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A Study of Canon Law: Dismissal from the Clerical State in Cases of Sexual Misconduct

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A Study of Canon Law: Dismissal from the Clerical State in Cases of Sexual Misconduct The Catholic Lawyer Volume 36 Number 3 Volume 36, Number 3 Article 3 October 2017 A Study of Canon Law: Dismissal From the Clerical State in Cases of Sexual Misconduct Msgr. John A. Alesandro Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Religion Law Commons Recommended Citation Msgr. John A. Alesandro (1996) "A Study of Canon Law: Dismissal From the Clerical State in Cases of Sexual Misconduct," The Catholic Lawyer: Vol. 36 : No. 3 , Article 3. Available at: https://scholarship.law.stjohns.edu/tcl/vol36/iss3/3 This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. A STUDY OF CANON LAW: DISMISSAL FROM THE CLERICAL STATE IN CASES OF SEXUAL MISCONDUCT MSGR. JOHN A. ALESANDRO" I. BACKGROUND This article specifically addresses the case of a priest who is guilty of sexually abusing a minor and whom the diocesan bishop considers such a danger to children that he should not in any way function as a priest. Such a priest may seek a dispensation from the Holy See to be returned to the lay state.' There are occasions, however, where, for various reasons, the priest refuses to make a voluntary petition to the Holy See. The bishops of the The author is the vicar for administration of the Roman Catholic Diocese of Rockville Centre, New York. He holds a licentiate in theology and a doctorate in canon law from the Gregorian University, Rome, and a doctorate in civil law from St. John's University School of Law, Jamaica, New York. He has served as a consultant to the Canonical Affairs Committee of the National Conference of Catholic Bishops since 1975, was a member of the Papal joint commission on the judicial process of dismissal, and drafted the N.C.C.B. document Canonical Delicts Involving Sexual Misconduct and Dismissalfrom the ClericalState. 1 See 1983 CODE c.290. "Sacred ordination once validly received never becomes invalid. A cleric, however, loses the clerical state ... by a rescript of the Apostolic See; this rescript, however, is granted by the Apostolic See to deacons for only grave reasons and to priests for only the gravest of reasons." Id. See also THE CODE OF CANON LAW: A TEXT AND COMMENTARY (James A. Coriden et al. eds., 1985); Rev. Bertram F. Griffin, The Reassignment or Nonassignment of a Cleric Who Has Been Professionally Evaluated and Treated for Sexual Misconduct with Minors: Canonical Considerations,35 CATH. LAW. 295, 301-03 (1992) [originally published in 51 JuRIsT 326 (1991)]. 36 CATHOLIC LAWYER, No. 3 United States have been struggling to resolve such a matter in a canonically acceptable manner. Most bishops have been loath to invoke the process in the Code of Canon Law' for the punitive dismissal of the priest from the clerical state. In some cases, however, use of the process has become a necessity.' A. Administrative Approaches 1. Administrative Penal Procedure For several years, the perception of some bishops seemed to indicate that what was needed in lieu of the judicial penal process was an administrative process of dismissal from the clerical state.4 Conversations were held at various levels within 2 See Introduction to THE CODE OF CANON LAW: A TEXT AND COMMENTARY, supra note 1, at 1-22. The Code of Canon Law has developed from the Church's need for a systematic means to administer ecclesiastical and juridic law. Id. at 1, 11. In 325 A.D. the Council of Nicaea, the first of the Church's ecumenical councils, combined pastoral practices and fundamental ecclesial norms into rules called "canons." Id. at 1-2. Throughout the centuries, the Church sought to meet the changing needs of the parishes and to enforce the traditional church disciplines. The Church accommodated these needs by updating and adding to "canon law." Id. at 2. In 1917 all the laws of the Latin Catholic Church were combined and organized in an official volume of legislation, known as the 1917 Code of Canon Law. John A. Alesandro, Introduction to THE CANON LAW: A TEXT AND COMMENTARY, at 4. The 1917 Code was revised in 1983 to conform to the changing focus of the Catholic Church as identified by the Second Vatican Council. The purpose of the revised Code includes defining and protecting the rights and obligations of the church members in their relationships with each other and the church. JAMES A. CORIDEN, AN INTRODUCTION TO CANON LAw, 35-36 (1991). The 1983 Code of Canon Law is divided into seven sections: General Norms, The People of God, The Teaching Function, The Sanctifying Function, Temporal Goods of the Church, Sanctions in the Church, and Procedures. Id. at 38-39. The Code consists of 1,752 canons that represent the law for the Latin Church. Id. at 39-40. While the Code does not contain all of the norms of the Catholic Church, all additional church norms must accord with the ones in the Code. Id. at 40-41. 3 The same process is used to dismiss a temporary or permanent deacon from the clerical state, but this article focuses on priests. In fact, this article concentrates specifically on diocesan priests since priests who are members of religious institutes are already subject to dismissal from their religious institute (1983 CODE cc.695- 703, 746). Although the matter is controverted, it seems that dismissal from a religious institute effectively leaves a priest, who was formerly a religious within the clerical state, without any institutional connection and therefore prohibited from functioning as a priest unless incorporated, at least temporarily, into some other religious institute (1983 CODE cc.695, 701). See James H. Provost, Some Canonical Considerations Relative to Clerical Sexual Misconduct, 52 JURIST 615, 625-626 (1992). See Karen Ann Ballotta, Losing Its Soul: How the Cipolla Case Limits the DISMISSAL FROM THE CLERICAL STATE the National Conference of Catholic Bishops ("NCCB") and between representatives of the NCCB and the Apostolic See.5 The goal was to streamline the cumbersome judicial process required by the Code whenever a priest faced the severe and permanent penalty of dismissal for a canonical delict by placing it in the hands of the diocesan bishop.6 They viewed the predicament as a pastorally devastating situation which required immediate and decisive action: "removal of the priest from the priesthood" - or, more properly, "removal of the priest from the clerical state."' While various proposals were submitted, it was difficult to come to an accord on an appropriate procedure which would protect all the rights of those involved: the priest, the Church, Catholic Church's Ability to Discipline Sexually Abusive Priests, 43 EMORY L.J. 1431, 1439 (1994) (stating that bishops are dissatisfied with current canonical system's ability to provide viable options for bishops to discipline sexually abusive priests). Without guidance from the Vatican, bishops have attempted to establish procedures to use when a priest is accused of sexual assault. Bishops have tried to institute procedures that will meet the needs of the Church, the accused cleric, and the victim. Id. at 1438-40. The National Conference of Catholic Bishops (NCCB) recommends that dioceses, upon finding that allegations are supported by sufficient evidence, relieve the cleric of his ministerial duties and refer him for medical evaluation and therapy. Id. at 1438-39 n.32. Until the canonical penal process is expedited or modified, bishops will seek an administrative process to curtail an accused cleric's ministry. Id. at 1444. ' After various meetings concerning sex abuse, the NCCB asked the Vatican to approve changes in church law to expedite the dismissal of guilty clerics. See Larry B. Stammer, Bishops Seek EasierDismissal of Priests, L.A. TIMES, Nov. 18, 1993, at A12 (arguing that Church law should be changed since current appeal process drags out removal of clerics for years); see also Judith Lynn Howard, Bishops Act Against Clergy Sex Abuse; Prelates Want Easier Means to Remove Offenders, DALLAS MORNING NEWS, Nov. 20, 1993, at 37A (discussing bishops petitioning Holy See to change canon law to help shorten laicization of clerics). 6 See John P. Beal, Doing What One Can: Canon Law and Clerical Sexual Misconduct, 52 JURIST 642, 647 (1992). The options the canon law offers for dealing with clerics who are guilty of sexual misconduct are not "palatable; none is easy; and none solves all the problems that are apt to arise as a result of cases of this kind." Id. at 672. 7 The phrase "removal from the priesthood" can be misleading. A priest, once ordained, remains validly ordained. Nothing can undo his ordination nor in this sense remove him from the "priesthood" as such (1983 CODE c.290). Thus, any priest, even if excommunicated would be permitted to absolve a penitent who is in danger of death (1983 CODE c.976). But the rights and duties of priests, their juridical incorporation into the Church, and their commission to function as priests in the name of the Church are all legal concepts which are gathered together under the rubric of 'clerical state." The more precise term therefore is to remove or dismiss someone from the 'clerical state," not from the "priesthood." 260 36 CATHOLIC LAWYER, No. 3 the bishop and the community. Besides the bishops' perception of a pastoral need for a definitive separation of the priest from the clerical state, diocesan attorneys advised bishops of the potential
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