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CONSIDERATIONS ON THE DELICTA GRAVIORA

CARDINAL WILLIAM LEVADA

Belo Horizonte
23 November 2011

 

The language we use in the Church is not always the language used by most people outside the Church. The term graviora delicta is one such example. What do we mean when we use the term graviora delicta? In English it is translated “more grave delict (or crime).” These are external violations against faith and morals, or in the celebration of the sacraments. The Church considers such violations so serious that there is a special process to handle them. I will address the specifics of the motu proprio Sacramentorum sanctitatis tutela later in my presentation, but first I would like to offer some fundamental perspectives concerning the relations between bishops and priests, as a way of providing a context for the delicta graviora.

The Bishop and his Priests

What should the fundamental attitude of a bishop be towards one of his priests who is experiencing a period in his life, or who has even commited a crime? There are two aspects that need to be given attention. A natural response of a bishop in such a case would be to seek out such a priest, and bring him back to safety.

In this context the duty to “seek out and bring back to safety” means to find and walk with a brother in order to restore him to the integrity of his personal and ministerial life. “The bishop – so we read in the Directory for the Pastoral Ministry of Bishops – sometimes through the mediation of a local representative, should try to both prevent and remedy the human and spiritual problems which priests sometimes experience. He should come sympathetically to the aid of those who find themselves in difficult situations of illness, of old age, of poverty so that all can experience the joy of their vocation and gratitude to their pastors” (Congregation for Bishops, Apostolorum Successores, 22 February, 2004, n.81).

At the same time the Bishop has the duty “to protect,” to be a Good Shepherd not only for his priests but for the People of God, and so has an obligation to safeguard always the “bonum Ecclesiae”, to protect the Faithful from exposure to the danger of abuse and scandal. This recalls an ancient tradition by which “The shepherd who sees his sheep scattered takes up one in his arms and leads it to a tranquil pasture and in this way he attracts the others to himself” (Theodoret, Tract on the Incarnation of the Lord, n. 28: PG 75, 1468).

Perhaps the most obvious problems encountered in dealing with priests are concerned either with 1) the failure of some priests to “think with the Church” (sentire cum Ecclesia), or 2) the neglect of, or failure to perform, their priestly duties. For example, priests who are unwilling to “think with the Church” sometimes stubbornly continue to hold doctrinal positions which are opposed to the teaching of the Church, or which fail to observe her disciplinary measures. This is not a new problem, in fact it is one which has always plagued the Church, even back to the time of Saint Paul. In his letter to Titus, he writes:

For a bishop, as God’s steward, must ... have a firm grasp of the word that is trustworthy in accordance with the teaching, so that he may be able both to preach with sound doctrine and to refute those who contradict it. There are also many rebellious people, idle talkers and deceivers, especially those of the circumcision; they must be silenced, since they are upsetting whole families by teaching for sordid gain that which it is not right to teach. (Titus 1:7-11).

It also happens that a Bishop finds himself faced with the problem of priests who are neglectful of their priestly duties: these may be duties assigned to them as part of their pastoral responsibilities, or personal duties (their life of faith, their prayer, their obligation of chastity within their commitment to celibacy).

e response recommended in such situations is one of “active compassion.” So Pope John Paul II wrote in his Apostolic Exhortation Pastores gregis: “The Bishop should accompany with prayer and active compassion any priests who, for whatever reason, has fallen away from his vocation or his fidelity to the call of the Lord and who is, therefore, failing to live up to his duties” (16 October 2003, n.47). The bishop must also attempt to draw him back to the Lord, through a process of necessary conversion of life, according to the circumstances.

Obviously priests, like the rest of humanity, sometimes suffer from the burden of illness and weakness. Weaknesses differ in type and are caused by diverse factors. The major weaknesses experienced by priests are: disorientation (caused by a crisis of vocation); depression (caused by a crisis in life); and also dependency (which usually indicates a crisis in a priest’s control of himself). Here too the Directory for Bishops urges,

It is important to prevent the loneliness and isolation of priests, above all young priests and those who work in small and sparsely populated places. In order to avoid these problems it is a good idea to engage the help of a zealous older priest and encourage him to make frequent contact with his brother priests, even sometimes through some sort of communal living…It is important to pay attention to the dangers of boredom and weariness which the years of labour and the inherent problems of ministry can provoke. According to the individual situation of his diocese a Bishop should study, case by case, possible ways to help priests recuperate spiritually, intellectually and physically so that they can be helped to regain energy and enthusiasm for their ministry. (Congregation for Bishops, Apostolorum successores, n. 81 a & b).

Priests are not immune to the various addictions which, today especially, leave a trail of confusion and have serious consequences both at a personal and ecclesiological level. For example, there are addictions to alcohol and drugs (and the abuse of other toxic substances), falling victim to eroticism and voyeurism (various sexual addictions, sometimes abetted by an “abuse” of the internet), etc.

The response of the Church to these various problematic situations in which priests find themselves should seek of course provide opportunities for their conversion and reconciliation; it may include possible forms of therapy; nevertheless, it may also be necessary in some cases to take disciplinary measures aimed at correcting and resolving the problems of priests, for their own good and for the good of the Church.

The Canonical Discipline of Priests

The response of the Church cannot rule out the possibility of disciplinary measures in those cases which require such action. Such measures will seek to safeguard the common good without ignoring the good of the individual; in this context the salvation of souls must always be the supreme law (cf. CIC can. 1752). Among these measures are: a) the declaration of a canonical impediment to the exercise of priestly ministry; b) remedial penalties and administrative measures; and c) medicinal and expiatory punishments.

We may look first at the canonical impediments to the exercise of priestly ministry. In the following cases the Bishop has the duty to investigate, verify and declare a decree of impediment:

  • Irregularities (perpetual impediment) Code of Canon Law can. 1044 1:

1. public apostasy; heresy; schism;

2. attempting to contact a civil marriage;

3. homicide; procuring an abortion;

4. mutilation of oneself or of another; attempted suicide;

5. illegitimate exercise of holy orders

  • Simple impediment Code of Canon Law can. 1044 2:

1. insanity or some other psychiatric infirmity

The Directory of Bishops also speaks explicitly of remedial penalties and of other administrative measures: “In the face of scandalous conduct, the Bishop must intervene with charity but also decisively and with firmness:

  • Either by admonishing or rebuking [remedial penalties: Code of Canon Law can. 1339],
  • Or proceeding with removal or transfer to another position in which the conditions which favour such conduct do not exist [administrative measures: Code of Canon Law cann. 1740; 190; 192]” (Congregation for Bishops, Apostolorum successores, n. 81 e).

“If such measures [remedial penalties and administrative acts] are unsuccessful or insufficient in the face of grave conduct and contumacy on the part of the priest,

  • The Bishop may impose the penalty of suspension according to the law [censure or medicinal penalty: Code of Canon Law can. 1333]
  • Or in cases of extreme necessity foreseen in the Code, he may begin a process of dismissal from the clerical state [expiatory punishment: Code of Canon Law can. 1336, 1, n. 5]” So the Directory for Bishops, n. 81 e).

 

Below is a list of possible canonical offences (“delicts”) indicated in the Code with regard to priests:

Offences Against Religion and the Unity of the Church

  • Apostasy, heresy, schism (can. 1364)
  • Abuse of the media (can. 1369)

Offences Against Ecclesiastical Authority and the Liberty of the Church

  • Violence against a bishop or a priest (can. 1370)
  • Spreading false doctrine (can. 1371, n. 1)
  • Disobedience to Ecclesiastical Authority (can. 1371, n.2)
  • Inciting hatred towards sacred pastors (can. 1373)
  • Membership of a prohibited organisation (can. 1374)
  • Illegitimate alienation of ecclesiastical goods (can. 1377)

Offences Connected with the Exercise of Ministry

  • Simony in the sacraments (can. 1380)
  • Usurping an ecclesiastical office (can. 1381)
  • Unlawful trafficking of Mass offerings (can. 1385)
  • Corrupting someone who exercises an office in the Church (can. 1386)

Offences of Falsehood

  • Calumnious denunciation of an ecclesiastical offence (can. 1390, 2)
  • Falsification of ecclesiastical documents (can. 1391)

Offences Against Special Obligations

  • Engaging in trading or business (can. 1392)
  • Attempting a civil marriage (can. 1394)
  • Living in concubinage (can. 1395, 1)
  • Public or scandalous violation of the sixth commandment (can. 1395, 2)
  • Violation of the pastoral obligation of residence (can. 1396)
  • Homicide, abduction, grievous bodily harm (can. 1397)
  • Procuring an abortion (can. 1398).

The “Delicta Graviora”

With this background in mind, I will now address the delicta graviora as legislated by Pope John Paul II with his motu proprio Sacramentorum sanctitatis tutela on 30 April 2001, and updated by Pope Benedict XVI’s motu proprio on 21 May 2010. This recent update has taken into account the experience of the Congregation for the Doctrine of the Faith in applying the norms of the 2001 motu proprio over the nine intervening years.

We may ask ourselves why Pope John Paul found it necessary to enact new legislation in 2001. I think we could say there were two principal factors. First, there was a growing number of reports of sexual abuse of minors by clerics, especially in the last two decades of the 20th century; and second, there was a certain lack of clarity about how to handle these cases in the light of the recently promulgated (1983) Code of Canon Law. The Code dealt with clerical sexual abuse of minors in Canon 1395 2: “A cleric who…has committed an offense against the sixth commandment of the Decalogue, if the delict was committed by force or threats or publicly or with a minor below the age of sixteen years, is to be punished with just penalties, not excluding dismissal from the clerical state if the case so warrants.” But Bishops found that canonical processes did not respond expeditiously to the number and gravity of the cases that were emerging, nor did the judicial tribunals in many dioceses have the training and experience to deal with these delicts.

Since the Congregation for the Doctrine of the Faith had competence in determining questions regarding faith and morals, and had a tribunal for processing delicts against faith (such as heresy) and sacraments (such as violation of the seal of confession, or solicitation in confession), it was decided to provide new legislation to assist Church authorities (bishops, religious superiors, and the Holy See in handling recourse against penal actions, especially those imposing perpetual penalties such as dismissal from the clerical state) in dealing with these most serious crimes.

The delicta graviora contained in Sacramentorum sanctitatis tutela specifically refer to three categories of crimes, as indicated in the norm of law governing the competence of agencies of the Roman Curia (the Apostolic Constitution Pastor Bonus, n. 52, issued in 1988): those against the faith (apostasy, heresy, schism); those against the discipline of the sacraments; and those against morality. In the first two cases, some of the delicts may be committed by any of the faithful; in the last case, the delicts referred to are those done by a cleric.

These delicta graviora are reported to the Congregation for the Doctrine of the Faith by a bishop or local ordinary or religious superior according to the norms given in article 16 of the motu proprio which speaks of “an at least probable report…of a reserved offence” and of a “preliminary investigation”. The first phrase is identical to that outlined in can. 1717. The Ordinary has the obligation, therefore, to investigate both the reliability of the denunciation and also its content. If, however, the result of this “preliminary investigation” is a judgement that the denunciation is credible, the Bishop must refer it to the Congregation for the Doctrine of the Faith. While waiting for further instructions from the Congregation and before the start of a canonical process, the Ordinary has the right to impose restrictions on ministry – the “precautionary measures” indicated in can. 1722 (cf. art. 19 motu proprio Sacramentorum sanctitatis tutela ), without making a conclusion regarding guilt, or withoutprejudice to the good name of the priest. When the preliminary investigation shows the allegation of abuse to be without merit, the Bishop may inform the priest (e.g. that an anonymous allegation has been made), but no action need be taken.

Offences against the faith – apostasy, heresy and schism – are specifically indicated in the code of canon law (cf. can. 1364). With regard to the more grave offences committed during the celebration of the sacraments the motu proprio mentions the following three sacraments: i) the Most Holy Eucharist; ii) the Sacrament of Penance: iii) the Sacrament of Orders.

Offences Against the Eucharist (Motu Proprio Sacramentorum sanctitatis tutela Art.3)

  • Profanation of the Eucharistic species (Art. 3, 1, n.1)
  • The attempted celebration of the Eucharistic sacrifice by a person not in Holy Orders (Art. 3, 1, n.2)
  • A simulated celebration of Eucharistic sacrifice (Art. 3, 1, n.3)
  • Concelebration of the Eucharistic sacrifice with a minister from an ecclesial community that does not share apostolic succession or that does not recognise the dignity of priestly ordination (Art. 3, 1, n.4)
  • The consecration in sacrilegum finem of one of the Eucharistic species with out the other, or of both whether outside or within the Eucharistic celebration. (Art. 3, 2).

Offences Against the Holiness of the Sacrament of Penance (Motu Proprio Sacramentorum sanctitatis tutela Art.4):

  • The absolution of an accomplice of a sin committed against the sixth commandment (Art. 4, 1, n. 1)
  • The attempted absolution or prohibited hearing of confession (Art. 4, 1, n. 2)
  • The simulation of sacramental absolution (Art. 4, 1, n. 3)
  • The solicitation of a sin against the sixth commandment (Art. 4, 1, n. 4)
  • The direct or indirect violation of the sacramental seal (Art. 4, 1, n.5)
  • The recording and spreading through the means of social communication of what has been said by a penitent to a priest (Art. 4, 2).

Article 24 of the motu proprio establishes that in cases of offences against the Sacrament of Penance the name of the person making a denunciation may not be revealed without his or her explicit consent. This traditional principle obviously has implications which are also mentioned in Art. 24:

a) The credibility of the person making a denunciation assumes the greatest possible importance.

b) Special care will have to be taken to avoid any violation of the sacramental seal.

Offences against the Sacrament of Orders (Motu Proprio Sacramentorum sanctitatis tutela Art. 5)

The canonical crime of attempted ordination of a woman to Holy Orders was introduced by the General Decree promulgated by the Congregation for the Doctrine of the Faith on 19 December 2007. Pope Benedict XVI decided to include this canonical delict among the delicta graviora reserved to the competence of the Congregation. The text of the new Art. 5 motu proprio Sacramentorum sanctitatis tutela follows the wording of the 2007 Decree.

Offences Against Morality (Motu Proprio Sacramentorum sanctitatis tutela Art.6)

In the category of offences against morality the New Version of the motu proprio lists only two in art. 6, namely i) the offence against the sixth commandment committed by a cleric (bishop, priest or deacon) with a minor under the age of 18 years; ii) the crime of acquisition, possession or distribution of paedophile pornography by a cleric.

With regard to the offence of sexual abuse of a minor there are a number of specific developments which have been clarified through the practice of the Congregation for the Doctrine of the Faith:

a) The motu proprio speaks of “offences with a minor”. This does not signify only physical contact or direct abuse but also includes indirect abuse (for example: showing pornography to a minor, or exposing oneself in front of minors).

b) The Code of Canon Law speaks in can. 1395, 2, of offences with a minor of “under the age of sixteen years.” However, the motu proprio speaks rather of “an offence with a minor under the age of eighteen years”. Between the ages of sixteen and eighteen years some “minors” are able to pass and be perceived as adults and sometimes as objects of either homosexual or heterosexual attraction. Some civil legislatures consider a sixteen year old capable of giving consent for sexual activity. The motu proprio, however, stigmatises as a more grave offence (deluctum gravius) every violation by a cleric of the sixth commandment with a minor under eighteen, whether it be of a paedophile, ephebophile, heterosexual or homosexual nature. This means that the law itself has changed in regard to the age of the victim: before 2001 (except where a special indult may have applied, such as in the United States), for a delictum gravius to have been committed, the minor had to be under 16; after 2001, under 18, since a new Church law cannot be applied retroactively.

c) Some cases of serial sexual abuse of minors between the ages of sixteen and eighteen years committed before 30th April 2001 have been processed according to the norm of can. 1399: “Besides, the cases prescribed in this or in other laws, the external violation of divine or canon law can be punished, and with a just penalty, only when the special gravity of the violation requires it and necessity demands that scandal be prevented or repaired.” Because this canon speaks only of “just penalty” according to can. 1349 the judge is not able, therefore, to threaten perpetual punishments.

The motu proprio Sacramentorum sanctitatis tutela imposed a time limit on the actio criminalis in these cases of “more grave crimes.” Art. 7, 1 of the 2010 Motu Proprio indicates a time limit of 20 years, while Art. 7, 2 states that these 20 years run according to the norm of can. 1362 2 Code of Canon Law (“Prescription runs from the day on which the delict was committed or, if the delict is continuous or habitual, from the day on which it ceased”). In cases of sexual abuse the twenty years commence from the day on which the minor reaches eighteen years. Moreover, Art 7, 1 of the 2010 Motu Proprio recognises the right of the Congregation for the Doctrine of the Faith to derogate from the statute of limitation on a case by case basis.

In general, the penalties imposed will vary with the gravity of the abuse. Some may be temporary penalties; some may be imposed together with a penal precept, which – if violated – may lead to further penalties. Penalties will either restrict or prohibit public ministry, especially with minors; they may limit the exercise of priestly ministry to private situations (religious houses, Mass in private), or they may impose a life of “prayer and penance.” In cases involving serial abuse and grave public scandal, the penalty may be the dismissal from the clerical state. If permanent penalties are imposed either with the authorization of, or directly by the Congregation, the cleric may have recourse to the Ordinary Session of the Cardinal and Bishop Members of the Congregation. On the other hand, if the Holy Father makes the decision for a permanent penalty (on the recommendation of the Bishop, presented by the Congregation) no recourse is available.

During his discourse at the Plenary Session of the Congregation for the Doctrine of the Faith on 6th February 2004, Blessed John Paul II commented on the application of the norms in the matter of delicta graviora. They are worth repeating again: “The body of canonical norms that [the Congregation] is called to apply with justice and equity strives to guarantee both the exercise of the right of defence of the accused and the demands of the common good. Once the offence has been proven, it is necessary in each case to assess carefully both the just principle of proportionality between fault and punishment, as well as the predominant requirement to protect the entire People of God. This does not depend on the application of canonical penal law. Its best guarantee is the correct and balanced formation of future priests who are explicitly called to embrace with joy and generosity that humble, modest and chaste lifestyle that is the practical basis of ecclesiastical celibacy.”

Church Response to Sexual Abuse of Minors

The now famous phrase which Pope John Paul II used in his address to the Cardinals of the United States on 23rd April 2002 is of foundational importance: “The people must know that in the priesthood and in the religious life there is no place for anyone who would do harm to the young”. In my country, precisely at the moment when criticism of the Church for its response to this crisis was on the front pages of the leading journals of opinion, this public declaration of the Holy Father made a great impact, both on public opinion, and on the determination of Church authorities, bishops and priests alike, to take the necessary steps towards healing the victims of sexual abuse, to see that justice be done for the criminal abuse done, and to ensure that measures for the protection of children and young people be in place.

In somewhat similar circumstances our Holy Father Pope Benedict XVI made a strong appeal to the Bishops of Ireland on the occasion of their ad limina visit on 28 October 2006: “In the exercise of your pastoral ministry, you have had to respond in recent years to many heart-rending cases of sexual abuse of minors. These are all the more tragic when the abuser is a cleric. The wounds caused by such acts run deep, and it is an urgent task to rebuild confidence and trust where these have been damaged. In your continuing efforts to deal effectively with this problem, it is important to establish the truth of what happened in the past, to take whatever steps are necessary to prevent it from occurring again, to ensure that the principles of justice are fully respected and, above all, to bring healing to the victims and to all those affected by these egregious crimes. In this way, the Church [in Ireland] will grow stronger and be ever more capable of giving witness to the redemptive power of the Cross of Christ.”

In addition to the assistance and guidance the Congregation for the Doctrine of the Faith has offered to individual Bishops throughout the world during this past decade in dealing with cases for which they are responsible in their own dioceses, we have – with the approval of the Holy Father – taken a further initiative by sending a circular letter to all of the Conferences of Bishops throughout the world, asking them to develop national guidelines to assist the Bishops to formulate a policy that will allow the Catholic faithful, the public at large, and civil authorities to become aware of the appropriate response of Church authorities to the challenges posed by the phenomenon of sexual abuse of minors by clergy.

The Circular Letter introduces its purpose in these words: “Among the important responsibilities of the Diocesan Bishop in his task of assuring the common good of the faithful, and especially the protection of children and of the young, is the duty he has to give an appropriate response to the cases of sexual abuse of minors by clerics in his diocese. Such a response entails the development of procedures suitable for assisting the victims of such abuse, and also for educating the ecclesial community concerning the protection of minors. A response will also make provision for the implementation of the appropriate [applicable] canon law, and at the same time, allow for the requirements of civil law.”

There are five areas to which the Guidelines to be developed by the Episcopal Conferences are asked to give special attention: 1) the victims of sexual abuse; 2) the protection of minors; 3) the formation of future priests and religious; 4) the support of priests; and 5) cooperation with civil authorities. The circular letter also gives a summary of the canonical legislation applicable in cases of abuse of minors by clerics, much of which I have mentioned previously. I would like to conclude my remarks today to touching on two of the above five issues.

First of all, I want to remark on cooperation with civil authorities. In most jurisdictions, sexual abuse of minors is a crime. We know that clerics are responsible only for a very small percentage of such abuse; the publicity given to clerical abuse is out of proportion to this reality, but should not surprise us, since we too believe that clergy should be held to a higher standard. Indeed, as Pope John Paul said so eloquently, echoing the words of Christ himself, there is no room for such behavior by those called to be “other Christs.” Moreover, the responsibility for ensuring the common good is one of the chief responsibilities of public authorities. The punishment of crimes such as sexual abuse is based on the restoration of justice, and the need to deter others from committing such crimes. Whether clergy, religious or lay persons in our Church communities, we need to assist the public authorities in their fulfilment of this duty for society.

Secondly, we need to be “pro-active” in helping our people become more aware of the damage done by sexual abuse, and of how to ensure a safe environment for our young people. In developing such programs, the Church can and should be a model for society at large. What should such programs of protection of minors be focused on? I think the following ten points offer a panoramic view:

First, the well-being of the child needs to be of paramount concern to all. This includes the care and respect of both the dignity and the “innocence” of the child.

Second, there should be an awareness of child abuse as a tragic wound. It is a betrayal of trust, which discredits the Church, and is a cause of grave scandal to all.

Third, the support of children and families is important, since the parents are the first educators of their children.

A fourth point would be the formation and screening of Pastoral Agents. This includes admission to the seminary and the approval of candidates for Holy Orders, ensuring the future priests are educated to be spiritual fathers of their communities. Schools and other Church agencies should develop appropriate measures for screening and education of their personnel.

A fifth area is the need to develop and establish a clear code of conduct. Clear boundaries for appropriate conduct must be established.

Cooperation with state agencies is our sixth area. To quote the above-mentioned circular letter again: “Without prejudice to the sacramental internal forum [the seal of confession], the prescriptions of civil law regarding the reporting of crimes [of sexual abuse] to the designated authority should always be followed.

Our seventh area is care for both victims and perpetrators. We know how often abusegenerates further abuse across generations. We also know that if the perpetrator of abuse is left to his or her own devices the risk of reoffending is very high.

What further role, if any, should perpetrators of abuse be given? In this eighth area we realize that the welfare of children and community must be the paramount criterion in decisions concerning such personnel. Perpetrators who are not able to observe set boundaries forfeit their right to roles of stewardship in the community.

Openness to research and development recognizes that we are on a learning curve and should be open to psychology, sociology and the forensic sciences. While recognizing the importance of cultural and ecclesial differences, the research studies about sexual abuse by clergy over the period from 1960 to 2000 in the United States can have lessons useful to the Church in other countries as well.

Finally, commitment and accountability in this matter must truly be embraced by all of us in the Church. It is especially important to learn from experience that the Church is not served by attempts to conceal the abuse of children to protect her good name.

In conclusion, let me say that I appreciate the invitation to speak to you about a subject both delicate and difficult. I am convinced that the leadership given by our Holy Father Pope Benedict XVI in this area, both as Cardinal Prefect of the Congregation for the Doctrine of the Faith, and all the more so as Supreme Pontiff, should be an example and encouragement for all of us, and merits our gratitude to Almighty God. Finally, let us recall the beautiful words of St. Paul’s Letter to the Ephesians: “Christ loved the church and gave himself up for her, that he might sanctify her, having cleansed her by the washing of water with the word, that he might present the church to himself in splendor, without spot or wrinkle or any such thing, that she might be holy and without blemish” (Eph 5:25-27).

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