogue with a minor below the age of
eighteen years.
"Only these delicts, which are indicated above with their definition, are
reserved to the Apostolic Tribunal of the Congregation for the Doctrine of the
Faith.
"As often as an ordinary or hierarch has at least probable knowledge of
a reserved delict, after he has carried out the preliminary investigation, he
is to indicate it to the Congregation for the Doctrine of the Faith which, unless
it calls the case to itself because of special circumstances of things, after
transmitting appropriate norms, orders the ordinary or hierarch to proceed ahead
through his own tribunal. The right of appealing against a sentence of the first
instance, whether on the part of the party or the party's legal representative,
or on the part of the promoter of justice, solely remains valid only to the Supreme
Tribunal of this Congregation."
- Congregation for Divine Worship and the Discipline
of the Sacraments, Prot. N. 2169/98, November 11, 1998.
- Congregation for the Doctrine of the Faith, op.
cit., "It must be noted that the criminal action on delicts
reserved to the Congregation for the Doctrine of the Faith is extinguished
by a prescription often years. The prescription runs according
to the universal and common law; however, in the delict perpetrated
with a minor by a cleric, the prescription begins to run from the
day when the minor has completed the eighteenth year of age."
