* Visiting Professor, Georgetown Law Center. Acknowledgment: I wish to thank Professors James Coriden, of Washington Theological Union, Thomas Green, and Ronny Jenkins, of The Catholic University of America for their help; they read the manuscript, prevented me from some errors, and offered judicious advice. For the final product, however, I alone am responsible.
In this Commentary, the original text of the Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons (“Norms”) is reproduced in boldface type in its entirety; the footnotes that belong to the Norms are reproduced partially—if they warrant comments in this context. The locations of such footnotes are marked with asterisks within the text of the Norms and they are printed in smaller bold type immediately after the text of the Norm to which they belong. All numbered footnotes within the individual norms are not part of the Norms themselves but have been added to provide further information.
1 U.S. Conference of Catholic Bishops, Charter for the Protection of Children and Young People Revised Edition, available at http://www.usccb.org/bishops/ charter.htm (2002) [hereinafter Charter]; U.S. Conference of Catholic Bishops, Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons, available at http://www.usccb.org/bishops/norms.htm (2002) [hereinafter Norms].
2 See 1983 Code c.455. The original and official Latin text of the Code of the Western Church is found in Codex Iuris Canonici (Libreria Editrice Vaticana 1989) (“CIC”); in this Article’s quotations the English translation found in Code of Canon Law (Canon Law Soc’y of Am. trans., 1999) is used. The Norms also regularly refer to Codex Canonum Ecclesiarum Orientalium (Typis Polyglottis Vaticanis 1990) (“CCEO”) for which an English translation can be found in Code of the Canons of the Eastern Churches (Canon Law Soc’y of Am. trans., 2001). Because I found no significant difference between the two codes for the material I quote, in this article I refer to the code for the Western Church only.
3 For a detailed canonical analysis of the Norms see Canon Law Soc’y of Am., Guide to the Implementation of the U.S. Bishops’ Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons (2003) [hereinafter Guide]. This Article should be read as complementary to the Guide.
4 See 1983 Code cc.7–22.
5 Id. c.9
6 See id. c.14.
7 See id. c.18.
8 See Ladislas Orsy, S.J., Canons and Commentary, in The Code of Canon Law: A Text and Commentary 25–45 (James A. Coriden et al. eds., 1985); see also John M. Huels, O.S.M., Canons and Commentary, in New Commentary on the Code of Canon Law 47–96 (John P. Beal et al. eds., 1998).
9 Norms, supra note 1 (title).
10 Canon 455, section 2 states that decrees issued by the conference of bishops “do not obtain binding force unless they have been legitimately promulgated after having been reviewed [(recognita)] by the Apostolic See.” 1983 Code c.455, � 2. “Approved” is used to render the Latin recognitum. Recognitio is a relatively new concept in the canonical tradition; in theory the term means less than “approval” but more than “taking notice of”; yet, in the present practice of the Holy See it amounts to approval. Note, however, that if the legislator had intended “approval,” he could have used the perfectly fitting Latin world approbatio. He did not. Id.
11 A question that may be raised is who is entitled to interpret the Norms: the Conference who makes them or the Holy See who reviews them? Canon 16, section 1 states, “The legislator authentically interprets laws . . . .” 1983 Code c.16, � 1. By this principle, the Conference is competent. See id.
12 Norms, supra note 1, paras. 1–2. The Guide states correctly, “[t]he Norms are not retroactive,” and then continues incorrectly, “This means that the determination that for the good of the Church ‘any priest in the United States . . . shall not continue in the active ministry’ (Norm 9), cannot be applied to offenses that were committed before the Norms take effect. Any offense committed before the Norms take effect is subject to the applicable laws at the time, not to the new norms . . . .” See Guide, supra note 3, at 2. There is nothing in canonical tradition to forbid the legislator from introducing a disqualification for a present office as from now, ex nunc, as the consequence of a crime committed in the past, tunc. Such disqualification is not a retroactive law establishing a crime or a penalty; it is a disciplinary provision for the future, leges respiciunt futura. See 1983 Code c.9. It follows that the provision of Norm 8 disqualifying a person found guilty of the crime of sexual abuse perpetrated before the promulgation of the Norms from exercising ecclesiastical ministry in the future is valid. See Norms, supra note 1, Norm 8.
13 See Norms, supra note 1, para. 1.
14 See 1983 Code c.18. One must recall the old canonical adage: “the reason for the law is not the law,” ratio legis non est lex. A broad intent to catch criminals is not, and cannot be, a reason to apply punitive laws broadly. U.S. courts—rightly—will speak of the “intent of the Congress” even in deciding criminal cases. In canon law, however, the “intent” of the legislator cannot be invoked if it is counter to a minimal interpretation of the ordinary meaning of the terms. See id.
15 Norms, supra note 1, para. 3.
16 See id. para. 3 n.1.
17 See 1983 Code c.455.
18 Id. c.14.
19 Id. c.18.
20 Canon 1395, section 2 provides:
A cleric who in another way has committed an offense against the sixth commandment of the Decalogue, if the delict was committed by force or threats or publicly or with a minor below the age of sixteen years, is to be punished with just penalties, not excluding dismissal from the clerical state if the case so warrants.
Id. c.1395, � 2.
21 Canon 1321, section 3 provides, “When an external violation has occurred, imputability is presumed unless it is otherwise apparent.” Id. c.1321 � 3.
22 Norms, supra note 1, paras. 4–5.
23 In the history of canon law, it would be difficult to find a precedent for the Dallas event where the bishops legislated under immense pressure from the media without assuring themselves a reasonable opportunity for quiet reflection and deliberation. Such an unusual manner of proceeding has left its mark on their document; no wonder the Holy See was the first to ask for significant modifications.
24 An additional problem is that in our days, moral theology is undergoing a serious updating, aggiornamento, and consensus is not easily found among the specialists. As it is, a combination of Christian prudence and ordinary common sense may be as good a guide as any manual. For further discussion of this issue, see generally the judicious observations in James H. Provost, Offenses Against the Sixth Commandment: Toward a Canonical Analysis of Canon 1395, 55 Jurist 632, 632–63 (1995).
25 Norms, supra note 1, norm 1.
26 Id.
27 Canon 1717 provides:
� 1. Whenever an ordinary has knowledge, which at least seems true, of a delict, he is carefully to inquire personally or through another suitable person about the facts, circumstances, and imputability, unless such an inquiry seems entirely superfluous.
� 2. Care must be taken so that the good name of anyone is not endangered from this investigation.
� 3. The person who conducts the investigation has the same powers and obligations as an auditor in the process; the same person cannot act as a judge in the matter if a judicial process is initiated later.
1983 Code c. 1717.
Canon 1718 provides:
� 1. When it seems that sufficient evidence has been collected, the ordinary is to decide:
1� whether a process to inflict or declare a penalty can be initiated;
2� whether, attentive to can. 1341, this is expedient;
3� whether a judicial process must be used or, unless the law forbids it, whether the matter must proceed by way of extra judicial decree.
� 2. The ordinary is to revoke or change the decree mentioned in � 1 whenever new evidence indicates to him that another decision is necessary.
� 3. In issuing the decrees mentioned in �� 1 and 2, the ordinary is to hear two judges or other experts of the law if he considers it prudent.
� 4. Before he makes a decision according to the norm of � 1 and in order to avoid useless trials, the ordinary is to examine carefully whether it is expedient for him or the investigator, with the consent of the parties, to resolve equitably the question of damages.
Id. c.1718
Canon 1719 provides, “The acts of the investigation, the decrees of the ordinary which initiated and concluded the investigation, and everything which preceded the investigation are to be kept in the secret archive of the curia if they are not necessary for the penal process.” Id. c.1719.
28 Norms, supra note 1, norm 2.
29 Canon law, in its overall approach to criminal cases, is radically different from American law. See 1983 Code cc. 1717–1731.
30 The Code itself recommends it. Id. c. 1316. (“Insofar as possible, diocesan bishops are to take care that if penal laws must be issued, they are uniform in the same city or region.”).
31 Charter, supra note 1, arts. 7–8.
32 Norms, supra note 1, norm 3.
33 Id. norm 4.
34 Id. norm 5.
35 1983 Code c.1717 (quoted in full supra note 27).
36 Infra text accompanying note 40.
37 Norms, supra note 1, norm 6.
38 This canonical investigation is not equivalent to a “police investigation” in secrecy on suspicion. In canon law the person investigated must be notified and often is publicly marked as heavily suspected (for instance, by removal from office); his situation is close to that of a person “indicted” in secular law.
39 Sacramentorum sanctitatis tutela [The Safeguarding of the Sanctity of the Sacraments], 93 Acta Apostolicae Sedis 737, 737–39 (2001).
40 1983 Code c.1722.
41 Norms, supra note 1, norm 7.
42 1983 Code c.1395, � 2 (quoted supra note 20).
43 Norms, supra note 1, norm 8.
44 See id. cc.1040–1052.
45 Norms, supra note 1, norm 8.A.
46 See 1983 Code cc.1400–1752.
47 The author of this Article has not heard of one single criminal case handled by a diocesan court in the United States in recent memory—some forty years.
48 Norms, supra note 1, norm 8.A.
49 Id.
50 California has recently removed the statute of limitations for certain claims of child sexual abuse for one year. See Cal. Civ. Proc. Code � 340.1 (West Supp. 2003). In canon law, however, even if the Anglo-American idea of “limitation of actions” were introduced, dispensation would not be automatically available to local Ordinaries: they are not entitled to dispense from procedural law. See 1983 Code c.87.
51 By way of an example, in the Roman law tradition in matters of property, prescription may create ownership. Whoever heard of a dispensation from, or the annulment of, a legitimately acquired and fully vested ownership?
52 1983 Code c.1722 (quoted supra text accompanying note 40).
53 Norms, supra note 1, norm 8.A.
54 Id. norm 8.B.; see 1983 Code c.1722.
55 Norms, supra note 1, norm 9.
56 1983 Code cc.35–47.
57 Id. cc.48–58.
58 Norms, supra note 1, norm 9 n.5.
59 1983 Code c.149.
60 Id. c.157.
61 Id. cc.187–189.
62 Id. cc.192–195. This norm refers also to other canons less immediately relevant. See id. c.277, � 3 (the power of the diocesan bishop to issue specific laws concerning the prudent observance of celibacy); id. c.381, � 1 (the extent and limits of the ordinary power of the diocesan bishop; the bishop’s duty to act in a pastoral spirit); id. c.391 (recognizes the division of the bishops’ power into legislative, executive, and judicial, but although acknowledging the value of some division, it affirms that all powers are ultimately united in the bishop); id. c.438 (a determination of the standing of the tribunals of second instance); id. cc.1742–1747 (the manner of proceeding in the removal of pastors).
63 Id. c.1395 (quoted supra note 20).
64 Norms, supra note 1, norm 9.
65 Id. norm 10.
66 Id. norm 11.
67 Id. norm 12.
68 Id. norm 13.
69 In early Roman law, prescription was used as a procedural norm barring action; later however, it developed into an institution creating and extinguishing substantive rights; for example, in matters of property it became a way of “acquisition” that could be asserted by vindicatio—an action grounded in ownership. See Adolf Berger, Encyclopedic Dictionary of Roman Law 645–46 (1953) (entries on the various forms of “praes-criptio”).
In canon law “prescription” is defined in canon 197: “prescription is a means of acquiring or losing a subjective right as well as of freeing oneself from obligations.” 1983 Code c.197. This definition goes well beyond a procedural device, it speaks of substantive subjective rights. The use of the term “acquisition” is technical and precise: it refers mainly to property. Similarly, “obligation” refers to a legal bond, vinculum iuris, which has its origin either in a contract or in a “delict.”
Canon 197 determines that “[t]he church receives prescription as it is in the civil legislation of the nation in question . . . .” Id. “To receive” in this context means to make civil law part of canon law. But, of course, the Church can receive only what is there; in American law (maybe from Louisiana) there is no prescription that is “a means of acquiring or losing subjective rights as well as of freeing oneself from obligations”; there is only an “estoppel” barring an action. It follows that the Church should follow the American procedural norms (that far the American law can be “received”), but in matters of acquisitions and obligations, canon law stands unaffected. Ecclesiastical courts and administrators should respect vested rights “acquired” by canonical prescription, and they should not try to revive obligations extinguished by canonical prescription.
If the above exegesis is correct, a “dispensation” that would revive an extinguished obligation—as the Norms require—does not make good sense in canon law. An extinguished obligation cannot be revived by a court order or by an administrative decree. See supra notes 50–51 and accompanying text.
70 There is so little by way of new legislation in the Norms that the question could be raised if the Norms are anything more than a “general executory decree . . . which more precisely determine the methods to be observed in applying the law,” in this case applying the law promulgated by the Apostolic letter Sacramentorum sanctitatis tutela of April 30, 2001. See 1983 Code c.31; Sacramentorum sanctitatis tutela [The Safeguarding of the Sanctity of the Sacraments], supra note 39, at 737–39. The answer is that although the Norms do not contain much new legislation, there are enough new rules in them to classify them as “particular law.” One must admit though that there are ambiguities and complexities in the Norms that fall short of the classical clarity and simplicity that Cardinal Pietro Gasparri, one of the chief architects of the 1917 Code, has imprinted on the canons of the same code.
71 See Charter, supra note 1, para. 1.
72 See U.S. Council of Catholic Bishops, A Statement of Episcopal Commitment, 32 Origins 408, 408 (2002).
73 See Vatican Council II, Lumen gentium: Dogmatic Constitution on the Church, in Vatican Council II: The Basic Sixteen Documents Constitutions Decrees Declarations, No. 8, at 1, 9 (Austin Flannery, O.P. ed., 1996).
74 Id. at 10.
75 Vatican Council II, Unitatis redintegratio: Decree on Ecumenism, in Vatican Council II: The Basic Sixteen Documents Constitutions Decrees Declarations, supra note 73, No. 6, at 499, 507–08.
76 See supra notes 74–75 and accompanying text.
77 “[H]e who receives an episcopal cathedra, receives an eminence of power, which he did not have before”; further, “the eminence of power is attributed to a person only in relation to others.” See Thomas Aquinas, Quaestiones quodlibetales quodl. 3, quaest. 4, art. 1 (author’s translation). In the context it is clear that in the opinion of Aquinas the sacrament of orders give no increase in human learning, skills, or virtues. For a similar handling of the same issue see also Thomas Aquinas, Summa theologiae 2-2, q.185, a.1. A century earlier, the initiator of “critical exegesis” in canon law, Gratian, articulated the same doctrine. See D.20 c.1 (d.a.).
78 Citt� del Vaticano, Annuario pontificio 1063 (2003).
79 See Vatican Council II, Christus Dominus: Decree on the Pastoral Office of Bishops in the Church, in Vatican Council II: The Basic Sixteen Documents Constitutions Decrees Declarations, supra note 73, No. 3, at 283–84; id. No. 6, at 286.
80 Id. No. 3, at 284 (internal footnote omitted).
81 Id. No. 6, at 286.