It is not hard to imagine that the lawyers of the medieval Ius commune would have been horrified at some of the present day exercises of ecclesiastical power and would support the efforts of those who

10/20/2004 9:25:00 PM by Charles M. Wilson - St. Joseph Foundation

Underlying the controversy are several basic questions. Just what are the responsibilities of lay Catholics who hold public office? Are they obliged to apply the teachings of their Church to the actions they take in the exercise of their offices? If some of these actions seem to constitute a manifest failure to fulfill their responsibilities as members of the faithful, can the Church do anything? Should the Church do anything? If the answer is yes ― and I firmly believe that it is ― then what principles and procedures should guide the competent ecclesiastical authorities as they pursue just remedies? There is one principle that surely ought to apply. That principle is: those who are accused must be presumed innocent until sufficient evidence is produced to provide the degree of moral certainty necessary to rule otherwise.

ORIGINS OF THE PRINCIPLE[i]

In the universities of the West, beginning at Bologna, there was a renewed study of the secular law of the Roman Empire promulgated by the Emperor Justinian in the sixth century.[ii] As Kenneth Pennington, the Kelly-Quinn Professor of Ecclesiastical and Legal History at the Catholic University of America, describes the situation:

Beginning in the eleventh century, European legal systems made the slow transition from customary, largely unwritten, law to legal systems in which law was incorporated into the written word. During this period, laws and customs were not only written down, but jurists began to comment on them systematically. The result was that Europe experienced a remarkable rebirth of jurisprudence after 500 years of being a land without jurists. The main institutional basis of this revival was the teaching of ancient Roman law, and afterwards, canon law, in the schools of Italy.[iii]

By the beginning of the twelfth century, the Church in the West was in serious need of a uniform and generally accepted approach to the law that would allow jurists to bring order out of the confusion.[iv] The time was ripe for the next development.

A shadowy figure named Gratian compiled a liber legalis [legal textbook] for ecclesiastical lawy;. Although the full story is not yet completely known, Gratian began to compile his book in the early twelfth century, perhaps as early as 1120, and by 1140-1160, his book was being used as the fundamental compilation of canon law all over Europe.[v]

The title of Gratian's enormously significant work is Concordia discordantium canonum, or the Concord of Discordant Canons. It is commonly known simply as Decretum Gratiani, or Gratian's Decree. Within a few decades of its publication, the study of law became an academic discipline in Italy, France and Spain.

The curriculum was exactly the same everywhere: Justinian's Corpus iuris civilis, Gratian's Decree and papal decretals. As the study of law became entrenched in the schools of Europe, the jurists called the body of law that they studied, Roman and canon law, the Ius commune. It became the universal law of Europe from the early twelfth to the seventeenth centuries.[vi]

The Ius commune was superseded as the foundation of secular law by the rise of the nation-states and the effects of the Reformation. The canonical half, so to speak, remained in force as the Corpus Iuris Canonici until the Code of Canon Law came into force on the Feast of Pentecost in 1918.

ARTICULATION OF THE PRINCIPLE

A jurist by the name of Paucapalea, writing around 1150, linked the emerging judicial process called the ordo iudiciarius with the story of Adam and Eve recorded in Genesis 3:9-12. When God sought out Adam, who pleaded "not guilty" by blaming his fall on Eve, Paucapalea made the point that God imposed upon Himself the obligation to summon defendants and hear their pleas. He reinforced this claim by citing Moses' decree that truth could be found in the testimony of two or three witnesses (Deut. 19:15), accepted by God Himself. The implication was that if God must summon litigants to defend themselves, mere humans must do likewise.[vii]

By the beginning of the thirteenth century a defendant still did not have the absolute right to due process. A prince or a judge could condemn him without trial and it was not until later in the century that jurists began to study and debate the rights of defendants. As Pennington describes the course of events:

By the end of the century they had reached a consensus that a defendant's right to a trial was grounded in natural law and, consequently, was inviolable. The most sophisticated and complete summing up of juristic thinking about the rights of defendants in the late thirteenth and early fourteenth centuries can be found in the work of a French canonist, Johannes Monachus who died in 1313. While glossing a decretal of Pope Boniface VIII (Rem non novam) he commented extensively on defendants' rights. He began by asking the question: could the pope, on the basis of this decretal, proceed against a person if he had not cited him? Johannes concluded that the pope was only above positive law, not natural law. Since a summons had been established by natural law, the pope could not omit it. He argued that no judge, even the pope, could come to a just decision unless the defendant was present in court. When a crime is notorious, the judge may proceed in a summary fashion in some parts of the process, but the summons and judgment must be observed. He argued that a summons to court (citatio) and a judgment (sententia) were integral parts of the judicial process because Genesis 3.12 proved that both were necessary. God had been bound to summon Adam; human judges must do the same.[viii]

Johannes expressed a defendant's right to a trial and to due process with words that ring down to us seven hundred years later: The accused is presumed innocent until proven guilty. In practice, what this meant to the jurists of the ius commune was that "no, one, absolutely no one, can be denied a trial under any circumstances" and that "everyone, absolutely everyone, had the right to conduct a vigorous, thorough defense."[ix] The decretal that Johannes glossed itself became a part of the Corpus Iuris Canonici.[x]

But why should we care very much about this? What do medieval canon law and the ius commune have to do with life in the Church today? Is it of any importance to us that the principle of the presumption of innocence was first articulated in canon law? In short, I would answer by claiming that today the presumption of innocence and ts logical extension, the right to trial, are sometimes sacrificed to administrative convenience in the Church's legal system. If we can restore the balance, I would argue that justice and the good of souls will be better served, always remembering that the salvation of souls is the supreme law of the Church.

THE LAW AS IT IS NOW VS. THE IUS COMMUNE

Only a handful of pro-abortion Catholic politicians have been called to account in any way by ecclesiastical authorities; so the questions asked above have yet to be answered in terms of the law now in force. We can, however, make some observations and draw limited conclusions from the way the sexual abuse crisis has been handled.

If one is accused of a crime, especially one as heinous as the abuse of children, the presumption of innocence alone does not provide much protection. A trial in which you have a right to mount a vigorous defense is what gives this principle meaning. There are many canons in the 1983 Code that deal with the process of determining guilt and the application of penalties. For this discussion, I will concentrate on canon 221, in which the principles of due process are succinctly stated. The canon consists of three paragraphs and I will comment briefly on each.

§1. The Christian faithful can legitimately vindicate and defend the rights which they possess in the Church in the competent ecclesiastical forum according to the norm of law.

This paragraph has little to do with the presumption of innocence and the right to trial, although it does touch upon a foundational right that one would find in any legal system worthy of the name; i.e., the right to relief from injustices perpetrated by ecclesiastical authorities. This paragraph, more than any other in the entire Code, inspired the formation of the Saint Joseph Foundation in 1984. We have commented on it many times in the past and will do so again many times in the future. However, it does not directly pertain to the subject of this article.

§2. If they are summoned to a trial by a competent authority, the Christian faithful also have the right to be judged according to the prescripts of the law applied with equity.

At first glance this paragraph looks just fine. But in so far as it protects the rights of the accused, I view it as like a gun loaded with blanks. One does not see here - or, for that matter, anywhere else in the 1983 Code - an explicit, meaningful invocation of the presumption of innocence or a right to a trial as understood by the Ius commune. To me, this omission is a matter of grave concern. To be sure, the requirement of notification remains in place (cc. 1720, 1° and 1723, §1); but the law does in most cases permit penalties to be inflicted or declared by an administrative rather than a judicial process. The one exception is a perpetual expiatory penalty (c. 1342, §2) and even that barrier has now been breached. Dismissal from the clerical state, which is most certainly a perpetual expiatory penalty, can now be imposed by an administrative decree. This was prompted by the ongoing sexual abuse scandal. Nonetheless, there are many good priests who have never been accused of any kind of wrongdoing and are worried that this exception may be abused and that they may be removed from ministry and even dismissed from the clerical state without trial. This observation by a prominent American canonist gives credence to their fears:

Now, in most cases long after the alleged offenses, a few priests are being tried. Sadly, others have been dismissed from the clerical state by administrative decree. In my opinion it is only with a penal trial that the accused can defend himself adequately. It is only with trained outside judges that justice will be done. It is only with a growth in jurisprudence that we will be able to understand the canonical underpinnings of Canon 1395, §2. It is only by means of a trial that we will come to a better understanding of the canonical term "even including dismissal" as an appropriate penalty. Why are we so afraid to use our canonical expertise in the judicial process? If a judicial process is not good for these horrendous situations, then we better start rethinking why it is so good for nullity cases.[xi]

The so-called Dallas Norms issued by the United States Conference of Catholic Bishops in 2002 contain provisions that the jurists of the ius commune would most certainly oppose. A priest may be removed from his assignment and, for all practical purposes, suffer the canonical penalty of suspension for no reason other than someone accused him. The potential for injustice here is too obvious to mention. This slightly edited exchange between a canonist and his bishop is instructive:

The conversation I referred to took place in May 2002, in the parlor of the Bishop's Residence, between myself, [name and title] and [the bishop of the diocese]. I cannot verify that [his] attitude is typical of the intentions of the bishops who gathered at Dallas. But it most certainly was his attitude, one he exemplified in his dealings with priests of this diocese on "administrative leave", one of whom has since been dismissed by involuntary laicization in an administrative procedure approved by the CDF due to the "notoriety" of the case. When I protested that the "notoriety" was caused by the allegations published and repeated in the press, none of which has been properly weighed and measured, nor has the accused been given an opportunity to respond, I was told, "You're only saying that because you have a judicial mind." I was not aware, until that moment, that having a judicial mind was a liability, rather than an asset, in a canonist.[xii]

It surely bears mention here that Article II of the Universal Declaration of Human Rights affirms the right of presumption of innocence. Since the Holy See is a signatory to that covenant, it should at least have moral force in the internal governance of the Church.[xiii]

Duane Galles, my colleague at the Foundation, has offered the following:

My own objection to some of these proceedings is that they conflict with the rule of natural justice ― ne bis in idem, or double jeopardy. Perhaps a priest may have been tried or disciplined for an offence in the past and was given a light penance. But the Dallas Norms are now being used to re-open the old charge and, if it is found credible, he will be removed from ministry. Essentially, to me this seems to embrace a Lutheran doctrine of forgiveness, i.e,. that a sin is merely covered over and not, as in Catholic doctrine, forgiven and forgotten. In the former, the veil can be removed and the sin revisited. According to the latter, the removal of the veil produces nothing, for the sin is forgiven and no longer remains to be punished. It is a traditional axiom of canon law that there is no penalty without sin. Thus, unless we embrace Lutheran heretical doctrine, there seems no basis for punishment.[xiv]

Even the phrasing in the Dallas norms that says the accused is entitled to a lawyer at every stage is galling. This is really the only recognition of the rights of the accused cleric. But what good does it do unless some procedure is specified in which a lawyer might be of help (confronting witnesses, answering the allegations, etc.). It's like telling someone he has a right to a lawyer's assistance at the Soap Box Derby or the Pillsbury Bake Off! [xv]

§3. The Christian faithful have the right not to be punished with canonical penalties except according to the norm of law.

The final paragraph of canon 221 also appears unobjectionable. Like its predecessor, it contains some problems that are not obvious at first glance. The first is that the 1983 Code does not define exactly what a penalty is. The 1917 Code did include such a definition in canon 2215 and canonists have relied upon it with varying degrees of success. This omission in the 1983 Code provides an opportunity for clever individuals to take what amounts to a punitive action and then call it a "pastoral act" or some other deceptive term so as to forestall an appeal, which the offended party might otherwise make.

The "norm of law" includes, for example, canon 1321, §1, which states:

Unless it is otherwise evident, imputability is presumed whenever an external violation has occurred.

Imputability means accountability or responsibility. Although it is not the same thing as guilt, I would argue that it comes too close for comfort to undermining the venerable canonical principle of presumption of innocence. Moreover, the law presumes imputability and then provides a laundry list of factors that either diminish culpability or eliminate it altogether.[xvi] This taking away with one hand and giving back with the other seems to be an unnecessary contradiction. It would be much better if the law upheld explicitly the presumption of innocence and left it to the tribunal to determine, after determining guilt, if any mitigating factors were present and what weight they should be given.

In sum, except in limited instances, there is no right to a trial and the trials that do take place are usually held behind closed doors.

What we do know is that the penal system in the Church is in disarray. This has resulted in little or nothing being done to relieve the suffering caused the Church either by sexual abusers or by politicians who claim to be Catholic while speaking and acting against Church teachings on the sanctity of life.[xvii]

THE RESULTS OF DOING LITTLE OR NOTHING

The current sexual abuse crisis in the Church was caused not so much by the failure to conduct trials but by the failure over many years to do anything at all. One canonist summed this up very well when he said:

If bishops had fulfilled their duty to abide by the rule of law, especially in the cases involving clergy who are serial child abusers, there probably would have been no crisis.[xviii]

Besides repeating an obvious truth, this statement raises an important point. Trials do much more than protect only the rights of the accused. They also protect the rights and interests of those who are harmed by criminal acts as well as the common good. Because so few clerics accused of sexual abuse were ever brought to trial, everyone lost. The ones who paid the highest price for inaction were those children who were abused by priests that otherwise would not have been in a position to commit more crimes.

The scandal caused by pro-abortion Catholic politicians may in the long run do more damage to the Church than the horrendous offenses committed by abusive priests and their complicit bishops. They are similar in that both were made much worse by the inaction of ecclesiastical authorities. However, there are some important differences that will certainly effect of future actions. The most important is that the offenses of the politicians, reprehensible as they are, are not crimes in secular law. Thus there will be no investigations by public authorities, no indictments by grand juries, no damage suits in secular courts and, of course, no ruinous judgments. Second, all the offending politicians are members of the laity and our no beholden to the Church for their support. Third, many of them are Catholic in name only and may well ignore or explain away any penalties that may be imposed. Finally, there will probably be little pressure coming from the Holy See, which has had its own problems in Europe with pro-abortion Catholic politicians and monarchs, including His Most Catholic Majesty the King of Spain. An additional difficulty will arise in the case Senator John Kerry in the event that he becomes President of the United States. Like King Juan Carlos, he will be beyond the reach of any diocesan bishop because, according to canon 1405, §1, 1°, "It is solely the right of the Roman Pontiff himself to judgey;those who hold the highest civil office of a state."

All these things may make appropriate actions by ecclesiastical authorities much more difficult; but, except in the case of the holder of the nation's highest office, they provide no excuse for doing little nothing to bring the offenders to account. Much talk and little action has been the prevailing practice since Roe v. Wade in 1972. If you want to see the results, just look around you.

A FEW SUGGESTIONS AND FINAL THOUGHTS

I would like to conclude by expressing my gratitude to those too few courageous and forthright bishops who have spoken out during this political year. They surely deserve all the prayers and support that we can give them.

There has been much talk of denying Holy Communion to pro-abortion Catholic politicians by applying canon 915. This is surely one approach to the problem; but I keep repeating my suggestion that we should employ the judicial penal process as well. No matter what the outcome of this year's election may be, the Foundation will continue to promote our denunciation project and will continue to find ways of improving it until Our Lord, in His own good time and in His own way, intervenes. Please continue to pray that that time will not be long in coming.

It is not hard to imagine that the lawyers of the medieval Ius commune would have been horrified at some of the present day exercises of ecclesiastical power and would support the efforts of those who are trying to set things right.. It appears that a significant elements of the Church's canonical tradition have been set aside. Some have suggested that a solution could be found in making the Church over in the image of our secular governmental systems in the West. To the contrary, I believe that history shows that the Church need not and should not rely on such things as Anglo-American legal traditions, the Scottish Enlightenment, the views of personalities such as John Locke or Thomas Jefferson or the Constitution of the United States. She would better protect children, more effectively deal with the sandal of pro-abortion Catholic politicians and further the salvation of souls by recovering her own noble legal traditions.

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