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Ignoring law is not remedied by ignoring it even more

February 11, 2020

I have read with profit many columns by Dr. Adam DeVille but in his latest essay, “Relieving Rome’s burdens: A proposal for handling abuse cases” (CWR, 10 feb 2020), wherein DeVille suggests “diocesan synods” as the key to addressing clergy sexual misconduct cases, I see several problems. In brief they come down to this: DeVille seems wholly unaware that canon law exists, that it already has norms directly relevant to his proposals, and that those canons reflect deep doctrinal values ignored only with peril for the Church.

At the level of theory DeVille holds that “there must be this foundational principle in place: no human being, or group of people, should ever be given a monopoly on power in any organization for any reason. This is always to invite disaster.”

Such unnuanced, absolutist language, begs for rebuttal. So …

According to canon law, the Roman Pontiff (nb: a human being) “possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise freely.” 1983 CIC 331. Surely some indication from DeVille that he is aware of this law, and of the doctrinal values behind it, is owed lest he seem to imply that, in establishing Peter as the one Rock, Our Lord invited disaster upon his Church.

Further according to canon law, the College of Bishops (nb: a small group of people) “is also the subject of supreme and full power over the universal Church.” 1983 CIC 336. Again, no indication is given that DeVille sees how Our Lord’s vesting supreme and full power in this tiny group of believers passes muster under DeVille’s supposedly foundational maxim.

As the practical solution to the clergy sexual abuse crisis (specifically, to the resolution of accusations thereof), DeVille suggests reviving “the ancient institution of the diocesan synod” to superintend cases of clergy sexual misconduct. The casualness-approaching-glibness with which DeVille invokes “the ancient institution of the diocesan synod”, as if everyone knew what that was and how it supposedly functioned in ancient days, is startling, but let me provide some perspectives thereon in default of DeVille’s offering any sources for his understanding of synods.

First, diocesan synods are already part of canon law (1983 CIC 460-468) so they do not need to be “revived”. Indeed, though they remain substantially clerical assemblies, modern canon law already makes provision for lay participation in synods. But, fatal for DeVille’s proposal, diocesan synods are fundamentally legislative in nature, not judicial, and they have only a consultative (not deliberative) voice and then on only such matters the bishop chooses to present to them. That is not remotely how DeVille seems to imagine diocesan synods.

Second, and worse for DeVille’s idea, diocesan synods under earlier law (say, the Pio-Benedictine Code) were exclusively clerical institutions, operated completely under episcopal control, and met, at best, once every ten years  (1917 CIC 356-362). Again, this form of diocesan synod can’t be what DeVille would want to revive. And even if, in the hazy memory of a few readers, one recalls the old office of “synodal examiner” or “synodal judge” (both roles eliminated or subsumed into other offices now), such priests, though appointed in a synod, were bound, in hearing certain disciplinary cases, to follow the procedural law set out in Book IV of the 1917 Code and not some newly fashioned scheme whereby “misconduct cases” are supposedly assembled by one diocesan synod and sent to another diocesan synod for review that in turn sends it back to the first bishop for decision who then (only then?) informs the accused of his fate. None of this resonates with anything in the penal or procedural books of the 1983 Code of Canon Law, and Canon 221 § 3, among numerous other norms, takes a dim view of ignoring canon law in meting out consequences for behavior, even reprehensible behavior.

Third, as for whatever “ancient diocesan synods” supposedly looked like, if DeVille would like to share examples of such institutions, especially ones wherein laity passed (or even advised on) judgment on specifically accused and criminous clerics, I would be happy to examine such sources. My own quick look through, say, the Dictionnaire de Droit Canonique and the Dictionarium Morale et Canonicum does not seem to suggest such examples, nor does Benedict XIV’s famous listing of synodal topics include adjudicating specific accusations of misconduct as a synodal prerogative. Perhaps I am reading too quickly.

There are, in fine, many canon and civil laws on the books right now for dealing with canonical and civil crimes. Those laws were developed by their respective societies over a long time, in the light of experience (including some experiences of failure), and more often than not came about with sound reasons behind them. At least some of those norms rest on divine mandates for the governance of the Church while others reflect natural law requisites for basic justice. If DeVille wants to lament the ignoring of these laws by some Church officers, and for that matter by some civil officials, he has my hearty support.

But the solution to unenforced canon and civil law is not the further and complete ignoring of those laws and the fashioning of new, institutionally unsound procedures resting on fantastical histories and flimsy logic. The solution is the enforcement of laws by Church and State officials and the visitation of harsh penalties on the perpetrators of wicked crimes.

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