The following commentary on Canon 1395.2 is found in The Canon Law: Letter & Spirit: A practical guide to the Code of Canon Law (A Michael Glazier Book, The Liturgical Press, Collegeville, Minnesota, 1995).
This commentary on the 1983 Code of Canon Law was prepared by the Canon Law Society of Great Britain and Ireland in association with the Canadian Canon Law Society
Father Frank Morrissey OMI, former dean of Canon Law at Saint Paul University, served as Consultant Editor. (The Editorial Board was comprised of: Chairman, Rt. Rev. Mgr. Gerard Sheehy, JCD [Dublin]; Rt. Rev. Mgr. Ralph Brown, JCD [Westminister]; Rev. Donal Kelly JCL [Ossory]; Re, Aidan McGrath OFM, JCD.
According to the credits, Father John Martin SJ, professor of Canon Law at Regis College, Toronto, contributed to the commentary of Canon 1395 in some fashion. Aside Morrissey and Martin, the other Canadians involved were: Father John A Barry JCD, Halifax; Father Robert Bourgon JCL. Toronto; Sr. Margaret Colye SCIC, JCL, Whitehorse, Yukon; Father Augustine Mendonca MA MPs PhD JCD, Saint Paul University, Sr. Marcella Ryan SC JCL, Halifax, Michel Theriault JCD Saint Paul University)
Sins against the sixth Decalogue are those which, for Roman Catholics, fall under the Sixth Commandment: “Thou shalt not commit adultery.”
Note there is no mention in the commentary of ephebophilia – the operative word is paedophilia. Note too the comments claiming that paedophiles have no control over their actions, and hence from that premise the canonical rationale to, as I see it, treat clerical paedophiles tenderly.
Note too the suggestion that canonical penal processes be withheld for fear that civil authorities might access the canonical documents via Discovery.
In truth, the commentary speaks for itself.
The following then is part 2 of the Canon 1395 and commentary. (The age of a minor in canon law has since been raised to 18)
Part II Penalties for Particular Offences (The Canon Law: Letter & Spirit: A practical guide to the Code of Canon Law, 1995)
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.
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;
© 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.
1 American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (ed 3) Washington DC 1987 266.
2 Cf.Doyle The canonical rghts 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.
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 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 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 move 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’.’1
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 care-fully observed (see Cann. 1342 §2, 1425 §1 2°a).