– Msgr. Charles J. Scicluna
1. Sexual Abuse of Minors by Clerics is a grave violation of divine positive and ecclesiastical law
The Sexual abuse of minors has always been considered as a grave violation of the Christian Ethos. It has always been included among the types of conduct proscribed by the Sixth Commandment of the Decalogue: A You shall not commit adultery (Deuteronomy 5, 18).
The Gospel of Matthew reports the very strong words of Our Lord Jesus Christ concerning scandal to the little ones: If anyone of you put a stumbling block (scandal) before one of these little ones who believe in me, it would be better for you if a great millstone were fastened around your neck and you were drowned in the depth of the sea. Woe to the world because of stumbling blocks (scandals)! Occasions for stumbling (scandals) are bound to come, but woe to the one by whom the stumbling block (scandal) comes! (Mt 18, 6-7). The Apostle Paul condemns all sorts of debauchery: Do you not know that wrongdoers will not inherit the kingdom of God? Do not be deceived! Fornicators, idolaters, adulterers, male prostitutes, sodomite, thieves, the greedy, drunkards, revilers, robber – none of these will inherit the kingdom of God (1 Corinthians 6, 9-10). In his letter to the Ephesians the same Apostle warns: “Be sure of this, that no fornicator or impure person, or one who is greedy (that is, an idolater), has any inheritance in the kingdom of Christ and of God. Let no one deceive you with empty words, for because of these things the wrath of God comes on those who are disobedient. Therefore do not be associated with them” (Eph. 5, 5-7).
The doctrine is confirmed in the writings of the Fathers of the Church, for Example in Justin (around AD 153: First Apology 27, 1-4)1; Athenagoras (around AD 177: A Plea for the Christians 34)2; and Polycarp who wrote in AD 135: Àln like manner also the younger men must be blameless in all things, caring for purity before everything and curbing themselves from every evil. … neither whoremongers (pornoi) or effeminate persons (malakoi) nor defilers of themselves with men and boys (arsenokoitai) Shall inherit the kingdom of God, neither they that do untoward things (atopa). Wherefore it is right to abstain from all these things, submitting yourselves to the presbyters and deacons as to God and Christ@ (Letter to the Philippians, 5, 3)3.
1. Ante-Nicene Christian Library. Translation of the Writings of the Fathers down to AD 325 (ed. Alexander Roberts and James Donaldson) Vol. II Justin Martyr and Athenagoras (Translated by Marcus Dods, George Reith, B. P. Pratten) (Edinburgh 1868) pp. 30-31.
2. Ante-Nicene Christian Library. Translation of the Writings of the Fathers down to AD 325 (ed. Alexander Roberts and James Donaldson) Vol. II Justin Martyr and Athenagoras (Translated by Marcus Dods, George Reith, B. P. Pratten) (Edinburgh 1868) pp. 418-419; legatio and De Resurrectione (edited and translated by William R. Schoedel) (Oxford 1972) pp. 80-83.
3. The Apostolic Fathers (With an English Translation by Kirsopp Lake) Vol. 1 (London 1975) pp. 288-291.
Explicit condemnation of pederasty and sodomy is found in a number of Papal Decretals and Apostolic Constitutions. These crimes are never mentioned by name but are usually referred to indirectly under the phrase delictum/crimen contra naturam propter quod ira dei venit in filios diffidentiae (the delict/crime against nature for which the wrath of God descends upon the sons of infidelity [those who are disobedient/rebellious]) which is taken from the Letter of St Paul to the Ephesians (2, 2; 5, 6) quoted above:
§ Alexander III (1159 – 1181) in the III Lateran Council 1179, c. 11[Decretales Gregorii IX (Extravagantum Liber) = X, 5,31,4]4: ‘Quicunque’ autem illa incontinentia, quae contra naturam est, propter quam ira Dei venit in filios diffidentiae et quinque civiates igne consumpsit, deprehensi fuerint laborare, si clerici fuerint, deiiciantur a clero, vel ad agendam poenitentiam in monsteriis detrudantur; si laici, excommunication subdantur, et a coetu fidelium fiant penitus alieni’ (Translation: “All those who are caught to be laboring under that incontinence which is against nature and because of which the wrath of God visited the sons of infidelity and burnt down five cities: if they are clerics, they will be dismissed from the clerical state or else be confined to monasteries to do penance; if they are lay people they will be excommunicated and they will be considered as totally estranged from the assembly of the faithful”);
§ Innocent 111 (1198 – 1216) in the IV Lateran Council 1215, c. 14 [X. 3,1,13]5: Ut clericorum mores et actus in melius reformentur, continenter et caste vivere student universi, praesertim in sacris ordinibus costituti, ab omni libidinis vitio praecaventes, maxime illo, propter quod venit ira Dei [de coelo] in filios deffidentiae, quatenus in conspectus omnipotentis Dei puro corde ac mundo valeant ministrare’ (Translation: “In order that the behaviour and actions of the clergy may be reformed to the bette, let all, especially those who are constituted in Orders, strive to live in continence and chastity avoiding every lustful vice especially that vice for which the wrath of God descends from heaven upon the sons of infidelity. May they be able to minister before the Almighty God with a pure heart and unblemished body”);
4. Decretalium Collectiones (Editio Lipsiensis secunda: ed. Aemilius Friedberg) (Leipzig 1879) p. 836.
5. Decretalium Collectiones (Editio Lipsiensis Secunda: ed. Aemilius Friedberg) (Leipzig 1879) p. 452.
§ Leo X (1513 – 1531) in the V Lateran Council 1514: Apost. Constit. Supernae dispositionis 5 may 1514, ’35[Fontes CIC, 1, 65]6 Si quis vero, tam laicus quam clericus, de crimine propter quod venit ira Dei in filios diffidentiae, convictus fuerit, poenis per sacros canones, aut ius civile, respective impositis puniatur’ (Translation: “If indeed anyone, whether a lay person or cleric were to be convicted of the crime for which the wrath of God descends upon the sons of infidelity, let him be punished by the penalties respectively imposed by the sacred canons or the civil law”);
§ S. Pius V (1566 -1572) Apost. Constit. Cum primum 1 April 1566,’ 11 [Fontes CIC, I, 111 ]7: Si quis crimen nefandum contra naturam, propter quod ira Dei venit in filios diffidentiae, perpetraverit, Curiae saeculari puniendus tradatur, et si clericus fuerit, omnibus degradatus simili poenae subiiciatur’ (Translation: “If a person commits the heinous crime against nature for which the wrath of God descends upon the sons of infidelity he will be handed over to the secular authorities for punishment and if he is a cleric will be demoted from everything and will be subjected to the same punishment”) Cfr also: Apost. Constit. Horrendum 30 August 1568 [Fontes CIC, I, 128]8
Canon 2359, § 2 of the 1917 Code of Canon Law stigmatized violations of the Sixth Commandment of the Decalogue with minors under 16 years of age as delicts subject to the harshest penalties: Si [clerici in sacris sive saeculares sive religiosi] delictum admiserint contra sextum decalogi praeceptum cumminoribus infra aetatem sexdecim annorum … suspendantur, infames declarentur, quolibet officio, beneficio, dignitate, munere, si quod habeant, priventur, et in casibus gravioribus deponantur’ (Translation: “If [clerics who have been ordained whether secular or religious] were to commit the delict against the Sixth Commandment of the Decalogue with minors under the age of 16 … they will be suspended, they will be declared unworthy, they will be deprived of any office, benefice, dignity or responsibility they may have and in the more serious cases they will be deposed [ = state]”).
The 1962 Instruction of the then Supreme Sacred Congregation of the Holy Office (Crimen sollicitationis 16 March 1962) gave special procedural norms concerning, among others, the delict of sexual abuse of minors. The delict consisted in Àany gravely sinful obscene external act however perpetrated or attempted by a cleric with non-pubescent minors of both sexes’ (quodvis obscoenum factum externum, graviter peccaminosum, quomodocumque a cleric patratum vel attentatum cum impuberibus cuiusque sexus). According to canon 88, § 2 of the 1917 Code, a minor is non-pubescent (impubes) up to age 14 for a male and up to age 12 in case of a female.
6. Codici luris Canonici Fontes (ed. Petrus Card. Gasparri) Vol. 1 Concilia Generalia – Romani Pontifices ad annum 1745 (Romae 1947) p. 108.
7. Codicis luris Canonici Fontes (ed. Petrus Card. Gasparri Vol. I Concilia Generalia – Romani Pontifices usque ad annum 1745 (Romae 1947) p. 200.
8. Codicis Juris Canonici Fontes (ed. Petrus Card. Gasparri) Vol. I Concilia Generalia – Romani Pontifices usque ad annum 1745 (Rome 1947) p. 229.
Canon 1395,’ 2 of the 1983 Code of Canon Law explicitly punishes those clerics who violate the Sixth Commandment of the Decalogue with a minor under 16 years of age.
On 30 April the Holy Father Pope John Paul II promulgated a special law motu proprio which, among other things, determines that a sin against the Sixth Commandment of the Decalogue by a cleric with a minor under 18 years of age is to be considered a more delict or delictum gravius. Such delicts are considered to be very serious, particularly harmful to the Church, and deserving of the strictest punishments. Their adjudication is reserved to the Congregation for the Doctrine of the Faith (MP, Sacramentorum sanctitatis tutela Art. 4,’ 1). A special statute of limitations is also set: 10 years which run from the 18th birthday of the victim (Art. 5,’2).
2. Sexual Abuse of Minors by Clerics is a tragic wound to the Church
Whenever a cleric, whether bishop, priest or deacon, sexually abuses a minor, a tragic wound is inflicted on the Church. Such conduct is reproachable on various counts:
• it inflicts untold damage to the normal sexual development, self-esteem and human dignity of the minor concerned;
• it is cause of scandal to Christians and non-Christians alike, a stumbling-block on many a pilgrim=s progress in faith;
• it invariably constitutes an abuse and a betrayal of the sacred trust which the people of God rightly have of their shepherds;
• it damages the credibility of the Church and taints the beauty of Her testimony to the Gospel of Jesus Christ who is the Way, the Truth and the Life;
• it discredits the ministerial priesthood and puts countless innocent clerics under the shadow of delinquency, crime and misdemeanor.
3. The Church is committed to addressing the problem adequately
The Church is first of all committed to a humble acknowledgment of the problem with total unequivocal respect for the truth in fairness and justice. Towards this end reliable studies and investigations should be encouraged. There is no place for primitive defensive tactics like denial, sublimation or outright disregard of the problem wherever it exists. Disclosure of abuse to the competent ecclesiastical and civil authorities should be encouraged. Confidentiality should protect the dignity of the alleged victim and the accused, but confidentiality should not be mistaken for a culture of secrecy. Neither is notoriety or public moral lynching of the accused or the alleged victim a Christian response to the demands of disclosure.
The Church will address the established occurrence of sexual abuse of minor by a cleric in terms of working for the healing of victim, and the just punishment of the cleric. The well-being of the minor who has fallen victim to the sexual abuse of a cleric is to be of paramount concern to the Church. Whenever possible, therapy should be offered to the offending cleric, but this does not exhaust the demands of justice. Penal procedures and disciplinary actions should foster and promote the common good. They should, as canon 1341 of the Code of Canon Law says, repair the scandal, restore justice and reform the offender.
Prevention of abuse is also a priority for the Church. Methods of response to these heinous crimes that were adopted in the past are in some countries undergoing scrutiny, and this may, in some cases, cause the Church untold embarrassment. It is however a good opportunity to own up to past mistakes and learn for the future. Offenders who constitute a risk to minors should not be allowed to abuse their ministry. They Holy Father has spelled this out very clearly: People need to know that there is no place in the priesthood and religious life for those who would harm they young@ (Address to the Cardinals of the United States, 23 April 2002). To this end the screening of candidates to the priesthood should ensure that persons who would pose a threat to minors are never ordained to Holy Orders. Cleric should be truly accountable for their actions and personal choice. Rules of conduct should be clear and they should be enforced. Systems of support for priests should be encouraged.
4. The Role of Psychiatry and Psychology
The Church acknowledges that psychiatry and psychology have a role to play in all the above aspects and stages of the response to sexual abuse of minors. This seminar is in itself an eloquent testimony to this. To paraphrase the words of the Holy Father in his address to the Roman Rota for 1987: It is beyond doubt that a more profound knowledge of the theories developed and of the results achieved by [psychiatry and psychology] offers the possibility of evaluating [human behaviour and the human act] in a more precise and discriminating manner than philosophy alone or theology alone would allow’9. We therefore appreciate the contributions of these sciences in the diagnosis, prognosis, therapy and prevention of risk situations.
Concerning diagnosis, the Church is interested in truly objective criteria which, contribute to differentiating one situation or condition from another. Methods for diagnosis differ. Respect for human dignity should also be a concern in this area.
A clear scientifically-based prognosis of a particular condition will help Church Authorities in their assessment of risk and their decisions concerning suitability for parish ministry or ministry in general. Experts and specialized institutions share part of the burden for past mistakes in this area. The transparency expected of the Church concerning decisions taken years back is also be expected of experts and specialized institutions who may have contributed by their advice and backing to decisions taken by Church Authorities. They are also expected to own up to past mistakes.
9. Osservatore Romano [English Edition] 23 February 1987, p. 6; W. H. Woestman, Papal Allocutions to the Roman Rota 1939 – 2002 [Ottawa 2002] p. 192.
The Church is also interested in offering or supporting therapy for both victim and offender which is effective and reliable. It has a right to know the limits of therapy programmes which always come at a hefty price but do not always offer the desired or promised results.
Prevention of risk situations for children and young people is an important issue for the Church, whose mission it is to heal and not to wound, to comfort and not to hurt, to save and not to ruin. Psychiatry and psychology have an important role to play in this area. I have already mentioned formation screening. Studies concerning the impact of pornography on offending habits will certainly help Church Authorities to assess concrete situations. Other studies may well reveal other indicators of potential risk. All this information, to the extent that it is objective and scientific, will undoubtedly contribute to better evaluations in the future.
5. Substantive and Procedural Church Laws ensure that justice be done and that the good of the community is safeguarded and promoted
As was pointed up in the first section, the more recent substantive law concerning sexual abuse of minors by clerics, the Motu Proprio Sacramentorum sanctitatis tutela (30 April 2001) Art. 4, has a very wide scope: a sin against the Sixth Commandment of the Decalogue by a cleric with a minor under 18 years of age is to be considered a more delict or delictum gravius.
The following are some points elaborated by the jurisprudence of the Congregation for the Doctrine of the Faith on the matter:
a) The law refers to “a sin against the Sixth Commandment with a minor”. This does not mean that only physical contact falls under the scope of the law. Indeed any external violation of the Sixth Commandment involving a minor is relevant and this includes indirect or non-contact abuse (such as exposure of minors to pornography or lewd indecent acts). The recent praxis of the Congregation has established that the downloading, as opposed to the simple browsing, of paedophile pornography from the internet falls under the delictum gravius. A number of clerics have been imprisoned for such a crime and they have willingly participated in the evil marketing of paedophilia directly helping to create the demand for its products.
b) Another matter concerns the age of the victim. The recent legislation puts at “under 18 years”. This follows a number of civil laws. It has to be pointed out however that this innovation does complicate the question of discernment concerning the nature and gravity of the offence. Abuse of minors up to 18 could arise from one of these conditions which differ as to diagnosis and prognosis: paedophilia (the sexual attraction to pre-pubescent children); ephebophilia (the sexual attraction of adult males to pos-pubescent males); heterosexuality (the sexual attraction of adult males to females). It is easy to understand that there is a very important distinction between the case of a male cleric or religious who has intercourse with a girl of 12 and the case of a cleric or religious who has intercourse with a girl who is 17 years 10 months old and who was very much in love with him. Both cases fall under the letter of the law, since both are grave sins against the Sixth Commandment committed with a person under 18, but one understands that they will have to be tackled differently and that in the second case it would be difficult to state in honesty that the cleric or religious concerned is a threat to minors. The different categories which fall under the law would call for different ways of confronting addressing and responding to misdemeanor. It is important that people in authority keep these distinctions in mind.
c) The law mentions only clerics but this obviously includes religious who are in Holy Orders, whether they be deacons or priests. The question of including religious who are not clerics under the law is at the moment under discussion. I personally think that in such grave matters no distinction should be made.
d) Art. 5 of the Motu Proprio sets the statute of limitation for these crimes at 10 years which run from the 18th birthday of the victim. The constant tradition of the Church law was to exclude delicta graviora from prescription or the statute of limitation. On 7 November 2002 the Holy Father granted the Congregation for the Doctrine of the Faith the faculty to dispense from prescription on a case by case basis. There is tendency which supports a return to the previous norm which simply stated that graviora delicta were not subject to prescription.
Concerning the procedures to follow, it has to be pointed out that they are designed to protect the innocent and at the same time to mete out just punishment to the guilty. This end is pursued by ascertaining the true facts of the case, by granting the accused an opportunity to defend himself, and by presuming the innocent of the accused until he is proven guilty (or confesses to the crime).
When the Bishop receives a credible allegation of sexual abuse of a minor by a cleric or a religious he has the duty to investigate the matter. If he concludes that the allegations are founded he should refer the matter to the Congregation for the Doctrine of the Faith who will give directives as to what procedure should be followed.
Referral to the Congregation for the doctrine of the Faith (cf. Sacramentorum sanctitatis tutela, art. 13) should be accompanied by a votum of the Bishop which should include a curriculum vitae of the accused, details of the allegation, a risk assessment and the opinion of the Bishop concerning penal procedure and about the expediency of any future ministry for the accused.
The Congregation for the Doctrine of the Faith ultimately decides whether to proceed with a penal process or simply to suggest a disciplinary action. There are a number of options:
i) the Congregation for the Doctrine of the Faith may ask the Holy Father to dismiss the cleric guilty of sexual abuse of a minor from the clerical state; the sovereign decision of the Holy Father is not subject to review.
ii) the cleric himself may ask the Holy Father for laicization. This implies a decision of the Holy Father which dispenses or frees the cleric from the obligations and right of the clerical state.
iii) the Congregation for the Doctrine of the Faith may authorize an administrative penal procedure based on can. 1720 of the Code of Canon Law. If the Bishop decides that the case warrants a perpetual penalty, such as dismissal from the clerical state, then the matter is referred back to the Congregation for the Doctrine of the Faith for its decision. Recourse against such administrative decisions of the Congregation of the Doctrine of the Faith may only be presented before the Cardinals and Bishops members of the same Congregation (Feria quarta);
iv) the Congregation of the Doctrine of the Faith may authorize a judicial penal procedure carried out by a tribunal of the local diocese. Appeals are heard only before a tribunal of the Congregation for the Doctrine of the Faith.
v) in cases where a penal process is not called for, disciplinary actions can be imposed on the guilty cleric, such as limiting his ministry, removing him from direct pastoral ministry (which is not dismissal from the clerical state), or declaring him – after consultation with psychological experts – impeded from the exercise of ministry. A cleric subject to administrative measures has the right to hierarchical recourse, either to the Congregation for the Doctrine of the Faith to contest the measures taken him by the local Bishop, or to the Feria Quarta to contest the measures taken by the Prefect of the Congregation for the Doctrine of the Faith.