Scottish Catholic Observer

If a cleric (deacon, priest or bishop) is accused of the crime of sexual abuse of a minor or vulnerable adult, he must face not one, but two criminal procedures: that of the state and that of the Church (aka the canonical process).

Before saying more on these, two things are worth noting.

First, it’s important to remember that crimes under civil law are not necessarily crimes in canon law, which is the system of laws regulating the exercise of rights and duties within the Church. Vice-versa, crimes in canon law are not always crimes in civil law. For example, serious traffic violations can be punished with a prison term in civil law, but such violations are not a crime in the code of canon law. Conversely, in canon law heresy is a crime and is punished with automatic excommunication, but civil law has nothing to say about that.

Second, it should be said that if a clerical sexual abuse case first comes to light through Church channels, it must be referred immediately to the public authorities. For that reason, if the public authorities open their own criminal investigation, any Church investigation must be paused until they have either concluded their case or decided not to proceed further. The reason for this is that the Church cannot interfere in the public criminal investigation or risk obstructing justice. This means that delays in the canonical process will be due at least in part to the time period in which it must remain inactive out of deference to the law of the state.

If a cleric is accused and charged with a sexual abuse crime under the law of the land, then he will be brought before the relevant court by the public authorities. Due process will then be pursued, ending with a verdict of guilty or not guilty and all that follows from that.

Serious crime

When it comes to canon law, the sexual abuse of children or vulnerable adults by clerics is most certainly a crime; indeed, it is called a ‘more serious crime.’ The law governing this and other more serious crimes (eg the desecration of the Eucharist) can be found in a 2010 document Sacramentorum sanctitatis tutela which can be found on the Vatican website.

This law reserves the judgment of these crimes to the Congregation for the Doctrine of the Faith (CDF) in Rome, although the first stages of reporting the crime and carrying out an early investigation into it usually happen at local level. Once that is done, the case is sent to the CDF and it then determines how to proceed. There are two main ways that is done.

The first is what is called an administrative or summary process. This is undertaken when the evidence against the cleric is very strong.

The summary process may investigate further to be doubly sure about things or to clarify them more fully. It will ensure that the accused is given the right to full and proper self-defence. However, if the facts are beyond doubt, it is likely that a guilty decision will be issued relatively quickly.

The punishment in many, if not most, cases will be dismissal from the clerical state. This means that a deacon, priest or bishop, though always such by virtue of the Sacrament of holy orders, will however from then on live the rest of his life as a lay person. He will not be supported financially by the Church but must make his own way in life and seek to observe a good Christian life in his local community.

Will he be excommunicated? It is important to remember that excommunication is intended to be a medicinal measure, to make the person come to their senses as to the very grave crimes and sins they have committed. If a cleric repents of his sin and shows remorse and humility to the satisfaction of the Church authority, then the imposition of excommunication would not be required. Indeed, it could be cruel and vindictive if imposed on someone who is proven to have genuinely repented.

By the same token, if little or no sign of repentance is shown, the authority could decide to impose excommunication or some other sanction precisely to try and stir the former cleric’s conscience.

Court case

The second way in which the CDF can decide that a canonical case might proceed is through the use of what is commonly known as the judicial process, that is, by a tribunal or court. There will be three, possibly five, judges sitting on the court. These cases may be heard in Rome or, if the CDF so directs, in the local tribunal under whose jurisdiction the crime is alleged to have been committed.

By law, the tribunal’s public prosecutor (known as the promoter of justice) assumes the role of the accuser on behalf of the alleged victim; the cleric is the defendant. Both sides present their case with declarations, documents, witnesses, etc.

The defendant is given a canonical advocate to argue his case. At the end of the trial, the judges retire to make their decision. As in civil law, either side can appeal that decision. Once the appeals are over, the cleric will be found either guilty or not guilty. If guilty, sentence will be pronounced. Again, in a great many cases, someone found guilty will likely be dismissed from the clerical state. Other penalties can be added as already explained above.

Someone might say that they never see or hear of clerics being up in court for their crimes. I suppose you are more likely to have media reports about the cases of clerics taken to public criminal court. Over the years there have been some such reports.

But, unlike in civil trials, there is no press corps accredited to the CDF or to local tribunals. In fact, canon law requires, in ways similar to public criminal courts, that such processes be conducted confidentially. It is a bit conspiratorial to suggest that, because of this confidentiality, either the public criminal or the ecclesiastical courts are ‘rigged’ one way or the other.

We live in an era that is fast losing the sense of reserve, respect and sensitivity to privacy and so there are loud demands for everything about everyone to be known by everyone. Certainly there is a public interest argument when it comes to clerics, but it has to be balanced very carefully with the constitutional civil rights of individual citizens, including those of victims, survivors and abusers. Confidentiality in canonical procedures is aimed at precisely this, as I am sure it also is in civil and criminal courts.

The media must certainly be allowed to exercise their mission fully, but always within the framework of the law, and as far as possible, without ideological or interest group agendas.

Because people say they do not see priests being condemned, excommunicated, defrocked or such things does not mean it is not happening. It certainly is and, tragically, in great numbers.

I would personally agree though that, in support of the public interest argument, when a case has been completed in accordance with either public criminal law or canon law, the core findings might be communicated to society at large or to the local Church. This would reassure people, especially those affected by the crimes committed, that justice is being done and not just talked about.

—Mgr Peter Magee was Judicial Vicar of the Bishops of Scotland and Officialis of the Scottish Catholic Interdiocesan Tribunal from 2009 to 2018.