The Pope’s move to hold bishops accountable could have seismic consequences

By Ed Condon
Catholic Herald
June 4, 2016

http://www.catholicherald.co.uk/commentandblogs/2016/06/04/the-popes-move-to-hold-bishops-accountable-could-have-seismic-consequences/

The potential scope of the new definition of episcopal negligence is of huge significance

This morning, Pope Francis issued the motu proprio Come una madre amorevole, or As a loving mother. The letter establishes the long-awaited procedural norms for the removal of diocesan bishops for negligence in cases involving clerical sexual abuse, which were first announced last year.

Canon law, as the new norms acknowledge, already provides for the loss of any ecclesiastical office, including that of a diocesan bishop, for “grave cause” (cc. 192-193); Come una madre makes explicit that negligence in the exercise of their office is such a grave cause, especially when linked to cases of clerical sexual abuse.

According to the new norms, the appropriate Congregation of the Roman Curia will conduct the entire process of investigating a bishop themselves: they will determine which cases to investigate, gather evidence, meet other bishops from the relevant territory, and hear the defence of the accused before reaching their conclusion as part of the Congregation’s business when meeting in ordinary session. If they find in favour of removal, the decision must be approved by the Pope personally, who will be assisted by a special legal advisory group in these cases.

The new norms themselves are, as law, minimalistic, and I expect there will be further developments and clarifications. As an example, they establish that the process of investigating and removing a bishop is instigated and carried out by the “competent Congregation of the Roman Curia”, though which congregation is not explicitly clear in the legal text.

According to the “Five Point Plan” approved by Pope Francis a year ago, and which began this process, the Congregation for Bishops, or, when appropriate, occasionally the Congregations for the Evangelisation of Peoples or Oriental Churches, would be competent to receive and investigate complaints of abuse of office made against a bishop.

The Congregation for the Doctrine of the Faith would be competent to handle cases of abuse of office when they were connected to the abuse of minors, and there was going to be a new Judicial Section established within the CDF. It is not clear if this is still the intended distribution of competence, and there is no mention of a Judicial Section for the CDF in Come una madre, only of a “special college of jurists” who will help the Pope make the final determination in each case; what form this college will take, and what Congregation it will exist within, are yet to be announced.

While the legal minutiae will, no doubt, be made clear, there is already some confusion about the basic character of the new procedures. It is clear enough that the new process is administrative, rather than judicial, but, in presenting the motu proprio, Fr Federico Lombardi claimed that it was “not a penal procedure” because it concerned cases of “negligence” rather than “crime”. It is possible Fr Lombardi was speaking off the cuff and without proper legal briefing, but his words have come as a surprise to canonists, since sufficiently culpable negligence is established as a crime in the Code of Canon Law in canon 1389 §2.

Perhaps the most important aspect of the reforms, and the one which could prove to be the most seismic in its application, is that it establishes that negligence by a bishop which causes serious harm, either to an individual or to the community, can result in his being removed from office. This harm can be physical, moral, or spiritual, and it does not have to be linked, per se, to instances of child sexual abuse, though that will undoubtably be foremost in the new norms’ intention.

The potential scope of this new definition of episcopal negligence is of huge significance. Under these new norms, bishops could see cases brought against them for failures in financial oversight, personnel policy or virtually any area of diocesan governance which could potentially cause “physical, moral, or spiritual harm” to an individual or the community.

On the specific issue of the handling of complaints of sexual crimes against priests, in the wake of the more horrific revelations of cover-ups in some dioceses, some bishops have taken public pride in their “swift and decisive action” following any allegation made against a priest; those priests who have been subsequently found innocent but seen their reputations ruined by summary justice may well have a case to bring.

Traditionally, the bishop in his diocese has been, almost literally, a law unto himself. Recovering the dignity and authority of that office from encroaching centralisation towards Rome was a key theme of the reforms of Vatican Council II. While the reasons he has done so are obvious and compelling, Pope Francis, for all his emphasis on synodality, has, for good or for ill, just dealt a major blow to the independence of the average diocesan bishop.