The official response to the allegations against Theodore McCarrick has been tiresomely predictable. First, the bishops expressed shock and disbelief; then they dutifully called for improved procedures to deal with offending clerics. Of course Church law, like the Church it serves, is always in need of some reform. But the crisis of clerical sexual abuse is not primarily canonical in nature, and it will not be rooted out by improved juridic procedures.
These evils, which have been abetted by the antinomianism which has penetrated even the highest levels of the Church, demand more than just paying closer attention to legal processes. Grave and public penances must be personally performed by bishops, in proportion to their own responsibility for the crisis.
Nevertheless, some canonical responses to the crisis are worth considering.
First, there are clear legal procedures for a canonical response to abuse allegations: both the 1917 and the 1983 Codes of Canon Law expressly or effectively made possible the investigation, prosecution, and punishment of clerical sexual abuse against the vulnerable, and of homosexual acts by clerics (see, e.g., 1917 CIC 2186, 2359, and 1983 CIC 1389, 1395, 1399).
Some of the special characteristics of clergy sexual misconduct can make normal prosecution of cases more difficult. These characteristics include the particular vulnerabilities of some victims; the heightened trust placed in offenders by victims and superiors alike; the privacy, and sometimes the secrecy, of certain interactions between offenders and victims. But there are institutes of canon law (e.g., instr. Crimen sollictationis of 1922 and m.p. Sacramentorum sanctitatis tutela of 2001) which facilitate local Church officials’ acting upon complaints.
A few of these provisions, especially more recent ones on, say, extending statutes of limitations, may now seem like patchwork responses to the failure of earlier ecclesiastics to enforce canon law in a timely manner. But one must start somewhere. The current law is sufficient to bring about canonically severe sanctions, including dismissal from the clerical state, for abusers, however senior they may be. But law must be invoked and applied to have effect.
Second, there is a case for reforming the canons governing the Promoter of Justice – a canonical officer already in place at the local level, a sort of canonical prosecuting attorney (1983 CIC 1430). The Promoter of Justice can file criminal complaints and pursue independently, if with assistance from independent investigators, allegations of clerical misconduct. But currently this is only possible with the prior authorisation of the local ordinary. That restriction is excessive. Why should an ordinary’s authorisation be required to set in motion a canonical case against an offending cleric? Do civil governors have to pre-approve individual prosecutions of criminals in their domains?
There have been calls to establish local professional review boards effectively independent from episcopal authority. That proposal raises, however, whether anyone likes it, serious ecclesiological, and thus canonical, problems. While those problems are examined, however, the Promoters of Justice could begin their work.
Third, Rome has discouraged seminaries from admitting or ordaining men who are sexually active or exhibit “deep-seated homosexual tendencies”. Whatever the difficulties with these descriptions, such statements also have a canonical weakness: they do not establish those tendencies as an “irregularity” or “impediment” to holy orders under canon law. If the condition can be defined accurately and recognised fairly, it should be either directly inserted into the 1983 Code as an irregularity or impediment in its own right, or be authentically interpreted as an “infirmity” contraindicating holy orders under Canons 1041 and 1044.
There are other possible improvements to procedural canon law. It is time, for example, to lift the outdated restrictions against qualified lay persons acting as judicial officers in clergy sexual abuse cases. Also, the Church should reduce the heavy-handed imposition of pontifical secrecy on cases carrying such dramatic public ramifications.
A closing point needs to be made about the special maliciousness of sexual misconduct being committed or covered up by bishops.
The ecclesiological situation of bishops, and thus the canon law governing them, is distinguishable from that of deacons and priests even in regard to prosecutions for crime (see, e.g., 1983 CIC 1405). But the fundamental demands of justice in the Church apply to all Catholic clergy and, if anything, the affront that actively predatory or chronically negligent prelates pose to the Mystical Body of Christ is even more vicious than that perpetrated by lower clergy. Roman officials should, therefore, set about the prompt and vigorous prosecution of prelates suspected of crime or negligence. Alternatively, these officials should resign their offices to make room for others who will pursue these cases.
Edward Peters holds doctoral degrees in canon and common law. He teaches canon law at Sacred Heart Major Seminary in Detroit, Michigan
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