Law and Good Ecclesial Government: The Vademecum for cases of sexual abuse and the reform of canonical criminal law
In the early months of 2020 I wrote an article about the protection of minors and vulnerable persons in the light of regulations that had been promulgated after the Meeting of Bishops and Superiors General convened by Pope Francis in February 2019. At the time I highlighted that these were very important steps forward, but that in order to respond to expectations two further actions were still awaited: the publication of a “Vademecum” for bishops and superiors and the promulgation of the new Book VI of the Code of Canon Law, on the criminal law of the Church. Now these two steps have been taken, I want to give an account of them to our readers.
The Vademecum on some points of procedure in the treatment of cases of sexual abuse of minors committed by clerics was long overdue. Many bishops and religious superiors in past years had found themselves in great difficulty when faced with the emergence of allegations and subsequent scandals involving sexual abuse by members of the clergy, and were unable to act decisively and clearly. For a long time in the Church, as well as in society in general, a culture of concealment and avoidance in dealing with such questions had prevailed, and people felt unprepared, and often surprised and bewildered. How should one behave, what investigations should one launch, what procedures should one follow, and what measures should one take?
In truth the Church had developed answers and promulgated important standards, but many bishops lacked the competence or the help of expert collaborators to enable them to act in such a dramatic and “new” field, which was certainly complex and needed delicate handling from the pastoral and juridical point of view.
Convening the Meeting of Representatives of all the Bishops’ Conferences, Pope Francis repeatedly said that one of the aims was to ensure that all bishops and superiors had the tools to know well how they should exercise their responsibilities and what they should do, in solidarity and harmony with the universal Church, in the face of the crisis and the challenge of abuse.
Among the 21 points formulated by the pope to direct the work, the first was “to elaborate a practical vademecum, specifying the steps to be taken by each authority at every stage of a case.” The time that elapsed between then and the publication of the document was not wasted, indeed it allowed some very important points to emerge regarding the new regulations promulgated after the Meeting.
What is the Vademecum then? As Cardinal Luis Ladaria explained in his presentation, it is not a question of new laws, but of a “manual of instructions that intends to take by the hand those who must concretely deal with cases from beginning to end, that is, from the first news of a possible crime to the definitive conclusion of the case. Between these two extremes there are times to be observed, steps to be taken, communications to be activated, decisions to be taken.”
It should also be specified that, as the title itself states, it deals exclusively with “cases of sexual abuse of minors committed by clerics.” This is a limited field compared to the much broader field of sexual abuse, but it is one of the most serious crimes, which hurts the victims most deeply and also damages the Church community, destroying its credibility.
The document was drafted by the Congregation for the Doctrine of the Faith, which has oversight of these matters. This body took into account not only the general and specific juridical norms published by the Holy See, but also – and this is very important – the practice of the Congregation “matured over the years,” and the contribution of numerous canonists and local and diocesan tribunals that have conducted investigations and trials on behalf of the Congregation.
It must be said immediately that the “manual” is not a text to be considered statically “definitive,” but is a “first version” (as we say today, “1.0”), to be subjected to continuous review and improvement in the light of its use, since it is a field in which experience evolves rapidly and updates of regulations and practices are to be expected.
An overview of the text
The Vademecum seeks to be concise and clear. It consists of 164 paragraphs, designed to provide answers to the questions Church leaders face. They are collected in nine chapters, which we will go through very quickly, indicating only a few points.
In the first chapter – “What constitutes the delict?” – it is specified that a “minor” is a person under 18 years of age and that persons who have “habitually an imperfect use of reason” are to be equated with them, while the definition of “vulnerable adult,” being broader, also refers to cases that go beyond the competence of the Congregation of the Doctrine of the Faith (cf. n. 5). It should be remembered that the crime includes different delicts, such as – in addition to sexual intercourse and physical contact – the production, acquisition, possession or dissemination of pornographic images of minors, conversation or proposals of a sexual nature through the media (think of what happens today in the digital world or social media …).
The second chapter answers the question, “What must be done when information is received about a possible delict?” It is noted that this can come from a variety of sources and in different ways; it need not be a formal complaint. Sometimes it can come from an anonymous source (cf. n. 11), and experience has taught us that this does not automatically mean that it is false, although this type of information should be treated with caution and not encouraged (whistleblowers in this area may have understandable fears about being identified). It is also important to note that, even in the absence of a crime involving minors, improper and imprudent behavior may be noted, requiring action by superiors (cf. n. 20). In any case, if the “report of a crime” is “at least plausible,” the bishop who is the relevant ordinary or the competent religious superior must proceed to the “preliminary canonical investigation” in order to obtain deeper knowledge of the situation.
With regard to relations with the civil authorities, the Vademecum states: “Even in cases where there is no explicit legal obligation to do so, the ecclesiastical authorities should make a report to the competent civil authorities if this is considered necessary to protect the person involved or other minors from the danger of further criminal acts” (n. 17). Moreover, it insists that “the investigation should be carried out in accordance with the civil laws of each state” (n. 27). Bear in mind that “an obligation of silence about the allegations cannot be imposed on the one reporting the matter, on a person who claims to have been harmed, and on witnesses” (n. 30).
The third chapter answers the question: “How does the preliminary investigation take place?” This is a particularly important and useful chapter for bishops, given that it is a task which falls within their responsibility, which must be carried out according to correct procedures and in a reasonably rapid manner, and whose outcomes must be transmitted to the Congregation of the Doctrine of the Faith. The Vademecum gives appropriate indications on listening to, respecting and protecting the presumed victims (cf. n. 55), as well as on the precautionary measures to be taken against the clerics under investigation (for example, a ban on exercising their ministry) (cf. n. 58). It should be noted that “a decision to be avoided is that of simply transferring the accused cleric from his office, region or religious house, with the idea that distancing him from the place of the alleged crime or alleged victims constitutes a sufficient solution of the case” (n. 63).
The reports of the “prior investigation” are to be sent to the Congregation of the Doctrine of the Faith, which, depending on the cases and their gravity, decides whether to impose disciplinary measures or admonitions or to open a criminal trial. There are three possible penal procedures: the judicial penal process; the extrajudicial penal process; and a third procedure, reserved for very serious cases, which concludes with a direct decision by the pope “concerning dismissal from the clerical state or deposition […], when it is evident that the crime has been committed, after the offender has been given the opportunity to defend himself” (n. 86, note 7).
Chapter six mainly and amply develops the subject of the “extra-judicial penal process,” which is a more expeditious way of proceeding than the “judicial process,” and therefore frequently chosen, while always guaranteeing the right of defense of the accused and the possibility of appeal. The Congregation chooses it and entrusts its implementation to the ordinary bishop, when, for example, “the facts are clear; the criminal activity reported is already confirmed by the accused; the Ordinary asks to be permitted to proceed in this way for well-founded reasons; the Congregation considers that it is appropriate on the basis of the particular circumstances (qualified personnel, timeliness, etc.).”
Chapters seven and eight deal concisely with appeals and other particular situations. Among other matters, it is recalled that a cleric accused of having committed abuses “from the moment of the notitia de delicto (that is, from the moment of the accusation) […] has the right to present a petition to be dispensed from all the obligations connected with the clerical state, including celibacy, and, concurrently, from any religious vows” (n. 157). This means that when a cleric recognizes that he has committed the crime and his own unfitness to continue the ministry, he can ask to be dispensed. In this case, his “dismissal from the clerical state” is not necessary, because his conscious request to the pope achieves the same result, namely, that a person who is obviously unfit can no longer present himself as a minister of the Church.
At the end of this brief presentation of the Vademecum we would like to note that it was made available to the bishops and religious superiors (who are the first to whom it is directed, and must be the first to put it into practice) not through confidential channels, but through publication on the website of the Holy See in seven different languages so as to be readily accessible to all. This constitutes a clear and fundamental step in the direction of the “transparency” concerning which so much is spoken and which was also so insistently recommended at the 2019 Meeting. In fact, this entails not only that errors be acknowledged, but also that everyone be able to know what procedures, rules and recommendations are proposed in the Church to address the challenge of sexual abuse and the commitments to be made by its leaders.
The reform of the Code of Canon Law on penal sanctions
On May 23, 2021, with the Apostolic Constitution Pascite Gregem Dei, Pope Francis promulgated the new Book VI of the Code of Canon Law – one of the 7 Books that are part of it – which contains the regulations “on criminal sanctions in the Church” and which will come into force on December 8, 2021.
“The Code of Canon Law,” wrote John Paul II, “is extremely necessary for the Church. Since, indeed, it is organized as a social and visible structure, it must also have norms: in order that its hierarchical and organic structure be visible; in order that the exercise of the functions divinely entrusted to her, especially that of sacred power and of the administration of the sacraments, may be adequately organized; in order that the mutual relations of the faithful may be regulated according to justice based upon charity, with the rights of individuals guaranteed and well defined.”
Pope Francis – in the Constitution mentioned – reiterated the importance of the observance of the laws for an ordered ecclesial life: “The observance of penal law is binding on the whole People of God, but responsibility for its correct application lies specifically with the bishops and the superiors of individual communities. It is a task that cannot be separated in any way from the munus pastorale entrusted to them, and is to be carried out as a concrete and essential requirement of charity, not only toward the Church, the Christian community and potentially injured parties, but also toward those who commit crimes and are themselves in need of the Church’s mercy and correction.”
Archbishop Filippo Iannone comments: “Charity requires pastors to have recourse to the penal system as often as necessary, bearing in mind the three purposes that make it necessary, namely: the restoration of the requirements of justice, the amendment of the offender and the remedy of scandals. […] St. Thomas taught that ‘justice without mercy leads to cruelty, but mercy without justice leads to the dissolution of order.’ For order and communion in the community there is therefore ‘a need for both justice and merciful love’.”
It is common opinion that, in the climate of accentuated pastoral orientation connected with the Second Vatican Council, attention to the requirements of law was for some time in the background, in the name of an unfounded opposition between pastoral care and law, and criminal law in particular. The Code of Canon Law promulgated in 1983 had rightly reduced the number of the canons of criminal law compared to the Code of 1917, but had also followed a different orientation. Bishop Juan Ignacio Arrieta has observed that “the new texts were often indeterminate, precisely because it was believed that individual bishops and superiors, whose task it was to apply penal discipline, would better determine when and how to punish in the most appropriate way.” But experience soon showed the concrete difficulty in which Ordinaries found themselves in combining justice and charity, and the different procedures followed by the authorities caused bewilderment in Christian communities. The very serious scandals in the field of sexual abuse of minors have contributed in recent decades to a clear understanding that the climate of laxity in the application of criminal laws was pernicious for the Church and that canonical criminal law urgently needed to be renewed.
The aim of the reform is “to make universal penal norms ever more suitable for the protection of the common good and of the individual faithful, more congruent with the requirements of justice and more effective and appropriate for today’s ecclesial context, which is obviously different from that of the 1970s, when the canons of Book VI, now abrogated, were drafted. The reformed legislation is intended to respond to this need, offering Ordinaries and judges an incisive and useful tool, in the form of simpler and clearer norms, to encourage recourse to criminal law when this is necessary for the service of the people of God.”
The reform came after a long journey. Already in 2001, with John Paul II’s famous motu proprio Sacramentorum Sanctitatis Tutela, there was an effective intervention to reserve to the Holy See the administration of the penal discipline in the most serious cases, such as those of sexual abuse of minors by clerics. In the following years Benedict XVI, in the light of his long experience as Prefect of the Congregation of the Faith, gave a mandate to the Pontifical Council for Legislative Texts to begin the revision of Book VI of the Code of Canon Law. The work of the study group set up at that time, supported and supplemented by extensive collaboration and consultation with the Bishops’ Conferences, the Roman Curia, the Faculties of Canon Law, and the superiors of the Institutes of Consecrated Life, lasted a good 12 years and saw the succession of several drafts up to the definitive text now approved by the pope. To get an idea of the depth of the revision, consider that of the 89 canons of Book VI 63 have been modified, another 9 moved, while only 17 have remained unchanged.
Criteria and content of the reform
Bishop Arrieta identified three guiding criteria for reform. The first is an “adequate determinateness” of penal norms, in order to give a precise and sure indication to those who must apply them. Until now, as mentioned earlier, this was lacking, which was not an advantage but a problem. Thus greater uniformity in the Church on the penal norms is favored, reducing discretion, while leaving room for the discernment of the pastor, where it is appropriate for certain types of offense. In addition, offenses are better specified, penalties are listed clearly, and in a more orderly and detailed way (cf. can. 1336) and parameters are given to guide assessments of particular circumstances.
The second criterion is “the protection of the community and attention to repairing the scandal and compensating for the damage.” Pastors are invited to use, when prudently necessary, penal precepts, to initiate sanctioning procedures, and avoid remitting a punishment “until the offender has repaired any harm caused” (can. 1361).
The third criterion is to give pastors the means to prevent offenses and to intervene in time to correct situations that could become more serious. This does not mean that the necessary precautions should not be used to protect the presumed offender and that it should be explicitly stated that “any person is presumed innocent until the contrary is proved” (can. 1321.1). For the prevention of offenses “penal remedies” (such as admonition, reprimand, penal precepts) are indicated, among which “vigilance” is now expressly provided for: “If the gravity of the case so requires, and especially in a case where someone is in danger of relapsing into an offense, the Ordinary is also to subject the offender, over and above the penalties imposed according to the provision of the law or declared by sentence or decree, to a measure of vigilance determined by means of a singular decree” (can. 1339.5).
In the second part of Book VI there is a list of crimes, now reordered with greater clarity. Among these, some, already foreseen in special laws in recent times, have been incorporated into the Code, such as the attempted ordination of women, the recording of confessions (can. 1386.3), the consecration of the Eucharistic species for sacrilegious purposes. Others, already present in the 1917 Code but not in that of 1983, have been reinserted, such as corruption in acts of office or the administration of sacraments to persons to whom it is forbidden to administer them. Others are new, such as violation of the papal secret, omission of the obligation to execute a criminal sentence or – it should be noted – omission of the obligation to give notice of a crime. In particular, new crimes have been foreseen in economic-financial matters, so that – as the pope affirmed – “the absolute transparency of the institutional activities of the Vatican State, especially in the economic and financial field, may always be inspired by the founding principles of ecclesial life and, at the same time, take due account of the parameters and ‘good practices’ current at the international level, and appear exemplary.”
Sexual abuse in the reform
Finally, we would like to take a more specific look at what is new in Book VI in relation to the crimes of sexual abuse. As already mentioned, there are only a few, since it is mainly a matter of transposition of regulations already promulgated in recent years, but nevertheless worthy of attention.
First of all, the norms on sexual abuse of minors were until now included in Title V: “Crimes against special obligations,” because such abuse was considered canonically punishable only if committed by clerics. Now, rightly, they are included in Title VI: “Offenses against human life, dignity and freedom.” This constitutes a significant change with regard to the protected juridical good, “the dignity and freedom of the human person.” This is no small progress: the good of the very persons whose dignity is violated is finally put at the center of the perspective. This is not a mere formality, because it reflects the great progress made in putting the victims at the center of attention, in listening to them and understanding their suffering and the very serious damage caused to them.
Furthermore, while up to now from the canonical point of view only the crime of child abuse or child-pornography committed by a member of the clergy was considered, now two other categories of offenders to be punished are also considered: 1) members of an Institute of consecrated life or of a society of apostolic life; 2) any member of the faithful who enjoys a dignity or performs an office or function in the Church (can. 1398.2). The punishment for the guilty cleric is affirmed with great emphasis: “A cleric is to be punished with deprivation of office and with other just penalties, not excluding, where the case calls for it, dismissal from the clerical state” (can. 1398.1).
One point to note concerns the identification of victims. Up to now – and, as we have seen, also in the Vademecum presented above, with regard to the competence of the Doctrine of the Faith – the victims referred to with regard to sexual abuse were “a minor or a person who habitually has an imperfect use of reason.” Canon 1398 also adds: “or a person to whom the law recognizes equal protection.” We think that this flexibility in the definition of victims intends to keep open the application of the canon to “vulnerable persons,” including adults, of whom much has been said in recent years and who have been included in the latest regulations, describing them as follows: “Vulnerable is any person in a state of infirmity, physical or mental deficiency, or deprivation of personal liberty which, in fact, even occasionally limits their ability to understand or to want or otherwise resist the offense.”
As has already been said, the person who does not fulfill the obligation to report is explicitly declared punishable (can. 1371.6). This is a general prescription, but one understands that in our day this obligation has become fundamental especially for crimes of sexual abuse and those of their concealment.
In conclusion, both the Vademecum and the new Book VI of the Code do not introduce great novelties in the context of the fight against sexual abuse, but they constitute respectively a formidable and necessary practical aid for bishops and religious superiors to effectively conduct this fight, and a clear and demanding reaffirmation of the duties of justice and of the courageous application of the norms of law in the government and in the life of the community of the Church.
DOI: La Civiltà Cattolica, En. Ed. Vol. 5, no.10 art. 9, 1021: 10.32009/22072446.1021.9
. Cf. F. Lombardi, “Protection of Minors. The Pope’s steps forward after the February 2019 Meeting”, in Civ. Catt. En. Feb. 2020, footnote 12, https://www.laciviltacattolica.com/protection-of-minors-and-the-popes-steps-forward-after-the-february-2019-meeting/
. Cf. Congregation for the Doctrine of the Faith, Vademecum on Certain Points of Procedure in the Treatment of Cases of Sexual Abuse of Minors Committed by Clerics, July 16, 2020, in www.vatican.va
. Cf. F. Lombardi, “Preparing the Meeting of Bishops on the Protection of Minors”, in Civ. Catt. En. Dec, 2018, https://www.laciviltacattolica.com/preparing-the-meeting-of-bishops-on-the-protection-of-minors/
. L. Ladaria, “Presentation”, in Bulletin of the Holy See Press Office, July 16, 2020.
. Interview with Archbishop G. Morandi, Secretary of the Congregation of the Doctrine of the Faith, in Vatican News, July 16, 2020.
. Francis, Apostolic Constitution Pascite Gregem Dei, May 23, 2021 (Solemnity of Pentecost). It was published on the following June 1. The text of the new Book VI was published in seven languages in the Bulletin of the Holy See Press Office, June 1, 2021. Archbishop Filippo Iannone and Bishop Juan Ignacio Arrieta Ochoa de Chinchetru, respectively President and Secretary of the Pontifical Council for Legislative Texts, presented the text in two extensive and detailed speeches, to which we refer: Bollettino della Sala Stampa della Santa Sede, June 1, 2021.
. John Paul II, Apostolic Constitution Sacrae Disciplinae Leges, January 25, 1983, for the promulgation of the Code of Canon Law.
. F. Iannone, Intervention cited in note 6.
. J. I. Arrieta, Intervention cited in note 6.
. Francis, Address for the Inauguration of the Judicial Year of the Tribunal of the State of Vatican City, March 27, 2021.
. Law No. CCXCVII of the Vatican City State “On the Protection of Minors and Vulnerable Persons”, art. 1, n. 3; “Motu proprio” Vos estis lux mundi, art. 1.2.b.