Justia [Mountain View CA]
June 24, 2021
By Lesley Wexler
In recent days, Pope Francis has described the Catholic Church’s sexual abuse crisis as a worldwide catastrophe. He urged that the Catholic Church end its “head-in-sand policy”, acknowledge its institutional hypocrisy, and “take responsibility for this history, both as individuals and as a community.” While much of that activity must, by definition, be backward-looking, forward-looking action that makes a decisive break with the past is just as important.
Is the recent overhaul of the Vatican’s Code of Canon law such an action? Pope Francis announced the changes to the 1983 Code of Canon as required “to allow Pastors to employ it as a more agile salvific and corrective tool, to be applied promptly and with pastoral charity to avoid more serious evils and to soothe the wounds caused by human weakness.” Code drafters explained the changes as facilitating the Catholic Church’s embrace of the routine administration of justice and rejecting the notions that punishment is “unmerciful or unpastoral” and that punishment should only be used as a last resort.
Why does this reform to the code of canon law matter so much? First, the code of canon law governs an organization with 1.3 billion members—an organization with sex scandals spanning the globe with tens of thousands of known victims and innumerable unknown others. Second, the revisions to the code of canon law provide an opportunity to unify standards across hundreds of jurisdictions. While the law of each country and its subordinate jurisdictions can differ as to what is impermissible and what the consequences are, the code governs every Church. Even when a state does criminalize behavior, the code of canon law provides distinctive punishment such as defrocking and excommunication. Only the Catholic Church, rather than the state, can mete out such religious sanctions. This can be particularly important if trying to end the practice of passing the trash (moving abusive priests from one parish to another). Third, the code of canon enforcement could facilitate the reach of the domestic criminal law by requiring reporting and cooperation with law enforcement. Sometimes, clergy may be the first and/or only ones who know of a crime beyond the victim and the perpetrator and they may have access to evidence that no one else has.
The Catholic Church launched the reform effort in 2007 and canon law experts, bishops’ conferences, and major superiors all played a role in making changes to the code. Does it recognize and address the institutional failings that allowed child sex abuse and facilitated its continuation and coverup? Does it acknowledge the past experiences of seminarians and nuns being sexually abused by their superiors? What role, if any, does the #MeToo movement play in a new understanding of how exploitive power differentials can vitiate consent? Does the failure to implement a zero-tolerance policy undermine institutional commitment to change?
First, the code newly criminalizes the sexual abuse of adults by priests who abuse their authority. This expands the scope of the crimes covered by canon law beyond priests who engage in sexual acts with minors or someone who “lacks the use of reason” or priests who used force or threats against adults. Such priests can now be defrocked. In this instance, the Catholic Church may often be the only option to punish such behavior. The majority of states in the U.S. do not criminalize such behavior, and I suspect the same is true for many jurisdictions across the globe. Such an expansion is consistent with #MeToo’s emphasis on sexual abuse in the workplace and its recognition and exploration of how extreme power differentials create situations ripe for abuse. As other religious institutions struggle with their own versions of #ChurchToo, the Catholic Church’s prohibition provides an important example to consider and its ongoing enforcement (or lack thereof) may offer some useful data,
Second, the code now subjects laypeople who hold church office to punishment for sexual abuse. In the past, the Catholic Church has blamed the lack of jurisdiction for its ineffectual responses to abuses by lay founders of Catholic societies. Take, for instance, the Catholic Church’s response to Luis Figari, the lay founder of the Peru-based Sodalitium Christianae Vitae, who along with other senior staff, sexually and emotionally abused dozens of adult and child members over decades. While the Catholic Church ultimately removed him and investigated the group, the long campaign seeking criminal accountability for Figari and those who enabled him failed. Now, presumably, such an individual could and would be punished by the Catholic Church.
Third, the code criminalizes priests grooming or inducing a minor or a person who habitually has an imperfect use of reason to participate in pornography. Such priests can be punished with deprivation and dismissal from the clerical state.
Fourth, the code builds on recent reforms to make clear sanctions for the failure to report sex crimes to proper church authorities. In 2019, Pope Francis required “bishops and religious superiors to report sexual crimes and outlined how they would be investigated criminally if they failed to do so.” The code of canon law adds teeth to this requirement by providing punishments for such failures including removal from office. Bishops found guilty of culpable negligence, including the failure “to properly investigate or sanction predator priests” could face similar sanction.
Despite these changes, the code falls short for those seeking aggressive enforcement against abusers and those that enable them. For instance, drafters declined to include a criminal punishment for the failure to report to civilian authorities despite much exhortation from victims and advocates to do so. While the Catholic Church maintains that it will enforce any mandatory obligations to report to civil authorities, survivors lament this missed opportunity to facilitate civil investigations and punishments. For those concerned that the Catholic Church is still ill-equipped to police its own, it is notable that this reform does nothing to enhance the state’s authority or abilities.
Similarly, despite urging from survivors, the code of canon law rejects a zero-tolerance approach to abusers and allows great discretion in setting punishments or remitting them after imposition. Take as an example Canon 1398, whereby priests who groom minors or vulnerable adults to participate in pornography can be subject to deprival of office and “where the case calls for it, dismissal from the clerical state.” The phrase “where the case calls for it” invests much discretion in the decision-makers. In addition to the caveats that often litter the punishments to be imposed for specific crimes like that in Canon 1398, Canon 1324 identifies a number of instances in which penalties may be diminished or have a penance substituted in its place. While many articulated reasons would find corollaries in the domestic criminal law such as “one who had only an imperfect use of reason,” providing reasons such as “one who was lacking reason because of culpable drunkenness or other mental disturbance of similar kind” is deeply problematic given the nature of the crimes covered. Even more worrisomely, the “heat of passion” seems to allow for an annulment of the crime in instances in which “the passion itself had  been deliberately stimulated or nourished” as well as the provision for “one who acted against another person who was gravely and unjustly provocative.” This last provision has often been used in the past to cast children as the reasons for their own abuse. That said, the code does also contain reasons why harsher punishments may be imposed such as Canon 1326 which allows for ratcheting punishments upward if, among other things, a person who is established in some position of dignity, or who, in order to commit a crime, has abused a position of authority or an office.
In sum, I believe the reforms do reflect a serious reckoning with past scandals; evolving understandings of consent; and an attempt to use the criminal code to deter bad behavior both by sexual abusers and those who would protect them rather than their victims. Drafters likely listened to in deciding to expand the individuals and behaviors covered. Even so, the absence of a zero-tolerance policy coupled with a failure to criminalize the failure to report to civilian authorities and extensive discretion as to whether to impose punishments or to remit them after their imposition warrants a healthy skepticism. The Code requires willing rather than grudging enforcement by individual enforcers. Decision-makers have the tools for accountability if they wish to use them, but those wanting to avoid meaningful punishments will often be able to do so. Relatedly, those who would fail to report, fail to investigate, and fail to sanction will likely wait to see how seriously those above them take these reforms. Active enforcement might deter them, but it’s too early to say.
Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Professor Wexler writes, teaches and consults in the public international law fields, especially international humanitarian law, international disaster law, and human rights as well as in the anti-discrimination field more generally.