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Penal Law in the Roman Catholic Church

  • Rafael Domingo (a1) (a2)

Abstract

This article provides a general account of the universal law of sanctions in the Roman Catholic Church. The crisis of the Catholic Church caused by clergy sexual abuse of minors has revealed, among other things, the widespread well-intentioned but naïve inclination to resort to penal law as opposed to any theology of mercy and forgiveness. Although the author argues that penal law has a proper place in the Catholic Church, he considers that in a voluntary community that shares a homogeneous system of moral values without strong penalties involving deprivation of liberty – a community like the Catholic Church – moral and administrative sanctions could be more effective than penal sanctions. A distinction between administrative sanctions and penal sanctions, and therefore between administrative tribunals (should they be established) and penal tribunals, is highly recommended.

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2 On the abuse crisis, see National Review Board (ed), A Report on the Crisis in the Catholic Church in the United States (Washington, DC, 2004); Jay, John College of Criminal Justice (ed), The Nature and Scope of Sexual Abuse of Minors by the Catholic Priests and Deacons in the United States 1950–2002: supplementary report (Washington, DC, 2006). On canon law and the sexual abuse crisis, see Coughlin, J, Canon Law: a comparative study with Anglo-American legal theory (Oxford, 2011), pp 5195. For an overview of the ecclesiastical penal system, with bibliography, see Renken, J, The Penal Law of the Roman Catholic Church (Ottawa, 2015), pp 2932.

4 See Nedungatt, G, ‘Churches sui iuris and rites’, in Nedungatt, George (ed), A Guide to the Eastern Code: a commentary on the Code of Canons of the Eastern Churches (Rome, 2002), pp 99128.

5 See Canon 361 CIC and Canon 48 CCEC. In both codes the term ‘Holy See’ or ‘Apostolic See’ applies to the Roman pontiff and to the institutions of the Roman Curia, which helps the pope in governing the universal Church.

6 See Shaw, M, International Law (sixth edition, Cambridge, 2011), pp 243245.

7 See Law no 71 (Law on the Sources of Law), 1 October 2008.

8 The Fundamental Law is available at <http://www.vaticanstate.va/content/dam/vaticanstate/documenti/leggi-e-decreti/Normative-Penali-e-Amministrative/FundamentalLaw1.pdf>, accessed 11 February 2018. Information about the Vatican State is available at <http://www.vaticanstate.va/content/vaticanstate/en.html>, accessed 11 February 2018.

9 See Crawford, J, The Creation of States in International Law (Oxford and New York, 2007), p 230.

10 See Torre, G Dalla, ‘Il diritto penale vaticano tra antico e nuovo’, (2014) 2 Quaderni di diritto e politica ecclesiastica 443460.

11 See Law no 8 (Supplementary Norms on Criminal Law Matters), 13 July 2013, and Law no 9 (Amendments to the Criminal Code and the Code of Criminal Procedure), 11 July 2013.

12 The Pontifical Swiss Guard differs in being a force maintained by the Holy See, not the Vatican City, and is responsible for the safety of the pope.

13 Canon law as such may also refer to the law of the Orthodox Churches or to the law of the Anglican Church.

14 See Code of Canon Law: Latin–English Edition (new translation, Washington, DC, 1999).

15 See Peters, E (ed), The 1917 Pio-Benedictine Code of Canon Law in English Translation with Extensive Scholarly Apparatus (San Francisco, CA, 2001). The penal law of the 1917 Code was contained in book 5 on ‘Delicts and penalties’, which was composed of more than two hundred canons (Canons 2195–2214).

16 See Code of Canons of the Eastern Churches: Latin–English Edition (new translation, Washington, DC, 1999).

17 The apostolic constitution Pastor Bonus (28 June 1988) is available at <http://w2.vatican.va/content/john-paul-ii/en/apost_constitutions/documents/hf_jp-ii_apc_19880628_pastor-bonus-index.html>, accessed 11 February 2018. It has been revised on a number of occasions, most recently by Pope Francis in 2016.

18 See Pastor Bonus, n 2, and John Paul II, apostolic constitution Sacri Canones (18 October 1990).

19 For a good overview of the topic, see Green, T, ‘Penal law: a review of selected themes’, (1990) 50 The Jurist 221256; Green, T, ‘Penal law in the Code of Canon Law and in the Code of Canons of the Eastern Churches: some comparative reflections’, (1994) 28 Studia Canonica 407451.

20 On the idea of seeing crimes not as public wrongs to a community but as wrongs that any community is duly responsible for punishing, see Lamond, G, ‘What is a crime?’ (2007) 27:4 Oxford Journal of Legal Studies 609632. See also Ashworth, A and Horder, J, Principles of Criminal Law (seventh edition, Oxford, 2013), p 2.

21 For a good overview, see Green, T, ‘Introduction to book VI: sanctions in the Church’ in Beal, J, Coriden, J and Green, T (eds), New Commentary on the Code of Canon Law (New York and Mahwah, NJ, 2000), pp 15291532.

22 For an overview of penal canon law, see the commentary on book 6 of the 1983 Code written by Green in Beal, Coriden, and Green, New Commentary on the Code of Canon Law, pp 1529–1605. See also Renken, Penal Law of the Roman Catholic Church.

23 In his apostolic letter no 12, Misericordia et Misera (16 November 2016), Pope Francis granted ‘to all priests, in virtue of their ministry, the faculty to absolve those who have committed the sin of procured abortion, and therefore have incurred an automatic excommunication’.

25 It was Cardinal Ratzinger who strongly recommended the revision of the penal law system in 1988. See J Arrieta, ‘Cardinal Ratzinger and the revision of the canonical penal law system: a crucial role’, available at <http://www.vatican.va/resources/resources_arrieta-20101202_en.html>, accessed 11 February 2018.

26 On the revision, see Arrieta, J, ‘El proyecto de revisión del libro VI del Código de Derecho Canónico’, (2013) 2 Anuario de Derecho Canónico 211221; Girón, J Sánchez, ‘El proyecto de reforma del derecho penal canonico’, (2014) 54 Ius canonicum 567–len ; J Renken, Penal Law of the Roman Catholic Church, pp 29–32.

27 For an overview of the revision, see Renken, Penal Law of the Roman Catholic Church, pp 29–32. See also Sánchez Girón, ‘El proyecto de reforma del derecho penal canónico’.

28 Code of Canons of the Eastern Churches, Canon 1401.

29 See also C Fürst, ‘Penal sanctions cc. 1401–1467’, in Nedungatt, Guide to the Eastern Code, pp 787–800.

30 The new rules for the very serious delicts reserved to the Congregation for the Doctrine of the Faith affected both the Latin and the Eastern Codes.

31 See Canon 1321 §3 CIC: ‘When an external violation has occurred, imputability is presumed unless it is otherwise apparent.’

32 See introduction to Ad tuendam fidem, available at <http://w2.vatican.va/content/john-paul-ii/en/motu_proprio/documents/hf_jp-ii_motu-proprio_30061998_ad-tuendam-fidem.html>, accessed 11 February 2018.

34 The revision is available at <http://www.vatican.va/resources/resources_norme_en.html>, accessed 11 February 2018.

35 An English translation of the documents is available at Renken, Penal Law of the Roman Catholic Church, pp 485–509.

37 See As a Loving Mother, preface, para 3.

38 Essential norms for the diocesan/eparchial policies dealing with allegations of sexual abuse of minors by priests or deacons, available at: <http://www.vatican.va/roman_curia/congregations/cbishops/documents/rc_con_cbishops_doc_20021216_recognitio-usa_en.html>, accessed 11 February 2018.

39 This tendency was firmly rejected and criticised by Benedict XVI, Pastoral Letter of Pope Benedict XVI to the Catholic of Ireland (19 March 2010), no 4, available at <http://w2.vatican.va/content/benedict-xvi/en/letters/2010/documents/hf_ben-xvi_let_20100319_church-ireland.html>, accessed 11 February 2018: ‘In particular, there was a well-intentioned but misguided tendency to avoid penal approaches to canonically irregular situations.’

40 See Pope Francis, Misericordiae Vultus, Bull of Indiction of the Extraordinary Year of Mercy (11 April 2015), no 21, available at <https://w2.vatican.va/content/francesco/en/apost_letters/documents/papa-francesco_bolla_20150411_misericordiae-vultus.html>, accessed 11 February 2018.

41 See Pope Francis, Misericordia et Misera.

42 In the same vein, see Ashworth and Horder, Principles of Criminal Law, p 63.

43 Thomas Aquinas, Summa Theologiae I–II, q 100, a 9c.

44 Ecclesiastical authorities with legislative power also have executive power, but those who have executive power ordinarily do not have legislative power (see Canon 30 CIC).

45 See also Canon 1348 CIC, which allows the bishop with executive power to provide penal remedies for the welfare of the person or the public good if the matter warrants when an accused is acquitted of an accusation or when no penalty is imposed.

1 I am grateful to Professor José Bernal for his useful comments and suggestions.

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