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The cerberus of clerical sexual misconduct: a canonical overview

October 5, 2018

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.

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