VATICAN CITY (VATICAN CITY)
The Pillar [Washington DC]
June 1, 2021
By Ed Condon and JD Flynn
Pope Francis on Tuesday promulgated the apostolic constitution Pascite gregem Dei, replacing Book VI of the Code of Canon Law, which codifies the penal law of the Latin Catholic Church.
The revised text contains a number of important changes to the way in which penalties are applied in the Church, and the crimes which must be punished. It also includes the systematic incorporation of numerous laws promulgated in the Church in recent years, but not directly added to the Code of Canon Law.
Canonists and academics will likely spend months poring over the new canons, and unpacking the likely implications — both intended and unintended.
But as they dive into the text, some changes will likely be regarded as laudable legal reforms, while others will eventually face criticism. And some aspects of the new law are already raising complex interpretative questions for canonists.
What will be praised? What will be lamented? What will probably lead to more questions?
To get you started, The Pillar brings you analysis to the new Book VI: The good, the bad, and the ugly.
The Good
Law is good
Perhaps the first thing that can be said about the new penal code for the Church comes not from the text of the new laws, but from Pope Francis’ apostolic constitution promulgating it:
“The observance of penal discipline is a duty for the entire People of God,” the pope wrote.
“In the past, the lack of perception of the intimate relationship existing in the Church between the exercise of charity and the recourse – where circumstances and justice so require – to sanctioning discipline has caused much damage. This way of thinking – experience teaches us – runs the risk of leading to behaviors contrary to the discipline of morals, whose remedy only exhortations or suggestions are not enough.”
The project to reform Book VI began, as Francis noted, under Benedict XVI in 2007, and was part of a long series of legal projects aimed at bringing the Church’s penal code up to date after a series of scandals that included the Spotlight scandals of the early 2000s.
Many canonists believe the sexual abuse scandals of recent decades to have been exacerbated by a culture of antinomianism — the notion, especially present in some quarters of the Church after Vatican Council II, that the idea of law in the Church, and the idea of the Church as a coherent society in need of law, is antiquated, draconian, or at odds with Christian charity.
Cases of clerical sexual abuse in the United States dating back to the 1960s, ‘70s, and ‘80s were compounded by bishops and chanceries who treated criminal sexual activity principally as a pastoral problem, which led in many cases to the practice of moving abusive priests from parish to parish. And many canonists argue that a general tendency to avoid legal proceedings in the Church has led to a laxity in clerical discipline, which enables clerical abusers to act with impunity.
Canon 1311, which kicks off the Code’s section on penal law, emphasizes the pope’s call for a change in mindset.
While the old norm said simply that the “The Church has the innate and proper right to coerce offending members of the Christian faithful with penal sanctions,” the new norm adds an important exhortatory paragraph.
“The one who is at the head of a Church must safeguard and promote the good of the community itself and of each of Christ’s faithful, through pastoral charity, example of life, advice and exhortation and, if necessary, also through the imposition or declaration of penalties, in accordance with the provisions of the law, which are always to be applied with canonical equity and having in mind the restoration of justice, the reform of the offender, and the repair of scandal,” the new canon 1311 § 2 explains.
That paragraph outlines in a nutshell the purposes of penal law, and the way in which it fits into the Church’s life. It seems clear that Pope Francis wants to emphasize both, even with fervorino canons of exhortation.
The revised canon 1341 also makes a substantive change underscoring the pope’s proposed shift in mentality.
The previous wording of the canon said that a bishop was “to take care to initiate a judicial or administrative process to impose or declare penalties only after he has ascertained that fraternal correction or rebuke or other means of pastoral solicitude” would not suffice.
The new version instructs that the bishop “must start a judicial or an administrative procedure” in such circumstances. [emphasis added]
In fact, in several places, the new text requires bishops and religious superiors to initiate penal processes or impose punishments when canon law has been violated, even for relatively minor offenses, while the old text in those places encouraged them to, but left the matter to their judgment.
That shift emphasizes the new text’s general expectation that bishops and superiors will incorporate penal law into their ordinary governance of the Church’s life, as part of a general tightening of Church discipline.
The new text also makes it easier for bishops to actually apply canon law, by providing lists of graduated and escalating penalties, including even monetary penalties, and urging episcopal conferences to help adapt those penalties even more to local situations. Those resources are designed to ensure that no diocesan bishop feels out of his depth when faced with the prospect of punishing a wayward cleric.
The pope’s re-emphasis of penal law as a duty and service to the people of God will likely be taken by many canonists as grounds for a renewed adherence to proper procedure, and a “by the book” approach to every case.
Due Process
At the same time, many have noted that in the aftermath of scandals like those in the United States, priests have fallen under intense scrutiny and, in many places, a policy of “zero tolerance” has crowded out due process for many who have been accused.
In many dioceses, the desire to be seen to act swiftly and without hesitation to remove priests accused of serious misconduct has created a class of what many canonists refer to as “unassignables” — priests whom bishops refuse to return to ministry even after a canonical process has failed to sustain the allegations against them, because of the possibility of public outcry.
Among the changes likely to be praised by canonical advocates and those concerned with the protection of priests’ rights are two small but significant additions.
The first is in canon 1321, which in both the old and new texts clarifies that no one can be punished with a sanction unless he is proven guilty and is imputable, which means that he is psychologically and morally responsible for his actions. But the new text adds a positive assertion of the presumption of innocence: “Any person is considered innocent until the contrary is proved.”
That addition may seem like very little. But given that priests and their advocates in recent decades have charged that the mere accusation of a canonical crime can be enough to see them exiled from ministry, the affirmation that the Church maintains a presumption of innocence is likely to seem like a validation of their human right to a fair hearing.
The other change is likely to be taken as both a protection of due process rights for accused clerics and a measure of accountability and justice for alleged victims of clerical abuse or misconduct.
The change is a new time limit on canonical prosecutions. Current penal law maintains a general statute of limitations of 20 years for serious crimes, which can be waived by the Vatican when necessary.
But it sometimes happens that a cleric faces the beginning of a canonical process toward the end of the statute of limitations, and then, once begun, the case remains in limbo for years — leaving both the cleric and the alleged victim holding their breath, with no sign of resolution in sight.
The new text of canon 1362 is a shot clock.
The canon allows a window of only three years from the beginning of a formal canonical process for the prosecution to conclude its case, before the clock on the statute of limitations starts running again.
Clerics in lingering canonical processes can now demand a resolution to their status, and eventually make a legal claim that the case against them has expired. Alleged victims can remind the Church’s canonical prosecutors, called “promoters of justice,” that the opportunity for justice can be thwarted by a running game clock.
Money, money, money
While much of the attention to the new Book VI will focus on its application to sexual abuse, other crimes in the Church have been amended and expanded, too.
A new and much-expanded section on financial crimes might be mostly overlooked at first, but it could eventually prove significant.
The previous version of the law included a short canon which allowed for a person “who alienates ecclesiastical goods without the prescribed permission” to be punished with the nebulous term “a just penalty.”
In place of that norm, a new canon 1376 provides a list of delineated penalties, including fines, deprivation of office, and prohibitions on ecclesiastical ministry for financial misconduct or malfeasance.
The new canon 1376 also details a far broader set of financial crimes which can lead to the imposition of these penalties, including theft of Church goods or money.
Perhaps most significantly, the new canon also criminalizes “a person who without the prescribed consultation, consent, or permission, or without another requirement imposed by law for validity or for lawfulness, alienates ecclesiastical goods or carries out an act of administration over them.”
It also provides for the same punishments for “a person who is found to have been otherwise gravely negligent in administering ecclesiastical goods.”
Both these provisions would seem to be aimed fairly directly at those, like diocesan bishops or parish pastors, who make major financial decisions without following the necessary canonical process. This would apply to, for example, the closure and sale of church buildings, or the decision by a diocese to file for Chapter 11 bankruptcy without the approval of Rome — something U.S. bishops have been warned about directly by the Vatican in recent years.
Ordination of women
Another little-noticed but important change is the revision of canon 1379.
The previous version of the canon provided the penalty of excommunication for “a person who simulates the administration of a sacrament.”
That category includes a priest or bishop who knowingly attempts to perform a sacrament with invalid matter, which would include, for example, attempting to ordain a woman, since the valid matter for sacramental ordination is a baptized man.
The new version of the canon includes a separate paragraph making explicit that “both a person who attempts to confer a sacred order on a woman, and the woman who attempts to receive the sacred order, incur a latae sententiae excommunication reserved to the Apostolic See,” and that the one who attempts to ordain a woman “may be punished by dismissal from the clerical state.”
Given recent debate about the possibility of ordaining women to the diaconate, and the calls from some German bishops to move forward on the ordination of women — first to the diaconate and later to the priesthood — the new text of the canon could be a signal from Rome that any attempt to forge ahead with these plans will be treated as a breach of ecclesial communion, and punished accordingly.
Abortion (actually)
The Vatican’s English translation of the new norms deviates from the currently approved English translation of the canon on abortions and excommunication. The translation change is likely to be appreciated for emphasizing directly the person to whom a latae sententiae excommunication for abortion actually applies.
The old translation of canon 1398 said that “a person who procures a completed abortion” incurs such a penalty.
While canonists have emphasized in recent years that “procurement” refers to a person undergoing, funding directly, or performing an abortion, numerous popular commentators have at times argued that canon 1398 could also apply to politicians supporting legal protection or state funding for abortion, given that they might be considered to have remote moral participation in particular abortions.
The new Vatican translation of the norm, which in the official Latin edition remains the same, makes an effort to thwart that argument, and to state more clearly the intended meaning of the canon: Renumbered as canon 1397 §2, the canon’s translation adds a crucial word: “A person who actually procures an abortion incurs a latae sententiae excommunication.” [emphasis added]
The canon also adds a new norm, which establishes that a cleric involved in the procurement of an abortion could be dismissed from the clerical state. There have indeed been cases when clerics — either out of a gravely disordered sense of compassion, or to hide their own paternity of a newly conceived child — have given women money in order to procure abortions. The law now states directly that such a man is to be dismissed permanently from ordained ministry.
The collar
It is common practice in many American dioceses that when a bishop begins to investigate an allegation of some delict against a priest or deacon, the cleric is temporarily removed from ministry and prohibited from wearing clerical dress. While the USCCB’s “Essential Norms” note situations when a bishop might “urge” a cleric to refrain from wearing a collar, it is far more common to see a priest prohibited from doing so, usually as soon as he faces an allegation of misconduct.
The new Book VI will likely put a stop to that.
The new norms of canon 1336 § 3 establish that a prohibition “against wearing ecclesiastical or religious dress” is a penalty in the Church.
A penalty can’t be imposed without a penal process, or at least the violation of a penal precept. That delineation should be expected to end the practice of prohibiting priests under investigation from wearing clerical garb — a practice which priests who maintain their innocence have long insisted is unjust, and gives the impression they are guilty long before they’ve had their day in court.
The laity
A key thematic change to the revised Book VI is a much-amplified recognition of the laity, and the role they play in the institutional life of the Church.
In addition to the recently expanded role of catechists, which Pope Francis treated last month, lay men and women have for decades played an increasingly important role in the institutional Church, serving as diocesan chancellors, finance officers, judges in diocesan tribunals, diocesan safeguarding officers, and so on. At the parish level, other positions have also come into being since Vatican Council II, including the option for some lay people to be given administrative charge of a parish in some circumstances (recognized by the Code already in canon 517).
The revised penal law of the Church includes several new references to the laity, and to men and women religious, including the norm that lay Catholics, including religious sisters and brothers, are now explicitly to be punished under canon law for various offenses related to sexual abuse.
For most of the last two decades, ambiguity about that possibility has been raised as a major gap, or lacuna, in the Church’s existing penal law.
For example, canon 1333 previously stipulated that the punishment of suspension from office “can affect only clerics.” That provision is removed from the revised text, meaning that those lay men and women who hold ecclesiastical offices can now be subjected to the same penalties as clerics in relation to their offices, and, at least implicitly, expect the same stability in office as a cleric accused but not yet found guilty of misconduct.
Conversely, the law previously defined as a crime the use of physical violence against the pope, bishops, and clerics in hatred of the faith.
But the revised canon 1370 is now broadened to include any member “of Christ’s faithful out of contempt for the faith, or the Church, or ecclesiastical authority or the ministry.” This would seem to cover assaults carried out against lay men and women in the course of an ecclesial office or ministry — like the lay leader of a parish or a catechist, putting them on the same footing as assaults against a priest or deacon under the previous version of the canon.
The Bad
The still-ambiguous meaning of ‘vulnerable adults’
While there is no dispute that clerics who engage in spiritual manipulation, coercion, or the abuse of power should be punished severely, and there are indeed several new canons which emphasize this explicitly, there is an ongoing legal debate within the Vatican about meaning of the term “vulnerable adult.”
The newly promulgated Book VI, while it does not use the term directly, makes reference to the concept without resolving the debate. That ambiguity is likely to be criticized both by clerical defense advocates and victims’ advocates, as it might leave it more difficult for either group to feel that justice is being served in canonical processes.
Debate over how to legally define “vulnerable adults” when dealing with sexual abuse cases has been particularly acute since the 2019 promulgation of Pope Francis’ Vos estis lux mundi.
According to the proper law of the Congregation for the Doctrine of the Faith, which is competent to deal with cases of clerical sexual abuse of minors, “vulnerable adults” are considered equivalent in law to children for the purposes of trying sexual abuse cases.
The CDF’s law, Sacramentorum sanctitatis tuetela, offers a very narrow definition of vulnerable adult: “one with habitually imperfect use of reason,” that is someone with mental illness or a developmental disability.
Vos estis contains a far broader definition, calling a vulnerable adult “any person in a state of infirmity, physical or mental deficiency, or deprivation of personal liberty which, in fact, even occasionally, limits their ability to understand or to want or otherwise resist the offense.”
Canonists have noted the difference between the two definitions, and many anticipated the new Book VI to resolve the two.
Instead, the law seems to note the difference without actually picking one or other class of person for inclusion.
Canon 1398 now includes along with minor victims of sexual abuse “a person who habitually has an imperfect use of reason or with one to whom the law recognizes equal protection.”
Resolving the conflicting definitions has both philosophical and practical implications. So does a failure to resolve it.
On the one hand, defense advocates have criticized drawing legal parity between the abuse of a child and a sexual relationship between adults. While both categories of behavior can and should be punishable by canon law, some argue that the special gravity of sexual abuse of children should be recognized on its own.
On the other hand, whether or not an abuse victim is classified as legally equivalent to a minor bears directly on how and by whom a case will be handled. Sexual abuse of a minor is a “most grave crime” in canon law and reserved to the CDF, which handles all such cases itself or specially delegates local diocesan bishops in some instances.
Other forms of criminal sexual activity are presently treated by the Congregation for Clergy, another Vatican department, in the case of priests, and the Congregation for Bishops in the case of bishops.
But if the expanded definition for vulnerable adult found in Vos estis becomes the legal standard for “most grave crimes,” nearly all cases would be sent to the CDF for trial, which would almost certainly swamp the system, and cause the already time-consuming process to grind to a halt.
On the other hand, if the definition doesn’t become the standard, victims’ advocates argue, it will be harder for those who are sexually and spiritually abused to see the fullest measure of justice.
Can you keep a secret?
In 2019, Pope Francis removed from the cover of the “pontifical secret” information related to cases of sexual abuse, coercion, and grave misconduct. But the “pontifical secret” still binds Vatican officials and diplomats, who are required to promise “in no way, under any pretext, whether of greater good, or of very urgent and very grave reason,” to break the secret.
The secret includes the ordinary business of the Apostolic See, including recommendations on the appointments of bishops and communications between the Vatican and national governments. But the secret also covers aspects of financial administrations, and penal processes and investigations related to a number of canonical crimes.
While canon law has previously held that a person who violated the pontifical secret could be punished, the law did not establish a specific penalty for a violation. But the new norms seem to reemphasize the issue by establishing a framework of penalties for talking out of school, so to speak.
The new Book VI says that those who violate the pontifical secret could be fined, suspended from their duties, a suspension from office, or even the loss of office. In principle, of course, the desire to maintain professional confidentiality is important, especially for an institution dealing with matters as sensitive as the Roman Curia does. On the other hand, the measure is likely to be criticized by ecclesial reform advocates because the new norms do not include any correlative whistleblower protections for Curial officials concerned about administrative misconduct, malfeasance, or ineptitude.
The ongoing Vatican financial scandal, to say nothing of the McCarrick Report, demonstrates the importance of providing a mechanism for Church functionaries and officials to alert their superiors of problems without risking their necks. That the new penal norms seem to double down on punishment for speaking out publicly, without providing for secure internal reporting and accountability channels, seems to guarantee that officials in the Roman curia will continue to believe they have little choice to secure public accountability but to speak to the press — which seems to be the very thing the Holy See is interested here in avoiding.
The Ugly
‘Abuse of authority’
A change already praised by victims’ advocates and criticized by advocates for the due process rights of priests is the addition of “abuse of authority” to the list of aggravating factors that can lead to dismissal from the clerical state in even singular instances of “offenses against the sixth commandment” — sexual sins.
To be sure, few would argue that a person who egregiously abuses his office in the course of sexual misconduct should go unpunished, or be punished lightly.
The new text establishes that if a person abuses his office or power in order to commit a canonical crime, the person should be punished more severely by a canonical judge. Few are likely to disagree with that. But canonists are likely to raise the concern that when the law allows for the possibility of laicization because of a singular incidence of “abuse of authority” in the context of sexual misconduct, it may well take things too far.
Some canonists have already argued that the legal notion of the abuse of authority is a concept with relatively little canonical jurisprudence, and room for a great deal of subjective disagreement — in short, something that can be difficult to prove, or disprove.
There are obviously clear-cut cases of the abuse of office in the context of sexual sin, like those of Bishops Michael Bransfield or former cardinal Theodore McCarrick. But priests and defense advocates are likely to continue to argue that it’s unjust for an allegation like abuse of authority, which can seem legally nebulous, to be the deciding factor between losing or not losing the clerical state permanently, especially in allegations involving a single occurrence of misconduct, or as a compounding factor in an otherwise consensual but prohibited relationship.
At the same time, victims’ advocates will likely continue arguing that if the Church doesn’t address the way that power imbalances between pastor and congregant can impact sexual relationships, then abuse of power in situations like McCarrick’s will run rampant.
The law contains other legal means to drive at abuse of authority as an aggravating factor in sexual misconduct cases, including the expectation of additional or more severe penalties.
But as written, the new norms of canon 1395, § 3 — which provide for the possibility of laicization — are likely to be a major point of division between victims’ advocates and the canonical advocates of priests.
Porn or porneia?
Canon 1398 of the new Book VI says that a cleric can be dismissed from the clerical state if he “grooms or induces a minor or a person who habitually has an imperfect use of reason or one to whom the law recognizes equal protection to expose himself or herself pornographically or to take part in pornographic exhibitions, whether real or simulated.”
It seems surprisingly specific that a cleric could be punished for inducing or grooming a minor to participate in the production of pornography, but not punished for grooming a minor with the demonstrable intent of inducing him to participate in other kinds of immoral sexual activity.
“Grooming” is already a difficult legal issue to parse, and to prove definitively, which could be why the Holy See used it in an extremely circumscribed manner. But if it could be proven clearly that a cleric was grooming a minor for sexual conduct of a different kind, most would expect that to be an established delict, or canonical crime.
The law may be intentionally specific, and absent clarity, the principles of canonical interpretation require that it be read that way. But it seems just as likely that the drafters of the text intended to refer not to “pornographice,” in the Latin, but to “porneia,” a broader term which refers broadly to sexual sin and misconduct.
The Vatican will likely face questions about this from canonists in the next few months, and a clarification, or a change to the text, could be forthcoming.
‘Automatic’ penalties
Something else likely to generate debate among canonists and less expert commentators alike is the decision to retain latae sententiae, or so-called “automatic” penalties, including excommunication, for some crimes.
Since the drafting of the 1983 Code after Vatican Council II, canonists have argued back and forth about the utility of latae sententiae penalties, which are incurred by a person by the very act of committing a crime and which do not exist in the Code of Canons for the Eastern Churches, the universal canon law for Eastern Catholics.
Those against such penalties argue that, until they are declared by a competent authority, they lack any public effects for the person who incurs them. In the meantime, they argue, such penalties create confusion, as people often argue about whether or not a person has “excommunicated themselves” by a particular action.
Many have also noted that, so rarely is a latae sententiae penalty formally declared to have been incurred, it would be more reasonable to simply require the competent legal authority actually to impose them in every case to begin with.
Those who have argued for retaining automatic penalties for certain offences counter that, in many cases, there is practically no mechanism for detecting some crimes, like, for example, procuring an abortion, and no reasonable means for holding a canonical process. At the same time, the gravity of the crime is such that some provision by the law is necessary, both for the sake of justice and for the reform of the person who commits the delict.
‘Automatic’ pastoral confusion?
But even apart from the ongoing substantial debate over latae sententiae penalties, there is also likely to be debate over the official English-language translation of the new Book VI, which says that such penalties are incurred “automatically,” rather than “ipso facto,” as denoted in the official Latin text, and the currently in force norms.
The distinction might seem pedantic, but canonists have long suggested that there is a distinction between incurring something “ipso facto” — by the act of a delict having been committed — and “automatically,” which seems to suggest the mitigating factors regarding internal freedom, foreknowledge, capacity, and even age which can impede a person committing an act from having committed the crime of the act.
Again, the distinction might seem pedantic, but canonists have long insisted it can actually be pastorally important to remind people, for example, women who have undergone abortions, that there are in fact mitigating factors that can prevent a canonical penalty from being incurred “automatically.”
There may well be some pushback on the term “automatic,” and the official translation may well be quietly challenged before the law actually takes effect December 8.
Ed. note: The section of this analysis addressing c. 1397 has been corrected, to reflect that both the norm and its official Vatican translation were modified, rather than merely the text of the norm itself.