Bishop Arrieta, on the reform of the Code: "Now the crimes, the penalties and the way to apply them are well determined".Vatican updates its penal system to meet today's needsReform of canon lawThe new reform will come into force on December 8, 2021, the feast of the Immaculate Conception of the Blessed Virgin Mary. Coincidentally or not, the date coincides with the day that another important reform carried out by Pope Francis on the declaration of nullity of marriage came into force.
Apart from this anecdotal issue, many media, when echoing this reform, referred to it as the one that will serve to "combat sexual abuse" or through which "the Pope hardens the punishments for abuse of minors". It is true that the reform includes a series of novelties in this area, although it is not the only object of the reform.
The reform profoundly affects the way in which Canon Criminal Law had been considered and applied, the determination of penalties, the reestablishment of the requirement of justice, the amendment of the offender and the reparation of the scandal and the compensation of the damage produced through the reparative nature of the penalty.
The context
The Code of Canon Law was drafted in the context of the Second Vatican Council, and several controversies arose in the penal area. In the first place, whether the very idiosyncrasy of the Church made it advisable to establish a punitive law. Once this question was resolved positively, it was necessary to determine what conduct would be considered a crime and how it would be punished. The historical moment that was being experienced meant that the determination of the penalty in the Code of Canon Law not infrequently took the form of the formula "must be punished with a just penalty". Those who had the power to punish, knowing the facts and the perpetrator, could impose an appropriate penalty that would effectively redirect his conduct. However, the measures adopted did not prove to be appropriate, and other solutions were sought because of the difficulty of applying Canon Criminal Law itself.
The scandals that have arisen in various particular Churches regarding sexual abuse have revealed the pain and harm that has been caused to the victims and to the Church itself as the people of God, as well as the need for Pastors to act diligently in the face of these situations: not only by sanctioning them but also by preventing them, avoiding their repetition in the future and offering a truly pluralistic response, since it is not only a matter of applying a sanction to the perpetrator, but also of favoring the healing of the victim.
Given these circumstances, it was necessary to anticipate a response to the promulgation and entry into force of this reform, in such a way as to facilitate, complete and adapt the application of the measures and processes regulated in the Code of Canon Law. At the same time, it had to respond adequately to the universal Church, which is made up of a pluralistic society with specific needs, and which categorically rejects these actions.
Actions taken
Pope St. John Paul II, on April 30, 2001, promulgated the Motu Proprio Sacramentorum Sanctitatis Tutela, establishing certain crimes which, because of their gravity, were to be prosecuted through the Congregation for the Doctrine of the Faith. Among these was included the crime of solicitation against the Sixth Commandment committed by a priest during confession or on the occasion or pretext of confession.
Because of the multiple cases that came to light through the media in the United States or Ireland, which caused great pain to the Christian community and whose complexity was already being studied by the Congregation for the Doctrine of the Faith, Pope Benedict XVI, on May 21, 2010, included in this Motu Proprio the crime of acquisition, possession and dissemination by a clergyman, for libidinous purposes, in any manner and by any means, of pornographic images of minors under 14 years of age, equating the minor to an adult person who usually has an imperfect use of reason in crimes against morality.
Pope Francis, on October 4, 2019, extended to 18 years the age of prosecution of these crimes by the Congregation for the Doctrine of the Faith when the victim was a minor, and redefined as a crime the acquisition or possession or disclosure, for a libidinous purpose, of pornographic images of minors under eighteen years of age by a cleric, in any form and by any means. These measures were completed with the promulgation, on July 16, 2020, of a Vademecum, on some procedural issues in cases of sexual abuse of minors committed by clerics, prosecuted by the Congregation.
In the current pontificate
Since the beginning of his pontificate, like his predecessors, Pope Francis has tried to respond to sexual abuse with zero tolerance, highlighting the need and importance of listening to the victims and repairing the physical, psychological and spiritual damage caused, establishing recommendations to the Bishops' Conferences, putting into operation the Pontifical Commission for the Protection of Minors, adopting normative dispositions applicable to the whole Church and reiterating the obligation to apply canonical criminal law through the exercise of the power of pastors and from the sphere of responsibility they acquire towards the Church, adopting normative dispositions applicable to the whole Church and reiterating the obligation to apply the canonical penal law through the exercise of the pastors' own power and from the scope of the responsibility that they acquire before the particular church entrusted to them for the care of the good of souls, so that these situations would not be repeated in the future.
In the same vein, Pope Francis promulgated, on May 7, 2019, the. Motu Proprio Vox Estis Lux Mundiwhose norms are approved "ad experimentum for a three-year period". This Motu Proprio stands out for establishing a new list of crimes of sexual abuse when the perpetrator is a cleric or a member of an Institute of Consecrated Life or Society of Apostolic Life. In addition, the following actions committed against adults, minors or vulnerable persons are established as crimes: forcing someone, with violence or threat or through abuse of authority, to perform or suffer sexual acts; performing sexual acts with a minor or a vulnerable person; producing, exhibiting, possessing or distributing, including by telematic means, child pornographic material, as well as confining or inducing a minor or a vulnerable person to participate in pornographic exhibitions.
New developments in the reform of the Code
The reform of Book IV, specifying the penalties to be imposed and echoing the measures already adopted, incorporates these crimes with some modifications in its wording, mainly under Title VI, "Crimes against life, dignity and freedom of man", which highlights the will to protect the victims and recognize the violation of their dignity and freedom when an abuse has been committed, although some crimes are still included in Title V, "Crimes against special obligations", when the perpetrator is a clergyman.
The mention of "vulnerable adults" is not expressly included. Their protection is established indirectly, through "a twist" as indicated by Bishop Arrieta, architect of the reform, when mention is made of the imperfect use of reason or when the law recognizes equal protection, due to the discrepancies that have arisen in the doctrine regarding its interpretation.
On the other hand, although in the Motu Proprio Vos Estis Lux Mundi actions or omissions aimed at interfering with or evading civil investigations or canonical investigations by authority are considered a crime, the new Book VI regulates as a crime the omission to communicate notice of the crime in the canonical sphere, which does not prevent collaboration with the civil authority as concretized in the Vademecum itself.
The new Book VI regulates the inclusion of the lay faithful as perpetrators of a crime of abuse when they enjoy a dignity or exercise an office or function in the Church in two situations: when they commit a crime against the sixth commandment and the victim is a minor or a person with imperfect use of reason or to whom the law recognizes equal guardianship, and when by exercising violence, threats or abuse of authority they commit a crime against the sixth commandment or force someone to perform or suffer sexual acts.
Likewise, in order to restore justice, it is expressly established that the judge or authority, during the prosecution of the case, must guarantee the right of defense, the presumption of innocence and the dignity of the alleged perpetrator and the victim.
In addition, it will ensure that the processes are agile, avoiding the prescription of crimes during their processing, will impose an appropriate penalty taking into account the mitigating and aggravating circumstances, such as drunkenness or other disturbance of the mind procured to commit the crime, and will establish the reparation of the damage and scandal under the reparatory nature of the penalty, having to duly execute the sentence.
Balance
Thus, the reform of Book VI of the Code of Canon Law affects the area of sexual abuse by including a series of novelties and echoing the measures that, in parallel to the work prior to the reform, had to be adopted to avoid the repetition of these conducts, to protect the victim with dignity and respect by offering the necessary pastoral and psychological help and assistance, to obtain the forgiveness of the Christian community seriously injured, and to facilitate the application of the established canonical criminal law.
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