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

August 31, 2018

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.

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