Hey there, time traveller!
This article was published 21/5/2010 (3438 days ago), so information in it may no longer be current.
Why has the Roman Catholic Church all but abandoned its own canon law court system, except for the marriage annulment procedure?
For more than 15 centuries this church has had its own rule-of-law courts for resolving disputes peacefully and for disciplining both its laity and its clergy. In theory that system still exists in its unique Code of Canon Law, recently revised in 1983.
Why do we never hear about this, whether from the pope or the Sunday pulpit? And why not specifically for cases of "sexual abuse of minors?"
Winnipeg's Archbishop James Weisgerber has written for his church (Church defers to police, Winnipeg Free Press, April 15), as if his church has no history of its own rule-of-law for policing such cases. Was it ignorance? Denial?
As the last living remnant of ancient Rome, the Roman Catholic Church continues its traditions and institutions.
Imperial Rome since the time of Christ had an all-male monarchy, a ruling elite of provincial autocrats (consuls), a universal working language of Latin, a cradle-to-the-grave citizenship demanding loyalty and excluding non-citizens, a punishment and reward system, a monolithic ideology ruled by faith, and belief in a divine source for its authority.
All of this was governed by a single justice system of laws, law courts, lawyers and judges, from the British Isles to eastern Europe and around the entire Mediterranean until about the year 500 a.d.
Roman civil law, revived only after centuries of dormancy by the French Emperor Napoleon (1804), remains the basic model for three-quarters of the world's present legal systems.
Throughout the medieval era, however, the Roman imperial system lived on in the Roman Catholic Church, which linked its canon law to that Roman civil law model. All of its roads still led directly back to ancient Rome.
And the Roman Catholic Church today?
This world-wide church owes obedience to an infallible pope in Rome who claims divine authority, albeit from a monotheistic trinity and not from multiple Roman gods and goddesses. Bishops and archbishops, like consuls, receive instructions in Latin from Rome, regarding how their baptized citizens can remain eligible for immortality in heaven or hell.
Its theology rewards believers, but outside the church there is no salvation. Historically, all of this is governed by the church's single system of canon law between each diocese and the Vatican.
All recent popes and bishops, however, do not appear to have noticed their rule-of-law, certainly not "in respect of sexual abuse of minors."
In 2002 the U.S. bishops also ignored canon law processes and expanded their centralized executive powers.
Each bishop can now play Pontius Pilate, washing his hands by promising to defer to police and the secular criminal law.
This executive rule-of-bishops, not rule-of-law, is exactly how they have previously responded: hide accused priests from public authorities, move them quietly to endanger new victims, and deny both the accused priest and the alleged victim any rule-of-law investigation, prosecution and punishment within the church's canon law.
At the other extreme, priests have been defrocked or early retired without pension on the basis of a single accusation, again without secular or canonical rule-of-law and solely on a bishop's executive order.
Canon law due process again denied. We are told by Archbishop Weisgerger that "Church officials do not decide the truth or falsehood of any accusation."
Instead, the Vatican promotes its latest executive process, announced in the Free Press by Archbishop Weisgerber, with a "permanent delegate" and a lay committee appointed solely by (guess who?) the pope and bishops.
Caesar Augustus and Nero must be dancing in their graves!
But the church's rule-of-law system has existed since at least the fourth century. It has offered (and still does in its Code of Canon Law) meticulous legal procedures for reporting, trying, judging and punishing a variety of crimes and sins, thereby supporting potential victims.
Why doesn't the church inform anyone, especially its laity in the pews, that it has its own rule-of-law remedies? Why this silence?
Take what the church's canon law has said for centuries about "sexual abuse of minors" by its clergy? Canon 1395.2, in its modern 1983 translation and revision, makes clear:
"If a cleric has otherwise committed an offence against the sixth commandment of the Decalogue with force or threats or publicly or with a minor below the age of sixteen, the cleric is to be punished with just penalties, including dismissal from the clerical state if the case warrants it."
Surely this proves a wisdom of the ages, that the church must be especially vigilant for this named offence and must prosecute it within the church's rule-of-law.
All that is required is the simple initiative of any bishop to call a canonical court of canon law into existence (Canon 1419).
Indeed he is commanded to do so: "the diocesan bishop ... exercises judicial power either personally or through a judicial vicar and judges in accord with the norm of law" (Canon 391).
What happens if a bishop is accused, as happened in the 1990s British Columbia case against Bishop Hubert O'Connor?
The canon law has been smart enough to see that coming. "A judicial vicar" or "appellate tribunal judges in first instance" or "a tribunal of second instance" takes over if a bishop is accused. (Canons 1419, 1439).
O'Connor was convicted of rape and sexual assault of two aboriginal girls, served several months in prison and died a decade later, still in the church's good standing as a bishop emeritus. No canon law court process, as far as we can know, ever took place.
Can anyone cite a single case across Canada, or the world, where any such canon law process has occurred?
We are told, in the April 15 letter to the Free Press, that "the first norm, which trumps all others, is that any report of a child being sexually abused must be immediately reported to the police."
Where and when can we find this norm? Certainly nowhere in canon law, because "it is the right of the Roman Pontiff himself alone to judge in cases (Canon 1404) ... concerning spiritual matters or ... the violation of ecclesiastical laws" (Canon 1401).
But what should a victim, a baptized member of the church, do if even the pope himself refuses to exercise his canon law process and his role as judge?
The Archbishop does not tell us who "must" report to the police or what happens when no one does?
Does this include "any report" made in a confessional? Can the priest hearing a confession be required to testify in Canadian criminal law courts, when Canon 983 requires that "it is a crime for a confessor in any way to betray a penitent by word or in any other manner or for any reason"?
After all, "A confessor is absolutely forbidden to use knowledge acquired from confession when it might harm the penitent (Canon 984)."
Instead, bishops now will off-load everything: "The police have total responsibility in the matters of criminal justice," They wish the police to assume that clergy will "report," in violation of their own canon law obligations to secrecy.
Again, can anyone cite a single case, from outside or inside the confessional, where this has happened? Perhaps bishops can open diocesan archives, the more ancient the better, to show that the church in the past both used its own rule-of-law procedures or at least applied its "norm" by reporting allegations "immediately" to the police.
As someone familiar with Canada's criminal justice records and archives, I can attest that no such "report" evidence survives anywhere for any time past.
Finally, we are told by Archbishop Weisgerber that "After reporting to police, and only after this, the church must decide how to deal with the allegation internally."
Again, as if its own canon law does not exist, the church only acts after its "report."
And if there is no "report"? Will the church then resort to its rule-of-law processes for investigating, trying and punishing? No, because it is the bishop's appointed "permanent delegate" who decides "how to deal with the situation within the church."
Again, where is rule-of-law?
What has happened to 15 centuries of canon law rules and procedures for prosecution and defence, for evidence, burden of proof, a right to have a canon lawyer, expert testimony, third-party interventions before a church court?
If bishops a few decades ago had followed their judicial duties and their own legal procedures as soon as a "report" of a priest's sexual abuse surfaced, a church court of record would have convened for the alleged victim and the accused, then a trial and either acquittal or punishment.
Lost in all of this is the alleged victim. Where is any encouragement, even moral support, from the church for such persons to "report" within the church? Will the Archbishop extend the "norm" to any parishioner for access to the church's juridical processes, before or after going to the police, to file a complaint in an open church court without filtering by a bishop's delegate? Canons 1476-1480 provide precisely for this. The bishop's "delegate" process deliberately circumvents this.
What about double jeopardy?
Like Jewish Talmudic and Islamic Sharia courts, the Catholic church courts have existed over the same centuries. They have all operated sometimes in public, sometimes closed, but with full access for their respective believers, enforcing their own codes of criminal and civil pleadings alongside, even in competition with, secular courts such as in Canadian common law and Quebec civil law.
And yes, such legal pluralism can lead to double jeopardy for a single offence or claim, just as a disbarred lawyer, a convicted teacher, an incompetent medical doctor and a convicted police officer can face both their professional disciplinary boards and public criminal courts, even simultaneously.
Reviving canon law courts could allow prosecution to precede, be parallel to, or follow Canadian police and criminal trial proceedings.
However, a bishop's new, executive non-rule-of-law approach with his "delegate" must only follow after the secular criminal justice process, probably many years later, as extended pain for all parties and families.
Does continued abandonment of rule-of-law inside the Roman Catholic Church, replaced by bishop appointed delegates and committees, offer better hope for healing for victims?
Compensation is not currently offered to victims in canon law. For tangible remedies, victims must still sue in secular courts, or in private negotiations with diocesan officials. Either way, the awarded monies continue to push bishops to the brink of bankrupting their dioceses and their congregations.
Beyond all the secrecy, the denial, the cover-ups, the obstruction of criminal justice, the huge out-of-court settlements and the lifetime pain inflicted on male and female victims, the best this Roman church can offer is to pay the price for replacing its own rule-of-law with an even more authoritarian rule-of-bishops.
DeLloyd J. Guth is professor of law and legal history, University of Manitoba, Faculty of Law.