Some information for bishops, chancellors and promoters of justice |
The canons (CCEO canon 259; CIC canon 489 §2) require an annual review of both the general archives and the secret archives of the chancery. the acta of penal cases against clerics are to be kept in the secret archive (CCEO canon 1470; CIC canon 1719). Each year the procedural acts for inflicting penalties in matters of morals are to be destroyed in which the guilty party has died, or in which ten years have elapsed, retaining a brief summary of the facts and the text of the definitive sentence or decree (CCEO canon 259 §2; CIC canon 489 §2). Had dioceses done this there would have been very little information for prosecutors to subpoena. Bishops and chancellors need to remember that they can be punished for misuse of power, office, ministry or other function in the church by action or omission; as well as if they have, out of culpable negligence, unlawfully placed or omitted an act of ecclesiastical authority, office, ministry or other function in the church, causing harm to another (CCEO canon 1464; CIC canon 1389). Also, note that anyone who unlawfully inflicts damage upon someone by a juridic act, or any act placed with malice or culpability, is obliged to compensate for the damage inflicted (CCEO canon 935; CIC canon 128). |
Besides the secular attorney that works for the diocese, a competent canon lawyer should assist the bishop. Secular attorneys are not automatically qualified to give advice about canonical matters. The bishop needs to steer a straight course between both bodies of law. |
Neither in the canons nor in the Norms does it appear that the accused should be notified before the prior investigation is completed. |
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. |
Ordinaries/hierarchs should be very careful in addressing norm 7 of the Norms. This concerns psychological and other medical evaluation. Because of a priest’s respect for the authority of the bishop he may agree to these evaluations out of reverential fear. While the accused’s agreement 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 to give rise to nullity of marriage (May 17, 1996, Coram Pompedda (88, 398-400)), it should certainly be sufficient to 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). |
As regards the review board, it must conduct its work with confidentiality. The members must take the oath of confidentiality (CCEO canon 244; CIC canon 470). |
The review board should make sure that action is not prescribed. 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 (letter of 2 Sept., 2002, over the name of The Rev. Kevin McKenna, J.C.D., president of the Canon Law Society of America). |
Should the measures of CCEO canon 1473 or CIC canon 1722 be employed in accord of norm 6 of the Norms, the diocese/eparchy is obliged to provide for the means of a decent livelihood, especially for a priest, even if it mean providing a larger cash payment than he 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 others 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. Also his health insurance and pension plan payments need to be continued, either by the parish or the diocese/eparchy, depending on how these payments are normally made. |
|
Back to Contents | An outline of the trial process |