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Brief comments on Msgr. Guarino’s response to me

August 12, 2018

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.

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