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Explainer: Why Pope Francis wants to overhaul canon law on child pornography

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At the moment, Church law lags behind secular jurisdictions

Pope Francis recently announced he wants to broaden the definition of child pornography in canon law, to include any and all material depicting subjects under the age of 18. Pope Francis made the announcement on February 24, during his closing address to participants in the four-day meeting on child protection that took place last month at the Vatican. 

What is the current state of canon law in these regards?

The law currently in force is found in the Substantive Norms on delicta graviora (the most grave crimes or “delicts”) pursuant to the Apostolic Letter motu proprio, Sacramentorum sanctitatis tutela, first promulgated by Pope St. John Paul II in 2001, and revised by Pope Benedict XVI in 2010. According to those 2010 Norms:

The more grave delicts against morals which are reserved to the Congregation for the Doctrine of the Faith are:

2° the acquisition, possession, or distribution by a cleric of pornographic images of minors under the age of fourteen, for purposes of sexual gratification, by whatever means or using whatever technology[.]

At present, therefore, it is a grave delict for a cleric to acquire, possess, or distribute pornographic images of minors under the age of fourteen. “We now consider that this age limit should be raised in order to expand the protection of minors and to bring out the gravity of these deeds,” Pope Francis said at the close of the highly anticipated and closely watched gathering of senior Church leadership at the end of February in the Vatican.

Currently, in other words, there is no law specifically making it a canonical crime for a cleric to acquire, possess, or distribute pornographic images of — say — a sixteen-year-old.

That’s most emphatically not to say it is canonically licit to possess, use, or traffic in material most secular jurisdictions consider criminal. “It could fall under the delict of abuse of ministry,” explained Fr Davide Cito, who is Professor of Canon Law at the Pontifical University of the Holy Cross and a leading expert in this area of criminal canonical jurisprudence, “as well as other facti species,” i.e. specific types of crime defined in law. “For example, canon 1395§2,” Fr Cito said. Canon 1395, Section 2 states:

A cleric who in another way has committed an offense against the sixth commandment of the Decalogue, if the delict was committed by force or threats or publicly or with a minor below the age of sixteen years, is to be punished with just penalties, not excluding dismissal from the clerical state if the case so warrants.

“It is certainly a grave moral failing,” Fr Cito said, and something Church law certainly does not consider licit or unpunishable. At present, however, there is no specific criminal statute explicitly covering the acquisition, possession, or distribution of pornographic material depicting minors above the age of fourteen. “It is not, properly speaking, a canonical delict — it is not a crime, grave or otherwise — for a cleric to have such images,” Prof. Cito explained to The Catholic Herald.

In this particular, canon law lags behind secular jurisdictions, in most of which — Vatican City included — it is a serious criminal offence to acquire, possess, or distribute pornographic material depicting minors under eighteen years of age.

A July 2013 Vatican City law defined child pornography as: “[A]ny representation, by whatever means, of a minor engaged in real or simulated explicit sexual activities as well as any representation of the sexual parts of a minor for primarily sexual purposes.” The 2013 law also defined a minor as: “[E]very human being below the age of eighteen years.”

“I believe canonical crimes that are also crimes for States should have, in principle, a similar treatment,” Fr Cito said, “in order to avoid the impression that very serious behaviours are assessed in an attenuated way.”

The change Pope Francis proposed would bring the Church’s criminal law into line with the definitions currently applied in most secular jurisdictions, including the law of Vatican City, which Francis also announced he would be further strengthening in the near future.

“In the case of the crime of online child pornography,” Fr Cito said, “the intervention of the state authority seems essential, in order that such crimes be punished effectively and with the appropriate means.”

Though the Church, per se, does not have real investigative tools at her disposal, her criminal and administrative procedures are often more favourable to the prosecution. “In a canonical process,” Fr Cito explained, “an ecclesiastical tribunal investigating a case might take the findings of a civil [i.e. secular] investigation, and apply canon law to prosecute successfully, even if it had been found that no [secular] criminal law had been violated.”

Cooperating with secular authorities in these regards is something Rome has been encouraging for many years.

The Congregation for the Doctrine of the Faith issued a circular letter to the world’s bishops’ conferences in May 2011, calling for the development and implementation of child protection guidelines at the conference level. That circular had cooperation with civil authorities as a central theme. “Although relations with civil authority will differ in various countries,” the letter read, “nevertheless it is important to cooperate with such authority within their responsibilities.”

The circular went on to say, “Specifically, without prejudice to the sacramental internal forum, the prescriptions of civil law regarding the reporting of such crimes to the designated authority should always be followed.”

There was a major international conference at the Pontifical Gregorian University detailing best practices in 2012, under the direction of the university’s Centre for Child Protection. High-level representatives from almost every bishops’ conference participated. Billed as a “symposium” under the heading, “Toward Healing and Renewal”, delegates from as many as 110 bishops’ conferences and superiors of more than 30 religious orders took part.

Still, heading into the February 21-24 meeting on child protection in the Church, Pope Francis said, “The idea for this [meeting] was born in the C9, because we saw that some bishops did not understand well or did not know what to do.” Francis went on to say, “[W]e felt the responsibility to give a ‘catechesis’ — so to speak — on this problem to the episcopal conferences.”

The organisers of the February 21-24 meeting at the Vatican have now announced that the Congregation for the Doctrine of the Faith is preparing a vademecum for bishops, explaining to them their “duties and practical responsibilities (It. compiti, “tasks”),” as the meeting’s moderator, Fr Federico Lombardi SJ, described them when he announced the handbook at the press briefing on the final day of the conference.