Canon Law, Crimes, and Fitting Punishments

Lawyer Reflects on Pros and Cons of Even the Worst Sanctions

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WASHINGTON, D.C., JUNE 16, 2010 ( The Church’s law provides for various punishments when her sons or daughters go astray, but in the case of priest sexual abusers, perhaps the most serious canonical punishment is not always the best one, according to one canon lawyer.

This suggestion was made by Father John Beal of the Diocese of Erie, Pennsylvania, when he addressed participants at a one-day seminar May 25 on canon law and sexual abuse.

Father Beal cautioned that turning a priest-sexual predator loose in society by separating him from the clerical state might solve the internal problem for the Church, but could serve to worsen the issue as a whole, particularly when the chance of a successful civil trial is minimal.

The canon lawyer made this observation during the question-and-answer session that followed his address on “Crime and Punishment in the Catholic Church: An Overview of Possibilities and Problems.”

He was the third canon lawyer to address the seminar, which was sponsored by the U.S. episcopal conference and the Canon Law Society of America. Sponsors explained that the event was “held in response to media interest in clergy sexual abuse.”  Videos and texts of the four speakers’ presentations, the questions-and-answers sessions, and a panel discussion are available online. ZENIT is this week providing commentaries on the talks.

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Father Beal noted how those who mete out punishment in the Church — as in a civil legal proceeding — have the challenge of making the punishment fit the crime, a task that is anything but clear-cut and rarely garners unanimous support.

Nevertheless, the Church teaches that penal sanctions in an ecclesial context have essentially a three-fold aim: “repair the scandal, restore justice, reform the offender.”

The priest gave an overview of the possibilities of punishment for addressing the crime of sexual abuse by members of the clergy: “These measures are: medicinal penalties or censures, expiatory penalties, […] and penal remedies. There are also two non-penal strategies which may be useful in addressing the issue.”

The first of these, medicinal penalties, are “deprivations of spiritual goods,” privations which are theoretically temporary, and whose “primary aim is to impress upon the offender the seriousness of his crime and thereby prompt him to repent and reform,” he said.

The present Code of Canon Law includes three such censures: excommunication (c. 1331), interdict (c. 1332), and suspension (c. 1333).

Regarding excommunication, Father Beal clarified that it does not expel a person from the Church, though he is forbidden to “participate ministerially in the Mass or any other liturgical rite, to celebrate or receive the sacraments and sacramentals, to exercise the functions of any church office or ministry, and to perform acts of church governance.”

An interdict, the second medicinal censure, “prohibits a person from ministerial participation in and reception of the sacraments and sacramentals.”

And the third, suspension, is a punishment that can only affect members of the clergy. Depending on circumstances and degrees, it prohibits the clergy from “some or all acts of the power of orders” and the “power of governance,” (such as performing the sacraments or administering Church property), or from “some or all rights or functions attached to their offices” (such as witnessing marriage.)

Father Beal proposed that censures are unlikely to be effective punishments for priest abusers.

He explained: “Since they can only be imposed after a warning, there must be evidence of an incident of abuse or at least suspicion that a particular cleric is prone to such abuse before a censure can even be threatened. Sad experience of the recent past suggests that even the sternest warnings and threats are unlikely to be effective in deterring abusive clerics from repeating their offenses. Even when a censure has been imposed, it must be remitted once the offender evidences repentance — and, as many bishops have learned to their chagrin, sexually abusive clergy can make very convincing displays of repentance when they are confronted with evidence of their offenses.”

Priestly powers

Abusers can also be punished with expiatory penalties, which are: a prohibition from living in a particular place or an order to live in a specific place (Father Beal compared it to house arrest); a deprivation of a power, office, function, right, privilege, faculty, favor, title or insignia (these deprivations have a wide range, including prohibition to preach or hear confessions, for example, or having the papal honor of monsignor removed); a prohibition on the exercise of powers, office, functions and rights; a penal transfer from one office to another; and finally, dismissal from the clerical state.

Father Beal took time to spell out this last penalty. He clarified the “ontological” change that comes with holy orders, making a priest a priest forever. What is not permanent, however, are his faculties as a priest — his permission to act as a priest, saying Mass, hearing confessions, etc., and the “juridic or legal status that is known in canon law as the ‘clerical state.'”

“These appointments and empowerments can be lost as can the clerical state itself. The clerical state can be lost by the declaration that a person’s ordination was invalid, by the grant of the favor of a dispensation by the Holy See, and by the imposition of the penalty of dismissal following an administrative or judicial process,” he explained. “A cleric who loses the clerical state is thereby stripped of any offices, ministries or delegated power he may have still had, loses the rights proper to the clerical state and is relieved of its obligations — save for the obligation of celibacy — and is prohibited from exercising the powers of his order.”

The canon lawyer noted a practical consequence as well, at least in the United States: the priest also loses his financial support, the possibility of a pension, and health insurance.

More choices

Father Beal then considered penal remedies and penances. The first is a formal warning given when there is grave suspicion of offense but a lack of sufficient evidence for a penal process. A penance, on the other hand, can be given when there is substantial evidence but the penal process is barred because of some other circumstance, such as age or infirmity. A penance like this could be barring the priest from ministry and requiring him to retire to a life of prayer and penance.

Finally, the canon lawyer looked at the two non-penal remedies: an administrative procedure leading to a dispensation from the obligations of the clerical state and return to the lay state, and a declaration of an impediment to the exercise of orders.

This first “remedy” involves a request made to the Holy See to return to the lay state, a request that comes either from the priest himself, or from the priest’s bishop or superior who sees an “urgent need for expeditious action.”

The declaration of an impediment deals with those who have psychic illnesses. “When a priest clearly has committed offenses with minors but is judged too mentally unbalanced to be held criminally culpable, the declaration of the impediment might be the most expeditious way to distance him from public ministry and the risk of future offenses,” Father Beal opined.

Step by step

The canon lawyer gave a brief overview of the process for dealing with a priest accused of sexual abuse. The task of handling this process is reserved to the Congregation for the Doctrine of the Faith.

If a bishop receives an accusation that seems plausible, Father Beal explained, he conducts a preliminary investigation and forwards the results and his recommendation to Rome. The Congregation for the Doctrine of the Faith then determines how to proceed.

Father Beal added: “If the Congregation decides that a process possibly l
eading to the imposition of penal sanctions is called for, it has several options. First, the Congregation can order the initiation of a penal trial either at the Congregation itself or in the diocese where the complaint originated. The trial proceeds in two stages, the first to determine guilt or innocence and the second to apply the appropriate penalty.

“Second, the Congregation can order the initiation of an administrative process at the local level. In this process the bishop serves as decision-maker and the accused must be given the basic elements of what we would call ‘due process.’

“Third, when evidence of the accused’s guilt is clear and there is an urgent reason to proceed expeditiously, the Congregation can take the case to the Holy Father ‘ex officio’ and request that the accused be dismissed from the clerical state as a penalty.”

Not foolproof

Father Beal concluded his address with some considerations regarding sentencing.

“When searching for the just balance of the aims of canonical penal law, the most important consideration for decision-makers in the Church is not how best to punish the offender for past crimes but how best to protect the vulnerable from future abuse,” he said.

In this context, keeping the priest from ministry that entails contact with a vulnerable population is key. The most sure way of ensuring this is leveling the most serious sanction: dismissal from the clerical state.

“As far as ministry in the Church is concerned,” Father Beal said, “the penalty of dismissal is the ecclesiastical equivalent of the death penalty.” And it might “help to dispel scandal by making it clear both to the faithful and to the broader public that, as Pope John Paul II said, ‘there is no room in the priesthood for those who abuse children.'”

Nevertheless, as the priest extrapolated in the question-and-answer session, “penalty of dismissal does little, if anything, to contribute to the rehabilitation of the offender.”

He noted that “dismissing a person from the clerical state also cuts him loose from whatever imperfect systems for monitoring and control the Church may have and leaves him free in society.” And in any case, the Church cannot physically restrain a priest from continuing to “minister,” even if he no longer has the authority of the Church. As a case in point, Father Beal pointed to the example of Archbishop Emmanuel Milingo, or the online service “RentaPriest”

He continued: “Our understanding of the psychodynamics of sexual abusers is quite limited, much more limited than we once thought, but it does seem clear that those prone to compulsive or addictive behavior are most likely to ‘act out’ when they are under stress, lonely, and cut off from a social support network — precisely the situation in which dismissed clerics are likely to find themselves.

“The Church might benefit society by removing abusive clerics from ministry but stopping short of dismissing them from the clerical state so that it can at least attempt to monitor their behavior.”

“Balancing the aims of restoring justice, removing scandal and reforming the offender is not an easy task,” Father Beal concluded. “Efforts to achieve a just balance among these ends will open Church authorities to criticism from all sides just as efforts to find a balance in the secular arena has resulted in sharp criticism of secular judges, including the justices of the Supreme Court. But, in an imperfect world, one does what one can. And if we do what we can, perhaps we shall achieve in time that object all sublime of letting the punishment fit the crime.”

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