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GUIDE
TO THE IMPLEMENTATION OF
THE U.S. BISHOPS’ ESSENTIAL NORMS FOR DIOCESAN/EPARCHIAL
POLICIES DEALING WITH ALLEGATIONS OF
SEXUAL ABUSE OF MINORS BY PRIESTS OR DEACONS
Canon
Law Society of America ACKNOWLEDGMENTS The Canon Law Society of America wishes to acknowledge the invaluable efforts of the Special Task Force designated at the October 2002 Convention in Cincinnati to revise and expand the GUIDE presented to its members during the Convention. The members are: Rev. Msgr. Frederick C. Easton, JCL, Chair Dr. Diane Barr, JD, JCD Sister Sharon Euart, RSM, JCD Rev. Gregory Ingels, JCD The Task Force indicated that the final text also reflects the contributions of the following canonist-consultants: Rev. Msgr. Thomas Green; Rev. Michael Hilbert, SJ; Rev. Ronny Jenkins; Rev. Francis Morrisey, OMI; Rev. Joseph R. Punderson, Rev. William Woestman, OMI. The Canon Law Society of America commends this booklet to its members as a resource for addressing the canonical and pastoral issues associated with the sexual abuse of minors by members of the clergy. TABLE
OF CONTENTS Introduction
1 Part I: The
Rights of Individuals Who Have Been Abused 5 Part II:
The Rights of Clerics Who Have Been Accused ... 11 Part III: Summary
of the Process to be Followed... 33 Select Bibliography 38
Introduction At their November 2002 meeting the U.S. bishops approved the revised Charter for the Protection of Children and Young People (hereafter Charter) and the revised Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons (hereafter Norms) which provide a normative structure for many of the articles contained in the Charter. In keeping with canon 455 §2, which permits an episcopal conference to issue general decrees or documents that are binding on the bishops or the faithful only with a two-thirds vote of the conference membership and the recognitio from the Holy See prior to implementation, the USCCB submitted the revised Norms to the Holy See for the required recognitio. These documents contain a blueprint for future action in the dioceses and eparchies of this country. Some provisions of the Charter already exist in most dioceses and eparchies; other provisions will require modification or revision of diocesan/eparchial policies; still others call for new initiatives and new diocesan policies. For all dioceses and eparchies, however, the Norms are the new standard for addressing allegations of sexual abuse of minors by priests or deacons. The Norms were granted the required recognitio for a period of two years by the Congregation for Bishops on December 8, 2002, “as complementary norms to the Code of Canon Law and as adaptations to the Apostolic Letter given motu proprio ‘Sacramentorum sanctitatis tutela.’”[1] On December 12, 2002, the Norms were promulgated as a general decree of the United States Conference of Catholic Bishops (hereafter USCCB) by its president, the Most Reverend Wilton D. Gregory, Bishop of Belleville (cf. CIC c. 455).[2] As such, the Norms constitute particular law for the dioceses and eparchies of the United States effective March 1, 2003, and they bind those for whom they are made. The Charter, on the other hand, is a statement of the USCCB and a framework for the application of the Norms. Hence, the Charter is not law but assists in understanding the legislative impact of the Norms. The universal law of the Church is promulgated by the Roman Pontiff, who is the Supreme Legislator (CIC c. 331; CCEO c. 43). No lower level legislator can validly issue a law contrary to a higher law (CIC c. 135 §2; CCEO c. 985 §2). Therefore, if a norm cannot be reconciled with the universal law, that norm is invalid. The recognitio does not sanate any such defects in the law promulgated by the conference. Only papal approbation in forma specifica can do that. The dicasteries of the Roman Curia have no authority to approve particular laws which are contrary to the universal law. Hence, in applying the Norms, there is a presumption that the individual norms were intended to be in harmony with the universal law of the Church and not a derogation from the law. Had the U.S. bishops intended a change in the universal law, they would have sought from the Roman Pontiff an explicit derogation from the law, as was granted in 1994 raising the age of a minor and extending the period of prescription for the United States.[3] The Norms are not retroactive (CIC c. 9; CCEO c. 1494). While they do provide for the possibility of obtaining a dispensation from the law regarding prescription, nothing else in the Norms has retroactive effect. This means that the determination that for the good of the Church “any priest in the United States who has committed even one act of sexual abuse of a minor...shall not continue in active ministry” (Norm 9), cannot be applied to offenses committed before the Norms take effect. Any offense committed before the Norms take effect is subject to the applicable laws at the time, not to the new norms (CIC cc. 9, 18, 1313; CCEO cc. 1494, 1500, 1412 §§2-3). Since the sexual abuse of a minor by a cleric has consistently been reserved to the Congregation for the Doctrine of the Faith (hereafter CDF), any question involving the application of penalties at the present time for past incidents can only be resolved by the Congregation.[4] Hence, when questions arise concerning past offenses, the diocesan bishop/eparch must refer the case to the CDF which will direct him how to proceed (cf. Sacramentorum sanctitatis tutela, art. 13). Canon lawyers throughout our country acknowledge the significance of the steps taken by the bishops to ensure the protection of our children and young people in the future. The bishops began their difficult task under the enormous pressure of the meeting in Dallas in June of 2002. They listened and responded to victims and to thoughtful critics in a public way. They promised accountability for their actions and took steps at the November 2002 meeting in Washington, DC, at which they adopted measures that were oriented principally toward the protection of children and young people.[5] With the granting of the requisite recognitio from the Holy See, the Norms and the Charter will mark a beginning step in restoring trust in our Church and the credibility of the U.S. bishops as a body. In the wake of the bishops’ revision of the Norms and the Charter, canon lawyers must continue to address the practical canonical questions concerning implementation of these documents within the context of the Church’s structures and procedures. The challenge of applying the Church’s canonical principles and processes for the protection of the rights of all those affected by the experience of sexual abuse of minors by priests or deacons continues. Hence, the Canon Law Society of America, wishing to respond to the concerns of its members and to the pastoral needs of the faithful, has prepared this revised and expanded GUIDE,[6] a resource based on existing universal church law and subsequent church legislation. This GUIDE is offered to those persons who seek guidance in understanding and responding to the many canonical issues associated with the sexual abuse of minors: victims of sexual abuse and their families; bishops in their pastoral concern for those entrusted to their care; priests and deacons accused of sexual abuse of minors; canon lawyers who advise victims, bishops, priests and deacons; and all the faithful whose trust and confidence in the Church and its leadership must be rebuilt. It
is the purpose of this GUIDE to
address the implementation of the Norms and
the Charter from
three perspectives. Part
I addresses the rights of persons who have been sexually abused
by members of the clergy.[7] Not
only do such victims have the right to make known to ecclesiastical
authorities the incidents of abuse which they have experienced;
they also have the right to seek repair of the harm that they have
suffered. Part
II addresses the rights of clerics who have been accused of
sexual misconduct and the procedures that are to be followed in
the investigation of such allegations and the imposition of penalties
when appropriate. Part
III provides a practical,
step-by-step approach that can be used during the course of the
preliminary investigation and any subsequent actions in the judicial
or administrative forum that are deemed necessary or appropriate. As
we move forward together, it is our desire that we do so in a spirit
of hope, a hope that enables us to face reality with all its complexities
and not be overwhelmed or paralyzed by it, a realistic hope born
of gentle wisdom and a renewed understanding of the tasks before
us, a hope that is a gift from God who does not disappoint. Part
I: The Rights of Individuals Who Have Been Abused What
are the basic rights of a person who has been victimized and
the Church’s responsibility to respond to this injury? The
Right to be Heard A
number of principles in canon law address the right of individuals
to bring their needs and concerns to the attention of the Church
and to receive appropriate assistance in addressing these needs. Certainly one who has been victimized by a cleric or member
of the laity in the service of the Church has the right to file a
report with the civil authorities. Likewise,
the Church expressly provides an individual with the right, and indeed,
the responsibility to bring an issue of this nature to the attention
of ecclesiastical authorities for the express purpose of initiating
a process that will lead to healing, reconciliation and a just resolution
of the harm which has been suffered. Although
the Charter and Norms address
specifically allegations of abuse perpetrated by the clergy, the
Church does have an obligation to address the needs of victims who
have been abused by members of the laity who are in the service of
the Church. This
is confirmed in CIC c. 212 (CCEO c. 15) which provides that “the
Christian faithful are free to make known to the pastors of the Church
their needs, especially spiritual ones, and their desires” (§2)
and that they have “the duty to manifest to the sacred pastors
their opinion on matters which pertain to the good of the Church” (§3). Additionally,
CIC c. 213 (CCEO c. 16) notes the right of the Christian faithful “to
receive assistance from the sacred pastors out of the spiritual goods
of the Church” in addressing their needs. Hence,
the first obligation of an ordinary/hierarch within the context of
a preliminary investigation of an allegation of the sexual abuse
of a minor by a cleric is to determine whether a crime has been committed
and to address the injuries suffered by the victim and the community
as a whole and to determine how best these damages might be repaired. The
ordinary/hierarch cannot proceed to address the matter without a
trial, however, unless the parties who have suffered injuries consent
(cf. CIC c. 1718 §4; CCEO c. 1469 §3). As
these issues are being addressed, the Ordinary/Hierarch must also
turn his attention to an investigation of the responsibility of the
cleric who has been accused of this abuse. Article
1 of the Charter speaks
of the commitment of the Church to reach out to the victims/survivors
of sexual abuse and their families noting that “the first obligation
of the Church with regard to the victims is for healing and reconciliation.” The Charter indicates that
the resources of the Church will be made available to provide “counseling,
spiritual assistance, support groups and other social services agreed
upon by the victim and the diocese/eparchy.” To this end, Norm
3 provides that Each diocese/eparchy
will designate a competent person to coordinate assistance for the
immediate pastoral care of persons who claim to have been sexually
abused when they were minors by priests or deacons. Canon
law provides various approaches by which the ordinary/hierarch or
his delegate can address the needs of individual victims through
the methods listed above, as well as the application of mediation,
arbitration, formal ecclesiastical processes or a combination of
these. The
Rights of Reputation and Privacy Throughout
any contact with the ordinary/hierarch during formal or informal
processes, victims have a right to expect that their reputation and
privacy will be respected. The
concealment of the truth for personal reasons not associated with
issues of justice and equity is not appropriate. However,
the principle of confidentiality in canon law derives from the ancient
understanding that all are entitled to a good reputation. CIC c.
220 (CCEO c. 23) states “No one is permitted to harm illegitimately
the good reputation which a person possesses nor to injure the right
to protect his or her own privacy.” Confidentiality is viewed
as essential to affirming and protecting any person, whether victim
or accused, with that good reputation. Therefore,
methods of receiving complaints from victims must take into account
their right to a good reputation within the community and their need
for privacy during a time that is emotionally trying. In situations
where victims receive some type of diocesan assistance for counseling
or other issues, appropriate methods for keeping these arrangements
confidential should be in place, and be clearly understood and respected
by diocesan personnel. The need for confidentiality in every aspect
of a situation should be discussed in full with the victim throughout
any process or procedure, whether formal or informal. Victims
have the right to expect that their names will not be made public
to the greater Church community, whether their allegation is deemed
to be credible or not. This includes any reference by the accused
to his friends or colleagues. Indeed,
the accused who himself enjoys the same right and expectation of
privacy must clearly understand that he is required to respect the
victim’s right in this regard and must limit any communication
of information regarding the victim only to those who might be assisting
him with a particular canonical process. Any persons involved with
the investigation of the accusations must also be admonished to refrain
from speaking to any unauthorized persons about the case for the
protection of the victim and the accused.[8] Any
official diocesan reporting of an allegation of sexual misconduct
should be done after full consultation with the victim unless civil
law requires otherwise. If
reporting is mandated under civil law and expected under civil procedures,
the one who must report should inform the victim or the victim’s
parent or guardian (presuming the victim is a minor) as quickly as
possible about the fact that a report has been made. As
part of their right to privacy, victims also have the right to decline
any psychological assessment that may be required as part of any
complaint system to initiate a Church process. This is to be viewed
as an unwarranted invasion of their privacy, and cannot be made a
prerequisite to the reception of an allegation against a cleric. The
divulging of any psychological records that are voluntarily submitted
to a diocese must be limited to those to whom the victim has consented
their dissemination. Regardless of who pays for a voluntary psychological
assessment, the voluntary subject of that assessment has the right
to a copy of the final report from that process. It
is unethical to withhold such a report from a cooperative subject,
while the diocese or religious entity receives such a copy. Victims have the right to expect that any records concerning
their participation resulting from any process in the Church would
be kept private unless a victim has been informed otherwise. Victims
also have the right to vindicate an illegitimate injury to their
reputation or their privacy in a canonical forum, which could even
mean a judicial trial with the assistance of a canonical advisor. What rights does a victim have
in an ecclesiastical judicial process if the Church’s response
appears inadequate? The
troubling history of the past few decades within the Church in our
country which has resulted in the need for the Charter and
the Norms includes unfortunate
instances in which no action or inadequate action was taken addressing
the abuse suffered by members of the faithful. Not
only were clerics re-assigned and placed in circumstances where they
could repeat their offenses, the needs of the victims of this abuse
were either unknown, ignored or simply not addressed, resulting in
untold harm and suffering experienced not only by the victims themselves
but by their families. While
it is to be hoped that such negligence will never repeat itself in
the future, it is essential that individuals who have suffered such
abuse know their rights under church law and how they might address
an inadequate response on the part of the Church. Once
an incident of abuse has been established, the Church has a responsibility
to assist a victim/survivor even if the identity of the person who
has perpetrated the offense cannot be identified. The
principle enunciated in CIC c.1718 §4 (CCEO c. 1469 §3)
cited above provides that an ordinary/hierarch before making any
other decision “is to examine carefully whether it is expedient
for him or the investigator, with the consent of the parties, to
resolve equitably the question of damages” is of special significance. For
this reason, as the law itself suggests, he can examine this matter
personally or by means of the “competent person” spoken
of in Norm 3, provided that the victimized party consents. If
the proposed resolution of the damages which a victim has suffered
are, in the party’s estimation, not being adequately addressed
by the ordinary/hierarch or his delegate, it is the right of a victim
to challenge the resolution that may have been initially given by
means of the principles which govern hierarchical recourse (cf. CIC
cc. 1732-1739; CCEO cc. 996-1006). Canon law also provides that an injured party has the right
to place a contentious action before the diocesan tribunal for the
specific purpose of seeking reparation of the damages that have been
incurred personally as a result of the abuse that has been suffered
(CIC c. 1729; CCEO c. 1483). An
action of this nature can be brought against an accused cleric within
the penal trial itself or as a separate contentious action, as noted
below. The Charter and Norms address only the issue of sexual abuse of minors perpetrated
by members of the clergy against whom penalties can be imposed. Although
canon law does not provide for the imposition of penalties against
members of the laity who have sexually abused a minor, it is important
for victims/survivors to realize that a contentious action independent
of the penal process can also be filed against an offending member
of the laity in the service of the Church and possibly against the
juridic person, that is, the parish or diocese/eparchy, for whom
that individual was working at the time of the abuse. Such an action would have to demonstrate that the alleged
offender had abused a position of trust and responsibility by sexually
abusing a minor in the course of his or her work and that the pastor
or bishop/eparch of the parish or diocese/eparchy once aware of it
failed to address the matter properly. Likewise,
an independent contentious action can be filed against an offending
cleric if it appears that a penal trial seems unlikely or is going
to be unduly delayed. Actions of this nature do not adjudicate the
question of a criminal offense that must be punished; rather, their
purpose is to examine the issue of the injury or harm that has been
suffered by the victim and the responsibility of the individual or
the Church to repair this damage. Once
a tribunal has rendered a decision, it is the responsibility of the
diocesan bishop/eparch to direct that the tribunal’s decision
be put into effect. If
a diocesan bishop/eparch were to fail to execute a tribunal’s
decision, the procedure outlined in CIC c. 1653 and CCEO c. 1340
is followed. What
ecclesiastical processes are available to victims? Obviously,
the most preferable resolution of the damages which a victim has
suffered is for the ordinary/hierarch to respond directly and personally
to these issues. If
the intervention of the ordinary/hierarch is not sufficient in the
estimation of the victim, the Church urges that an agreement or reconciliation
of the matter be attempted by means of mediation or arbitration (CIC
cc. 1713-1716; CCEO cc. 1164-1184). Only
when all other means have been unsuccessful does the use of formal
processes, such as judicial trials, become necessary in order to
resolve contentions that have arisen. If
the ordinary/hierarch does render a determination of harm that the victim and family find unacceptable, these individuals
have the right to initiate an administrative process challenging
this decision (CIC cc. 1732-1739; CCEO cc. 996-1006). This process begins by petitioning the ordinary/hierarch to
seek a better resolution of the issues. Only
if this petition fails would the matter then be placed before the
Holy See petitioning that the decision made at the diocesan level
be overturned. Since
this is a formal ecclesiastical process that can involve steps at
the diocesan and Roman levels, the services of a qualified canon
lawyer are essential. What type of ecclesiastical judicial
action might be filed? When
a party contends that his or her rights have been denied by an individual
or a juridic person, cases of this nature are examined in the judicial
forum by an ecclesiastical tribunal. A
contentious action can be placed against the ordinary or his delegate
whom the injured party believes has failed to address damages resulting
from abuse. However, a contentious action placed against a bishop,
whether he be the diocesan bishop or an auxiliary bishop, must be
adjudicated before the Roman Rota (CIC c. 1405 §3, 1°) in
Rome.[9] There
are a number of other possibilities available to an aggrieved party
at the diocesan level instead of pursuing a case against the diocesan
bishop/eparch in Rome. If
the bishop’s “competent person” noted above were
to fail to address the injuries and damage suffered by the victim
in an appropriate or adequate fashion, it would be possible to initiate
an action against this individual in the diocesan tribunal for failing
to provide for the victim’s rights (CIC c. 1504; CCEO c. 1187). If
it can be successfully argued that the diocese itself is either at
fault for the injuries or damage suffered by a victim or has failed
to address the resolution of these matters, as a juridic person the
diocese itself might also be named in a contentious action; however,
the competent venue before which such a case would be adjudicated
is the diocese’s appellate tribunal since the case would involve
the “temporal goods of a juridic person represented by the
bishop” (CIC c. 1419 §2; CCEO c. 1066 §2). What
advantages would an ecclesiastical judicial process provide? Especially
in those cases where a victim/survivor might want to address in a
spirit of privacy and equity the issues of the damages and injuries
that have been suffered, the Church’s judicial forum offers
a possible venue; and it is to be hoped that parties will avail themselves
of these means that the Church provides. However,
if a victim’s and family’s confidence in the Church has
been completely shattered, they would certainly maintain the right
to pursue such actions in the civil forum with the many demands and
expenses associated with that system. Additionally,
a contentious action can be brought to the judicial forum of the
Church. Such an action
can be initiated as part of the judicial penal trial against the
accused cleric (cf. CIC c. 1729 §2; CCEO c. 1483 §2); or
a claim can be initiated as a completely independent action. The
question of prescription – that is, the canonical “statute
of limitations” – within which a damage claim can be
made is addressed in CIC cc. 197-199 (CCEO cc. 1540-1542). In
an ecclesiastical process, the canonist serving as a party’s
advocate does have the right to charge a fee for the services rendered;
however, an advocate is forbidden from charging a contingency fee,
that is, a portion of the award that is rendered (CIC c.1488 §1;
CCEO c. 1146 §1). Moreover,
the principles of law which govern the adjudication of cases before
ecclesiastical tribunals require that all tribunal personnel observe
secrecy of office (CIC c. 1455 §1; CCEO c. 1113 §1). Although the parties to such a case are not necessarily bound
by such secrecy, the judge hearing the case can bind the parties
and witnesses to a similar secrecy if disclosures they might make
would “endanger the reputation of others, provide opportunity
for discord, or give rise to scandal or some other disadvantage” (CIC
c.1455 §3; CCEO c. 1113 §3). These requirements of canon law reinforce the point that the
purpose of a contentious action in the ecclesiastical forum is not
to mete out a punishment for an offense committed but to seek repair
of the damages that an individual’s actions have caused. How
does a party initiate such a process? Given
the technical nature of a judicial process in the Church, it is essential
that a party considering the initiation of an action of this nature
seek the services of a qualified canon lawyer. Every
diocesan tribunal, insofar as it is possible, is to have available
a list of qualified canonists who would be able to provide legal
representation. If a
given tribunal does not have sufficient personnel to provide this
type of legal assistance, it may be able to refer a party to another
tribunal or diocese. Likewise
it is possible to contact the Canon Law Society of America which
will assist an individual in obtaining the services of a qualified
canonist. Once
an individual has found canonical representation, the party will
be asked to complete a mandate appointing the canonist as advocate
and procurator. Once
approved by the diocesan bishop/eparch (CIC c. 1483; CCEO c. 1141),
this representative will then assist the party in preparing the formal
petition which must be presented to the competent venue to initiate
the process. Part
II: The Rights of Clerics Who Have Been Accused What
constitutes the sexual abuse of a minor? Because
of the gravity of the crime and the penalties which are presented
in the Norms, it is important
to pay strict attention to the elements constituting sexual abuse
which would apply in a canonical process. The commission preparing
the 1983 Code of Canon Law wisely
decided not to include definitions in the Code.
The pertinent canon is 1395 §2, which states: A cleric who
in any other way has committed an offense against the sixth commandment
of the Decalogue, if the delict was committed by force or threats
or publicly or with a minor below the age of sixteen years, is to
be punished with just penalties, not excluding dismissal from the
clerical state if the case so warrants.[10] The
bishops of the United States have published an excellent booklet
entitled, “Canonical
Delicts Involving Sexual Misconduct and Dismissal from the Clerical
State.” Every Chancery should have and make use of this
booklet, which recently has been reprinted by the USCCB. This work,
which is cited in the Norms, says: Notice that
a sexual offense violative of §2 need not be a complete act
of intercourse, nor should the term be equated with the definitions
of sexual abuse or other crimes in civil law. The norm is whether
the act in question is an external act that qualifies as an objectively grave violation of the sixth commandment.[11] In the Preamble to the Norms the
following comment is found: A canonical
offence against the sixth commandment of the Decalogue (CIC c. 1395 §2;
CCEO c. 1453 §1) need not be a complete act of intercourse. Nor, to be objectively grave, does an act need to involve
force, physical contact, or a discernible harmful outcome. Moreover, “imputability [moral responsibility] for a
canonical offense is presumed upon external violation...unless it
is otherwise apparent” (CIC c. 1321 §3; CCEO c. 1414 §2). Cf.
CIC canons 1322-27, and CCEO canons 1413, 1415, and 1416. And footnote 2 in the Norms states: If there is
any doubt whether a specific act qualifies as an external, objectively
grave violation, the writings of recognized theologians should be
consulted and the opinions of recognized experts should be appropriately
obtained (Canonical Delicts, p.
6). Ultimately, it is
the responsibility of the diocesan bishop/eparch, with the advice
of a qualified review board, to determine the gravity of the alleged
act. The
Preamble to the Norms states
that “the norm
to be considered in assessing an allegation of sexual abuse of a
minor is whether conduct or interaction with a minor qualifies as
an external, objectively grave violation of the sixth commandment.” This
also was the essence of the norms expressed in the 1917 and 1983
Codes of Canon Law.[12] According
to the Catechism of the Catholic
Church,[13] the
sixth commandment of the Decalogue is: “You shall not commit
adultery.”[14] The Catechism states: “The
tradition of the Church has understood the sixth commandment as encompassing
the whole of human sexuality.”[15] The Catechism tells
us that chastity is the
virtue which constitutes “the successful integration of sexuality
within the person ...”[16] In
the section entitled “Offenses
against Chastity,” the Catechism lists
and explains the following
sins: lust, masturbation, fornication, pornography, prostitution,
and rape.[17] A
common element among commentators
on the 1917 Code is that “an
offense against the sixth commandment” refers to “crimes
of lust.”[18] Is an offense imputable to the
accused? In
addressing the question of imputability described
in the Norms as “moral
responsibility,” Canonical Delicts points out that a penal sanction cannot
be imposed against a cleric unless the action was gravely imputable
to the accused: The traditional
rules about the requisites for personal culpability (full use of
reason and full consent of the will) must be addressed....There is
no “bright-line” or “black-and-white” rule.
Each case is different and must be judged according to the law and
facts and circumstances... (p. 39). Violations
of canon 1395, as with all delicts, are committed solely by external
acts. No one commits a delict nor can anyone be punished canonically
for an interior act, a tendency to criminal behavior, or a sin of
thought or desire, no matter how serious (c. 1321). Thus, even when
the cleric has committed similar delicts years before and retains
a propensity to commit such acts again, such history and propensity,
while they represent circumstances worthy of consideration in assessing
the facts, are no basis for the imposition of the penalty of dismissal
from the clerical state without proven external acts...(pp. 39-40). Conversely,
the external act alone does not suffice. It must be a human act,
posited with sufficient internal deliberation and freedom to be gravely
imputable insofar as it results from personal malice or culpability
(c. 1321, §1)....Furthermore, when the accused has committed
a delict with sufficiently grave imputability but is shown to have
lacked full imputability, the diminution in imputability represents
a basis for mitigation of the penalty (c. 1324, §1, 10°)
(p. 40). Canon
1321 §1 states: “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.” Canon 1321 §3
establishes a presumption of law: “When an external violation
has occurred, imputability is presumed unless it is otherwise apparent.”[19] The
application of this presumption, however, can be challenged within
the judicial trial. Canonical Delicts notes that it is not required that the accused
prove with moral certainty that the presumption of imputability was
not verified in his case, “(b)ut sufficient evidence must be
introduced (by the accused) which makes it clear to the judges that
the presumption lacks force and that a reasonable doubt exists concerning
imputability in this particular case, a doubt which must be resolved
for a morally certain finding of guilt” (p. 40). In
deciding the issue of imputability, a particular circumstance which
may pertain is the lack of the use of reason caused by alcohol
or drug abuse. Canon 1323, 6°, provides that a person who
lacked the use of reason is not subject to canonical penalties for
the violation of a law or a precept. It references canon 1324 §1,
2°, which states that a penalty must be mitigated for a person
who “lacked the use of reason because of drunkenness or another
similar culpable disturbance of mind.” If the drunkenness was
not culpable, there is no imputability (c. 1323, 6°). In the
case of one who suffers from the disease of alcoholism and commits
an offense while drunk, the issue of culpability for the incident
of drunkenness must be considered. On the other hand, canon 1325
provides that if drunkenness is deliberately induced to commit or
excuse an offense, it cannot be considered as a mitigating or excusing
factor. Another
factor which must be considered is that of passion.
Imputability for an offense is mitigated for one who acts “from
the grave heat of passion which did not precede and hinder all deliberation
of mind and consent of will and provided that the passion itself
had not been stimulated or fostered voluntarily” (c. 1324 §1,
3°). Passion which is deliberately aroused or fostered is not
a mitigating factor (c. 1325). Canon
1324 gives a list of circumstances which mitigate the imputability
of an offense. Canon 1326 gives a list of circumstances which aggravate an offense. Pertinent to this discussion is the aggravating
circumstance given in canon 1326 §1, 2° : “a person
who has been established in some dignity or who has abused a position
of authority or office in order to commit the delict.” A priest
who has abused the natural trust which members of the Church and
the society at large would feel for him in order to create a situation
in which he could commit an offense would be subject to more severe
sanctions. Another
consideration regarding imputability is the issue of an offender
who suffers from a psychological illness, such as pedophilia. The
existence of such a condition for an offender may diminish imputability,
but this condition cannot be presumed to diminish imputability in
every case. Canon 1324 §1,
10°, lists as a mitigating factor “one who acted without
full imputability provided that the imputability was grave.” Here
it is a question of judging to what extent the offender’s freedom
was diminished by a compulsion. On the other hand, such a condition
has to be balanced against the aggravating factor of canon 1326 §1,
3°, that a person who could foresee the likelihood of committing
an offense and did not take precautions to avoid it is subject to
more severe punishment. Also relevant here is canon 1044 §2,
2° (CCEO c. 763, 3°), which states that one who is afflicted
with insanity or some other psychic defect is impeded from the exercise
of sacred orders. Issues
of Procedural Due Process Norm
6 clearly sets forth that the norms on the penal process must be
observed both in the investigation of an allegation of sexual abuse
of a minor and in the imposition of penalties: When an allegation
of sexual abuse of a minor by a priest or deacon is received, a preliminary
investigation in harmony with canon law will be initiated and conducted
promptly and objectively (CIC, c. 1717; CCEO, c. 1468). All appropriate
steps shall be taken to protect the reputation of the accused during
the investigation. The accused will be encouraged to retain the assistance
of civil and canonical counsel and will be promptly notified of the
results of the investigation. When there is sufficient evidence that
sexual abuse of a minor has occurred, the Congregation for the Doctrine
of the Faith shall be notified. The bishop/eparch shall then apply
the precautionary measures mentioned in CIC, canon 1722, or CCEO,
canon 1473 – i.e., remove the accused from the sacred ministry or from
any ecclesiastical office or function, impose or prohibit residence
in a given place or territory, and prohibit public participation
in the Most Holy Eucharist pending the outcome of the process. Norm
8A also reiterates that the procedural requirements of the codes
and the special procedural norms promulgated motu
proprio in Sacramentorum
sanctitatis tutela, must be observed. In every case
involving canonical penalties, the processes provided for in canon
law must be observed, and the various provisions of canon law must
be considered (cf. Canonical
Delicts Involving Sexual Misconduct and Dismissal from the Clerical
State, 1995; Letter from the Congregation for the Doctrine of
the Faith, May 18, 2001). Unless the Congregation for the Doctrine
of the Faith, having been notified, calls the case to itself because
of special circumstances, it will direct the diocesan bishop/eparch
how to proceed (Article 13, “Procedural Norms” for Motu
proprio Sacramentorum sanctitatis tutela, AAS, 93, 2001, p. 787). Thus,
in speaking of the application of penalties for the sexual abuse
of minors by priests or deacons, it must be kept in mind that any
offenses of sexual abuse by a cleric with a minor must be canonically
actionable and canonically
proven within the context of the penal procedures found in the Code of Canon Law, canons 1717 - 1731, 1342-1349 (CCEO cc. 1468 -
1487; 1401 ff.), with due regard for the norms promulgated motu proprio in the Apostolic Letter Sacramentorum sanctitatis tutela. It
is not sufficient, for instance, that the preliminary investigation
establishes that an allegation of sexual abuse is credible; it is
necessary that it be canonically proven with moral certitude (CIC
c. 1608; CCEO c. 1291) in the context of a judicial penal process.
Here care must be taken even if an accused admits to some type of
misconduct, for the accused may be confused as to what constitutes
sexual abuse in canon law. It must be proven that the misconduct
constitutes sexual abuse according to the canonical norm. Likewise,
it is necessary that an instance of sexual abuse of a minor be canonically
actionable. CIC c. 221 §3 and CCEO c. 24 §3 note: “The
Christian faithful have the right not to be punished with canonical
penalties except in accord with the norm of law.” As will be
seen below, this involves questions of the age of the minor, the
imputability of the action to the accused, and the period of prescription. Another
element to be considered is the principle enunciated in CIC c. 18
and CCEO c. 1500: “Laws which establish a penalty, restrict
the free exercise of rights, or which contain an exception from the
law are subject to strict interpretation” (emphasis added). This means that they are to be interpreted narrowly,
that is, including only what must be
included and not what could be
included, with the priest or deacon accused maintaining the free
exercise of his rights which are not clearly and certainly restricted
or removed through a legitimate canonical process. Priests
who currently hold an ecclesiastical office cannot be removed from
their office without canonical due process (CIC cc. 192 - 195; CCEO
cc. 974 - 977, with due regard for the special process for the removal
of a pastor in CIC cc. 1740 - 1747; CCEO cc.1389 - 1396). It
also means that priests currently in ministry and holding the faculties
of the diocese cannot be deprived of their ministry, their faculties,
their right to present themselves as priests, their right to wear
the Roman collar, and their freedom of residence without following
canonical due process as, for example, the application of canon 1722
(CCEO c. 1473) which is discussed below. The
complementary nature of the Norms, as
noted in the Decree of the Congregation for Bishops, must be borne
in mind in undertaking any canonical procedure. The Norms themselves
affirm in at least six places that the universal law of the Church
still pertains and that all national and diocesan procedures must
be in accord with the Code of Canon Law and the Code of Canons of
the Eastern Churches, with due regard for the Norms promulgated in Sacramentorum
sanctitatis tutela: 1. “These norms are complementary to the universal law of the Church...” Preamble, paragraph 3. 2. “This policy is to comply fully with, and is to specify in more detail, the steps to be taken in implementing the requirements of canon law...” Norm 2 addressing the written policy of each diocese. 3. “When an allegation...is received, a preliminary investigation in harmony with canon law will be initiated and conducted promptly and objectively.” Norm 6 addressing the preliminary investigation. 4. “[A]fter an appropriate process in accord with canon law, the offending priest or deacon will be removed permanently from ecclesiastical ministry not excluding dismissal from the clerical state, if the case so warrants.” Norm 8. 5. “In every case involving canonical penalties, the processes provided for in canon law must be observed, and the various provisions of canon law must be considered.” Norm 8A. 6. “[O]bserving the provisions of canon law, the diocesan bishop/eparch shall exercise this power of governance...” Norm 9 addressing the exercise of the executive power of governance by the diocesan bishop/eparch. At What Age is an Alleged Victim
Considered a Minor? The Code of Canon Law determines in c. 97 that anyone below the age of eighteen is a minor and that a person below the age of seven is considered an infant. CIC c. 1395 §2 determines that there was an ecclesiastical delict if a cleric commits an offense against the Sixth Commandment “with a minor below the age of sixteen years.” This is the same age that was determined by the 1917 Code in canon 2359 §2.
Effective April 25, 1994, and for a period of five years, a derogation from the Code of Canon Law was granted to the United States, raising the age of a minor for offenses against the sixth commandment to eighteen: “With regard to canon 1395 §2, 2°: this norm is to be applied to delicts committed with any minor as defined in canon 97 §1 and not only with a minor under sixteen years of age” (Rescript of the Secretariat of State, April 25, 1994, Prot. N. 346.053). This derogation was given a ten year extension to take effect on April 26, 1999 (cf. Letter of the Secretariat of State, December 4, 1998, Prot. N. 445.119 / G.N.). In its May 18, 2001 letter, De delictis gravioribus, the CDF provided this same principle for the universal Church. (“...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”). Since neither the special 1994 derogation for the United States nor the norm established by the CDF is retroactive, only those acts are considered to be an offense against canon 1395 §2, in which the minor had not completed sixteen years of age prior to April 25, 1994, with due regard for the special norm for the United States permitting a criminal action in the case of an offense denounced after this date provided that the victim had not completed twenty-three years of age and the case was prosecuted within one year’s time of the denunciation. For delicts committed after this date, the age of eighteen applies. Sexual sins committed by a cleric with someone who was canonically an adult are also serious offenses against the sixth commandment and can result in the imposition of appropriate penalties as specified in CIC c.1395 (CCEO c.1453). However, they are not subject to the special procedures promulgated in Sacramentorum sanctitatis tutela which direct the application of penalties in cases involving delicts of this nature committed against a minor. DEFINITION
OF A MINOR PERSON FOR OFFENSES OF SEXUAL ABUSE BY CLERICS
Is a Criminal Action Canonically Prescribed? Just
as civil law has a statute of limitations for almost all crimes, canon
law has a statute of limitations, which is called prescription, after
which a canonical penal action cannot be initiated. Statutes
of limitations are not mere technicalities. They serve to protect the
interests of justice for several reasons. After a passage of time it
is difficult to prove or disprove accusations adequately; memory (especially “recovered” memory)
is faulty; witnesses die or become enfeebled; also, it is considered
inhumane and unjust for a society to hold over the heads of its members
the possibility of prosecution for alleged crimes long past. In considering the possibility of a criminal action against an alleged offender, it is necessary to consider the time when the alleged offense took place and for how long thereafter the alleged offense was actionable according to the law in force at the time the offense took place. For acts which allegedly took place prior to November 27, 1983, the norms of the 1917 Code were in effect. Canon 1703, 2°, of the 1917 Code stated that the period of prescription for delicts against the sixth commandment was five years (from the date of the offense). For acts which allegedly took place after November 27, 1983, the 1983 Code is in effect. Canon 1362 §1, 2°, establishes a prescription of five years from the date of the offense for all delicts against the sixth commandment by a cleric, including that with a minor under sixteen years of age.[20] On April 25, 1994 the special derogation of this norm of the 1983 Code referenced above was granted for the United States: With regard to canon 1362 §1, 2°: in those matters which pertain to the above delict, this norm is to be applied that the criminal action is not extinguished unless the following conditions have taken place: a) the one who suffered the delict has completed the twenty-eighth year of age; and b) at least one year has passed from the denunciation regarding the same delict, as long as the denunciation was made before the one who suffered the injury had completed the twenty-eighth year of age. ...the Most Holy Father has judged it fitting to issue the following transitory norm: with respect to delicts already committed, criminal action is not to be deemed extinguished until the minor who suffered the injury has completed the twenty-third year of age. As noted above, this derogation was later extended to ten years from April 26, 1999. Thus, for such delicts committed between November 27, 1983, and April 24, 1994, the period of prescription expires when an alleged victim has completed the twenty-third year of age. For delicts committed after April 25, 1994, the period of prescription expires when an alleged victim has completed the twenty-eighth year of age. However, if an alleged victim brings an accusation of a delict committed on or after April 25, 1994, before the attaining twenty-eight years of age, the diocesan bishop has a year in which to initiate a criminal action against an accused cleric. On April 30, 2001, Pope John Paul II in the Apostolic Letter Sacramentorum sanctitatis tutela, issued motu proprio, promulgated in forma specifica the norms contained in the May 18, 2001 letter of the Congregation of the Faith De delictis gravioribus, which determined the prescription for such offenses as ten years, running from the day the minor has completed the eighteenth year: 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 of ten years...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 18th year of age. In summary, for the United States, criminal action for an alleged offense against the sixth commandment with a minor by a cleric is extinguished as follows: C For alleged offenses committed before November 27, 1983 and denounced before that date: five years from the date of the offense. C For alleged offenses committed on or after November 27, 1983, and denounced prior to April 25, 1994: five years from the date of the offense. C For offenses committed before April 25, 1994, but denounced to the ordinary/hierarch after this date: five years after the minor has completed the eighteenth year, that is, “until the minor…has completed the twenty-third year of age.” C For alleged offenses committed on or after April 25, 1994, and denounced on or after this date: ten years after the victim has completed the eighteenth year, unless less than “one year has passed from the denunciation...as long as the denunciation was made before the one who suffered the injury had completed the twenty-eighth year.” C For alleged offenses committed or denounced following the promulgation of Sacramentorum sanctitatis tutela, on April 30, 2001, “prescription [of ten years] begins to run from the day on which a minor reaches the eighteenth year of age.” PRINCIPLES REGARDING PRESCRIPTION
Attention must also be given to the provision found in Norm 8A which provides for a dispensation from prescription. If the case would otherwise be barred by prescription, because sexual abuse of a minor is a grave offense, the diocesan bishop/eparch shall apply to the Congregation for the Doctrine of the Faith for a dispensation from the prescription, while indicating appropriate pastoral reasons. On the basis of canon 1718 §1, which presents the determinations which must be made in the course of the preliminary investigation, the “pastoral reasons” recommending a dispensation from prescription would emanate from a consideration of canon 1341.[21] Hence, in addressing the question of whether a dispensation from prescription is warranted in an individual case, the diocesan bishop/eparch must ascertain “that fraternal correction or rebuke or other means of pastoral solicitude cannot sufficiently repair the scandal, restore justice, reform the offender.” Preliminary Investigation Norm 6 states that “[w]hen an allegation of sexual abuse of a minor by a priest or deacon is received, a preliminary investigation in harmony with canon law will be initiated and conducted promptly and objectively (CIC c. 1717; CCEO c. 1468).” This preliminary investigation of an accusation is governed by CIC cc. 1717-1719 (CCEO cc. 1468 - 1470). Canonical Delicts offers a thorough explanation of these procedures on pages 8-11. Canon 1717 (CCEO 1468) states that an investigation is to be conducted by the ordinary/hierarch or by someone whom he delegates. Because the preliminary investigator may not serve as a judge in a canonical trial, it is advisable that a tribunal official not act as the investigator. The ordinary/hierarch is to issue a decree opening the preliminary investigation and a decree closing it (CIC c. 1719; CCEO c. 1470). Canonical Delicts points out that in the preliminary process, the canonical norms for investigating witnesses (CIC cc.1558-1571; CCEO cc.1239-1262) are to be observed in so far as |
