The Pillar [Washington DC]
November 17, 2021
A globally renowned expert in canon law told U.S bishops Wednesday that local bishops are responsible for canonically prosecuting sexual abuse of vulnerable adults committed by clerics in their dioceses.
The remark could require a major shift in diocesan administration, changing how diocesan bishops treat acts of clerical sexual misconduct which have until now been considered moral failures, but not canonical delicts.
“Sexual misconduct with vulnerable adults, for whom the law recognises equal protection under Vos estis lux mundi, is not reserved to the Congregation for the Doctrine of the Faith,” Archbishop Charles Scicluna, a senior official at the Vatican’s Congregation for the Doctrine, said in a Nov. 17 video presentation given to U.S. bishops gathered for their fall assembly in Baltimore.
“This means, however, that the local bishop has to take care of these cases.”
The archbishop’s presentation would seem to end a debate among canonists on the implementation of Pope Francis’ motu and indicate that Pope Francis has created a new category of clerical misconduct which dioceses will be expected to prosecute canonically.
Scicluna, adjunct secretary at the CDF and Archbishop of Malta, was enlisted to give U.S. bishops a presentation on a new set of canonical norms issued by Pope Francis earlier this year. Because of pandemic travel restrictions, Scicluna gave his remarks in pre-recorded video presentations, rather than in-person.
The archbishop walked the conference through the changes to the Church’s universal penal code, and specifically addressed the handling of cases of clerical sexual abuse of minors and of other protected classes of person.
Scicluna noted that a new text of the Church’s canon 1398, which takes effect Dec. 8, references crimes of abuse committed against “a minor or with a person who habitually has an imperfect use of reason or with one to whom the law recognises equal protection.”
Sexual crimes committed against minors and persons who habitually have an imperfect use of reason — a canonical standard of mental disability used by the Congregation for the Doctrine of the Faith — are reserved to the CDF, meaning that every accusation and instance of such crimes has to be immediately forwarded by the local bishop to Rome, which makes its own assessment of the case and how it will be handled.
Whether the same reservation applies to instances involving other categories of “vulnerable persons,” including seminarians, priests in relation to their superiors, Church employees, and lay people under the spiritual care of a cleric, has been an open question among canonists since the promulgation of Vos estis in 2019, which created the new legal category of “vulnerable persons.”
Experts have been divided on the question of whether the provisions of Vos estis broadened the canonical class of crime which only Rome was able to investigate and prosecute.
“Canon lawyers have been discussing the meaning of [the new canon 1398],” Scicluna told the bishops, “because unfortunately the law is not as clear as one would have liked it [to be] here, but I have it on good authority that this is a reference to what the pope has stated in Vos estis lux mundi,” which discusses “vulnerable persons.”
“The vulnerable person is also recognized as ‘equal in protection’,” Scicluna said, but clarified that the law was not creating juridic equivalence between vulnerable adults and “a mentaly disabled person or a minor,” but that they have been granted equal protection by the law as a separate category.
“This means, however, that the local bishop has to take care of these cases,” Scicluna said, “because the Congregation for the Doctrine of the Faith has and enjoys jurisdiction over the cases in its special norms [which is limited to minors and those habitually have the imperfect use of reason]. But sexual misconduct with vulnerable adults, for whom the law recognises equal protection under Vos estis lux mundi, is not reserved to the Congregation for the Doctrine of the Faith.”
The clarification from Scicluna, which he suggested in his presentation was Pope Francis’ own reading of the law, means that local diocesan bishops would be responsible for treating allegations of sexual misconduct by clerics with a wide category of adults as a canonical crime and prosecuting them with the same rigor as the sexual abuse of minors.
This could include coercive sexual harassment of seminarians by priests or formators, as well as sexual contact between a priest and someone employed by them or under their pastoral care — such cases of clerical sexual misconduct with adults have usually been treated as moral failure, but not canonical crimes.
But according to Scicluna, the pope’s changes to canon law mean that if a Catholic with a hierarchical or pastoral relationship with a priest alleges being pressured into a sexual relationship, diocesan bishops will be expected to convene a criminal investigation and prosecution when appropriate. According to Scicluna, the pope has effectively created a new class of crime for which they will need to develop particular law, diocesan policies, and tribunal practices, and possibly dedicated staff.
The law goes further, applying the same provisions to “any one of the faithful who enjoys a dignity or performs an office or function in the Church,” meaning that sexual misconduct by lay employees in the Church is also criminalized in the same way.
While every diocese must, according to canon law, have a designated “promoter of justice” — a kind of canonical public prosecutor — the office is often little more than a title given to a priest working in other areas of ministry or chancery administration. Similarly, most diocesan tribunals deal primarily with petitions for declarations of nullity for marriage, and not clerical penal matters.
In his apostolic constitution promulgating the new penal law, Pope Francis wrote that the proper application of penal law “is a task that cannot in any way be separated from the pastoral munus entrusted to [diocesan bishops].”
“In the past, the lack of perception of the intimate relationship existing in the Church between the exercise of charity and the recourse – where circumstances and justice so require – to sanctioning discipline has caused much damage,” Francis said.
“This way of thinking – experience teaches us – risks leading to living with behaviors contrary to the discipline of morals, whose remedy is not only exhortations or suggestions. This situation often brings with it the danger that with the passage of time, such behaviors become consolidated to the point of making it more difficult to correct and in many cases creating scandal and confusion among the faithful.”
“The negligence of a [bishop] in having recourse to the penal system makes it clear that he does not fulfill his function correctly and faithfully, as I have expressly warned in recent documents,” said the pope.