Fr. Gerald E. Murray: Reflections on the New Sex-Abuse Norms

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*Image: Cardinal Maradiaga and Pope Francis at the 2018 Synod on Young People, Faith, and Vocational Discernment [photo by Paul Haring, CNS]

By Fr. Gerald E. Murray, The Catholic Thing, May 18, 2019

Fr. Gerald E. Murray

Last week, Pope Francis issued new canonical norms to deal with the plague of the sexual abuse of minors and adults by clerics and religious. His motu proprio “You are the light of the World” (Vos estis lux mundi) establishes new provisions to deal with the questions of how crimes against the Sixth Commandment are to be reported to Church authorities, and what is to be done when the person accused is a bishop.

These norms were issued without prior publicity and would have benefitted from a wider consultation during the drafting stage. Canonist Edward Peters identifies problems with the document, beginning with the fact that it is not published in Latin, but only in Italian and in translations based on the Italian. This creates serious problems of interpretation. When there is no Latin text, the terminology cannot be readily compared and harmonized with the Code of Canon Law and other canonical texts in Latin. Standard legal usage is vital for the consistent application of the law. That is missing here.

Also missing is any mention of the penalties that would be incurred by anyone found guilty of violating these new norms. The procedures outlined in articles 12-19 for investigating reports of episcopal crimes make no reference to canons 1717ff that regulate how penal processes are to be initiated and carried out. That is a serious deficiency.

The most noteworthy provision concerns the newly specified episcopal canonical offense “consisting of actions or omissions intended to interfere with or avoid civil investigations or canonical investigations, whether administrative or penal, against a cleric or a religious” accused of the following canonical crimes: “forcing someone, by violence or threat or through abuse of authority, to perform or submit to sexual acts; performing sexual acts with a minor or a vulnerable person; the production, exhibition, possession or distribution, including by electronic means, of child pornography, as well as by the recruitment of or inducement of a minor or a vulnerable person to participate in pornographic exhibitions.” (Article 1)

What is most significant is the phrase “actions or omissions.” Bishops are now subject to canonical discipline if they either take steps to interfere with or avoid civil or canonical investigations, or simply omit initiating a canonical investigation when they have received a report of a crime of sexual abuse by a cleric or religious.

This provision can be seen as a specification of the existing canonical duties of bishops as set forth, for example, in canons 384 (“he is to ensure that they [priests] fulfill the obligations proper to their state”) and 392 (“he is bound to foster the discipline which is common to the whole Church, and so press for the observance of all ecclesiastical laws.”)

A question arises though about the application of the new norms to past crimes. Canon 9 states “Laws concern matters of the future, not those of the past, unless provision is made in them for the latter by name.” No such provision for past crimes is clearly stated in the norms. A problem could thus arise if someone accuses a bishop of thwarting the investigation of accusations of sexual abuse before these norms came into effect.

The Holy See should clarify whether past incidents of inaction to investigate or of actual cover-ups of sexual abuse by clerics and religious will be subject to these new norms. The likely response is that these norms only clarify what was already present in canon law and in the practice of the Holy See, and thus does not constitute new law.

The McCarrick case, of course, comes immediately to mind. He was found guilty by the Congregation for the Doctrine of the Faith of “sins against the Sixth Commandment with minors and with adults, with the aggravating factor of the abuse of power.” His victims included seminarians studying to become priests of his diocese. His abuse of authority was an implied threat: submit or risk being expelled from the seminary.

A bishop’s failure to investigate clerics [bishops, priests, and deacons] and religious accused of “forcing someone, by violence or threat or through abuse of authority, to perform or submit to sexual acts” or of “performing sexual acts with a minor or a vulnerable person” now results in him being liable to canonical investigation and eventual punishment by the Holy See.

It is also significant that episcopal malfeasance can now be reported by “any person,” not only the aggrieved party, to the Holy See directly, to the Papal Representative [Nuncio] or to the diocesan reporting system mandated by this document. (Article 3)

This provision has the potential to bring bishops to account for cover-ups in a way not possible so far. Consider for instance Edward Pentin’s story in the National Catholic Register concerning accusations of rampant homosexuality at the major seminary in Tegucigalpa, Honduras, under Cardinal Oscar Maradiaga. Anyone can now present an accusation of malfeasance to Holy See directly or to the Nuncio in Honduras, citing as evidence published reports and testimonies. He can also inform the public that he has made this report. The norms state: “An obligation to keep silent may not be imposed on any person with regard to the contents of his or her report.”

Pentin’s report includes this testimony: “’Homosexuality in the seminary is a problem which has proliferated in the past few years,’ said the seminarian who spoke with the Register under condition of anonymity. ‘Another big problem is that when someone speaks differently than what the bishops or cardinal are saying, they are censured and expelled,’ he added.”

Did Cardinal Maradiaga cover-up for homosexual activity by priests or deacons at his seminary involving any seminarians, who could be considered to be vulnerable adults? Did he expel seminarians who spoke out about this problem? Did he cover-up sexual misconduct with seminarians by his former auxiliary bishop, Juan Pineda?

The new norms provide hope that answers to these questions may be forthcoming.

Fr. Gerald E. Murray

The Rev. Gerald E. Murray, J.C.D. is a canon lawyer and the pastor of Holy Family Church in New York City.