|
Due
Process
Investigation
Preliminary Investigation
Restrictions
on the Accused
Self-Incrimination
Privilege
Reputation
and Privacy
Prescription
of Criminal Action
Violation
of Celibacy.
Various
Violations of Clerical Chastity.
Physical
Violations of Persons.
Abortion.
Penalties
as Last Resort
Irregularities/Impediments
to Exercise of Orders
Irregularities
for Reception of Orders
Current Cultural
Conditions
Restrictions
on the Accused
Protection of Rights
Penalties
as Last Resort
Juridic Acts
Roman Rota
The Diocesan Bishop
The
Right to One's Reputation and the Right to Privacy
The Right of Defense
The Right to Sufficient
Remuneration
Providing Sustenance
The Priests' Pension
Fund
The
Right to be Judged According to Due Process of Law
Particular Rights arising for the Canons on Penal Law and Penal Procedures
The
Revision of the Rights of the Clergy in the Light of the U.S. Bishops'
Norms
The
Organization of a Penal Process
Administrative
dismissal from the clerical state (Laicization)
The Penal Process
The
Prior Investigation
The
Judicial Process for the Imposition or Declaration of a Penalty
Special
U.S. Norms (Revised Dallas Norms)
Unresolved
Issues and Other Points to be Considered
The
application of canon 489
Particular
Law
Some
Unresolved Issues with the Dallas Norms
The
Situation of Religious
Examination of the Rights of
Priests Accused of Misconduct by
Fr. Gregory Ingels, J.C.D.
The Church's canonical tradition includes procedures
to examine issues of alleged misconduct. These procedures are guided
by principles that protect the rights of all parties, the victims,
the faithful and the accused, and provide the means of arriving at
just and equitable resolutions.
In the best case scenario, diocesan policies and procedures
make use of the principles of universal law and provide for the rights
of all involved parties. Unfortunately, recent experience suggests
that some in positions of authority are not using these procedures
in a correct or competent fashion.
1. They simply ignore applicable canonical
principles and procedures and act arbitrarily on their own initiative.
2. They act on the basis of diocesan procedures or policies
which have failed to take into regard the rights and protections of
the Church's universal law.
3. It also appears that those in authority are being guided
by civil attorneys, insurance companies or others who are not familiar
with canonical rights or procedures.
Investigation
The investigation of an allegation of misconduct should
be guided by diocesan policies and procedures which themselves reflect
the principles found in the Code of Canon Law. When an
Ordinary has probable knowledge that an offense has taken place,
he should implement a preliminary investigation.
Preliminary
Investigation
1. He can utilize the services of a delegate or an investigative
team if he wishes, but any final determinations must be made by the
Ordinary.
2. He need not inform the accused priest of the preliminary
investigation unless he intends to exclude him from ministry or place
him in a special residence.
3. If the Ordinary does elect to exclude the accused priest
from ministry or place him in a special residence during the course
of the investigation, the procedure outlined in canon 1722 must be
followed.
Restrictions
on the Accused
Canon 1722. To preclude scandals, to protect the
freedom of witnesses and to safeguard the course of justice,
having heard the promoter of justice and having cited the accused,
the ordinary at any stage of the process can remove the accused
from the sacred ministry or from any ecclesiastical office or
function, can impose or prohibit public participation in the
Most Holy Eucharist; all these measures must be revoked once
the reason for them ceases; they also end by the law itself when
the penal process ceases.
A. The priest must be cited and his right
of defense must be provided for-
1. by assisting him in finding canonical
representation, and
2. providing him the opportunity of responding to
the accusations that have been made..
B. The Promoter of Justice must be consulted.
1. He is bound by office not simply to
prosecute a case but to see that the safeguards and requirements
of the law are being equitably applied,
2. His responsibilities extend not only to the investigation
of the case but also the rights of the victims and those of the
accused, though he does not and cannot represent the accused.
C. Once the penal procedure is concluded
or abandoned, all restrictions to the priest's ministry must
cease.
4. During the course of the investigation,
the needs of any victimized party must be examined and a decision
made to address these issues at once or as part -of the final determination
at the conclusion of the process.
A. Victimized parties have the right to
place a petition before the bishop or a competent tribunal to
seek repair of damages.
B. These issues can be resolved directly by the Ordinary or
by the competent tribunal if the Ordinary does not act.
5. During the course of the investigation,
the accused priest cannot be compelled or coerced to confess an
offense (canon 1728, º2).
Self-Incrimination
Privilege
Canon 1728 - 2. The accused is not bound to
confess the offense and cannot be constrained to take an oath.
6. During the course of the investigation,
the accused priest cannot be compelled or coerced to undergo a
psychological assessment against his will (canon 220).4
Reputation
and Privacy
Canon 220. No one is permitted to damage unlawfully
the good reputation which another person enjoys nor to violate
the right of another person to protect his or her own privacy.
7. During the course of the investigation,
the Ordinary must determine whether a criminal process can be pursued
in light of the period of prescription (statute of limitations).
A. Sexual comes not reserved to the Congregation
for the Doctrine of the Faith or not involving a minor have a
period of prescription of five years from the date of the last
offense (canon 1362).
Prescription
of Criminal Action
Canon 1362 - 1. A criminal action is extinguished
by prescription in three years unless it is a question of:
1. offenses reserved to the Sacred Congregation
for the Doctrine of the Faith;
2. an action due to offenses mentioned in canons
1394, 1395, 1397 and 1398, which have a prescription of
five years (see below);
3. offenses which are not punished in common law
if particular law has stated another term of prescription.
Canon 1362 - 2. Prescription starts on the day
the offense was committed or on the day when it ceased if the
offense is continuous or habitual.
Canon
1394. Violation of Celibacy. A cleric who attempts
even a civil marriage incurs automatic (latae sententiae)
suspension, or a religious in perpetual vows who is not
a cleric and who attempts even a civil marriage incurs
automatic (latae sententiae) interdict.
Canon
1395. Various Violations of Clerical Chastity. 1. Outside
the case mentioned in canon 1394, a cleric who lives in
concubinage or a cleric who remains in another external
sin against the 6th commandment of the Decalogue which
produces scandal is to be punished with a suspension; and
if such a cleric persists in such an offense after having
been admonished, other penalties can be added gradually
including dismissal from the clerical state. 2. if a cleric
has otherwise committed an offense against the 6th commandment
of the Decalogue with force or threats or publicly or with
a minor below the age of sixteen, the cleric is to be punished
with just penalties, including dismissal from the clerical
state if the case warrants it.
Canon
1397. Physical Violations of Persons. One who commits
homicide or who fraudulently or forcibly kidnaps, detains,
mutilates or seriously wounds a person is to be punished
with the deprivations and prohibitions mentioned in Canon
1336 in accord with the seriousness of the offense; however,
homicide against the persons mentioned in canon 1370 is
punished by the penalties specified there.
Canon
1398. Abortion. A person who procures a completed abortion
incurs an automatic (latae sententiae) excommunication.
B. Sexual crimes involving a minor which
are reserved to the Congregation for the Doctrine of the Faith
have a period of prescription of ten years which runs from the
eighteenth birthday of the victim (Sacramentorum Sanctitatis
Tutela, April 30, 2001).
C. Other comes reserved to the Congregation
for the Doctrine of the Faith have a period of prescription of
ten years from the date of the last offense.
8. Before concluding the investigation, the
Ordinary must examine the accusation in the light of canon 1341
and determine:
A. Whether he is dealing with an individual
who is sick and in need of help, or
B. Whether he is dealing with an individual who has committed
a crime and must be punished.
Penalties
as Last Resort
Canon 1341. Only after he has ascertained that
scandal cannot sufficiently be repaired, that justice cannot
sufficiently be restored and that the accused cannot sufficiently
be reformed by fraternal correction, rebuke and other ways
of pastoral care is the ordinary then to provide for a judicial
or administrative procedure to impose or to declare penalties.
In response to A. above: If the Ordinary
concludes that the priest is psychologically or mentally ill
and that this has gravely affected his Imputability (i.e., personal
responsibility) for his actions at the time of the offense, no
penalty can be imposed at any time.
1 . He can be removed from ministry on
the basis of canon 1044 - 2 - 2, once the Ordinary has consulted
an expert who confirms the psychological or mental illness.
Irregularities/Impediments
to Exercise of Orders
Canon 1044 - 2. The following are impeded
from exercising orders: 2. a person who is afflicted with
insanity or some other psychic defect mentioned in Canon
1041 - 1 , until the time when the ordinary, after consultation
with an expert, permits him the exercise of that order.
Irregularities
for Reception of Orders
Canon 1041 - 1. A person who labors under
some form of insanity or other psychic defect due to which,
after consultation with experts, he is judged incapable
of rightly carrying out the ministry)
2. It falls to the priest to petition
for a-return to ministry once he can demonstrate through therapy
that the psychological or mental illness has been dealt with.
In response to B. above: If the Ordinary
concludes that the priest has committed a crime that must be
punished:
1. If the crime is reserved to the Congregation
for the Doctrine of the Faith, the acts of the preliminary
investigation must be transmitted to the Congregation.
A. A determination will be made whether
to call the case to itself or have it adjudicated at the
diocesan level.
B. The case must be examined in the judicial forum (Congregation
for the Doctrine of the Faith).
2. If the crime is not reserved, an administrative
or judicial penal process can be undertaken at the diocesan
level.
Current
Cultural Conditions
Recent reports in the news media give rise to significant
concerns relative to the rights of priests.
1. Priests are being removed from ministry,
being placed in special residences or denied residence, and having
their remuneration discontinued or lessened by administrative decision
of the Ordinary simply on the basis of proven or unproven allegations
of sexual misconduct.
A. If no penal process has been undertaken
providing for the use of canon 1722, this constitutes a violation
of canon 221 - 3.
Restrictions
on the Accused
Canon 1722. To preclude scandals, to protect
the freedom of witnesses and to safeguard the course of justice,
having heard the promoter of justice and having cited the accused,
the ordinary at any stage of the process can remove the accused
from the sacred ministry or from any ecclesiastical office
or function, can impose or prohibit public participation in
the Most Holy Eucharist; all these measures must be revoked
once the reason for them ceases; they also end by the law itself
when the penal process ceases.
Protection
of Rights
Canon 221 - 3. The Christian faithful have
the right not to be punished with canonical penalties except
in accord with the norm of law.
B. The law itself prohibits a criminal process
in the case of allegations in which the period of prescription
has lapsed.
2. Priests are being removed from ministry,
being placed in special residences or denied residence, and having
their remuneration discontinued or lessened by administrative determination
for cases allegedly resolved to everyone's satisfaction years and
even decades ago.
A. If all parties were satisfied with
the previous resolution of the matter, the present action fails
to respect the determinations made on the basis of the principles
of canon 1341.
Penalties
as Last Resort
Canon 1341. Only after he has ascertained
that scandal cannot sufficiently be repaired, that justice
cannot sufficiently be restored and that the accused
cannot sufficiently be reformed by fraternal correction,
rebuke and other ways of pastoral care is the ordinary
then to provide for a judicial or administrative procedure
to impose or to declare penalties.
B. If the period of prescription has lapsed
in such cases, a penal process cannot be undertaken.
3. Priests are being coerced to petition for
laicization.
A . The placement of a petition for dispensation
from the obligations arising from ordination to the priesthood
is invalid if it is obtained through coercion or the use of force
or fear.
B. Any juridic act placed by a priest under coercion or fear
can be rescinded by a competent tribunal.
Juridic
Acts
Canon 125 -2. An act placed because of grave
fear, which has been unjustly inflicted, or because of fraud
is valid unless the law makes some other provision; but such
an act can be rescinded by the decision of a judge, either
at the instance of an injured party, or that party's successors
in law, or ex officio.
Roman
Rota
Canon 1405 - 3. Judgment of the following is
reserved to the Roman Rota:
1. bishops in
contentious cases, with due regard for the prescription of
canon 1419 - 2;
2. an abbot primate or an abbot superior of a
monastic congregation and the supreme moderator or religious
institutes of pontifical right;
3. dioceses or other ecclesiastical persons, whether
physical or juridic, which do not have a superior below
the Roman Pontiff.
The
Diocesan Bishop
Canon 1419 - 2. But if the action concerns
the rights or the temporal goods of a juridic person
represented by the bishop, the appellate tribunal judges
in first instance.
The
Right to One’s Reputation and the Right to Privacy (c.
220) by Fr. Frank Morrisey, J.C.D.
This
right is invoked as a basis for Roman statements that a Bishop
may not oblige a cleric to undergo therapy without the latter’s
consent. (See G.
INGELS, “Protecting the Right to Privacy...”, noted
above).
The
Instruction of the Secretariate of State, August 6, 1976 spells
out the elements: “It is not licit for anyone, either a
religious or diocesan superior, to enter into the psychological
or moral privacy of a person without having received from that
person a prior, explicit, informed and absolutely free consent...”
It
is also held that a cleric cannot even be sent for psychological
evaluation without his consent.
Cong.
for the Clergy, October 8, 1998: “...Therefore, this Congregation
concludes that Your Excellency can not, in this case, under pain
of obedience, oblige your priest to undergo psychological evaluation.”
Father
G. Ingels lists three principles that could be followed in instances
where it is essential for a superior to have psychological information:
1)
When circumstances suggest the need for a priest or religious
to undergo a psychological evaluation or when an assessment
recommends ongoing therapy, the individual should be invited
to take part in the evaluation or therapy.
2)
A priest or religious who freely consents to an evaluation
or ongoing therapy should be invited to release the results
of the evaluation or the therapy to his or her superior or
ordinary. He or
she cannot be compelled to release such results following the
assessment or to sign a release prior to an assessment agreeing
to the later release of the results.
3) Under
no circumstances can a priest or religious be required to undergo
invasive testing which elicits information over which the individual
has no freedom or personal control, for example, through testing
or procedures which involve the use of a polygraph, the penile
plethysmograph, drug induced responses, or other techniques
of this nature. Due
to the questionable morality associated with the use of these
techniques, even if an individual should freely submit to such
testing, any information gathered from such procedures cannot
be used in the external forum.
If
the priest refuses to undergo evaluation, the bishop is free
to ask a specialist for an evaluation of
the documentation already gathered, and to make a report based
exclusively on the information available. Of
course, this does not give a full picture, but if nothing more
is available, and the bishop must act, then he can proceed in
this way in applying canon 1041, 1°. The priest or religious may then determine whether an
evaluation would help in his right of defense.
The
Congregation for the Clergy has also decreed that medical records
cannot be used as evidence in a penal case without the direct consent
of the person accused (June 9, 1998).
The
Right of Defense (canon 221)
An
address of Pope John Paul II to a group of Bishops from the USA, October 17, 1998 (Origins, 28(1998-1999), pp. 361-363) mentions
elements involved in the right of defense in a marriage case. With
the appropriate adaptations, these can be applied to cases involving
priests.
“Both
parties in a marriage case have rights which must be scrupulously
respected. These include
[1] the right to be heard for the formulation of the doubt, [2] the
right to know on what grounds the case will be tried, [3] the right
to name witnesses, [4] the right to inspect the acts, [5] the right
to know and rebut the arguments of the other party and of the defender
of the bond, [6] and to receive a copy of the final sentence. [7] The
parties are to be informed of the ways in which they may challenge
the definitive sentence, including the right to appeal to the tribunal
of the Roman Rota in second instance.
“One
cannot conceive of a just judgment [fair trial] without the ‘contradictory’ [due
process of law] that is to say, without the concrete possibility
granted to each party in the case to be heard and to be able to
know and contradict the requests, proofs, and deductions adopted
by the opposing party or ex officio” (John Paul II, to the
Roman Rota, January 26, 1989).
Canon
1620 provides that the sentence is irremediably null if
one or the other party was denied the right of defense.
“The
right of defense is a technical notion, with a technical content. An
obvious duty is incumbent therefore on the tribunal to inform each
party of his or her right of defense, and to explain in clear and
practical terms what is involved... A
party may choose to waive the right of defense; but can be said
to so do freely and responsibly, only if he or she has actually
been informed of the main implications and modes of exercising
this right” (RRRDec, c. BURKE, May 22, 1997).
A.
Providing Sustenance
Canon 1350 provides that when penalties are imposed
on a cleric, except in the case of dismissal from the clerical
state, care must be taken that he does not lack what is necessary
for his worthy support. And,
even in cases of dismissal, the Ordinary is to provide in the
best way possible.
What does this canon mean in practice?
For instance, what are the financial rights arising
from incardination, after a priest has been found guilty of crimes
against minor, or other similar ones? It
seems strange to consider that it is a “meal ticket for
life” and, no matter what the cleric does, the diocese
remains responsible for him until he dies. Nevertheless,
in a certain sense, canon 1350 can be interpreted in this way.
As an example, a decision of the Supreme Court
of Canada, R. v. Marshall, No. 26014, September 17, 1999,
in paragraph 50 describes the concept of “necessaries”: “The
concept of ‘necessaries’ is today equivalent to the
concept of what Lambert J.A. in R. v. Van der Peet (1993),
80 B.C.L.R. (2d) 75 (C.A.), at p. 126, described as a ‘moderate
livelihood’. Bare
subsistence has thankfully receded over the last couple of centuries
as an appropriate standard of life for aboriginals and non-aboriginals
alike. A moderate
livelihood includes such basics as ‘food, clothing and
housing, supplemented by a few amenities’, but not accumulation
of wealth [...]. It
addresses day-to-day needs. This
was the common intention in 1760. It
is fair that it be given this interpretation today.”
B.
The Priests’ Pension Fund
In
many dioceses, the so-called priests’ pension fund is
really an ecclesiastical society. It
is not a registered pension fund in which the priest has vested
interests. Some
dioceses use this approach to have greater control over the
priests, being able to decide when they can retire and how
much they will receive from the fund upon retirement if they
have been “good boys”.
However,
we should keep in mind that unless the fund is incorporated
separately, and the diocese is sued, the fund could well be
considered part of the diocesan assets and disappear in a catastrophic
case. But even
a separate incorporation is not necessarily enough security
in the case of suits. The
funds should be registered as retirement funds and
become a right of the priest at a given age, no matter what
his status in ministry is at that moment.
The
situation becomes even more delicate in the case of priests
who left the ministry, oftentimes with very little assets. If
we are dealing with an ecclesiastical society, and not with
a registered fund, we often find mentioned in the statutes
of the funds that only priests who retire in good standing
are eligible to receive payments from it.
Beside
the manifest injustice of such a situation, there can also
be the danger of civil suits against the diocese, at least
for the return of payments made to the fund, plus interest. I
am aware of two such suits to date, and would not be surprised
to see more coming, especially with what has been happening
lately to priests who have been “in trouble” in
the past.
The
Right to be Judged According to Due Process of Law (canon
221)
Three recent cases
from the Congregation of the Clergy seriously attack the procedures
used in dioceses to condemn priests or to remove them from ministry. In
particular, they speak about a mixing of civil and canonical procedures,
so that the accused has really no way to defend himself in one or
the other forum.
For instance,
a decree of August 23, 2001 (Prot. No. 2001/0081) speaks of “procedure sui
generis which compelled the priest recurrent to employ civil
advocacy for an adequate defense against the accusations [at a cost
of $75,000].” It ordered the Archdiocese to pay the priest’s
costs.
In another case,
the same day (Prot. No. 2001/1099), the Congregation spoke of a “confused
mixture of procedures used in effectively depriving the priest of
active ministry; unclear and undefined accusations which kept on
changing; the fact that the accusations, if true, were already prescripted
in accord with the norm of law; the good name of the priest was tarnished
by information circulated by the Archdiocese contrary to the prescripts
of canons 1717, §2 and 220; the decree of XXX did not meet the
requirements of canon 51 [i.e., it was not motivated], nor was it
arrived at following appropriate canonical process; canon 1722 was
improperly applied and outside of a recognizable process thereby
violating canon 221, §3 as well.”
The third case,
December 21, 2000 (Prot. No. 2000/1201) also attacks the procedures
used – “without a recognizable administrative or judicial
process for the application of the provision of a perpetual nature.” For
instance: the investigation was carried out in the name of the diocese
by individuals not appointed in accordance with the law. They
had not followed procedures consistent with the norms of the Code. The
acts had no identification of the accusers. There
was no written sworn testimony from any of the accusers indicating
dates, times, places, and witnesses of the alleged abuse. Individual
accusations could not be verified by recognizable legal means. It
seems that the accusations had been taken by the Ordinary at face
value, overturning any presumption of innocence to be afforded by
natural law to any accused. Public
statements made by the diocesan officials had apparently harmed the
good reputation of the accused.
(The above cases
are taken from A. MENDONÇA, “The Bishop as the Mirror
of Justice and Equity...”, noted above).
These cases give
us some insight into what the Holy See is looking for in cases involving
priests.
Particular
Rights arising for the Canons on Penal Law and Penal Procedures
Quite
a number of canons refer to the rights of parties or the accused
in trials. Going
through the Code, and without any pretense of being exhaustive,
the following could be noted as rights arising from the canons
on penal law and penal procedures.
- Canon
1313: the right to have the most favorable law applied;
- Canon
1315: penalties are to be imposed only for the gravest of reasons
(“gravissima necessitate”)
- Canon
1317: a bishop cannot issue a particular law dismissing a person
from the clerical state
- Canon
1318: a right not to have latae sententiae penalties determined,
except in cases of grave scandal or malicious offences
- Canon
1321: Imputability is presumed, but there must be malice or culpability
- Canons
1323-1324: there are causes or reasons, which remove or diminish
a penalty
- Canon
1327: circumstances are to be taken into account when considering
penalties
- Canon
1338: a person cannot be deprived of the power of order (but can
be deprived of its exercise)
- Canon
1339: the right to receive a warning in many instances
- Canon
1341: a penal trial is the last resort, after other methods have
failed
- Canon
1342: a perpetual penalty cannot be applied by decree, but only
by a sentence
- Canon
1347: a censure cannot be imposed without at least one prior warning;
a person can have purged contempt if he makes reparation for the
scandal and the damage done
- Canon
1349; a judge may not impose perpetual penalties unless the law
provides for it
- Canon
1350: clerics have a right to what is necessary for their decent
support
- Canon
1353: an appeal or recourse against a decision has suspensive effect
- Canon
1358: if contempt has been purged, the remission of a penalty cannot
be refused
- Canon
1362: some criminal actions are extinguished by time (statute of
limitations)
- Canon
1717: a person’s good name cannot be called into question
during a preliminary investigation
- Canon
1720: the accused is to be notified of the allegation and the proofs,
and given an opportunity for defense; the extra-judicial decree
imposing a penalty must be motivated (in law and in fact)
- Canon
1722: leave of absence (in its various forms) ceases when the penal
process ceases
- Canon
1723: the accused is to have a canonical advocate
- Canon
1724: once a trial begins, the accused can demand that it continue
- Canon
1725: the accused always has the right to speak last
- Canon
1727: the offender can appeal
- Canon
1728: the norms regarding contentious trials, and those for cases
concerning the public good are to be followed; the accused is not
bound to admit to an offence, nor may the oath be administered
to him.
The
Revision of the Rights of the Clergy in the Light of the U.S. Bishops'
Norms
(For
this section, it would also be important to keep in mind the explanations
given in the NCCB document, Canonical Delicts Involving Sexual
Misconduct and Dismissal from the Clerical State, Washington,
NCCB, 1995, 47p.
See
also, CANON LAW SOCIETY OF AMERICA, 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, Washington, CLSA, 2003, 47p.)
Among
the rights alluded to in the revised “Dallas” norms,
we could note the following:
- The
right to have a formal policy in place, and which will be observed
(Art. 2)
- The
right to have a priest on any diocesan review board (Art. 5)
- The
right to have the promoter of justice participate in meetings of
the review board (Art. 5)
- The
right to have one’s reputation protected throughout the prior
investigation (Art. 6)
- The
right not to have the provisions of canon 1722 applied until the
prior investigation is completed (Art. 6)
- The
right to accept or refuse medical and psychological evaluation
(Art. 7)
- The
right to be judged according to the processes of canon law (Art.8A)
- The
right to retain the assistance of civil and canonical counsel (Art.
8A) (the text does not say specifically who pays for these services,
although it does say that the diocese “will supply canonical
counsel to a priest”) (Art 8A)
- The
right to request dispensation from clerical obligations (Art. 10)
- The
right to have all rights protected (Art. 13)
- The
right to have one’s good name restored when the accusation
has proved to be unfounded (Art. 13)
The
Organization of a Penal Process
Only
a few canonists have actually been involved in a penal trial. Most
of us have become involved the matter at the level of extra-judicial
decrees.
However,
since, according to the “Dallas” norms, and also according
to the Code of Canon Law (canon 1342), a perpetual penalty cannot
be imposed without a canonical trial, it will be important to make
certain that we follow the norms of law in order for our decisions
to have validity.
There
will be mistakes made in good faith; but, at least if all tribunal
personnel strive to make certain that the rights of all parties
involved are truly respected, our processes will have greater credibility,
and will help restore the good name of the Church.
Note:
much of the material in this section is based on two sources: (1)
points raised by G. INGELS, “Dismissal from the Clerical
State: An Examination of the Penal Process”, in Studia
canonica, 33(1999), pp. 169-212. (2)
The comments of Msgr. C. SCICLUNA (Promoter of Justice, Cong. for
the Doctrine of the Faith), Canonical Seminar Training for Penal
Processes, Washington, USCCB, 2003, 159p.
1.
Administrative dismissal from the clerical state (Laicization)
For
years, bishops have been requesting that priests who cannot be
returned to ministry after having served jail sentences, but
who refuse to request laicization, be laicized by decree of the
Pope. One
of the reasons for this was to reduce liability on the part of
the diocese for further actions by the priest if such were committed.
After
much discussion, a policy to this effect was indeed put into
effect, although no formal document on the subject has been officially
issued. Some
cases received much publicity in the secular press.
Incidentally,
around the same time, a relaxation of the procedures for voluntary
laicization was put in effect (CONG. FOR SACRAMENTS AND DIVINE
WORSHIP, Circular Letter, June 6, 1997, in Origins, 27(1997-1998),
pp. 169, 172). The
document was very well received by bishops and by persons who
were making requests for
laicization, or by widowed deacons who were asking for permission
to remarry.
However,
as to the new administrative procedures, the reaction has been
rather muted. Already
there are cases of priests who, they say, have been laicized
against their will, without a chance for input on their part
or without having heard that the process was underway. We
all recognize that the priest has rights in this regard that
should be respected or taken into consideration, according to
circumstances. If
there are no rights, a procedure that was initially instituted
to deal with cases of child molesters might also be extended
to apply to other instances. For
example, a priest who opposes his bishop (and perhaps rightly
so) might one day
have his case presented for laicization. Of
course, this does not mean that the request would be accepted
by the Holy See, but the danger is there.
Because
of the risk of abuses, the Congregation for Divine Worship and
the Discipline of the Sacraments, in a private reply, has recently
spelled out certain procedures to be observed when such cases
are presented (Prot. No. 2169/98, November 11, 1998). It
would be worthwhile reviewing them here since the document has
not been made readily available.
...
this Dicastery would like to confirm that there is the possibility
of seeking, through these same offices, dismissal from the
clerical state ex officio and in poenam from
the Holy Father for priests who refuse to freely request the
dispensation. The
judgment of the exceptional nature of a particular case is
based upon thorough examination of the merits of each one. [...] The
following documentation would need to be provided verifying
the completion of the necessary steps referred to below:
1. Your
own request as the Diocesan Bishop for the use of the process ex
officio and in poenam. The
request should give a complete explanation of the case, including
the reasons why Your Excellency would be unable to use the
ordinary, judicial, penal process as outlined in the Codex
Iuris Canonici;
2. A
copy of your renewed request (in the form of a letter) to
the priest in question asking him to present his own personal
request to the Holy Father for return to the lay state along
with dispensation from the obligations
of the clerical state including celibacy. The
priest could well be reminded that there would be more dignity
in making such a request that there would be in being dismissed in
poenam from the clerical state;
3. Should
the priest continue refusing to petition for the dispensation,
a copy of his negative response to Your Excellency is to
be enclosed. The
priest is to be asked to provide in this response a written
defense of himself and of his actions, as well as his reasons
for refusing to petition for return to the lay state. This
letter of refusal could be written with the help of his advocate
should he so choose;
4. A
copy of the sentence(s) of conviction of the civil law tribunal(s);
5. Attestation
documenting the ordination of the priest in question;
6. The votum of
the Promoter of Justice of the Diocesan Tribunal.
Should
any further information be necessary be assured of the prompt
assistance of this Congregation in resolving these sad cases.
This
document addresses a number of the complaints that had arisen
regarding the process and makes appropriate provisions. Among
these, we could note: the right of defense on the part of the
priest; the right of the priest to have an advocate and to prepare
an explanation; the right of the priest to be aware of the proceedings
and to know the grounds; the intervention of the Promoter of
Justice. It could
also be noted that a return to the lay state in poenam does
not automatically entail a dispensation from the obligations
of the clerical state (see canon 291).
A
lengthier and more recent document from the Congregation for
Divine Worship and the Discipline of the Sacraments, October
21, 2002 (Prot. No. 1890/02/S), outlines further the thinking
of the Holy See on the matter:
...
Recourse to [administrative laicization] is made only ad
hoc, in the most exceptional of cases, namely, when the
cleric is guilty of a delict for which the Codex Iuris Canonici 1983
foresees dismissal from the clerical state as described in
can. 1395, §1-2, and ex officio Pontificis Romani. It
is consequently referred to as a process for dismissal from
[the] clerical state ex officio et in poenam.
It
is worth noting that the ordinary process for dispensation
from the obligations of the clerical state is based upon the
priest’s freely asking for such a dispensation. However,
in the most exceptional of cases, recourse may be made by a
particular Bishop to this Dicastery to request application
of the process ex officio et in poenam (i.e., dismissal
from the clerical state involuntarily). As
the name implies, the decision to dismiss or not dismiss the
priest in question from the clerical state rests solely with
the person of the Roman Pontiff.
Previous
to making such a request, it is necessary to establish that
the priest in question has definitively rejected making a voluntary
personal request to the Holy Father for the grace of dispensation. Therefore,
the priest would need to have been explicitly invited by the
Bishop to petition voluntarily for dispensation from the obligations
of the priesthood. The
Bishop may not force the priest into making such a decision;
however, he may certain call upon the conscience of the priest
to give careful consideration to whether the circumstances
permitting dispensation would be applicable to him. In
any case, the response of the priest to this invitation is
then to be precisely documented. This occasion would also afford the priest an opportunity
to offer some defense of himself, should he so desire.
In
the event that the priest would accept an invitation to request
dispensation from the obligations of the clerical state, the
instruction of the case would proceed in accord with the Substantial
and Procedural Norms of the Congregation for the Doctrine
of the Faith (AAS 72 [October 14, 1980] 1132-1137).
Should
the priest, however, refuse such a request for dispensation,
the local Bishop may make a request for his dismissal from
the clerical state ex officio et in poenam in the event
that (1) it could be proven that this priest is guilty of a
delict for which the Codex Iuris Canonici 1983 foresees
dismissal from the clerical state as described in can. 1395, §§1-2;
and (2) it would be at least morally impossible to conduct
a judicial trial for the consideration of the dismissal of
this man from the clerical state, which is the way foreseen
by law of proceeding to the application of all perpetual penalties
(cf. can. 1342, §2).
With
respect to the first requirement above, it is normally necessary
that documentary evidence (e.g., police reports, sentences
from civil courts of law, etc.), together with the testimony
of at least two or three witnesses, would be presented, which
would establish with moral certitude that the priest in question
in guilty of the grave violations against the sixth commandment
described in can. 1395, §§1-2. With
respect to the second requirement, the Bishop would be asked
to provide his own personal votum de rei veritate explaining
why it would not be possible to constitute a collegial tribunal,
even ad hoc, to decide the case.
In
the case of a priest proven by the aforementioned means to
be guilty of a delict as described in can. 1395, §§1-2,
for which the Codex Iuris Canonici 1983 foresees dismissal
from the clerical state, such a request for a priest’s
dismissal from the clerical state ex officio et in poenam,
could be presented to this Dicastery, which would then study
the case and, if appropriate, forward it for the consideration
of the Holy Father...
It
should be carefully noted that while this letter refers to Canon
1395, §1-2, one of the many cases covered in this canon
is now reserved to the CDF (sins with a minor) and is not subject
to the Cong. for Sacraments.
To
show how exceptional this procedure is, a very recent negative
decision of the Congregation for Sacraments, November 15, 2002
(Prot. No. 103/02/S), in the case of a priest who spent a number
of years in prison, states:
... The
Cardinal Secretary of State has communicated to this Dicastery
that the aforementioned acts [i.e., grave violations de
sexto against minors for which he was convicted before
a civil tribunal] ceased several years ago, with nearly nine
years passing since these delicts were committed and nearly
eight years passing since this priest’s criminal conviction. With
these intervening years, the scandal that was provoked by these
actions has subsided, particularly since he has changed residence. Likewise,
the precarious state of health of this priest is a matter of
no little concern.
In
light of the foregoing, it has not been deemed appropriate
to inflict such a serious penalty upon this priest, particularly
in light of the demands of Christian charity toward a priest
in danger of death. It
has been indicated to this Congregation by Higher Authority
that it would be odious to burden the conscience of the Holy
Father by proposing that he would impose such a grave penalty
in this situation. Indeed,
His Eminence Cardinal Angelo Sodano concludes his letter to
this Dicastery by urging that the Congregation of N.N. would
not abandon Father X.X. in this terribly sad time of his life.
...”
It
could be noted that the revised Dallas norms speak of this
procedure in Art. 10:
These
rights, not surprisingly, correspond to those of respondents
in marriage nullity cases. The
only thing that is different is that there is no appeal against
the decision of the Holy Father. There
could always be recourse asking for re-consideration, but
it would probably be of little avail since the matter is
carefully studied beforehand. At
least, if the procedures outlined above are followed, then
there is the implementation of the right of defense before
the final decision is taken.
2. The
Penal Process
In
this section, we are taking into account the fact that certain
cases must be referred to the Congregation for the Doctrine of
the Faith before proceeding to further stages. In
cases which are not reserved to the CDF, the steps indicated
below in reference to the CDF would be omitted.
Also,
we must keep in mind that sometimes there are proceedings in
the secular courts (either criminal or civil). It
might be appropriate in certain cases to postpone canonical action
until the secular proceedings are completed, so as to avoid “discovery” issues,
and to risk muddying the waters, since the norms of proof are
different in each case. On
the other hand, the bishop would need some type of “process” to
justify removing a priest from active ministry in the meantime
(see canon 1717, §1 – unless this would be superfluous;
if so, it should be mentioned in a decree).
A. The
Prior Investigation
The
purpose of the prior investigation phase is to gather evidence
(testimony, documents).
The
steps could be outlined as follows:
1. The
Ordinary receives information, which has at least a semblance
of truth (c. 1717, §1).
2. By
decree (see canon 1719), the Ordinary names a priest delegate
to inquire about (1) the facts and (2) circumstances, and
also about (3) Imputability (unless entirely superfluous). It
is preferable that the Ordinary remain one step removed from
the actual process, to allow for some latitude later on if
something has to be corrected or adjusted. This
is why it is preferable to appoint a delegate to carry out
the investigation. It
seems preferable to designate a priest for this role, since,
unless a specific dispensation is granted by the Holy See,
the other personnel must, for validity, be priests if the
case proceeds to a penal trial (see CDF Norms, Arts. 8-12).
In some dioceses, this role is entrusted to the diocesan
review board.
3. According
to canon 1717, §2, care is to be taken that a priest’s
good name is not harmed by this process. Yet,
the fact of making public statements before a trial has even
been conducted certainly raises questions about the attitude
of Church representatives regarding the observance of this
norm.
4.
The delegate cannot serve later as a judge in the process
(c. 1717, §3). Therefore,
if a diocese doesn’t have too many canonists available
to serve as judge, it would be important to keep this in
mind when appointing the delegate.
5. The
Ordinary (or the delegate) will determine how to proceed. For
instance, using principles from the c. 1942, §2 of the
1917 Code as a basis, he could consider the reputation of
the person making the complaint; anonymous letters are not
used, unless there are other indications; he could, however,
act on rumours. (This was not formally prescribed in the 1983 Code,
but was left to the Bishop’s prudent discretion – see Communicationes,
12(1980), p. 189).
6. It
would be important to keep in mind the provisions of the
law of the Church regarding its statute of limitations. In
the case of sexual abuse of a minor, if the person accusing
is now older than 28 years of age, the case cannot proceed
unless there is a special dispensation from the CDF.
7. Since,
according to canon 50, before making a decision, the Ordinary
should hear those whose rights can be injured by a decree,
it would be good to add a step that the Oriental Code specifies
(CCEO, c. 1469, §3): “Before he decides anything
in the matter, the hierarch is to hear the one accused of
the offence and the promoter of justice, and also, if he
deems it prudent, two judges or others expert in the law...” This
is not a formal interrogation (which will follow later),
but is a consultation. This
step could be taken after the statements of those being interviewed
have been taken and the facts gathered.
8. The
statements of those interviewed should be under oath, recorded
verbatim, and signed, so that they become formal proofs. There
should be a priest notary (who will carry out the regular
functions ascribed to the notary). (Decision
of the Vatican Congregation for the Clergy, December
21, 2000, Prot. No. 2000/1201). Witnesses
can be heard anywhere, since this is not a judicial procedure
at this moment.
9. The
Ordinary, once the facts have been assembled, decides whether
to have a process conducted (c. 1718, §1, 1°),
or to proceed with an extra-judicial decree (c. 1718, §1,
3°). This decision is based on moral certainty concerning the sufficiency
of the evidence (it is not based on guilt).
10. However,
when the Ordinary has at least probable knowledge of a reserved
delict (for instance, sexual abuse of a minor), once the
prior inquiry has been completed, he is to transmit this
information to the CDF (Norm 13) and the CDF (not the Ordinary)
makes the decision as to the manner of proceeding.
11. The
CDF will then either order the Ordinary to proceed with the
case, or will call the case to itself because of particular
factors (Norm 13).
If
the CDF calls the case to itself, or if the case if referred
directly to the CDF, then the Ordinary’s involvement
as such ceases (see Norm 14).
12. Furthermore,
when the inquiry is complete and the decision made to proceed,
the Ordinary (or the CDF) issues a second decree, indicating
whether the matter is to be remanded to the penalty phase
of the process (c. 1719). This
decision is based on a number of points:
Whether
indeed a crime has been committed (not all sinful conduct
is a canonical crime or delict)
Whether
the period of prescription has lapsed or not
Is
the accused seriously imputable by reason of malice or
culpability
Whether
it is expedient in the light of canon 1341 to set in motion
the process for declaring or inflicting a penalty
Whether
an extra-judicial decree can be issued, or whether a formal
trial is required.
The
decree must state the conclusion arrived at by the Ordinary
(or the CDF), whether he has moral certainty concerning the
sufficiency of the proofs, and, on that basis, whether the
penalty phase of the penal process is to be undertaken in
response to the questions listed in c. 1718, §1. Before
issuing the decree, the Ordinary can consult two judges or
other legal experts; they could be the same persons as mentioned
in No. 5 above.
Again,
if the case is referred to CDF, this decision is made at
the level of the CDF.
13. The
Ordinary, after consulting the promoter of justice, can then
invoke the provisions of canon 1722 (see Norm 15) or use
his executive power of governance to apply temporary provisions.
14. The
Ordinary might decide that, although the accused priest did
commit the offences, he is labouring under serious psychological
problems, which call for his being placed in treatment.
15. Damages
(if any) can be decided at this phase in the process (c.
1718, §4), if things are clear.
B. The
judicial process for the imposition or declaration of a
penalty
Since
the accused has not necessarily had a chance to participate
in the process to date, it will be essential at this phase
of the process to make sure that his rights are duly protected.
16. The
promoter of justice presents the libellus, in accordance with
canon 1504. The Code does not provide for the case where the diocesan
bishop would want a trial conducted, but the promoter of justice
does not agree to present a libellus. It
seems reasonable to assert that the Promoter of Justice is
not a robot, and has discretion to act. The
Bishop could always designate another promoter, but this would
not look to be totally objective.
17. In
general, two fora are available: the forum of the respondent
(cc. 1407, 1408), or the tribunal of the place where the offence
was actually perpetrated (c. 1412).
18. The
libellus must raise three specific areas of concern, and a
fourth possible one:
The
tribunal is to verify whether the accused has committed the
criminal action of which he is charged.
He
must ask that the tribunal confirm the Imputability of the
accused;
He
must ask that a specific penalty be imposed.
If
there was also a question of damages, then these too would
be addressed in the libellus (if they weren’t previously
addressed -- see No. 15 above).
19. The
libellus should provide clear statements, and not remain at
the level of generalities. Vague
generalized statements do not provide the opportunity for an
accused’s exercise of the right of defence.
20. The
officers of the court are to be priests, including the accused’s
advocate. However,
it should be noted that the Pope, on February 7, 2003, authorized
the CDF to dispense (in individual cases) from the requirement
of priesthood and the requirement of a doctorate in canon law,
mentioned in Articles 8-12 of the Procedural Norms.
21. The
petition is to be accepted (or rejected), the accused notified,
and invited to respond to the allegations. The
Code Commission had stated that it did not consider it appropriate
to give to the accused the name of the person making the accusation
(see Communicationes, 12(1980), p. 194). The
CDF norms (Norm No. 20) restrict to cases involving the sacrament
of reconciliation the prohibition of communicating the name
of the accuser, unless this latter agrees to have his or her
name mentioned.
The
1974 Instruction on Pontifical Secrecy states: “It
will be permissible to make known the name of the denouncer
then only when authorities think it opportune that the denounced
and the denouncer come face to face” (Art. 1, 4).
22. Once
the accused has been cited, the Ordinary can invoke canon 1722
(on administrative leave). Of
course, there are many opinions as to whether administrative
leave can be imposed before the previous investigation is completed.
Personally,
in view of Norm No. 15 of the CDF procedural norms (April
30, 2001), which does not make specific reference to the
time when canon 1722 can be invoked, it seems that the provisions
of canon 1722 could be applied at any time, even during the
previous investigation, provided the accused has been given
the right of defense and the promoter of justice has been
heard.
Archbishop
J. HERRANZ, in an interview given to Zenit News Services,
November 14, 2002, states: “The Code of Canon Law prudently
gives the diocesan bishop the right to impose some significant
precautionary measures at any step of the process [emphasis
added] such as prohibiting the accused from the exercise
of the sacred ministry or of some ecclesiastical office,
imposing or forbidding residence in a certain area, or even
prohibiting public participation in the blessed Eucharist. These
measures are not to be considered punitive and are wholly
temporary, lasting only until the case is concluded; they
can be imposed only where the diocesan bishop determines
that they are necessary to prevent scandal, protect the freedom
of the witnesses, or safeguard the course of justice.”
(See
also G. INGELS, “Placing a Priest on ‘Administrative
Leave’ During the Investigation of Alleged Misconduct”,
in CLSA, Roman Replies and CLSA Advisory Opinions 2002,
Washington, DC, CLSA, 2002, pp. 160-162).
However,
I recognize that many canonists, following a literal reading
of the canon, would see it applied only during the formal
part of the process itself. (See,
for instance, P. BROWN, “Reaction to new proposed USCCB
norms”, on Canon Law ListServe, November 12, 2002).
23. The contestatio
litis follows. It
should address:
Whether
the accused did commit the criminal action;
Whether
the accused acted out of malice or culpability with grave
Imputability;
Whether
the penalty can be imposed in law and on the basis of the
facts, which will be brought forward.
24. Although
the promoter of justice can decide to renounce the instance,
in a penal case, the consent of the accused is required for
this to be valid once a case has begun (canon 1724, §2),
since the accused might wish to clear his name once and for
all. (If the decision
were negative, the same case couldn’t be brought forward
again against the accused). Incidentally,
the Code Commission did not wish to allow the accused to request
a judicial hearing; a person’s good name is presumed
to be “good” before the Church until proven otherwise
(see Communicationes, 12(1980), p. 191).
25. The
instruction of the case will proceed as per the regular norms
of law. Of course,
the material gathered in the prior investigation can constitute
proof, since it was gathered under oath; however, it has to
be incorporated into the acts by a decree of the court.
26. Once
the proofs have been collected, the acts are published (c.
1598). The
accused always has the right to intervene last (either personally
or through a procurator or advocate -- c. 1725), after having
been informed of the proofs and the arguments put forward by
the promoter of justice.
27. If
necessary, further instruction can take place.
|
