Mercy and correction in the ChurchHoly See reforms criminal sanctions in the ChurchApostolic Constitution Pascite gregem DeiIt has been decided by Pope Francis for the Apostolic Constitution Pascite Gregem Deiwhich is dated May 23, 2021, but was announced on June 1.
The revision redefines the Church's penal system, profoundly modifying most of the 1983 Book of the current Code.
-With the new Apostolic Constitution made public on June 1, the process of revising Book VI of the Code of Canon Law, concerning penal sanctions in the Church, has finally been completed. When did this long process of reform begin? Why did it take so long to reach promulgation?
When Pope Benedict XVI commissioned the Pontifical Council for Legislative Texts, in September 2009, to revise the Book VI of the Code of Canon LawIn 2011, a study group was formed and worked in contact with many other canonists until a first draft of the new Book VI was prepared. The draft was sent in 2011 for consultation to all the episcopal conferences, to the dicasteries of the Curia, to the faculties of canon law and to many other experts.
With the responses, work continued in the same way, refining the texts in successive drafts, until, after further consultation and work, we arrived at the text now promulgated by the Pope.
-So, do you collect relevant experiences and opinions?
Yes, it has been a collegial work, which has involved many people around the world. And it has also been a somewhat complex work, because being a universal law, it had to be adapted to the demands of very diverse cultures and concrete situations. Such a work, in a particularly delicate matter such as this, requires time and needs to weigh up solutions so that they serve the whole Church.
-Of the 89 canons in Book VI, 63 have been modified, and 9 others have been moved; only 17 have remained unchanged. Why was this reform necessary before that of other parts of the Code?
Almost immediately after the promulgation of the 1983 Code of Canon Law, it was found that the criminal law of its Book VI did not work.
In reality, that text had radically changed the previous system of the 1917 Code, but without fully measuring the consequences. The number of penalties was greatly reduced, something that was very necessary; but, above all, many key canons were written in an intentionally ill-defined way, thinking that it should be the Bishops and Superiors who should determine in each case what conduct should be punished and how it should be punished.
The result is that so much indeterminacy - let us not forget that the Church is universal - led in fact to confusion and paralyzed the functioning of the system. For this reason, from a certain moment on, the Holy See had to intervene in an extraordinary way to punish the most serious crimes.
-In general terms, what role do penal sanctions have in the Church and in relation to the life of the faithful? Have the regrettable situations of recent years, for example the phenomenon of abuse, restored to the ecclesial conscience the importance of criminal law?
At the time when the penal canons of the 1983 Code were prepared, a climate prevailed in which it was doubted whether there was any place in the Church for criminal law; it seemed that penalties were opposed to the demands of charity and communion, and that the most that could be accepted - to sum it up in a way - were disciplinary measures, not properly penal.
Many subsequent events have demonstrated the tragic nature of such a way of thinking, as Pope Francis now points out in the text of the Apostolic Constitution. Precisely for reasons of charity, towards the community and towards the person to be corrected, it is necessary to use penal law when necessary.
-Were these situations the reason for the review?
No, the reform was not done to respond to the problem of abuses. The revision was necessary to make the penal system as a whole work, and to protect very diverse situations and essential ecclesial realities - the Sacraments, the Faith, authority, ecclesiastical patrimony, etc. - and not just a few crimes, even if they are particularly serious, as is the case with the abuse of minors.
-What is the importance of law in the life of the Church?
In its earthly pilgrimage, the Church is organized as a society, and therefore it must have its own rules and laws that regulate its life. From the first centuries of its history, the Church has been forming a set of rules, quite flexible, which over time and in different cultures have been adapted to the needs that have arisen, always respecting the essential core of its own identity of spiritual character. This is canon law.
-What happens now with the penal system of the "brother" of the Code of Canon Law, which is the Code of Canons of the Eastern Churches?
The Code of Canons of the Eastern Churches was promulgated seven years after the 1983 Code of Canon Law. To a large extent it was able to take advantage of the negative experience, which by then was already emerging, about the difficulties of application of Latin criminal law. Perhaps something also needs to be tinkered with in the Eastern legislation, but the most acute problem was posed by the Latin code.
-What are the essential elements of this review?
The essential points that characterize the reform can be summarized in three concepts.
The first is a greater determination of the norms and ways of acting, with a consequent lessening of the burden on ecclesiastical authorities when deciding on a case-by-case basis. The penalties to be imposed are now also determined, and the authority that must decide is given parameters in relation to which to adopt solutions.
The second criterion is to better protect the Christian community by ensuring that the scandal caused by criminal conduct is redressed and, if necessary, to compensate for the damage caused.
Finally, the authorities are now provided with more adequate tools to prevent offenses and, above all, to correct infractions before they become more serious.
-Is this greater determination reflected in the approach to the various types of criminal offenses?
The novelties in the definition of crimes are a consequence of what I was saying before, regarding the greater determination of the rules.
On the one hand, some offenses have been better specified, which in the 1983 Code were excessively synthesized. On the other hand, offenses that have been defined in the following years, such as the recording of confessions, and some others, have been incorporated into the Code. Then, some offenses that were not taken into account in the 1983 codification were taken directly from the 1917 Code, such as corruption in acts of office, the administration of sacraments to those prohibited from receiving them, or concealing any irregularities from the ecclesiastical authority in order to gain access to holy orders.
Finally, some new crimes have also been defined: for example, violation of the pontifical secret, failure to report a crime by those who are obliged to report it, illegitimate abandonment of the ecclesiastical ministry performed by a priest, etc.
-Specifically in relation to the abuse of minors and vulnerable persons, has the experience of recent years been taken into account to make criminal law more effective?
Naturally, although this was not the main purpose of the reform, particular importance has been given to the crime of sexual abuse of minors. There are several novelties in this area.
In the first place, it is no longer considered only as a crime against the special obligations of clerics or religious (such as the obligations of celibacy or not to manage patrimonial goods), but it is considered as a crime against the dignity of the human person.
In addition, the category has been broadened to include as possible victims other subjects that in Church law have similar legal protection to that of minors.
Finally, although in this case they are no longer crimes reserved to the Doctrine of the Faith, it also includes as a crime the abuse of minors by non-clerical religious, or by lay persons who perform some function or office in the ecclesiastical sphere.
-A turning point in the fight against abuse was the meeting on the protection of minors promoted by the Pope in February 2019, of which one of the fruits is the Vademecum of the year 2020. To what extent has it influenced the work of the Pontifical Council for the reform of Book VI?
Indeed, the Vademecum prepared by the Congregation for the Doctrine of the Faith is being very useful to punish through administrative channels the crimes of abuse of minors by clerics, which is the matter reserved to that Dicastery. But, in addition, since the Code did not sufficiently develop the issue of penal sanctions carried out through administrative channels (at the beginning it was thought that the general rule should be that penalties should be imposed through judicial channels), that Vademecum is of great general utility, and serves as a guide for criminal proceedings also in cases that are not reserved to that Congregation.
-A significant aspect was also the abolition of the pontifical secret in cases of abuse allegations. Why is this decision of the Pope important, and how does it concretely affect the life of the Church?
In these processes, the pontifical secret was an inconvenience, both for the victims and for the accused and for the development of the process. For this reason, it was a good thing to eliminate it in this type of process for the abuse of minors, thus facilitating the freedom of the prosecution and the defense.
-Not long ago another instrument was created, a "task force" to help the local Churches update or prepare guidelines in the field of the guardianship of minors. Why was this necessary and how is it being done?
It must be kept in mind that the Church is present on all five continents, and that many diocesan communities lack the resources that others with a longer tradition have. For this reason, the Holy See felt the need to prepare a team to advise the local Churches and Episcopal Conferences so that they could keep up to date and renew the protocols related to the protection of minors. Not all Churches will have the same need, but this will also ensure a harmonious response from the Church as a whole.
-Does the revision affect the canonical penalties for this type of crime?
Indeed, among the new features now included in Book Six is a greater focus on economic and property crimes. On the one hand, the different types of crime have been better specified, including extreme cases of crime, no longer intentional, but negligent. In all these cases, the criminal sanction includes the requirement to repair the damage caused.
In addition, as a novelty, a new canonical crime has been included: that of committing economic crimes in civil matters in violation of the duty of clerics and religious not to assume any type of patrimonial management without the permission of their own Ordinary.
-What is your overall assessment of this reform of the Code?
To summarize my assessment, I think it must be said that the new Book Six of the Code of Canon Law has substantially changed the penal system of the Church. Now the crimes, the penalties and the manner of applying them have been well determined. Above all, as the Holy Father emphasizes in the Apostolic Constitution of promulgation, the application of penal norms, when it is necessary to use them, is part of the pastoral charity that must guide the government of the Christian community on the part of those who are in charge of it. For this reason, although the penal law of the Church must be observed by all, the Pope addresses himself in his text principally to those who have to apply it.
