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A bishop’s failure to enforce canon law does not excuse his faithful from following it

It needs no long blog post from a canon lawyer to explain how wrong would be a failure by a bishop to protect his faithful against scandal (CCC 2284, 2287) and/or to defend the Eucharist against potential sacrilege (CCC 2120) but, make no mistake, in reiterating that “it is not [his] policy” to withhold holy Communion from persons in ‘same-sex marriages’, that is what Cdl. Cupich’s refusal to act as ‘the guardian of the entire liturgical life in the church entrusted to him’ (c. 835 § 1) and “to exercise vigilance so that abuses do not creep into ecclesiastical discipline, especially regarding … the celebration of the sacraments and sacramentals, [and] the worship of God” (c. 392 § 2) in this matter, does.

Cupich’s failure ‘to bishop’ in this regard, of course, effectively abandons his pastors and other ministers of holy Communion to face alone the anger of some Catholics in ‘same-sex marriages’ who (like persons in merely civil marriages following divorce) must nevertheless be refused holy Communion by pastors correctly recognizing that, no matter what their archbishop doesn’t say, they are still required by canon law not to admit to holy Communion those who ‘obstinately persevere in manifest grave sin’ (c. 915).

Canon 915, as has been explained many, many times, rests on ancient, indeed Biblical, foundations, nothing in modern canon law or recent magisterial literature annuls it, and it unquestionably applies in regard to Catholics who have attempted a ‘same-sex marriage’. But it might still be useful to explicitate briefly the application of Canon 915 in some same-sex pastoral situations.

1. A homosexual inclination or orientation does not, in anyone’s opinion, disqualify a person from being admitted to holy Communion.

2. Cohabitation by homosexuals does not, in my opinion, disqualify them from being admitted to holy Communion because one does not assume that persons of the same sex are engaged in sexual activity (and in this respect, yes, homosexual cohabitation differs from heterosexual, or has differed, according to about 5,000 years of recorded human behavior).

3. Attempted civil marriage between persons of the same sex (just like those following divorce between heterosexuals) disqualifies, in the common and constant opinion of learned persons (which I share), such Catholics from being admitted to holy Communion because the sign-values that marriage (c. 1055) enjoys in the Church and civil society—itself a public sign proclaimed, by the way, irrespective of whatever private sexual activity might or might not be occurring between the persons involved—are contradicted by persons purporting to be in a ‘marriage’ that cannot be a marriage.

The above analysis applies, I suggest, even if it is not promoted by local Church authorities.

+ + +

PS: Speaking of Chicago, has an announcement been made yet that the two Chicago-based priests recently arrested for XXXing each other in a car parked a short distance from a playground in Miami will be prosecuted canonically toward their dismissal from the clerical state? If not, might one ask what the delay is?

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The cerberus of clerical sexual misconduct: a canonical overview

The cerberus of clerical sexual misconduct has three heads: (1) clerical sexual abuse against minors; (2) clerical sexual misconduct with consenting adults; and (3) episcopal complicity in both. Canon law is not the only means of addressing these three snarling problems, but it is, or could be, one means to address them. It behooves all to understand what canon law does, and does not, say about these matters so that discussion of responses to the crisis may proceed more efficiently.

Preliminaries

To keep this discussion of the Roman canon law on clerical sexual misconduct manageable some issues need to be set aside.

Clerical sexual misconduct in the context of sacramental Confession (i.e., “solicitation” per Canon 1387) and misconduct related to the possession of some forms of pornography are not treated here, nor is misconduct that turns on one’s protracted ‘status’ (e.g., clerical concubinage per Canon 1395 § 1) or that committed against adults of diminished capacity.

The definition of clergy “sexual misconduct” itself is left aside* but, for present purposes, it includes what, I trust, any reasonable person would recognize as gravely immoral sexual activity with another human being. Such misconduct could consist of a single incident (e.g., a priest’s ‘one night stand’ with a married woman). The term “clergy” refers to deacons, priests, and bishops but whether those men might also be vowed religious or cardinals is irrelevant here.

An important penal norm, Canon 1399, could be (and in some cases, I think, should be, now) invoked against sexually offending clerics, but that canon does not expressly deal with clergy sexual misconduct and it is poor legislative technique, I think, to expect it to serve as the primary disciplinary norm against a variety of behaviors that are erupting in many places and that are so disruptive of personal lives and ecclesial order. I cannot not discuss its application here.

1. Clerical sexual abuse against minors

Clerical sexual misconduct (both heterosexual or homosexual) against minors (persons aged 17 or under, per Canon 97 § 1) is punishable with penalties up to and including dismissal from the clerical state (commonly called “laicization”) under Canon 1395 § 2 which criminalizes such misconduct with persons aged 15 or younger, and under special law, Substantive Norms art. 6 § 1 n. 1 issued in support of m.p. Sacramentorum sanctitatis tutela (2001) which criminalizes clergy sexual misconduct with all minors. (By papal indult this higher ‘age of consent’ had been in effect in the US since 1994.)

Under the Pio-Benedictine Code, effectively all forms of clerical heterosexual misconduct against minors was expressly or impliedly punishable with sanctions up to and including dismissal from the clerical state, and certainly all forms of clerical homosexual misconduct (including that directed against minors, which homosexual aspect makes up the vast majority of clergy sexual misconduct cases identified in the last several decades) was punishable. 1917 CIC 2359 §§ 2-3**. Perhaps historians can advise as to how often Canon 2359 was applied but that it was the law until late 1983 is incontestable.

Additionally, under special law, the Holy Office instr. Crimen sollicitationis (1922, 1962) tit. V, clerical sexual misconduct against children (impuberes) was punishable as above, and all clerical homosexual misconduct (including that against all minors) was criminalized, but the unusual way this special law was promulgated decreased its effectiveness in addressing these clerical crimes. In 2001 Crimen was abrogated leaving the 1983 Code and m.p.  Sacramentorum as the two express canonical bases for the prosecution of clerics sexually offending against minors.

Others might explore whether, at least in the United States, the clerical sexual abuse of minors has been largely eliminated in the wake of, say, a better appreciation of canonical options for prosecution of offending clerics, a heightened willingness to take such actions in the wake of the “Dallas Charter” of 2002 as revised, pro-active prevention programs implemented throughout pastoral ministry, and more effective screening of candidates for holy orders.

2. Clerical sexual misconduct with consenting adults

Clerical sexual misconduct with consenting adults is generally not a crime under current canon law whether codified or special. This is a serious omission in current law and, whatever other harms come in its wake, it leaves canonically unaddressed a grave form of sacrilege (CCC 2120, 2139).

Currently the only forms of clerical sexual misconduct involving adults that are identified as canonical crimes (see Canon 1395) are those committed: “by force” (seldom alleged and difficult to prove); with “threats” (not commonly alleged, but perhaps more frequent than is realized); or “publicly” (itself a controverted term in canon law, but, as a practical matter, given cultural mores concerning sexual activity, rather seldom engaged in—the two Chicago-based priests recently arrested in Miami being exceptions that prove the rule).

Under Pio-Benedictine law, as noted above, most heterosexual clerical misconduct with adults and all homosexual misconduct with adults was expressly or impliedly punishable per 1917 CIC 2359 §§ 2-3** and/or Crimen sollicitationis, both now abrogated.

Whatever factors led to the effective de-criminalization of most consensual clerical sexual misconduct with adults under the 1983 Code (a variety of factors both sinister and benign were probably involved), the fact is that, for example, two clerics performing homosexual acts on each other, a married deacon committing adultery against his wife, a pastor having a ‘one-night stand’ with a female member of the parish council, and a dozen other gravely sinful and seriously scandalizing behaviors besides, are not expressly recognized as crimes under current canon law. Thus I say, Canon 1395 stands in urgent need of reform.

To be clear, some of the more egregious recent cases of clerical sexual misconduct can even now be dealt with under current law, but comprehensively getting at the personal, sacramental, and ecclesiastical wounds that clergy sexual misconduct inflicts on the Mystical Body of Christ requires principled and clear thinking followed by resolute action–commodities admittedly often in short supply during times of crisis.

3. Episcopal complicity in clergy sexual misconduct

Treating offending bishops as a distinct head of the clergy sexual misconduct crisis, whether because those bishops are accused of their own misconduct (Archbishop McCarrick being the face of that travesty) or because they are accused of failing to act adequately in the face of others’ misconduct, is appropriate for several reasons.

First, bishops enjoy the fullness of holy Orders and therefore offenses committed or tolerated by them offend Church order even more gravely than do similar offenses committed by lower ranking figures. 1983 CIC 1326 § 1 n. 3. Second, in a society such as the Church, a society that depends heavily on good example as a means of leading persons to The Good, malfeasance by bishops deprives the Church and her faithful of the crucial pastoral benefits that good example in high office affords.

Now, while the 2002 clergy sexual misconduct crisis focused, it seemed, on abuse committed by individual priests and deacons, with the Church and the world looking to bishops to enforce ecclesiastical discipline against offending lower-ranking clergy, the 2018 crisis seems more focused on bishops themselves as complicit in the clergy sexual misconduct crisis, this, in two main ways.

Some bishops are themselves accused of personal sexual misconduct, in which case everything said above concerning “clerics” applies to them. More recently, however, the majority of complaints against bishops concern their actual or perceived failures to supervise and discipline their clergy in cases of suspected sexual misconduct (to some degree, an issue raised in the 2002 crisis) and, even more so, assertions that some bishops have covered for or ignored misconduct (whether personal and/or supervisory) among their own.

Essentially, then, these complaints come down to allegations that bishops (a) abused their offices to commit crimes personally (which is itself punishable by sanctions up to and including loss of office under Canon 1389 § 1); and/or that they (b) culpably failed to exercise the responsibilities of supervision that bind all bishops (which itself is punishable by a “just penalty” under Canon 1389 § 2 in light of Canons 128 and 392).

That being clearly said, however, several important doctrinal principles rooted in the divine constitution of the Church, and the canonical correlatives of those principles (summarized in Canon 1405 § 1 n. 3), must be recognized and respected in order for real reform of the canon law governing bishops, especially regarding crimes and negligence committed by them, to proceed effectively.

Conclusion

I hope the above observations help provide a better understanding of the canon law impacting what I describe as the three heads of the clergy sexual misconduct cerberus. In brief: the first head, clerical sexual abuse against minors, seems at least to have been muzzled; the second head, clerical sexual misconduct with consenting adults, is not adequately curbed in modern canon law; and the third head, various forms of episcopal complicity in clergy sexual misconduct, requires very careful, and very prompt, doctrinal and canonical attention.

* For an introduction to this complex matter, see, e.g., my “Applications of the Essential Norms in cases of doubt”, CLSA Advisory Opinions (2009) 133-138.

** 1917 CIC 2359. § 1. Concubinious clerics in sacred [orders], whether secular or religious, previous warnings not being heeded, are to be coerced into giving up their illicit relationship and to repair scandal by [being] suspended from divine things, [and by suffering] the loss of the benefits of office, benefices, dignities, the prescriptions of Canons 2176-2181 being observed. § 2. If they 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, 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. § 3. If they otherwise sin against the sixth commandment of the Decalogue, let them be coerced with appropriate penalties according to the gravity of the case, not excepting deprivation of office or benefice, especially if they have care of souls.

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.