Canonist Criticizes U.S. Bishops Sex Abuse Norms;

By John L. Allen Jr.
National Catholic Reporter
April 2, 2004

It's no secret that many canon lawyers in the Catholic church are not wild about the American Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons, which spell out the process for removing priests from ministry after one act of abuse. Canonists charge that the norms fail to respect the due process rights of accused priests, though most say they're an improvement over the non-judicial process the American bishops envisioned in Dallas in June 2002.

Canonists are typically publicity adverse, so their concern has long taken the form of a whispering campaign. It broke into full public view, however, in Rome on March 25, at a conference on 'Justice and Penal Processes in the Church,' sponsored by Santa Croce University.

Though no one will say so out loud, the conference is, in part, a response to the American sex abuse crisis.

Fr. Joaqu'n Llobell, a Spanish Opus Dei priest and professor of canonical procedure, delivered a paper on Thursday, March 25. Llobell sits on the apostolic signatura, a tribunal of the holy see, and is a judge on the appeals court of the Vatican City State. His paper was titled 'Reconciling the interests of the injured parties with the rights of the defendant: the right to due process.' It offered a ringing defense of due process ' and a criticism of both the American norms and the Vatican.

Llobell opened by asserting that respect for the rights of the accused is an 'absolute necessity ' so that any judicial act may be worthy of that name.' In fact, respect for due process, he suggested, is an 'index for measuring the degree of civilization of a people.' He noted that the 1967 Synod of Bishops listed 'defense of the rights of the faithful' among the core principles for the revision of the Code of Canon Law, completed in 1983.

Llobell said that several popes have insisted that the church's legal system should be a speculum iustitiae, that is, a 'mirror of justice' for the world. Llobell acknowledged that canon law sees protecting the community as a legitimate aim, but said this must be balanced against protecting the rights of the individual. He warned against a 'subtle, but penetrating, temptation to mortify the rights of the single individual in order to protect those of the community.'

In arguments that cut against the 'zero tolerance' policy of the American bishops, Llobell said that canon law has a bias in favor of rehabilitation of the offender, and that it seeks proportionality between offense and punishment ' meaning that 'one size fits all' penalties are foreign to canonical tradition.

The Spanish professor criticized the American Charter for the Protection of Children and Young People for asking bishops to inform civil authorities of any accusation against a priest, 'perhaps without distinguishing sufficiently the origin of the report and its credibility.'

Llobell also took the American bishops to task for not pursuing canonical trials against abuser priests much earlier in the game. He charged that some bishops like to perform only the pleasant aspects of their job, leaving the pope or the Roman Curia to play the heavy. In fact, he said, the Roman Curia tried in the 1990s to convince the American bishops to set up inter-diocesan tribunals at the national level to process sex abuse cases, but nothing happened.

'Yet [American tribunals] manage to adjudicate around 50,000 cases of annulment of marriage every year,' Llobell said.

Llobell's criticism, however, was not reserved to the far side of the Atlantic. He also expressed reservations about Vatican policy.

For example, he criticized revisions to sex abuse norms for the universal church approved by John Paul II in February 2003, which removed the statute of limitations, allowed the Congregation for the Doctrine of the Faith to defrock a priest using non-judicial means, and prevented appeal of a CDF decision.

On the question of appeal, Llobell pointed to a recent rejection by the CDF of an appeal from women excommunicated because they declared themselves ordained to the priesthood on a boat in the Danube River. Although Llobell said the excommunication was justified, he charged that the CDF's refusal of appeal laid waste to papal guarantees that the dicasteries of the Roman Curia are not above the law.

On administrative means, Llobell quoted Cardinal Zenon Grocholewski, a Pole who heads the Congregation for Catholic Education and who is a noted canon lawyer, that applying a permanent penalty this way is 'a strong regress' on Vatican II teaching about the dignity of the human person and human rights.

Llobell noted that John Paul's 2002 document Sacramentorum sanctitatis tutela, promulgating norms for the CDF on sex abuse cases, allows accusers to remain anonymous in some instances. Yet a cornerstone of procedural justice, he said, is the right to confront one's accusers.

Let's be clear: Llobell is no liberal reformer. He wonders aloud why bishops don't prosecute priests who tolerate birth control in the confessional, and he applauds American Archbishop Raymond Burke's denial of communion to pro-choice Catholic politicians.

For that reason, Llobell's critique of the American bishops, and even the Vatican, takes on all the more significance. One can assume that what Llobell said out loud, other canonists around Rome are thinking ' and that includes some who will be advising the Holy See on renewing its approval of the American norms, which expire in March 2005.

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Llobell was not the only one with questions.

One of the strongest expressions of perplexity about the American norms, in fact, came from an American: Monsignor Kenneth Boccafola of Rockville Center, a judge on the Roman Rota. Boccafola is third in seniority among 28 judges on the Rota.

Boccafola said March 26 that because the norms are new, and procedures arising from them are confidential, it is difficult to draw lessons from experience. Still, he said, there are questions about 'the difficulty of integrating certain provisions of the norms with general principles of ecclesiastical penal law.'

Those difficulties, according to Boccafola, include:

- Canon 9 stipulates that laws concern the future, not the past ' meaning that a person cannot be judged under a law that did not exist at the time of his or her offense. Yet in some cases American priests have been permanently removed from ministry for decades-old acts of abuse, under a policy created in 2002.

- The norms do not take account of aggravating or extenuating circumstances.

- The ability of the Congregation for the Doctrine of the Faith to waive 'prescription,' the canonical term for a statue of limitations, seems 'an unfavorable change in the law to the disadvantage of the accused.' Boccafola said this practice is difficult to reconcile both with natural justice and with existing law on prescription.

- The 'zero tolerance' policy, according to which permanent removal from ministry is automatic for any act of sexual abuse, does not allow proportionality between the crime committed and the penalty imposed. It seems to contradict canon 1344, which says a judge can always adjust a penalty according to his conscience and discretion.

- The definition of 'sexual abuse' is so vague that it imperils the idea of uniform administration of justice.

- The norms claim to cover religious order priests, but Boccafola questioned whether the bishops have that authority.

Finally, Boccafola questioned article nine of the norms, which allows bishops to remove a priest from ministry using administrative means rather than a judicial process. He says this seems an attempt to resurrect the old canonical idea of a bishop suspending a priest on the basis of 'informed conscience,' but Boccafola notes this was never a permanent penalty. It might have been better to bring back the idea of 'informed conscience,' he said, rather than treating the power to suspend a priest indefinitely as part of the bishop's ordinary administrative authority.

Bishop Velasio De Paolis, secretary of the Apostolic Signatura, also argued March 26 against handling criminal matters through administrative means.

'Today the tendency is widely diffused to put things on an administrative level,' De Paolis said. 'But it doesn't seem that this tendency can be approved. The absence of the sense of justice and the exigency of repairing the order that has been violated is damaging both to the individual and to the community.'

Fr. Davide Cito, a canon law professor at Santa Croce, said the CDF's ability to waive prescription on a case-by-case basis is hard to reconcile with universal law.

'Personally I don't know how to reconcile the guiding principles of the canonical system currently in force with a faculty that at its extreme permits the application on a case-by-case basis of a norm unfavorable to the accused,' Cito said.

On prescription, Monsignor Charles Scicluna, the promoter of justice in the Congregation for the Doctrine of the Faith and thus the official principally responsible for sex abuse cases, took a different view.

'Practice indicates that the term of 10 years is not adequate for this type of case, and perhaps one could hope for a return to the previous system of imprescriptibility of grave delicts,' he wrote in his paper, referring to serious canonical offenses. By 'imprescriptability,' Scicluna meant that such offenses would have no statute of limitations.


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