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

August 10, 2018

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.

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