The Spanish Bishops' Conference published this week a document entitled "Instruction on sexual abuse". It had been previously announced by Bishop Bernardito Auza, apostolic nuncio, in his speech at the last plenary meeting of the Spanish bishops.
It is, as its name implies, an instruction. That is to say, a document that seeks to urge compliance with the law, clarifying and determining its content. It should be recalled that, previously, the Church in Spain had already issued a Action protocol for cases of sexual abuse of minors.
Introduction and objectives
– Supernatural Instruction begins with a long Preamble that introduces the reader to the main task of the document, which is none other than to explain and develop "the juridical-procedural mechanisms of Church law which are obligatory and binding on all diocesan bishops, and also, within their own sphere and with respect to their members, on major superiors of institutes of consecrated life and clerical societies of apostolic life". (Preamble, IV).
Along with this obviously laudable objective, the Preamble stresses several aspects that are important to emphasize. In the first place, it mentions the responsibility of the diocesan bishop to protect and ensure the common good of the faithful, especially "the poorest and most needy, minors, those who usually have an imperfect use of reason and those others to whom the law recognizes equal guardianship." (Preamble, I).
Then, quoting Pope Francis, he recalls the need for personal holiness and the moral commitment of all the faithful in order to promote the credibility of the proclamation and the effectiveness of the Church's mission.
The Preamble also recalls, as it could not be otherwise, the gravity of the crimes of sexual abuse of minors and the painful and unacceptable consequences that they cause first of all to the victims but also to the whole Church.
The criminal type of abuse
The first chapter of the Instruction seeks to delimit the criminal offense of sexual abuse of minors. It does so, evidently, through the most recent canonical norms, focusing mainly on what is described in can. 1398 §1. Perhaps, taking into account that the typology of the crime is very broad, some concrete guidelines would have been appreciated to delimit what falls within the criminal type and what does not, something that, on occasion, is not easy in the judicial investigation. The FDD Vademecum, in this sense, is helpful, as is the Protocol of the same EEC, which presents this crime based on the broad definition offered by the DSM-5.
The same chapter also deals with the obligation of clerics and religious to denounce, not only before the religious authority, but also before the civil authority (articles 6 and 7). In this regard, the Instruction recalls, however, the necessary reserve regarding persons or matters of which they have had knowledge by reason of their ministry (article 7).
In our opinion, it is important to remember this. Regardless of the necessary collaboration with the civil sphere, there is, however, the secrecy of office that must be observed appropriately. The same applies, of course, to all that is known in the confessional sphere.
The chapter ends by recalling the statute of limitations for criminal action according to the time at which the crime was committed, taking into account, however, the possibility of the Dicastery for the Doctrine of the Faith to derogate from it for singular cases (article 8). This juridical figure, of great importance, should not be underestimated.
Perhaps it would be necessary, at the universal level, to vindicate more strongly its importance and validity and to specify clearly the criteria by which the Dicastery for the Doctrine of the Faith can derogate from it, thus avoiding the danger of arbitrariness in the administration of justice and certainly the possible scandal.
The role of child protection offices
The second chapter of the Instruction focuses basically on the so-called 'Offices for the protection of minors'.. It is an instrument foreseen and urged by Pope Francis in the Motu Proprio. Vos estis lux mundi.
These 'offices' to be set up in each diocese or ecclesiastical province will be accompanied by a Coordination and Advisory Service of the Episcopal Conference.
It is certainly an ambitious project, to which a good part of the Spanish dioceses have been joining, but which presents its difficulties.
The effort that many dioceses, some with few means, have dedicated to this new instrument is laudable. But we should certainly ask ourselves some questions: To what extent are Would it not be more effective to concentrate this effort at the level of ecclesiastical provinces as the Instruction allows? Are their members sufficiently prepared? Is it purely 'formal' or fully 'functional'? To what extent can the victim feel fully welcomed and understood if their members, in many cases, are part of the same 'establishment', despite what the Instruction indicates in Article 9, §5? The Church, in this sense, adopts an instrument that is not found in other areas with a higher incidence of these crimes.
From the third chapter and onward, the Instruction dwells on how to proceed canonically in the face of an allegation of sexual abuse of minors and its subsequent development. The document sets out, first of all, what the preliminary investigation is and how to carry it out (c.1717).
It then goes on to consider the intervention of the Dicastery for the Doctrine of the Faith in the light of the results of this investigation and the possible decisions it can take (chapter IV).
Finally, the Instruction describes the two possible processes: the extrajudicial or also called administrative and the judicial (chapters V and VI). These chapters, evidently, are limited to recalling what the law, together with the other documents of the Holy See, have stated on the matter.
However, it also presents some novelties or aspects that, in our opinion, should be highlighted. With regard to the investigator of the preliminary phase, the Instruction offers the possibility that it be carried out by one of the judges-auditors of the Tribunal of the Rota of the Apostolic Nunciature (article 14, 1º).
The same offer is made later in relation to extrajudicial and judicial procedures (Articles 24, 1º and 33 §2). It is certainly a collaboration that is appreciated by the more than sufficient preparation of its members.
However, in recent years, several Spanish dioceses, with considerable effort, have prepared their tribunals for such tasks by developing, in some cases, a joint work between neighboring dioceses.
Thanks be to God, the time when priests, with good intentions but little preparation, carried out this task in an often hostile and misunderstood environment has passed.
It is also worth highlighting an aspect that, on occasions, has been little taken into account or has been overlooked. We refer to the right of the accused to be informed and attended to during the preliminary investigation (article 18).
Also at that time, even more so when precautionary measures may be imposed, the accused must have the opportunity to receive legal assistance. The Instruction, obviously, recalls the importance of the lawyer in the extrajudicial and judicial process (article25 §2 and article34 §2).
Finally, and in this same section, it seems to us that what is contained in article 20, 5 of the Instruction is very appropriate in recalling c. 1341 for those cases that do not constitute a reserved crime, but could constitute a crime against the sixth commandment (c. 1398), thus avoiding, in those cases that can proceed in this way, what apparently seems to be an excessive judicialization of all procedures in the Church.
The Instruction is in line with the paradigm shift that has taken place in the Church following the promulgation of the new Book VI of the Code of Canon Law. In the latest legislative reform in criminal matters, the protected legal right is not primarily the protection of the dignity of the ministry ordered by the Ministry of Justice. (or the sanctity of the sacraments) but the protection of the dignity, freedom and sexual indemnity of any person, especially of the most vulnerable, such as minors and those to whom the law recognizes equal protection.
Clearly, the Instruction is not a document that seeks to innovate. That is not the objective. It seeks above all to unify criteria for action in all the dioceses of Spain, offering in a systematic way the universal norms and detailing, as is the case, its mode of application and the circumstances that may arise in the management of the same.
We should therefore welcome this document with which the Church in Spain seeks to confront this serious problem and hope that its application will contribute not only to the legal resolution of this regrettable crime but also to raising awareness that the pastors of the Church fulfill their duties in an exemplary manner.
