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Proquest Dissertations uOttawa L'Univcrsite canadicnnc Canada's university FACULTE DES ETUDES SUPERIEURES FACULTY OF GRADUATE AND ET POSTOCTORALES U Ottawa POSDOCTORAL STUDIES l/Untvorsittf canadicnnc Canada's university John Diraviam TGTEURDElJTHEsiiFMl^ Ph.D. (Canon Law) GRADE/DEGREE Faculty of Canon Law 7AcTirfOcoLi7DEPA^^^ The Judicial Penal Procedure for the Dismissal of a Diocesan Priest from the Clerical State According to the 1983 Code of Canon Law TITRE DE LA THESE / TITLE OF THESIS Augustine Mendonca DIRECTEUR (DIRECTRICE) DE LA THESE / THESIS SUPERVISOR EXAMINATEURS (EXAMINATRICES) DE LA THESE / THESIS EXAMINERS Pierre Allard Francis Morrisey Wojciech Kowal John Renken Gary W. Slater Le Doyen de la Faculte des etudes superieures et postdoctorales / Dean of the Faculty of Graduate and Postdoctoral Studies THE JUDICIAL PENAL PROCEDURE FOR THE DISMISSAL OF A DIOCESAN PRIEST FROM THE CLERICAL STATE ACCORDING TO THE 1983 CODE OF CANON LAW by John DI RAVI AM A dissertation submitted to the Faculty of Canon Law Saint Paul University, Ottawa, Canada, in partial fulfillment of the requirements for the degree of Doctor of Canon Law Ottawa, Canada Saint Paul University 2008 John Diraviam, Ottawa, Canada, 2008 Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-41612-9 Our file Notre reference ISBN: 978-0-494-41612-9 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par Plntemet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non­ sur support microforme, papier, electronique commercial purposes, in microform, et/ou autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission. In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these. While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada ABSTRACT This study consisting of four chapters is an examination of the judicial penal procedure for dismissal of a diocesan priest from the clerical state for the commission of certain grave delicts. It mainly focuses on two areas: first, the identification of certain delicts that merit dismissal from the clerical state; second the application of right penal measures to deal with such delicts. While in light of the constant social teaching of the Church, the Code affirms the inviolable dignity and rights of the faithful, it does not fail to assert its right to impose appropriate penalties on members who violate the law (c. 1311). The exercise of personal rights is contingent upon the promotion of common good (c. 223). Therefore, threats to justice, gravity of scandal and contumacy of an offender necessitate the imposition of appropriate penalties (c. 1341). The right of a competent ecclesiastical authority to impose penalty presupposes proper understanding of delicts and penalties prescribed in the Code. By and large, penal laws operate in the juridical not moral sphere; that is to say, while all delicts are sinful, not all sins are considered delicts before law (I Jn. 5, 17). Delicts and penalties operate solely in the external forum. In order to impose appropriate penalties, the ecclesiastical superior must evaluate various factors that affect imputability and other factors related to delict (cc. 1322-1327). It is not uncommon for clerical delicts to be punished with severe penalties because they are a breach of trust and against the integrity of the sacrament of Orders. Clerical delicts against human dignity, celebration of the sacraments and morals are considered more serious; and some of them are reserved to the Apostolic See. In judging the clerical delictss meriting the serious expiatory penalty of dismissal from the clerical state, the Code prefers judicial procedure which guarantees better the right of defence (c.1620, 7°) and counterchecks possible arbitrariness. A judicial penal procedure follows the norms of the ordinary contentious process (cc. 1501-1670) and the canons on penal process provided in the Code (cc. 1717-1731). The norms which supplement the Code are to be observed for reserved delicts. The faithful observance of substantive and procedural norms will safeguard the superior from slipping away from justice and the protection of rights. The lawfully imposed penalty of dismissal from the clerical state on a guilty cleric results in certain prohibitions and deprivations such as the deprivation of exercise of sacred ministry, office, power, function, faculty, privilege, etc. All rights and obligations pertaining to the clerical state become extinct (cc. 273-283) except the obligation of celibacy (c. 291). Because the expiatory penalty of dismissal from the clerical state has severe consequences for the offending cleric, Christian charity in the application of the prescripts of the Code calls for justice and equity recommended by the Code for cases involving dismissal from the clerical state. TABLE OF CONTENTS ACKNOWLEDGEMENTS vi ABBREVIATIONS vii GENERAL INTRODUCTION l CHAPTER ONE THE DIGNITY AND THE FUNDAMENTAL RIGHTS OF THE HUMAN PERSON IN THE 1983 CODE INTRODUCTION 9 l. l HUMAN RIGHTS TRADITIONS PRIOR TO THE SECOND VATICAN COUNCIL 11 1.1.1 Liberal Democracy 14 1.1.2 Marxist Socialism 15 1.1.3 The United Nations and Human Rights 16 1.1.4 The Church's Doctrine on Human Dignity and Human Rights 18 l .2 SECOND VATICAN COUNCIL ON HUMAN RIGHTS 22 1.2.1 Gaudium et spes: Church's Duty to Protect Human Rights 22 1.2.2 Dignitatis humanae: The Individual Conscience and Religious Freedom 26 1.2.3 Presbyterorum ordinis: Duty to Uphold the Common Good 28 1.3 POST CONCILIAR TEACHING ON HUMAN RIGHTS 28 1.3.1 Pope Paul VI 29 1.3.1.1 Populorum progressio: The Integral Development of the Human Person29 1.3.1.2 Octogesima adveniens: Human Dignity and Social Justice 31 1.3.2 Pope John Paul II 32 1.3.3 Pope Benedict XVI 33 1.4 HUMAN RIGHTS IN THE 1983 CODE 34 1.4.1 Fundamental Principles Guiding the Revision of the Code 35 1.4.2 Rights in Light of Lex Ecclesiae fundamentalis 38 1.4.3 Promotion of Rights in the 1983 Code 39 1.4.4 The Right to One's Good Reputation and Privacy (c. 220) 42 1.4.5 The Right to Vindicate One's Rights (c. 221, § 1) 50 1.4.6 The Right to be Judged According to the Provisions of Law (c. 221, §2).55 1.4.7 The Right Not to be Punished Except in Accord with the Law (c. 221, §3) 58 1.4.8 The Exercise of Subj ective Rights and the Common Good 61 i TABLE OF CONTENTS a CONCLUSION 65 CHAPTER TWO CANONICAL DELICTS INVOLVING THE PENALTY OF DISMISSAL FROM THE CLERICAL STATE INTRODUCTION 68 2.1 CANONICAL DELICT 69 2.1.1 Notion of Delict 70 2.1.2 Elements of a Delict 72 2.2 FACTORS AFFECTING IMPUTABILITY OF A DELICT 77 2.2.1 Incapacity to Commit a Delict 77 2.2.2 Exempting Circumstances 78 2.2.3 Mitigating Circumstances 80 2.2.4 Aggravating Circumstances 82 2.2.5 Special Circumstances 83 2.2.6 Collaboration in a Delict 84 2.2.7 Attempted Delicts 85 2.3 CANONICAL PENALTIES 86 2.3.1 The Notion of Penalty 87 2.3.2 Canonical Principles Governing Penalties 88 2.3.3 The 1983 Code of Canon Law on Penalties 89 2.3.4 Types of Penalty: Medicinal and Expiatory Penalties 93 2.3.5 Penal Remedies and Penances 94 2.3.6 Modes of Imposition of Penalties 95 2.4 LEGISLATION ON DELICTS INVOLVING DISMISSAL FROM THE CLERICAL STATE PRIOR TO THE 1983 CODE OF CANON LAW 96 2.4.1 Delicts in the 1917 Code of Canon Law 98 2.4.2 The 1922 Instruction of the Supreme Sacred Congregation of the Holy Office 100 2.4.3 The 1962 Instruction of the Supreme Sacred Congregation of the Holy Office 102 2.5 DELICTS INVOLVING DISMISSAL FROM THE CLERICAL STATE IN THE 1983 CODE OF CANON LAW AND IN SACRAMENTORUMSANCTITATIS TUTELA... 104 2.5.1 Delict of Apostasy, Heresy and Schism - c. 1364 106 2.5.2 Desecration of the Consecrated Species - c. 1367 109 TABLE OF CONTENTS HI 2.5.3 Use of Physical Force Against the Roman Pontiff- c. 1370, §1 112 2.5.4 Solicitation - c. 1387 113 2.5.5 Attempted Marriage - c. 1394, §1 116 2.5.6 Persistence in a Sin Against the Sixth Commandment - c. 1395, §1 120 2.5.7 Sexual Abuse of a Minor-c. 1395, §2 124 2.5.8 Sacramentorum sanctitatis tutela 128 CONCLUSION 133 CHAPTER THREE JUDICIAL PROCEDURE FOR DISMISSAL FROM THE CLERICAL STATE INTRODUCTION 137 3.1 PRELIMINARY INVESTIGATION 139 3.1.1 Accusation and Referral 140 3.1.2 Competent
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