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OVERDOSING ON THE MEDICINE OF MERCY
By Charles M. Wilson, M.T.S. and R. Michael Dunnigan, J.D., J.C.L.
“ [O]ften
errors vanish as quickly as they arise, like fog before the sun.
The Church has always opposed these errors. Frequently she has
condemned them with the greatest severity. Nowadays however, the
Spouse of Christ prefers to make use of the medicine of mercy
rather than that of severity. She considers that she meets the
needs of the present day by demonstrating the validity of her
teaching rather than by condemnations.”
—Pope John XXIII (1962)
In a remarkable article published last spring, James
Hitchcock argued that an unrealistic spirit of “compulsory
optimism” has pervaded the Church since the Second Vatican
Council and that the effects of this compulsory optimism have
been to cause the faithful to ignore the
devastating internal crisis afflicting the
Church and to disable the hierarchy from
taking any action effectively to address
that crisis or the scandals associated with it
[“The End of Gaudium et Spes?” Cath. World Rpt. (May 2003)]. The debilitating
spirit of optimism identified by Hitchcock has been at least as
present in canon law as in any other aspect of the Church’s life.
The most striking example of this phenomenon in the legal realm
has been the near abandonment
of the Church’s penal or criminal law
in the decades since Vatican II. The post-conciliar
decline in penal law is not only a
symptom of the problem described by
Hitchcock, but it is also a major cause of a
host of other problems, especially the
sexual abuse crisis in America.
The Last Document
of Vatican II
To understand the decline of penal law, one must remember the
connection between
Vatican II and the 1983 Code of
Canon Law (the code currently in force in the Church). Pope
John XXIII had announced on the same day—25 January
1959—both the convocation of the Second Vatican Council
and also the reform of the Code of Canon Law. When Pope
John Paul II promulgated the 1983 code, he described it as a
translation of the Vatican II teachings into legal language. In fact, one prominent canonist has described the code as the final
document of Vatican II [C. Burke, Authority and Freedom in
the Church (Ignatius, 1988), 35].
We do not imply that the current code and its deficiencies are an
inevitable result of the teaching of Vatican II. Rather, we
believe that the spirit of “compulsory optimism” that characterized
the period in which the Council met left an unmistakable imprint
on the 1983 code as well. Although we here join in Hitchcock’s
critique of that optimistic spirit and its impact on the life of
the Church, neither he nor we suggest that the Church would have
been better served by a mood of pessimism. Rather, we believe
along with Hitchcock that the most correct Catholic attitude
is one of moral realism, born of the
Church’s own teaching that, although human
nature is inherently good, that nature
is, at the same time, fallen human nature.
The post-Vatican II debate concerned
not only what type of penal law the Church
should have, but whether the Church
should have any penal law at all [cf. V. De Paolis – D. Cito, Le sanzioni nella Chiesa
(Urbania, 2000), 58-61]. Indeed some scholars
already had argued that any type of law
was inherently inconsistent with the
Church’s spiritual nature.
Proponents of an exclusively “spiritualistic”
understanding of the Church were especially opposed
to the existence of penal law. They and others argued that, because
penal law resorts to coercion to correct and punish the
faithful who commit ecclesiastical crimes (delicts), penal law therefore is
incompatible with the principle of religious liberty.
Another argument advanced against penal law was that the conversion of transgressors should be absolutely voluntary
and never should be the result of coercion.
These arguments did not prevail and, among the seven
books of the 1983 Code of Canon Law, one was devoted to penal
law. The survival of penal law, at least in some form,
seems to have been inevitable. Vatican II itself had affirmed
that the Church is not only a spiritual community, but a visible
and hierarchic one as well [Dogm. Const. on the Ch. Lumen gentium (21 Nov. 1964), 8]. Thus, Book VI of the 1983 code
contains the Church’s legislation on penal law, and the first
canon of that book declares, “The Church has its own inherent
right to constrain with penal sanctions Christ’s faithful
who commit offenses” [can. 1311].
Penal Law after Vatican II
If penal law survived, however, the new form that it took
was very different from the Church’s previous penal law.
While the Church’s earlier code (that of 1917) had contained
220 canons on penal law, this number was reduced to only 89
canons in the 1983 code. The number of penalties for specific
crimes was reduced from 101 in the 1917 code to 35 in the
1983 code.
This reduction in the number of canons and penalties corresponded
to a general decline in the importance of penal law
in the new code. One of the most prominent authorities on penal
law, Velasio De Paolis, cites canon 1341 as the provision
most indicative of the shift from the 1917 code to the 1983
code. That canon provides that an ecclesiastical authority may
begin a penal process “only when he perceives that neither by
fraternal correction or reproof, nor by any methods of pastoral
care, can the scandal be sufficiently repaired, justice restored
and the offender reformed.” Thus, the 1983 code itself
contains an unmistakable bias against the invocation of the
Church’s penal law and establishes it as a last resort to be
used only after all other options have failed.
Other changes in the new code include the abolition of all
definitions of legal terms and a simplification of the procedures
for remission of penalties. The new code expresses a
preference for declared penalties over automatic or latae
sententiae penalties, and for the infliction of penalties by a penal trial
rather than by a simple decree of the bishop. However, bishops
enjoy a great deal more discretion under the new code in deciding
on specific penalties and indeed in deciding
whether to invoke the penal law at all. [On differences
between the two codes, see generally T. Green, “Introduction
to Book VI,” in The Code of Canon Law: A Text and Commentary
(Paulist, 1985).]
Penal Practice after Vatican II
The penal process was supposed to be the option of last resort,
but in practice it became an option of no resort whatsoever. That is, for all
practical purposes, recourse to the penal process became a merely
theoretical possibility. Since the codification of 1983, few
penalties have been inflicted. Between
the years 1983 and 1998 (the last year for which figures
are available) the Church’s standard court of appeals, the Roman
Rota, decided only three penal cases on the merits.1
One of the reasons for reducing the number of penalties
and expanding the discretion of the bishops was to allow the
bishops to adapt penal discipline to local circumstances. In
fact, however, almost no bishops have promulgated particular
(local) law on penal discipline. One of the few who has done so is Bishop Fabian Bruskewitz of Lincoln, Nebraska,
who in 1996 legislated the penalty of excommunication for the
offense of joining or remaining a member of certain organizations
whose purposes are incompatible with the Catholic
faith. When he did so, however, he received more criticism
than commendation from his brother bishops.
The assumption both among the Church’s leaders and even in the law
itself seems to be that penalties and penal trials
are almost never necessary. This attitude recalls Pope John
XXIII’s speech at the opening of Vatican II, in which he said
that, although the Church continues to oppose doctrinal errors
as she always has done, today she “prefers to make use of
the medicine of mercy rather than that of severity.”
Perhaps canon 1341’s relegation of penalties to the option
of last resort is not objectionable in itself. We do not assert
that Church leaders should impose penalties simply for the
sake of doing so. If the other options cited in that canon—fraternal
correction, reproof, and pastoral care—had proven effective,
then there would have been no ground for criticizing
the failure to use the penal law.
However, the practice of Church leaders in applying the
“medicine of mercy” virtually every time that a problem has
arisen has been one of the most spectacular failures of the
post-conciliar period. One need only recall the many instances
of doctrinal unorthodoxy and liturgical abuse that
have gone unpunished and uncorrected. The most outrageous
example of the failure to punish, however, concerns the
sexual abuse of minors. We now know that, from 1950 to
2002, accusations of sexual abuse were made against more
than 4,000 members of the Catholic clergy in the United States
[John Jay Coll. of Crim. Justice, The Nature and Scope of the
Problem of Sexual Abuse of Minors by Catholic Priests and Deacons
in the United States (27 Feb. 2004)]. However, the response of
choice by bishops and religious superiors usually was the
“medicine of mercy” and never or almost never was the penal
trial [cf. ibid.; J. Llobell, Addr. “Contemperamento tra gli
interessi lesi e i diritti dell’imputato” (Rome: Pont. U. Holy
Cross, 25 Mar. 2004)].
Even before the American crisis of sexual abuse came to
light, De Paolis already had pointed out that, in the years
since Vatican II, penal law had come to be neglected in favor
of a dangerous and misplaced emphasis on pastoral methods
of correction [De Paolis—Cito, Le sanzioni nella Chiesa, 210].
This caused him to question whether the penal law of the 1983
code was adequate to prevent damage to souls and to protect
the rights of the faithful [Ibid.].
An Aversion to All Correction?
The post-conciliar aversion to the use of penal processes
has become almost an aversion to correction itself, regardless
of the form. Canon 1341 expresses a preference against penal
trials and in favor of the milder remedies of fraternal correction, reproof, and
pastoral action. In at least some contexts, however, it appears
that most Church leaders have not had the stomach even to use
these gentlest forms of correction. The documents disclosed in the
Boston civil litigation show not that Cardinal Law opted for
private pastoral methods to rebuke his priests who had sexually
abused minors, but rather that he seems not to have rebuked them
at all. His letters
to them expressed only gratitude for their service and
sympathy for the difficulties that they were experiencing [cf.
R. Dreher, “Faith in Our Fathers,” National Review Online (25 Jan. 2002)]. Thus, from all that appears in the record, it seems
not to be the case that the cardinal opted for pastoral methods
of correction that sadly proved ineffective, but rather that he
made no serious effort whatsoever—pastoral or otherwise—
to correct them or to reprove them for their crimes.
Several bishops have said that they addressed clerical
sexual abuse only as a matter for the confessional and for psychological
treatment. They claim that this approach, though
flawed in retrospect, was justified by their belief at the time
that priests could be cured of their proclivity to molest children
and adolescents. However, these bishops cannot explain
why they ignored the law for such a long time. During this
entire period, the penal law of the Church recognized clerical
sexual abuse of minors as a serious crime and required that it
be punished [1983 CIC can. 1395 §2; 1917 CIC can. 2359 §2].2 Yet it
seems that no one or almost no one ever was punished under these
provisions of the law. Regardless of what they believed about
whether pedophilia was curable or not, it is shocking that so many
of our bishops, faced with this multitude
of complaints of sexual abuse, felt so free to ignore the
law of the universal Church.
This aversion to correction extends even to actions in other
contexts that only resemble penal action. Thus, when Archbishop
Raymond Burke notified unrepentant pro-abortion
politicians that they would be denied communion, Cardinal
Theodore McCarrick and Cardinal Roger Mahony criticized
his action. McCarrick referred to Burke’s action as a “sanction”
and Mahony stated that such a step was improper unless
the politicians had been found guilty of a crime. However,
the cardinals were wrong to assume that Burke’s action
was a penal sanction or that it had anything at all to do with
penal law.
Rather, as Archbishop Burke already had explained, the
question is one of sacramental discipline. The law of the
Church states that persons who “obstinately persist in manifest
grave sin are not to be admitted to holy communion”
(can. 915). Note that the canon states not that such persons
may be denied communion, but rather that they are not to be
admitted. Despite the obligatory nature of this canon, however,
few bishops have attempted to correct the proabortion Catholic politicians in
their dioceses or even have spoken out against the phenomenon of
public promoters of abortion continuing
to receive communion in Catholic churches week after
week and year after year.
A Revival of Penal Law?
Because this article has offered a critique of the post-conciliar
decline of the Church’s penal law, one might expect us
enthusiastically to welcome the recent announcement that several
ecclesiastical penal trials of clerics accused of sexual abuse are
to be held in the United States. It is indeed possible that Church
leaders now are prepared to end their almost exclusive reliance on
the medicine of mercy for nearly every problem. Perhaps they
realize that there is a certain wisdom in the fact that penal law
describes some of its strongest measures as
medicinal [can. 1312 §1, 1°]. Mercy is a fine medicine, but it is
not the sole medicine available to Church leaders and it is not
the remedy best suited to every situation.
However, there are dangers in this apparent revival. Under public
pressure arising from the American sexual abuse crisis, Church
leaders here and in Rome have eroded many of the protections that the Church’s penal law has afforded to persons
accused of ecclesiastical crimes, such as the right to a
trial, the right to appeal, and the right to face one’s accusers
[cf. J. Allen, “The Word from Rome” (26 Mar. 2004)]. These
policies may provide cover for embattled Church leaders, but
they do not serve the search for truth in these cases.
Church leaders both in America and in Rome seem to believe
that the rights of defendants do not require legal recognition,
but will be sufficiently protected by the goodwill of
bishops and judges. If this is indeed their thinking, then what
we are witnessing is not a real solution to the crisis of penal
law in the Church, but only an exchange of one false optimism
for another.
Notes
1. These numbers include only penal cases decided in the
Church’s judicial system. Other cases undoubtedly have been decided
in the administrative system. However, the tribunal to which
these cases may be appealed, the Apostolic Signatura, imposes strict
rules of secrecy on its cases. As a result, the number of penal cases
decided in the administrative system is unknown. However, Carlo
Gullo, an advocate who practices before both the Rota and the
Signatura, asserts that his experience in practicing before the
Signatura suggests that the number of administrative cases decided
by that tribunal is relatively small [Carlo Gullo, Addr. “Le ragioni
della tutela giudiziale in ambito penale” (Rome: Pont. U. Holy
Cross, 25 Mar. 2004)].
2. In the 1917 code and the original 1983 code, the crime was defined
as sexual activity with a minor below the age of 16. In 1993, the
National Conference of Catholic Bishops requested and received
permission for a derogation from canon 1395 §2 to make sexual activity
with any person below the age of 18 a crime.
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Saint John Fisher
1469-1535
This issue is dedicated to the English martyr, who suffered for
upholding the indissolubility of marriage and for defending the
Church from royal power. He was beheaded on Tower Hill after
having been convicted of treason for his refusal to acknowledge
King Henry VIII as the supreme head of the Church.
Widely known as an educator and preacher, Fisher was made
Bishop of Rochester and also elected Chancellor of Cambridge
University in 1504. He earned the enmity of King Henry for opposing
encroachments on the Church in 1529 and later for
preaching against Henry’s divorce from Queen Catherine.
Fisher was arrested and imprisoned several times before his
martyrdom and, alone among his brother bishops, never wavered
in his dedication to the defense of marriage and the
rights of the Church.
With American tribunals issuing thousands of decrees of nullity every year and
the Church being accused of interfering in civil politics
merely for the defense of innocent life, St. John Fisher
serves as a shining example and a powerful intercessor in
our own day.
Saint John Fisher, pray for us. |
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