Carmen PeñaCanon Law is responsible for creating a framework for the prevention of abuses".

Abuse of conscience, vulnerability or the prior investigation in cases of sexual abuse are some of the topics to be addressed in a special day of criminal law, the Spanish Association of Canonists.

Maria José Atienza-October 13, 2022-Reading time: 4 minutes
Carmen Peña

Photo: Carmen Peña

Since the Church took the lead in the fight against sexual abuse, enacting various normative initiatives, there has been a growing concern to emphasize the protection of the victim and the safeguarding of the rights of those involved in a process.

We talked about all this with Carmen Peña, president of the Spanish Association of Canonists, a few days before this meeting.

For some years now, we have been observing various changes and advances in the treatment of sexual abuse in Canon Law. In your opinion, what are the keys to the new Book VI of the Code? 

-The issue of sexual abuse is a very complex subject, which allows for various approaches, the penal one being only one of them. In fact, criminal punishment is the ultimate remedy, we could say, in that it punishes the crime already committed, which is in itself a failure of the system.

The ecclesial treatment of abuses, both sexual and of conscience and power, allows - and demands - a much broader approach, which has been developed in recent years in successive pontifical norms and interventions: thus, the focus has been placed more on prevention, on the creation of safe environments in ecclesial entities and religious works, and has sought to generate a change of attitude in the treatment of these abuses.

Also from the penal perspective - insufficient, but necessary - there has been a succession of regulations. Specifically, in the recent reform of the sixth book of the CodeIn addition, there have been significant changes in the substantive regulation of these abuses, not only by generally stiffening the penalties for these crimes or limiting the statute of limitations, but also by broadening the subjects susceptible to committing these canonical crimes, which are no longer only clerics, but also lay persons who perform offices or functions in the Church.

One of the areas in which there has been a significant change in mentality is centered on the so-called abuse of authority. How to discern if this type of abuse, which is certainly complex to detect, has existed? How does the Code of Canon Law deal with this type of abuse, which it did not do before? 

-Indeed, the new rules have introduced concepts that are very difficult to define legally, and even more so in the criminal field, where interpretation is necessarily strict. This would be the case of concepts such as abuse of authority or vulnerable subjects, whose exact scope and content are far from clear. This is the reason why, at the Conference of the Spanish Association of Canonists on October 20, we wanted to pay special attention to these concepts in order to try to clarify them, not so much from a theoretical lucubration perspective, but in order to facilitate the task of legal agents in the processing and resolution of these cases.

With respect to the abuses of authority In particular, beyond its criminal configuration, it is necessary to insist on the need to generate a change in the habits and modes of government that will help to avoid abuses and arbitrariness. The objective is not only to avoid abusive or criminal exercises of authority, but also to prevent the abuse of authority.r proactively creating the dynamics and habits of good governance in the exercise of authority in the church, as well as to promote a culture of care for all people, especially the most vulnerable.

After these years in which this has been "the topic" in the media and in conversations of experts within the Church, what are the areas that deserve more attention? Why continue to study and deepen our knowledge of this field of Canon Law? 

-Although the approach to abuse, whether sexual, of conscience or of authority, must necessarily be interdisciplinary, since it also involves theological, spiritual, moral and psychological issues, Canon Law also has an important role to play. In fact, there were already norms in Canon Law that protect the inviolability of the conscience of persons, that preach the distinction of jurisdictions, that sanction the use of penance for spurious ends, etc.

But there is still much to be done.

In the area of prevention, Canon Law is responsible for creating a framework of good governance and interpersonal relationships that favor the eradication of arbitrariness, the establishment of control mechanisms and the detection of irregular conduct.

And, with respect to the abuse In addition to the tasks that have been committed, it will be essential to establish clear, accessible and effective channels for reporting, as well as to improve the criminal approach, especially at the procedural level.

Responding on a personal level, I believe that the reform of the criminal process is still pending, which should better guarantee the rights of all those involved. This would imply reviewing aspects such as the regulation of the legal position and the possibility of action of the victims in the processes for these crimes, the need to avoid revictimization, or the achievement of effective compensation for the damage caused, but also the safeguarding of the legal certainty and the right of defense of the accused, the restoration of their good reputation in case of false accusations, etc.

How to combine the work of Canon Law and ordinary civil law in matters of this nature?

In the specific case of the prosecution of sexual crimes, the principle to be followed, once the old self-defensive conceptions have been overcome, is that of full collaboration of the ecclesiastical authorities with the civil authorities in the investigation of these crimes.

However, at the legal level, it would be advisable, for the sake of the victims, legal security, the rights of the parties and the investigation of the crime itself, to go deeper into issues such as the reciprocal reception of the proceedings carried out in state and canonical headquarters, the scope of the obligation to report the crime, etc.

As these are abuses occurring within the Church and not only by clergy/religious, how do you proceed in cases of abuse by lay people in Church environments?

-As I have indicated, the commission of these crimes by laymen was not regulated in Canon Law until the recent reform of book VIThis is largely due to the purpose of Canon Criminal Law itself, which is not intended to replace or duplicate state criminal legislation, which already contemplates these crimes, regardless of whether they are committed by clerics or laymen.

However, this does not mean that the Church does not have a responsibility to prevent abuse committed by lay people in environments that depend on it, and that is why, even before the reform of the Code, there was a call to implement measures to create safe environments for children and adolescents in schools, parishes, etc.

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