Defending the Indefensible  

Many Roman Catholics have long wondered why bishops of the Church have tolerated various forms of clerical sexual perversion.  Catholics raised with a sense of sin can not fathom how bishops and priests can appear to be so wilfully blind to what is going on and has gone in the ranks of the Catholic clergy when it comes to the clerical sexual abuse of children.  Surprisingly my review of canon law has now dispelled the mystery. 

What I believe I see below is that we now have a church run by lawyers - canon lawyers.  Sadly the latter seem to have taken over to the point that the actions of our bishops are driven not by a fear of God and unquenchable desire for the salvation of souls but by canon lawyers and the fear of litigation.  

And, as has become increasingly common place in the secular world, the Church now is increasingly driven not predominantly by bishops of sound spiritual and moral character but by lawyers bent on excusing and rationalizing the morally sinful and inexcusable actions of his priests.  

The canonical mindset which has pervaded the Roman Catholic Church since the new Code of Canon Law was published in 1983 has, I believe, shown (1) an astounding tolerance for clerical sexual perversion; (2) a woeful disinterest in the salvation of souls; (3) an abysmal lack of concern for the safety, purity, well being and faith of children; and, (4) a shameful self-interest in defending against legal action at all costs.  This is perhaps nowhere more apparent than in canonical commentaries on Can. 1395 §2.  Such pro clerical paedophile sentiments as seen below have been embraced and championed by, amongst others, Father Frank Morrissey OMI. 

Father Frank Morrissey JCD, who testified as an “expert” witness at the Cornwall Public Inquiry, lectures far and wide on the Code of Canon law and has provided canonical assistance to many dioceses facing clerical sexual abuse scandals. Morrissey, former Dean of Canon Law at Ottawa’s Saint Paul University ( a pontifically chartered university) is hailed by many as a canon lawyer of world renown; he assisted in the preparation of various commentaries on the Code and taught most canon lawyers who studied at St. Paul’s, Cornwall’s Jacques Leduc and Father Denis Vaillancourt included.   He has served as chaplain to the Ottawa St. Thomas More Lawyers’ Guild from its founding in 1984 to the present.

It is I must add a well known fact that a number of known clerical molesters have studied canon law at St. Paul’s University.  

The Code of Canon Law is written in Latin.  There are various English translations.  The 1983 translation published by the Canadian Conference of Catholic Bishops is The Code of Canon Law in English Translation.  The latter was prepared by the Canon Law Society of Great Britain and Ireland in association with the Canon Law Society of Australia and New Zealand and The Canadian Canon Law Society.

Canon 1395 in The Code of Canon Law its entirety reads as follows:

Canon 1395 §1 Apart from the case mentioned in Canon 1394, a cleric living in concubinage, and a cleric who continues in some other external sin against the sixth commandment of the Decalogue which causes scandal, is to be punished with suspension. To this, other penalties can progressively be added if after a warning he persists in the offence, until eventually he can be dismissed from the clerical state.

Can. 1395 §2 A cleric who has offended in other ways against the sixth commandment of the Decalogue, if the crime was committed by force, or by threats, or in public, or with a minor under the age of sixteen years, is to be punished with just penalties, not excluding dismissal from the clerical state if the case so warrants. (emphasis added) 

In some translations, as highlighted further below, the word “offence” is used vs “crime.” Indeed it was essentially the same group which published the above in 1983 which in 1995 published a guide wherein the word “offence” is used!

The excerpts and comments re Can. 1395 §2 referenced below are from the following two annotated and approved versions of the Code which were compiled by canon lawyers (approved meaning the text has received the approval and imprimateur of a bishop):

(1) 1985:  The Code of Canon Law: A Text and Commentary: commissioned by the Canon Law Society of America: STUDY EDITION (Edited by James A. Coriden, Thomas J. Green, Donald #E. Heintschel, Paulist Press, 1985)

(2) 1995:  The Canon Law: Letter & Spirit: A Practical Guide to the Code of Canon Law: The Canon Law Society of Great Britain and Ireland.  The guide was prepared by the Canon Law Society of Great Britain and Ireland in association with the Canadian Canon Law Society, 1995 -  Consultant Editor Rev. Francis G. Morrissey OMI, JCD, Ottawa – text approved by the Bishops’ Conferences of Australia, Canada, England and Wales, India, Ireland, New Zealand, Scotland and Southern Africa. (The Canon Law and therefore the commentary for Can. 1395 §2 was published after the Mount Cashel sex abuse scandal, after the Christian Brothers sex abuse scandals in Alfred and Uxbridge Ontario, after countless accounts of clerical sex abuse in various dioceses across the country began to filter into the public domain, after the CCCB with the assist of Father Morrissey and a team comprised of at least one convicted clerical molester penned its sex abuse guidelines in From Pain to Hope, and after the lid began to blow off the Cornwall sex abuse scandal and cover-up. In other words, it’s not as though as though those who penned, sanctioned and embraced this preferential option for clerical molesters didn’t know the emotional and spiritual damage done to children who are victims of clerical sexual abuse.)

Not included is the 1993 Code of Canon Law Annotated, published by the University of Navarre Faculty of Canon Law.  It uses the word “crime.”  This annotated version of the Code bears the approval of both Father Frank Morrissey and Archbishop Marcel Gervais, then Archbishop of Ottawa.  There is no commentary of note.

With that as background, read the comments below carefully, particularly those of 1995.  This is the tolerant-clerical-paedophile-sympathetic-mindset which essentially accounts for Episcopal actions and/or non actions regarding real and/or “alleged” clerical molesters over the past years.  In the legal world the canonical stance once shamelessly proclaimed and often vigorously defended by canon lawyers, clergy and bishops alike has become extremely problematic for Church officials, and rightly so.  It accounts for many memory lapses, prolonged silences and much stammering and stuttering on the stand.

(The red highlights for emphasis are mine.)

(1) 1985:  The Code of Canon Law: A Text and Commentary 

Can. 1395 §2 A cleric who has offended in other ways against the sixth commandment of the Decalogue, if the offence was committed by force, or by threats, or in public, or with a minor under the age of sixteen years, is to be punished with just penalties, not excluding dismissal from the clerical state if the case so warrants. 

Paragraph two deals with certain non habitual clerical sexual offenses, which are especially serious if they are perpetrated publicly, or with force or threats, or with a person of either sex under sixteen years of age. Initially such an offence is not viewed as seriously as the preceding ones since only “just” penalties are imposed.  Yet if the remedial measures are unsuccessful, even such a cleric may be dismissed from the clerical state.

Great care should be exercised by church authorities in this delicate area.  Frequently the most beneficial approach is a therapeutic rather a penal one, especially if there is diminished imputability on the part of the cleric.  However, while the well being of the future ministry of the offending cleric are key considerations, due cognizance also has to be taken of the damage done to the community and individuals within it.

 (2)  1995: The Canon Law: Letter & Spirit: A Practical Guide to the Code of Canon Law: The Canon Law Society of Great Britain and Ireland.   Can. 1395 §2 A cleric who has offended in other ways against the sixth commandment of the Decalogue, if the offense was committed by force, or by threats, or in public, or with a minor under the age of sixteen years, is to be punished with just penalties, not excluding dismissal from the clerical state if the case so warrants. 

This §2 deals with other kinds of offence against the obligation of clerical celibacy:

(a) if the cleric offends against the sixth commandment with another person by using force or threats, e.g. by committing rape or some other form of sexual assault;

(b) if the cleric offends against the sixth commandment in a public place or in a place to which the public has access; in this case, if the other party was willingly involved, he or she may be punished in accordance with Can. 1329;

(c) if the cleric offends against the sixth commandment with a minor under the age of sixteen years.

The matter of imputability is of fundamental importance in considering each of these offences, and not least the third mentioned above. Before imposing any penalty for such an offence, the ecclesiastical authority must be morally certain that there has been an external violation of the law which is gravely imputable in the sense explained above at Can. 1321 §1. Among the factors which may seriously diminish imputability in such cases is paedophilia. This is described as `the act or fantasy of engaging in sexual activity with pre-pubertal children as a repeatedly preferred or exclusive method of achieving sexual excitement'.¹ Those who have studied this matter in detail have concluded that proven paedophiles are often subject to urges and impulses which are in effect beyond their control.²

When the facts of a particular case are examined carefully, it may well emerge that the cleric did indeed commit a sexual offence, or a number of them, with a minor; as such, he may be liable to punishment by the criminal law of the State; nevertheless, because of the influence of paedophilia, he may not be liable, by reason of at least diminished imputability, to any canonical penalty, or perhaps to only a mild penalty, to a formal warning or reproof, or to a penal remedy.³ In dealing with such cases, the ecclesiastical authority must tread very carefully, balancing the harm done to the victims, the rights of the cleric in canon law, and the overall good of the Church in its striving for justice for all.

In the first place, a clear distinction must be drawn between two not untypical situations, namely: (a) that of a cleric of such paedophile orientation that he stands accused of having, over a number of years and even up to the present time, sexually abused a minor or minors under sixteen years of age; and (b) that of a cleric who stands accused of having, a number of years previously – perhaps, ten, fifteen, twenty – sexually abused such a minor, on one or a number of occasions, but who since the alleged offence has led a blameless clerical life. No real system of justice – least of all that of the canon law – can equate these two situations, particularly in the manner in which it deals with them. Nor should this juridical and pastoral view be adversely influenced by the sometimes excessive statements of some psychologists and psychiatrists, to the effect that once such an offence, of however long ago, has been established, the ecclesiastical authority has on its hands an incurable paedophile. Experience has proven that the disregard of this interpretation of the law has itself led to yet further injustice. In particular, it would appear to be imprudent of any episcopal authority to be dependent upon the advice of any one psychiatric expert. It should be noted that in fact, whatever else, the advice of a psychological expert should always be sought. It will then be for the Bishop to balance the advice he is thus given and, in his own prudent judgement, to act accordingly.

Secondly, serious consideration should always be given by the diocesan Bishop before the use of the penal process (see Cann. 1717ff) is involved in these cases. It should be used as a first response only in exceptional circumstances. It should never be used by way of threat of dismissal from the clerical state – not least because, in normal circumstances, the outcome of the penal process would not be in the Bishop's personal control. There is the further consideration – relevant perhaps in some countries more than others – that the premature use of the penal process could lead to a requirement by the civil authorities of 'discovery' of the documents used in the canonical process. In accordance with Can. 1344 2°, the competent ecclesiastical authority may refrain from seeking to punish an offending cleric in such a case 'if the offender has been or foreseeably will be sufficiently punished by the civil authority'.'

Religious who offend against Can. 1395 §2 must be dismissed from their institute in accordance with Can. 695 § 1, unless the relevant Superior judges that it is not absolutely necessary. In such a case, the Superior must ascertain that sufficient provision can be made otherwise for the amendment of the offender and the reparation of the harm and scandal caused.

Those clerics who are found guilty of any of the offences listed in this paragraph are to be punished with a just penalty, i.e. the offender must be punished, but the determination of the penalty is left to the competent authority who will be more familiar with the precise details and circumstances of the offence. Because of the intrinsic gravity of these offences, the authority may even proceed towards dismissal from the clerical state, provided always that all the requirements of law in this regard are carefully observed (see Cann. 1342 §2, 1425 §1 2°a).

Footnotes:

¹ American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (ed 3) Washington DC 1987 266.

² Cf. Doyle The canonical rights of priests accused of sexual abuse Stud Can 24(1990) 353–354; Berlin and Krout Paedophilia: diagnostic concepts, treatment and ethical considerations American Journal of Forensic Psychiatry 7(1986) 20; Paulson The clinical and canonical considerations in cases of paedophilia: the Bishop's role Stud Can 22(1988) 88.

³ Cf. Cann. 1339 §2, 1348, Can. 1348 mentions, in particular, `other solicitous means', which would obviously include the intervention by the diocesan Bishop who would personally, and alone, talk to the cleric and strongly advise him concerning the steps to be taken to deal with the problem, giving an assurance of his willingness to provide any reasonable help in what may be necessary by way of treatment, counselling, etc. Apart from quite exceptional cases, any form of threat – which would almost certainly be counter-productive – should have no place in such an interview.

Is the Doyle in footnote #2 Father Tom Doyle?