Testo originale del articolo in inglese qui
One of the great problems that Benedict XVI has had to face during his pontificate has been the almost sexual abuse of minors, committed by priests and religious. Despite the numerous efforts and measures taken, the commitment was not enough, in fact it can be said that even the time was not enough.
Pope Francis has taken this situation very seriously, as evidenced by the regulations he has issued during his pontificate to address this canker within the Church.
Ma le regole sono sufficienti?
Both as a priest and as a lawyer, I ask myself the following question: are rules enough to put order in a society? The Church is a mystery, it is the mystical Body of Christ, but at the same time it is made up of men and women, all of whom are men and women, among whom there are a series of relationships and an exchange of goods, not necessarily and not mainly of a material nature, but above all of a spiritual nature. For this reason we speak of the Church as a society, endowed therefore with its own legal order, canon law. However, as in any society, the rules are not enough to keep it in order. For example, the fact that in a State there is a criminal law that prescribes that anyone who appropriates other people's property is punished with a prison sentence of 4 to 8 years, does not mean that there are no more crimes.
Since the promulgation of the motu proprio Sacramentorum Sanctitatis Tutela (SST - Protection of the Sanctity of the Sacraments), in 2001, with subsequent modifications, as well as the norms promulgated by Pope Francis, the cases of sexual abuse of minors have not diminished. They were at the beginning, when the scandals were public resources, but today the sexual abuses committed by members of the clergy continue, and we do not speak only of scandals with minors, but also of acts contrary to this commandment and that imply a violation of the promise or the vow of celibacy that is expected of a priest or a religious.
Cosa serve allora? Many things. The moral problem of the members of the Church begins with the formation of priests and religious, during the process of identification and selection, as well as with the accompaniment they should have throughout their lives. Here we deal with the legal aspect, trying to answer the first question.
"Il retto senso di giustizia".
It should be noted that laws are not per se effective. For the correct application of a law, in addition to understanding the norm, it is necessary to have something else, which we can call "a correct sense of justice". Let us make an example. If in a diocese the priest wishes to carry out all the measures prescribed by Vos estis lux mundi (VELM - You are the Light of the World), SST, Code of Canon Law reformulated in book VI on the penis begun by the Apostolic Constitution Pascite gregem Dei, etc., a minimum of knowledge of law and rights will be necessary. One of these is the principle of the presumption of innocence. In other words, all these norms must have as a principle the presumption that the cleric or religious in question is innocent until proven guilty.
Hence the need for a procedural trial, with some principles, with its own stages, means of proof, and all those resources aimed at guaranteeing effective legal protection, i.e. that anyone can appeal to the Church's courts when there has been a violation of their own rights.
The counterweight, because it is a matter of justice and good sense, is that the accused of a crime has the guarantee of this, that is, to know what he is accused of, even in a first moment as an inmate, before the accusation is formalized. The accused is innocent, and must be treated as innocent, until the sentence, duly motivated by the procedural acts and evidence, will not say that he is guilty.
On the contrary, what we find in the news and in the current trial is that the accused is suddenly considered guilty, and must prove his innocence. As an example we have the case of Cardinal George Pell, who had to wait for three years to prove his innocence. The same is true of Pope Francis, who did not resign from his position as Prefect of the Secretary of the Treasury until the trial in Australia lasted, but has instead granted him the permission to travel and to appear before the justice of his country, even though he was innocent, until the final sentence had not been handed down, until all the evidence had not been sealed.
When these fundamental principles and rights are not respected, the application of the rules could lead to serious prejudices, from the point of view of justice and law. We think of the severe measures that are taken only when a priest is accused, who is immediately suspected of all his actions. Of course, this precautionary measure has a reason for being: to keep the possible offender away from people he could meet, because past experience tells us that the pedophile has changed parishes and has continued to commit crimes. But one thing is prudence and another is to treat the accused as collaborators. In other cases, without the proper distinction between judicial proceedings and administrative sanctioning proceedings, the latter is chosen in order to speed up the criminal proceedings.
It is therefore clear that the latter is an exceptional procedure, to be adopted only when there is sufficient evidence or strong evidence contrary to the innocence of the accused, which for him deserves to follow a path that does not provide all the guarantees of the case. However, in these cases, a defendant can find out that an investigation has been carried out and that he is called to testify in what we can call an evidentiary investigation, when the evidence is almost complete and with few options or means to differ, as it would be necessary in terms of justice.
Article 2 of the motu proprio VELM (Vos estis lux mundi - Voi siete la Luce del Mondo) provides for the creation of an office to receive signals or denunciations of possible offenses. The idea of this norm is that there should be an obligation of inquiry on the part of the Ordinary, for example the vestryman, in addition to the fact that the victim should have the possibility of being arrested.
However, it should be pointed out that this office is not a judicial body, and even less the mere filing of the complaint is synonymous with collusion, but rather guarantees or means to avoid abuses.
In all this investigation, the principle of the presumption of innocence must always prevail, as well as a serious effort to collect testimonies or evidence that will help to discern if there are sufficient elements to start a legal process in the Church. However, we believe that this is a simple way to solve a broader problem.
Since the tribunals of the Church are duly constituted and organized, it would not be necessary to create the offices mentioned in the VELM, since this investigative activity should be carried out by an organ of the diocesan magistracy with the appropriate preparation, properly in order to collect all the necessary information that would allow a judgment to be made on the possible existence or not of a crime, but not on the culpability of the person being investigated.
At the same time, it is clear that it has been proposed to create this type of office because on many occasions, some young people have not been able to accept the request for protection from people who suffer abuse or inappropriate behavior on the part of priests or religious.
Last year was published a report ordered in France by the Church on the abuses committed by the clergy between 1950 and 2020, the numbers of which have left many people without trust.
It is fair to say that the figure presented, 216,000 victims, is an estimate of the commission commission commissioned to examine the 2,700 victims identified between 1950 and 2020, and the other 4,800 from files found in the archives. However, this does not mean that there should not have been any abuse within the Church, and even less that there should not have been any abuse of the deceased. Something similar is foreseen in countries like Spain, where the Episcopal Conference has requested the advice of a legal study.
Principles and natural law
From the case of the United States, which emerged with the investigation of the newspaper The Boston Globe, to the recent case of France, we can see the extent of the problem that the Church has had to face, for which emergency measures with little capacity for reflection have been necessary, first of all to know the causes and to be able to prevent the reprisals, starting from a very simple demand: why have my priests and religious men committed these abuses or have they broken the promises or the vows of chastity? What has happened during their journey? It is necessary to identify the means at the disposal of the Church, one of which is the one we are dealing with, namely the Law. But the Law is not a tool that can be used indiscriminately, because it has principles that emanate from the natural law and by force of things.
For this reason the law is used and applied with justice and with a good sense of justice, otherwise another injustice would be committed. Therefore, it is necessary that the Church, in its efforts to deal with the sexual scandals we are talking about, takes its time, which is not too long, to reflect on the phenomenon it is trying to regulate; the principles and rights that must be respected in order to achieve the purpose of such a rule, as well as the effects that such a rule could have on the Church.
Forse siamo ben lontani dal porre fine al problema deli abusi, a menos che non se non se ne affronti la causa, il che meritbebbe un studio approfondito e interdisciplinare, inter-dicasteriale oserei dire. When this does not happen, canon law can offer some tools, used in an equitable way, not only according to the legality. In this way with all the parties involved will be seen justice and mercy, including the holy people faithful to God, paraphrasing Pope Francis.