The Chiesa
November 20, 2010
http://chiesa.espresso.repubblica.it/articolo/1345646?eng=y
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They discussed it with the pope on the eve of the consistory. For some, it is risky to centralize all of the cases in Rome. For others, it is a mistake to proceed by judicial order rather than with regular canonical trials. The pros and cons of an emergency system
by Sandro Magister
ROME, November 20, 2010 – On the "day of reflection and prayer" that preceded today's consistory, Benedict XVI proposed five topics of discussion to the cardinals.
One of these was "the response of the Church to cases of sexual abuse." It was the first time that this has been discussed at such a high level, on the part of a college of cardinals representing the the universal Church, gathered around the pope.
The discussion was introduced by Cardinal William J. Levada, prefect of the congregation for the doctrine of the faith, and lasted for more than an hour, behind strictly closed doors.
The congregation will soon send a circular letter to the episcopal conferences with directions "for a coordinated and effective program."
But it is well known that the stance adopted over the past decade by the highest authorities of the Church – with an escalation of rigor culminating in 2010 with the new "Norms concerning the most serious crimes" – lends itself to serious objections and opens itself to various risks.
The objections are above all of a juridical nature. Next December 1, the faculty of canon law of the Pontifical Urbaniana University will dedicate a conference of studies precisely to the new norms on the most serious cases of sexual abuse, in particular with a presentation by Professor John Paul Kimes of the Pontifical Oriental Institute.
One key element of the normative innovations has been, starting in 2001, the assigning of exclusive competency over crimes of pedophilia to the congregation for the doctrine of the faith.
In practice, when a bishop finds himself in the presence of the case of pedophilia, after an initial verification of the credibility of the accusation he must submit the case to Rome.
This centralization was firmly desired by Joseph Ratzinger both before and after his election as pope. And it had its executive branch in the promoter of justice at the congregation for the doctrine of the faith, Monsignor Charles J. Scicluna.
The main factor that led in this direction was the unreliability that many dioceses showed in addressing such cases.
And in effect, since the congregation for the doctrine of the faith has taken full control of the matter, the work of "cleaning" has produced results.
This centralization, however, carries a risk. It leaves itself vulnerable – rhetorically, if not substantially – to those who might want to drag even the pope into court, for crimes committed by his "employees." In the United States, trials are underway in which the accusation treats the Church like a "corporation" and demands that its highest officials answer for every action, and be held liable for the financial compensation of the victims.
Other objections, better founded, concern not the centralization of the cases of pedophilia, but the manner in which they are addressed.
According to statements by Monsignor Scicluna, of the 3,000 cases of priests and religious accused of pedophilia that have been considered by the congregation for the doctrine of the faith over the past ten years, only 20 out of a hundred have had a real and proper canonical, judicial, or administrative trial. All the other cases have been gone through unofficial channels.
One glaring case of unofficial procedure concerned, for example, the founder of the Legionaries of Christ, Fr. Marcial Maciel. The congregation for the doctrine of the faith simply carried out an investigation to verify the accusations. After which, with the explicit approval of the pope, on May 19, 2006 it released a statement to "invite the father to a reserved life of prayer and penance, renouncing any public ministry."
"We do this also in order to speed up the process," Monsignor Scicluna said to justify this avoidance of the procedural route. But for legal experts, this practical advantage endangers cardinal principles of the canonical constitution of the Church, and the demand for due process itself.
The legal experts include illustrious cardinals of the Roman Curia: the American Raymond L. Burke, prefect of the supreme tribunal of the apostolic signatura; the Spaniard Julián Herranz, president emeritus of the pontifical council for legislative texts; Zenon Grocholewski of Poland, prefect of the congregation for Catholic education; the Italian Velasio De Paolis, president of the prefecture of economic affairs of the Holy See and papal delegate for the "rescue" of the legionaries of Christ.
For these and other legal scholars, in the curia and outside of it, bypassing the canonical process seriously limits the possibilities of defense for the defendant. Not only that. Even when a case of pedophilia is submitted to canonical procedure, the prevalent tendency is more and more to proceed not through judicial channels, but through administrative channels.
Canon law acknowledges both channels. But compared to what happens within the systems of many states, the canonical judge enjoys greater discretion, with the risk that this could become arbitrary.
It is up to the canonical judge – specifically the local bishop, except for the cases, like those of pedophilia, in which the competency belongs to the congregation for the doctrine of the faith – to decide whether to open a judicial procedure or an administrative procedure by decree.
In this second case, by no choice of his own, the defendant finds himself being judged by the same person who is also his accuser. The result is the elimination of his right to a "third-party" judge, one impartial to prosecution and defense.
The defendant is informed of the accusations against him, but not of the sources and the names of the accusers, which must be kept secret.
Moreover, unlike the administrative process in use in many states, where the penalty is only monetary, the canonical administrative process can sometimes conclude with extremely serious penalties, like dismissal from the clerical state, dispensed by mere decree.
Appeal is permitted. But in the administrative process, the authority responsible for the final judgment will again be the same one who previously was both accuser and judge.
Not only that. It sometimes happens that a priest absolved from the accusation of pedophilia nonetheless receives from his bishop, or the congregation for the doctrine of the faith, a public admonition, or a penance, or another penalty.
This is permitted by canon 1348 of the code of canon law, according to some canonists "for the salvation of the individual and the good of the community."
But it is also at odds with respect for the juridical norm, with the rights of the person and with the proper distinction between external and internal forum.
With respect to all of these arbiters, the canonical judicial process is much more respectful of the rights of the defendant. But in cases of pedophilia, it is rarely practiced. They are almost always handled by decree or by unofficial sanctions.
In a country like the United States of America, the transition has been made from a phase of permissiveness in dealing with the phenomenon of pedophilia, in both the civil and ecclesiastical camps, to a phase of generalized "zero tolerance," Puritan in spirit.
Something similar has happened in the Church. The phenomenon of pedophilia is perceived more and more as a state of emergency. To which it is believed necessary to react with a system that is also emergency in nature, as rapid and expedited as possible.
An emergency system should be lifted once the critical phase has been passed. But this result seems a long way off, in the case of pedophilia.
In short, this was the legal background to the discussion between the cardinals and Pope Benedict on "the response of the Church to cases of sexual abuse," yesterday, November 19, the vigil of the third consistory of this pontificate.
There is reason to believe that this discussion will continue.
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