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Some reactions to Mary Eberstadt’s essay

In an excellent essay on the sacerdotal sexual abuse catastrophe Mary Eberstadt makes some canonically interesting comments. My thoughts on them follow.

Eberstadt writes: “[1] Individual cases and secular studies have shown that childhood sexual abuse increases the risk of becoming an abuser. [2] Whether that causal connection rises to the level of a ‘perpetual impediment’ to ordination, to use the language of Canon 1040, is for lawyers to decide. [3] For the rest of us, it is enough to know that if seminaries had screened for a history of childhood sexual abuse, the ledger of the past several decades might have been radically different.”

Sentence 1 is true; sentence 3, though tentatively phrased and something of a post hoc  fallacy, works at the rhetorical level to suggest that something needs to change; but sentence 2 is of concern.

Preliminarily, whatever one makes of Eberstadt’s substantive idea below, placing it in the Code is not something “for lawyers to decide”; it is wholly and solely something for popes to decide.

Substantively, Eberstadt seems open to the idea that one’s status as a victim of some circumstance (here, having been sexually abused) should impact one’s right to be considered for holy orders. I also am open to considering that proposition but we should be clear that that is where Eberstadt’s idea leads.

Until recently canon law recognized that some circumstances over which one had no control could nevertheless impact one’s eligibility for orders. Thus—besides those whose personal actions barred them from later pursuing orders (e.g., those committing acts of heresy or self-mutilation)—the Pio-Benedictine Code of 1917 also declared “irregular” for orders those who, for example, were born out of wedlock or suffered certain genetic or adventitious deformities. 1917 CIC 984-985. Dispensations from irregularities were available and granted often-enough, but the point was that canon law treated certain aspects of one’s background, including some circumstances over which one had no control, as negatively impacting one’s suitability for orders. Canonists developed good arguments defending these ‘circumstance-based’ irregularities but their arguments faced the obvious rejoinder that at least some of these exclusions smacked of unfairness.

The Johanno-Pauline Code of 1983—while retaining most of the traditional, ‘act-based’ obstacles to orders (e.g., heresy and self-mutilation)—removed basically all ‘circumstance-based’ obstacles to pursuing orders such that today bishops focus mainly on whether a candidate for orders “is endowed … with the necessary qualities” (1983 CIC 1025 § 1) and “is suitable to receive orders” (1983 CIC 1052 § 3). Eberstadt simply invites us to consider whether the law should establish at least one ‘circumstance-based’ factor (to wit, having been sexually abused) as an irregularity for orders.

Maybe Eberstadt is on to something. Maybe one’s having been sexually abused should bar one from seeking holy orders. We should trust the Church’s pastoral wisdom (recalling Paul VI’s famous description of the Church as “an expert in humanity”) to illuminate the answer.

But toward finding that answer I suggest we clarify whether the claim is that: (A) childhood sexual abuse experiences make males more likely to abuse others sexually; or (B) childhood sexual abuse experiences make males more likely to develop homosexual tendencies which tendencies make them more likely to abuse others sexually. In other words, we should ask whether there might be a step or a status between one’s victimization and one’s likelihood of abusing others, namely, the development of a homosexual orientation (whether it arises from earlier victimization or from some other cause). If there is such an intermediate status, and if that status is statistically distinguishable from victimization status, and if that status is discernable by those in formation work, canon law—which is supposed to make the Church’s pursuit of her mission more efficient—should focus not so much on whether a seminarian was a victim of sexual abuse but on whether he is homosexually-oriented.

Of course, looking at homosexual orientation (not to a victim’s history) is the direction that a few Church directives already point. See Cong. for Catholic Education (Grocholewski), instr. In continuità (04 nov 2005), Eng. on-line here, passim, discouraging the ordination of those men (indeed, their admission into seminary) with “deep-seated homosexual tendencies”, and Cong. for the Clergy (Stella), Ratio Fundamentalis Institutionis Sacerdotalis (08 dec 2016), Eng. on-line here, esp. nn. 199-200, making the same suggestion.

But, as I pointed out here, neither dicastery document suffices to establish a canonical obstacle (an “irregularity”) to orders on par with, say, certain mental disorders or the canonically criminous acts mentioned earlier. Why Rome has not used the authority of codified canon law to support the efforts of a dicastery or two toward preventing the ordination of men with “deep-seated homosexual tendencies”, I do not know.

I only know that Rome hasn’t done so.


Some reactions to Fr. de Souza’s essay

Apologies for a long post; I don’t have time to write a short one.

I don’t mean to single out Fr. Raymond de Souza, whom I have read with profit many times, but his essay over at National Catholic Register, “It’s time to turn down the temperature”, touches on several issues related to the clergy sexual abuse crisis and its recent, very grave Roman ramifications that need airing. So, first some canonical matters, then some rhetorical ones.

Resignation in general.

Canon law provides for resignation from ecclesiastical office. 1983 CIC 187-189. The threshold for any resignation is pretty low (namely, “a just cause”) so resignation from office for a good cause would be more than acceptable. Indeed it would be preferable, I think, to an unfit (or worse) occupant continuing to hold a Church office.

Canon law encourages, and frankly pressures, a pastor to resign from office when his ministry becomes “ineffective … even through no grave personal negligence”. 1983 CIC 1740, etc. That norm and others imply that pastors who have acted in ways that actually render themselves unfit to stay in office should resign.

Finally, canon law, albeit in more nuanced terms (given the ecclesiological issues involved), encourages a bishop to resign his see when he “become[s] less able to fulfill his office because of … some other grave cause…” 1983 CIC 401 § 2. The allegations swirling around several bishops and cardinals in various countries and in Rome itself would, if true, surely suffice as “grave cause” for such prelates to tender their resignations immediately. The world must await evidence of wrong-doing before making demands in this area but prelates who know the truth of their own situations should act accordingly. Now.

By the way, resignation from Church office motivated by one’s own, or the community’s, awareness of malfeasance in no way renders a resignation invalid (see Canon 188) or prevents ecclesiastical authority from later prosecuting and punishing said resignee for those misdeeds. One who resigns Church office under such circumstances has not ‘picked his own punishment’, rather, he has performed a good act by ending one aspect of his scandal. After that, let justice take its normal course.

Papal resignation, Francis.

De Souza writes: “It was a mistake for Archbishop Viganò to call for the resignation of Pope Francis.” Oh?

Of what was said above concerning resignation from Church office in general, what would not apply to a pope, of all office holders, if he, as alleged by Viganò, from the first months of his papacy knowingly protected and favored a cardinal who was [pick a disgusting verb]-ing seminarians? By what possible stretch of the imagination would such an occupant be suited for the Chair of Peter? Does the historical fact that some pretty bad popes held on to office despite committing various offenses justify other popes acting badly in shirking even the minimal gesture of resigning?

Viganò is unquestionably in a position to know, and claims to know, whether his central allegation that Francis’ was covering for McCarrick, big time, for years, is correct. Believing, as he does, that his claims are correct, Viganò, in calling for Francis’ resignation, has done nothing more or less than exercise his right under canon law “to manifest to the sacred pastors [his] opinion on matters which pertain to the good of the Church and to make [his] opinion known to the rest of the Christian faithful…” 1983 CIC 212 § 3.

I have not called for Francis’ resignation because I do not know (with the degree of certitude that a lawyer seeks) whether Viganò’s key allegations against Francis are substantially true; most assuredly, however, if I reach the conclusion that they are true, I would say, without hesitation, that Francis should resign. Such a resignation would, I think, result in the very opposite of what De Souza fears when he worries that a papal resignation “under a cloud would be a catastrophe for Catholic credibility and unity.” Balderdash. If Viganò’s allegations are proven, I think a papal refusal to resign would be a catastrophe for Catholic credibility and unity.

Papal resignation, Benedict.

De Souza writes: “The mistake that Benedict XVI made by abdicating in 2013 need not be compounded by people — especially high-ranking prelates — treating the papal office as something worldly that can be relinquished under adverse circumstances.” Others, such as Raymond Arroyo, have expressed ‘squeamishness’ over the prospect of a Francis resignation, lest ‘there be three popes’ sitting in Rome. Nonsense. A Francis resignation would no more result in three popes than Benedict’s resignation resulted in two.

Time does not permit me the luxury of squeamishness so let me say a few things directly.

In my view, first, Pope John Paul II should have resigned at least five years before his death; he was effectively ignored by the corrupt elements in his curia for at least that long and the Church has suffered sorely for it. Second, and despite my professional misgiving about how Ratzinger/Benedict understood and used canon law, I think it was a grave error for him to have resigned, and, if his resignation gave the impression that the papacy was essentially “something worldly that can be relinquished under adverse circumstances”, well, that’s on Benedict, no one else. Third, Benedict’s unjustified resignation and its disastrous aftermath does nothing to answer whether Francis should, upon his own knowledge and/or in the face of public proof of malfeasance, resign. That is an entirely separate question to be answered on its own merits.

What really gets me irked.

Most of De Souza’s essay urging disputants “to turn down the temperature” savors of that rhetorical style, now wearing very thin, wherein paternalistic, above-the-fray advice comes down from a supposedly calm and objective observer to squabbling children who are letting emotions get in the way of problem solving, a la, ‘Now, now boys and girls, play nicely.” For crying out loud.

If, even today, a priest still does not see that the last thing in the world that lay faithful—who represent 99% of the victims of clergy sexual abuse and who make up 98% of the voices demanding accounting, cleansing, and deep ecclesiastical reform—need to hear is yet another cleric telling them to quiet down about clergy sexual abuse and/or weighty allegations that abuse was being covered up at the highest levels of the Church, well, I don’t know what to say in the face of such chronic cluelessness.

It certainly does not suffice to excuse the proffering of such advice by pointing to the obvious fact that some laity (among the millions wounded directly or indirectly by decades of clerical indifference in this area) are hot heads forsaking love for fury. We all know that! Such persons are, in fact, a bonus for the devil, for he gets these sad souls to violate charity in their desire for justice! Good priests who want to lend a special hand in repairing the damages wrought by some of their evil brothers and superiors could well reach out in a special way to such persons, to these victims in their own way of clergy sexual abuse and cover-up.

Moreover, this ‘everybody-calm-down’ advice supposedly aimed at ‘both sides’ of this matter is frankly insulting to that one side which, beyond any question, has been severely betrayed by the other. Even the idea that ‘both sides’ are engaged in roughly equal exchanges is groundless. Francis, for example, sees himself as choosing the high road of silence and, after taking some digs at “people lacking good will, … people who only seek scandal, who seek only division, who seek only destruction, even within the family”, seems intent on saying nothing more. Sure, a few mouth-pieces such as the papolatrous Fr. Rosica, and few prelates who, it seems, owe their current offices in some measure to the great influence that Francis is alleged to have accorded the disgraceful and disgraced McCarrick, have spoken out intemperately, but for the most part these voices are very, very few.

No, the shouting in this mess is coming overwhelmingly from one side, the side that has been wronged! To call on ‘both sides’, then, “to turn down the temperature” is, therefore, effectively aimed at squelching one side here, the victims! 

Deep breath time…

As for some other points in De Souza’s essay, such as his minimizing the personal attacks on Viganò as a “tactical mistake” that “muddied the waters for a few days”, or his concession that “it would [be] very damaging to the Holy Father personally and to the Church generally if Archbishop Viganò’s charges are true” (just “very damaging”?), or his generous interpretation of Francis’ “dramatic and heartfelt admission of error and expression of contrition” in the Chilean debacle—well, to borrow a phrase, who am I to judge? Maybe it was “heartfelt”. I hope it was. But that being granted, may I ask, who is De Souza to judge the pope’s heart? I pray the pope’s conversion was as De Souza sees it, heartfelt. I only know it was the right thing to do, and got done it did, regardless of whether the pope’s motives were heartfelt, self-serving, both, or neither. Fine.

Let me close with this observation: De Souza and I are on the same side of this crisis; I have not the slightest doubt that he detests what has happened to the victims of clergy sexual abuse and is in palpable pain over the very prospect that cover for such abuse was extended even by those in the highest ranks of Church authority. We each, in our respective spheres, have dealt with the aftermath of problems for which neither of us are to blame. We both want the truth to come out. And we each wince when others equally appalled at what has happened purport to speak for all of us with hatred, exploitation, or vengeance in their voices. What can I say, that’s not me and it’s not Fr. De Souza.

But that said, sometimes even allies offer advice that is ill-conceived, and in the respects outlined above, I think that applies to some of what Fr. De Souza wrote for the Register. And I have no doubt, of course, that others might disagree with my disagreements. That’s fine, too.

As I have said from the outset, the cleansing of the Church from the defilements she has suffered of late will come and true reforms will be put into place, but it’s not going to be a smooth process and it’s not going to be a pretty one.

It’s just going to be.

A theory for the canonical prosecution of an ‘Uncle Ted’ type of prelate

To the extent that the burgeoning crisis in the Church (one I think scarcely paralleled in Church history) now involves the Roman Pontiff, canon law is of limited—not none, but limited—value in dealing with some of its key aspects, including its most urgent aspect, the credible allegation that Pope Francis knowingly protected and even favored at least one homo-sexually active prelate and certain of his enablers in the Roman Curia and a national episcopate.

Respectful of the nature of the Church as willed by Christ, no mechanism of canon law provides for the removal of a pope from office. Even the automatic loss of papal office for heresy theorized by some saints and scholars (a theory I basically support) does not envision a process to remove a pope from office but rather declares that the conditions for loss of office have been satisfied. Because, however, I do not think that Francis has committed an act of heresy (see Canon 751) I speculate no further on this papal loss-of-office scenario and—prescinding from how Francis might eventually choose to respond to allegations against his own actions—I instead turn to what canon law has to say about the reprehensible conduct alleged against former-Cardinal-but-still Archbishop Theodore McCarrick, emeritus of the Archdiocese of Washington.

First, the canonical problem.

Canon law’s alleged inability to take cognizance of sexual relations by clerics between themselves and/or with ‘lay adults’ (a recent euphemism describing seminarians!) supposedly springs from the admittedly narrow wording of Canon 1395 even as broadened by provisions of m.p. Sacramentorum sanctitatis tutela. But while I would contest that pessimistic interpretation on other grounds, conceding the inability of Canon 1395 to reach these offenses simply prompts the question as to whether other norms might yet enable a formal penal canonical response against an “Uncle Ted” kind of prelate. I think some other norms might.

Besides the sweeping powers of a pope broadly articulated by Canon 331, etc., powers conferred by Christ such that even a seriously compromised pope could still wield them for the protection of the Church, of more specific relevance to us is, among other norms, Canon 1399, the final penal norm of Book VI of the 1983 Code. Note that, as McCarrick and some others are bishops and often cardinals, the broad papal criminal authority over such figures implicit in Canon 331 is expressly recited in Canon 1405.

To be sure Canon 1399 must be approached with caution by ecclesiastical leaders but it exists precisely because the Legislator knows that not all grave offenses, though quite deserving of punishment, can be adequately ‘pre-visioned’ in the text of the law. Because the Church sometimes needs a demonstrable way to respond to heinous but unimaginable offenses (the sexual exploitation of seminarians by bishops would be an example) Canon 1399 authorizes a “just penalty” for the “external violation of a divine … law” when the gravity of the offense “demands punishment and there is an urgent need to … repair scandal.”

Now assuming, first, that dismissal from the clerical state (laicization) of an Uncle Ted-type predator, a cleric who apparently long used his ecclesiastical positions to procure sexual victims, would be considered a “just penalty” for such conduct, and assuming, second, that there is “an urgent need to repair scandal” in such cases, nevertheless a third, necessary question remains: whether “divine law” forbids the kind of clerical sexual misconduct alleged against McCarrick. I think it does. The argument runs thus:

Sacrilege is forbidden by divine law and includes “profaning or treating unworthily … persons … consecrated to God.” Catechism of the Catholic Church 2120. Clerics, and a fortiori bishops, as persons consecrated to God, are forbidden to engage in, inter alia, sexual misconduct under pain of committing not only an offense against victims but also a “sacrilege” against themselves, this, even if the sexual relations with another were consensual. Peters, “Canonical considerations”, esp. pp. 157-167 and numerous sources cited therein. Note, moreover, that obligations arising from divine law, such as a cleric’s obligation to avoid sacrilege against his own person, are not subject to prescription. See, e.g., Canon 199.

Now, bringing these sacramental, moral, and ecclesiological values together—values represented with more or less explicitness in canon law (but which, we see now, are worthy of much better explicitation in the Code)—I think, in brief, that the Roman Pontiff could conclude that: upon achieving moral certainty regarding sacrilege committed by a cleric (let alone a bishop) against his own person, he (the pope) could punish such an offender with penalties up to and including dismissal from the clerical state regardless of when the sexual predation or exploitation was committed and irrespective of when it was discovered. The pope could, but need not, use a dicastery such as the Congregation for the Doctrine of the Faith to investigate and assess the evidence in these cases but final judgment in the case remains with him. A pope’s use of, or failure to use, such canonical measures as seem to be available to him would be subject to the judgment of history (and of God), of course, but not to that of any other power.

I am not aware that this ‘clerical sacrilege’ theory for the prosecution of prelates for sexual misconduct under Canons 331 and 1399 has been widely explored yet and, even as I reflect on it, I can anticipate some objections to the theory along with, I hasten to add, some responses to those objections, although obviously a fuller discussion of those matters goes beyond what can be attempted here. For now, I merely raise this theory of the case for consideration by those who might be called upon to deal with current and future complaints against bishops and, in the meantime, want to suggest to the faithful that, while penal canon law certainly stands in need of several reforms, it might not be, even now, quite as powerless to confront evil in episcopal ranks as some might fear.

The death penalty debate and the Church’s magisterium

I follow the death penalty debate, of course, but I am more concerned about how that debate impacts some ecclesiologically important aspects of the Church’s teaching function.

As for the death penalty itself I find the arguments organized by Feser and Bessette in their treatise, By Man Shall His Blood Be Shed (Ignatius, 2017), upholding the liceity of the justly administered death penalty, convincing. Specifically I regard the liceity of the death penalty as having been established with infallible certitude by the Church’s ordinary magisterium and am undecided only as to whether that infallible certainty proclaims a “primary object” of infallibility (i.e., an assertion to be believed) or establishes a “secondary object” of infallibility (i.e., an assertion to be definitively held). I lean toward the latter.

Given my conclusions about the certitude of Church teaching in this area (with which conclusions some scholars I esteem disagree) I naturally share the grave concerns enunciated here about Pope Francis’ alteration of Catechism 2267 to reflect his view that the death penalty itself is “inadmissible” (whatever that means, although everyone knows what it means). For the record I also found John Paul II’s characterizations of the foundations for the death penalty to be historically and logically inadequate but, as he accepted the application of the death penalty in some cases, his unbalanced formulations of the issue did not occasion the serious magisterial issues that I think Francis’ novel formulation has engendered.

Which brings me to the canonical points I wish to outline.

Canon 752, especially its passage “a religious submission of the intellect and will must be given to a doctrine which the Supreme Pontiff or the college of bishops declares concerning faith or morals when they exercise the authentic magisterium, even if they do not intend to proclaim it by definitive act”, will be invoked by some as a canonical basis for demanding that the Christian faithful accept Francis’ alteration of the Catechism. How to think about this?

Granted that “by their very nature canonical laws are meant to be observed” (John Paul II, here) they are also to be assessed and applied in accord with canonical tradition (see esp. Canons 17-19). Before anyone concludes that Francis’ recent assertion demands “religious submission” under Canon 752 he or she should consider the following.

First, Canon 752 is very new in the canonical tradition. It was not present in the 1917 Code and the Legislator himself offers no foundations for it before the 1950s. In light of the intense debates over some other ‘first-time’ canonical provisions appearing in the 1983 Code—say, Canon 1095 n. 2 on due discretion for marriage or Canon 129 § 2 on lay cooperation in Church governance—debates suggesting that first attempts at legislation are often wanting, it would be temerarious to assume that a new legal formulation of personal, universal obligations in a theologically complex area, a formulation untested by time, as offered by Canon 752, represents exactly what the Church wants to say about a matter and precisely how she wants to say it. The public eruption over Francis’ novel death penalty text could itself illustrate the deficiencies of phrasing Canon 752 the way it is phrased.

Second—and this point takes longer to outline—although no one I know is arguing that Francis’ death penalty assertion itself was an “extraordinary” (i.e., an infallible) exercise of papal magisterium, many seem nevertheless to think that this single (or second, if we count Francis’ quoting of himself as qualifying as two assertions) papal assertion effectively demands the faithful’s immediate acceptance insofar as it appears to be a deliberate exercise of the papal “ordinary” magisterium.

But that’s where confusion sets in: while popes can, in a single extraordinary act, assert something with infallible certitude sufficient to bind the faithful in belief or morals (Canon 749 § 1), no pope can, by a single ordinary act, assert something with anything like the equivalent force for Christian consciences.

The Church’s “extraordinary” magisterium, capable of binding the faithful in faith and doctrine, can proceed solely-papally or papally-episcopally; but her “ordinary” magisterium, also capable of binding the faithful in faith and doctrine, can proceed only papally-episcopally. As Francis’ move on the Catechism hardly qualifies as papal-episcopal, and there being no such thing as an ‘purely papal, ordinary, magisterium’ (the term itself seems an oxymoron, implying that some significant points of Church teaching have been taught only by popes!), then Francis’ views on the death penalty might (I stress, might, given the infallibility concerns above) contribute to the Church’s ordinary magisterium but they do not, and cannot, control it.

The ordinary magisterium, one must see, takes a long, long time, to develop; it requires repetition and consistency over many generations, this, not simply on the part of popes but also by the bishops around the world, and even incorporates, to some extent, the lived acceptance of teachings by Catholic pastors, academics, and rank-and-file faithful through time. Its power as a source of certitude in Church teaching has sadly been overshadowed in the last 150 years as a result of the lopsided pronouncements of Vatican I and (despite the better balance struck between popes and bishops in this regard found in Lumen gentium 25) the post-conciliar confusion created by so many doctrinally wayward or ineffective bishops. But the Church’s ordinary magisterium is not the domain of an individual pope’s preferences for a certain position; rather, its province is the protection and promotion of the deposit of Faith entrusted to the Church by Christ.

How to sum up the traditional understanding of this matter so far? Maybe thus: If it’s not extraordinary, it’s at most ordinary, but if it’s ordinary, it requires popes and bishops around the world and over a long, long time, and not just a pope in a claim or two.

In light of the foregoing, then, it is easier to see why the present formulation of Canon 752 seems wanting: its language appears (I say appears, because scholars are divided over the meaning and implications of Canon 752) to regard as possible the obligation of “religious assent” being owed to a single, undoubtedly non-infallible, purely papal, no-matter-how-unprecedented, assertion regarding faith and morals. I, for one, frankly doubt that is what the Church meant to say although I grant that seems to be how her new law presently reads.

All of which is why the questions surrounding the death penalty impact not only that very important social and civil issue but also the Church’s understanding and operation of her own magisterium.

About withholding donations to the Church

I worked directly for arch/dioceses for some 15 years and indirectly (teaching in a seminary) for a dozen more. Readers can use that fact to discount what I say below as biased or to credit it as informed. Readers’ call.

Various voices are calling for the faithful to withhold donations from the Church in response to the McCarrick scandal, the Pennsylvania grand jury report, and so on. Other voices are urging Catholics to resist such calls. As the calls pro and con seem, so far, to fall within the bounds of Canon 212 § 3, I say, have at it folks. May the better arguments win. But we should note a few relevant canonical and practical points.

First, no canon requires Catholics to drop a donation in the Sunday collection. None. What the 1983 Code does say, however, in this regard, includes:

  • The Christian faithful are obliged to assist with the needs of the Church so that the Church has what is necessary for divine worship, for the works of the apostolate and of charity, and for the decent support of ministers. 1983 CIC 222 § 1.
  • The Church has an innate right to require from the Christian faithful those things which are necessary for the purposes proper to it. 1983 CIC 1260.
  • The Christian faithful are free to give temporal goods for the benefit of the Church. 1983 CIC 1261 § 1.
  • The faithful are to give support to the Church by responding to appeals and according to the norms issued by the conference of bishops. 1983 CIC 1262.

The roots of some of these canons, moreover, go back many centuries in Church history suggesting that more than ecclesiastical convenience is behind them.

Second, in nearly all arch/dioceses I am familiar with, Sunday plate collection (and other routine donations) go to the benefit of parishes (largely by implication  of Canon 1256). Thus, in most cases, withholding one’s regular donations directly hurts parish operations and not arch/diocesan.

Third, many arch/diocesan annual fund-raising campaigns are, technically speaking, designed to help parishes meet assessments (canonically, taxes) imposed by bishops (in my view, usually reasonably) on parishes per Canon 1263. Withholding one’s donations to annual arch/diocesan appeals therefore, again, hurts parishes first, though parish problems in meeting their annual assessments would be noticed at the arch/diocesan level.

Fourth, arch/dioceses facing financial shortfalls generally do what any large organization does in such situations, cut expenses, liquidate investments, and/or borrow money. Thus, the actual impact of withholding one’s donations to the arch/diocese, an impact often already diluted by the time it reaches the arch/diocesan level, is likely to be muted again by the usual financial expedients undertaken by other financially stressed organizations. By the way, intimations that arch/diocesan budgets get balanced at the expense of the poor, while such suggestions smack of emotional hostage-taking, do reflect the reality that many demands are made on arch/diocesan assets (see, e.g., Canon 1254 § 1) and that no undertaking would be immune from cuts.

What all this boils down to, I suggest, is that by the time one determines the exact financial footing of any given arch/diocese and predicts, rightly or wrongly, how that arch/diocese might respond to a drop in income, one should be able to see that across-the-board calls for Catholics to withhold donations “from the Church” are subject to so many qualifications and exceptions and ramifications (intended or not) that, well, it seems difficult to defend such calls as being based on convincing reasons.

Still, as stated above, no canon requires Catholics to make a donation on any Sunday to any parish and, given how little voice Catholics have in the selection of their leadership and their conduct, I understand why calls to strike back in some, in any, measurable way against massive, massive episcopal failures resonate with so many.

I’m just saying, be careful about punishing the Spouse of Christ and her dependent children because some priests and even bishops, men presumably wedded to her as Jesus was wedded to her, abandoned her so shamelessly.

Brief comments on Msgr. Guarino’s response to me

Msgr. Thomas Guarino has replied to my response to his original remarks. He does so graciously but, I fear, inadequately.

Readers will recall what prompted my first response to Guarino: his claim that “consensual adult relationships”—including homosexual acts by and between seminarians and/or clergy, acts at the root of the clergy sexual misconduct crisis—were not “crimes” and that they had not been treated as crimes “for centuries”.

As Guarino, an ecclesiastic, was writing in support of ecclesiastical remedies for an ecclesiastical crisis, and as he contrasted the response to such (allegedly non-)crimes with ecclesiastical remedies for sin such as “confession, penance and spiritual direction”, I assumed he meant that these homosexual acts were not ecclesiastical “crimes” and that they had not been treated as ecclesiastical crimes “for centuries”. In those claims, as I showed, Guarino was quite mistaken. All such acts were in fact crimes in canon law until at least 1983 and had been so regarded for centuries.

Now, however, Guarino claims that he actually meant that such acts were not civil “crimes” (although the qualifier “civil” appears nowhere in his original essay) and, one supposes, that such acts had not been civil “crimes … for centuries”. But, if so, such a claim would be even more wrong in the civil area than it is in the canonical.

In the United States “anti-sodomy laws” were common until the 1960s and, as recently as just fifteen years ago, homosexual acts, even consensual ones between adults, were crimes in at least a dozen states. Only in 2003, in Lawrence v. Texas, did the US Supreme Court strike down all homosexual-act criminal laws. If, therefore, Guarino really did mean that consensual adult homosexual acts had not been civil “crimes … for centuries”, he is even more wrong than he was when (as I thought) he had asserted that they had not been canonical “crimes … for centuries”, about 15 years more wrong.

And, while we are at it, if anyone, including Guarino, is concerned that pedophilia (“civil, non-consensual, crimes of child abuse and sexual harassment”—Guarino’s admittedly confusing phrasing in that, e.g., child-abuse is always legally “non-consensual”, but I digress) is not criminalized in canon law, I can assure folks that it is criminalized directly in the Canon 1395 of the 1983 Code (originally protecting those under 16) and in ¶ Delictum contra mores of the 2001 supplemental penal norms issued by the Congregation for the Doctrine of the Faith (extending to the whole Church special US provisions already in force since 1994 and effecting the criminalization of clergy sexual abuse perpetrated against those under 18).

I have, of course, no doubt that Guarino wants to put an end to the sexual abuse of children by clergy and to the more recently manifested sexual exploitation of seminarians and priests by prelates. His contributions to such efforts would be welcome. If I left the bulk of his proposals on these matters unaddressed it was only because I saw much too much ambiguity in them to ferret out sufficiently in a single essay and, given Guarino’s other errors on important points of canon law (or civil law, if that’s what he wishes to claim now), I was unwilling to give it a try at present.

In the meantime I will continue to insist that those who make representations to the public about what is, or is not, canon law (or for that matter what is or is not civil law) in regard to these crucial matters need to know what they are talking about lest valuable time and resources be spent correcting mistakes that should never have been floated in the first place.

Advice for the future should come from people with knowledge of the present — and the past

Homosexual acts committed by or between clerics—even among those presumably able to consent—are at the root, the very root, of the sexual misconduct and cover-up crisis exposed by the McCarrick scandal. Who on earth does not yet know that yet?

So my jaw dropped—which takes some doing these days—my jaw dropped when Msgr. Thomas Guarino, in an interesting-ish essay over at Catholic World Report, while calling for better responses against clergy sexual misconduct, wrote: “I speak here of crimes, not consensual adult relationships which, while sinful infractions against the commandments and the promise of celibacy, can be—and for centuries have been—salutarily treated with confession, penance and spiritual direction.”

My.  Jaw.  Dropped.

Where to begin?

First, Guarnino’s claim that “consensual adult relationships” (a tired euphemism for gravely sinful conduct, but one sufficient to include homosexual acts by clergy) have not been regarded as canonical crimes for centuries, is flatly wrong. In fact, it has only been in the last 35 years, since the advent of the 1983 Code, that such “consensual adult relationships” among clergy have not been treated as crimes under canon law!

1917 CIC 2359 § 2 stated:

“If [clerics] engage in a delict against the sixth precept of the Decalogue with a minor below the age of sixteen, or engage in adultery, debauchery, bestiality, sodomy, pandering, [or] incest with blood-relatives or affines in the first degree, they are suspended, declared infamous, and are deprived of any office, benefice, dignity, responsibility, if they have such, whatsoever, and in more serious cases, they are to be deposed.”

Now exactly what part of “debauchery” or “sodomy”, consensual or otherwise, was not a canonical crime per the Canon 2359? And given an hour, moreover, any competent researcher could prove centuries-old roots for Canon 2359 simply by checking Gasparri’s fontes for the canon.

Contrary to Guarino’s claim, then, it was only with the dilution that Canon 2359 suffered when it re-appeared as Canon 1395 of the 1983 Code that the express and long-standing criminalization of homosexual acts by clergy was blurred or lost.

Want another example? Fine.

The Congregation of the Holy Office (now, Congregation for the Doctrine of the Faith), in its instruction Crimen sollicitationis (16 mar 1962), available here, stated:

“(71). The term crimen pessimum [“the foulest crime”] is here understood to mean any external obscene act, gravely sinful, perpetrated or attempted by a cleric in any way whatsoever with a person of his own sex. (72). Everything laid down up to this point concerning the crime of solicitation is also valid, with the change only of those things which the nature of the matter necessarily requires, for the crimen pessimum, should some cleric (God forbid) happen to be accused of it before the local Ordinary …. In determining penalties against delinquents of this type, in addition to what has been stated above, Canon 2359  § 2 is also to be taken into consideration.”

Again, canon law could not be clearer that homosexual activity by clerics was an ecclesiastical crime. Moreover, as I explained elsewhere—see Edward Peters, “Retrospectives on Benedict XIV’s const. Sacramentum poeniteniae (1741)”, Apollinaris 84 (2011) 581-605—the 1922 and 1962 versions of Crimen rested on penal law foundations laid down by Pope Benedict XIV in the mid 18th century and which in turn drew on canon laws older still!

So, can we please put to rest the utter canard that Church did not, for centuries no less!, regard homosexual acts among clerics, whatever other moral or spiritual offenses they constituted, as crimes against Church order?—a point that the McCarrick disaster proves beyond any doubt.

Oh, and third, I guess we have to say it yet again, clerical homosexual activity is not, repeat not, as Guarino seems to think, a violation of “celibacy” (as if celibacy has anything to do this mess), but is instead a violation of the chastity to which all the faithful are called (CCC 2337-2359) and of the continence to which all clergy are specially called (Canon 277 § 1). 

No good lawyer thinks that criminalizing a bad activity makes that bad activity go away. But decriminalizing bad activity hardly makes it either less bad or less common. There are arguments for and against re-criminalizing homosexual acts among clerics, but in either case, consideration of the idea should be carried on by officials aware that they would be debating the re-institution of a centuries-old provision of Church law, not, as Guarino seem to think, the invention of a new one.