| Some information for accused deacons and priests and their advocates |
First, remember that the Norms require bishops to report to civil authorities. Be cautious in what you say to the bishop or other curial staff member (such as vicar general or protosyncellus). If your bishop or other curial staff member tells you you are to meet with the bishop, find out, first, what the meeting concerns and who will be present at the meeting. Do not agree to any meeting without knowing this. If the meeting concerns any type of allegations of a sexual nature, whether with a minor or not, have a canon lawyer, or at least a trusted friend, go with you. This will at least provide you with a witness to what takes place at the meeting. If the meeting is not supposed to be about such a matter but, when you arrive, the topic of some allegations is raised, terminate the meeting, telling the bishop you will contact him to reschedule when you have secured canonical advocacy. Sign no documents and make no resignations until you have had sufficient time to consider the action when not under the pressure of being in the bishop’s office. |
Everyone of the Christian faithful has the right of due process. This is a fundamental right of the natural law. It does not derive from merely ecclesiastical law. In addition, everyone is presumed innocent until proven guilty. Cardinal Re, in his letter of notification of recognitio of the Norms, wrote: |
At the same time, by ensuring that the true facts are ascertained, the approved Norms protect inviolable human rights – including the right to defend oneself – and guarantee respect for the dignity of all those involved, beginning with the victims. Moreover, they uphold the principle, fundamental in all just systems of law, that a person is considered innocent until either a regular process or his own spontaneous admission proves him guilty. (8 Dec., 2002, Prot. N. 612/02, page 2) |
The burden of proof is on the accuser and the judge must have moral certitude to render a sentence finding the accused guilty. |
It is not unreasonable to expect the diocese/eparchy to pay legal fees for both the canonical advocate and the secular attorney. The canons (CCEO canon 192, §4, §5; CIC canon 384) describe the special relation between bishop and priest and state the bishop’s obligation to protect the rights of priests. Very few priests have the financial means to pay advocate and attorney fees. |
Since the Norms require implementing the measures of CCEO canon 1473 or CIC canon 1722 at the time the Congregation for the Doctrine of the Faith is notified, after the prior investigation has shown that the accusations seem credible, it would seem essential that the ordinary/hierarch be very sure that the evidence is sufficiently compelling that it will show that the person is guilty. Otherwise the person’s reputation would be irreparably harmed by his summary and unexplained removal from parish ministry. Even though the trial would find him innocent of the accusations, people would always have doubt in their minds. Nor is it realistic to think that he, being innocent, could go to another diocese/eparchy. It is doubtful that any bishop would risk accepting a cleric who had been accused but found innocent. He would undoubtedly think that there could, nevertheless, be truth in the accusations and would not want to risk that possibility. |
In conducting the prior investigation (CCEO canon 1468; CIC canon 1717) it seems that the ordinary/hierarch still must appoint a specific person for this and issue that in writing. The investigator, then, could utilize the services of one or all members of the review board. Ultimately, the ordinary/hierarch must make the decision about whether to proceed. It is not a matter of a decision by vote of the review board; the board is only consultative and advisory, not deliberative. Before making the decision, a hierarch must hear the one accused and the promoter of justice, and, perhaps, two judges or other experts in the law (This applies only to the Eastern churches – CCEO canon 1469). Latin ordinaries may consult two judges or other legal experts (CIC canon 1718). The Eastern code clearly accords a right of defense to the accused even at this point of the matter. The accused, then must have a suitable period of time to prepare a defense and should also have canonical advocacy in doing so. The suitable period of time would be the decision of the hierarch. Ten days or 30 days are frequently mentioned in the code as periods of time for action. |
Neither in the canons nor in the Norms does it appear that the accused must be notified before the prior investigation is completed. |
Look carefully at the matter of prescription in light of when the act (or if a series of acts, the last one) is said to have taken place. The Canon Law Society of America’s paper on the Norms is a good guide in this matter (issued 2 Sept., 2002, over the name of The Rev. Kevin McKenna, J.C.D., President of the Canon Law Society of America). |
Remember that the accused is not bound to confess the offense and cannot be asked to take an oath (CCEO canon 1471 §2; CIC canon 1728 §2). This is important in the light of norm 7 of the Norms, which notes that the alleged offender may be requested to seek, and may be urged voluntarily to comply with, an appropriate medical and psychological evaluation at a facility mutually acceptable to the diocese/eparchy and to the accused. The Holy See has made it clear in the past that a person accused cannot be forced to get psychiatric or other medical evaluation the results of which will be released to the bishop. That could be tantamount to a forced confession. The Holy See has also stated that this would be an unlawful violation of the canonical right to privacy. |
The accused may be inclined to agree to this or to a resignation from office or leave of absence because his bishop is pressuring him. While an agreement or resignation may not be out of physical force or fear, it could still be an invalid act on the part of the accused due to reverential fear. Since reverential fear has been admitted as sufficient grounds to give rise to nullity of marriage (May 17, 1996, Coram Pompedda (88, 398-400)), it should certainly nullify a juridical act. The same would be true for a resignation from office offered by the accused in similar circumstances (CCEO canons 932 §2; 968; CIC canons 125 §2; 188). |
If a cleric, especially a priest, is brought to trial and the provisions of CCEO canon 1473 or CIC canon 1722 are employed in accord with norm 6 of the Norms, the diocese/eparchy is obliged to take care of providing the means of a decent livelihood, even if it mean providing a larger cash payment than the cleric would receive were he still engaged in ministry and living in a rectory. The usual context of, especially a priest, is in a rectory with utilities and food provided. If he must rent an apartment and pay his own utilities, food costs and any other needs that would normally be provided he must then receive, not only his normal income, but the additional amount to compensate for the loss of the other means of a decent livelihood. The advocate must insist that this is done. |
During the trial: |
In the matter of witnesses, the parties must know the names of all witnesses before the witnesses are examined (CCEO canon 1235; CIC canon 1554). A single witness does not normally provide full proof (CCEO canon 1254; CIC canon 1573). The accused also has the right to request exclusion of one or more witnesses before the witness is examined (CCEO canon 1236; CIC canon 1555). |
Since imputability is necessary for there to be a delict, the testimony of experts in the fields of psychology and moral theology may be helpful (Preamble to the Norms, fourth paragraph with its footnote number 2). The names of private experts must be approved by the judge (CCEO canon 1262; CIC canon 1581 §1). |
If the priest or deacon is found guilty and the penalties of the Norms are imposed, bear in mind that the accused cleric does not lose his right to the means of a decent livelihood (CCEO canons, 390 §1, §2; 1410; CIC canons 281, §1, §2; 1350 §1, §2). |
Several outcomes may result from the whole matter: |
If the accused is found guilty or if he has confessed, he will be removed from ministry and may be returned to the lay state. If returned to the lay state he may need the assistance mentioned in the canons for further education and support while he obtains the means for employment outside the church. The advocate will want to work with the confessed in arranging these matters with both justice and equity. |
If only removed from ministry but not returned to the lay state, the diocese/eparchy still has the obligation of providing for the means of a decent livelihood, as detailed above. |
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