Analysis: What the Pope’s new approach to abuse cases will mean

Sheila Hollins and Sister Kayula Lesa, both members of the Pontifical Commission for the Protection of Minors, review a document before yesterday's meeting (CNS)

Yesterday was the first time that Pope Francis has held a meeting with the entire membership of the Pontifical Commission for the Protection of Minors. Demonstrating his usual candour when treating important issues which are a papal priority, the Holy Father departed from his prepared text and spoke off the cuff at some length. These remarks, while not yet confirmed as official policy, gave an interesting insight into the Pope’s thinking on how he wants to develop the way the Church handles sexual abuse cases in future.

The role of the CDF

There had been rumours that abuse cases might be transferred to the responsibility of the Roman Rota or Apostolic Signatura. But the Pope unequivocally affirmed that abuse cases will continue to be handled exclusively by the Congregation for the Doctrine of the Faith (CDF) – which is a relief. Only the CDF has the experience to handle these cases. They are still short of personnel, so it was good to hear the Pope say that he would like to increase their resources.

More controversially, the Pope commented on the membership of the CDF commission charged with hearing appeals of abuse cases. Francis wants more members with diocesan-level experience of  hearing cases – as opposed to canon law experts. This is a sensible idea, as long as it doesn’t damage the legal credibility of the commission. The supreme goal is and must remain delivering justice for victims and the alleged accusers alike, and this demands a serious commitment to a full juridic process. A gradual slide into “pastoral solutions” and away from rigorous canonical process was, after all, what led to abusers being moved from assignment to assignment with such horrendous consequences in the first place.

An end to appeals? 

In reiterating his commitment to Benedict XVI’s policy of “zero tolerance”, the Pope also indicated that he would not consider any applications for canonical pardon or clemency by proven abusers. This came with a startlingly frank admission that his previous approval of a lenient sentence for an abusive priest had been “a mistake” and an affirmation that he never had, and never would, grant a pardon to a proven abuser.

The Pontiff said that proof of sexual abuse “is sufficient [reason] to receive no recourse” for an appeal. “If there is proof, end of story”: the sentence “is definitive.” He went on to say that sexual abuse is evidence of “a sickness” in the abuser, one which did not allow for any revisiting of the matter.

The canonical implications are not clear; but if the Pope is planning to abolish the right to appeal a conviction for sexual abuse, this would seem to carry a serious risk of denying accused priests due process. Canonical recourse is essential to protect against decisions made on poor evidence or bad argumentation – or instances where, for example, the accused priest has been denied basic legal protections like access to a lawyer. Given the emotive nature of sexual abuse cases, and the often severe pressure from the media, it is not unheard of that there be a rush to judgement; preserving the right to appeal in these circumstances is a basic point of justice.

Moreover, there is not currently a widely understood or accepted jurisprudence on what constitutes proof of guilt in sexual abuse cases. More than a few cases I have seen come down to the word of the accuser against the word of the accused. Also, when the CDF delegates cases back to local dioceses, a total abolition of appeals could create a “postcode lottery” with some dioceses lacking experienced canonists, or being unduly influenced by public opinion. The appeals system is meant to remedy these problems.

A new line on mitigating factors?

However, the Pope may have been suggesting something else: that once the facts are established, one cannot appeal an imposed penalty by arguing diminished imputability – essentially, mitigating factors in canon law. That would be a welcome clarification. Defence lawyers will often argue that there are mitigating factors, and so the offender is not wholly imputable (morally culpable) for their criminal actions. I have known respected canonists argue (wholly unconvincingly, even scandalously, in my opinion) that any instance of sexual abuse of a minor is ipso facto proof of mental illness, and therefore shields the perpetrator from vindictive penalties.

That the Pope called all abuse evidence of “sickness”, but clearly stated there can be no lessening of the applicable punishments as a result, is deeply heartening and indicates the he is moving towards the latter of these two possible reforms.

Clearing up confusion

In either event, for these priorities of the Pope to gain legal effect, there will need to be a formal change to the law. This could serve as an excellent opportunity for re-presenting the canonical penal process to the public and explaining how it works. Current confusion, outside of canonical circles, about how trials proceed is a major contributor to ongoing scepticism about the integrity of the process.