In recent days, Pope Francis has describes the crisis of sexual abuse in the Catholic Church like a world disaster. He urged the Catholic Church to end its “head in the sand” policy, to recognize its institutional hypocrisy and “to take responsibility for this story, both as individuals and as a community. “. While much of this activity must, by definition, look to the past, equally important is forward-looking action that definitely breaks with the past.
Is the recent overhaul of the Vatican Code of Canon Law such an action? Pope Francis announces the modifications to the Canonical Code of 1983 as requested “To enable pastors to use it as a more agile saving and corrective tool, to be applied promptly and with pastoral charity to avoid more serious evils and soothe the wounds caused by human weakness. The drafters of the code explained that the changes made it easier for the Catholic Church to embrace the routine administration of justice and rejected notions that punishment is “”merciless or without pastoral careAnd that punishment should only be used as a last resort.
Why is this reform of the code of canon law so important? First, the code of canon law governs an organization with 1.3 billion members, an organization with sex scandals around the world with tens of thousands of known victims and countless other unknowns. Second, revisions to the Code of Canon Law provide an opportunity to unify standards in hundreds of jurisdictions. While the law of each country and its subordinate jurisdictions may differ as to what is prohibited and what the consequences are, the code governs each church. Even when a state criminalizes behavior, the code of canon law provides for separate sanctions such as defrocking and excommunication. Only the Catholic Church, rather than the State, can inflict such religious sanctions. This can be especially important if you are trying to stop the practice of pass the trash (displacement of abusive priests from one parish to another). Third, the law enforcement code could facilitate the reach of national criminal law by requiring reporting and cooperation with law enforcement. Sometimes the clergy may be the first and / or the only one to know of a crime beyond the victim and the perpetrator and they may have access to evidence that no one else has.
The Catholic Church launched the reform effort in 2007, and canon law experts, episcopal conferences, and major superiors all played a role in changing the code. Does it recognize and correct the institutional failures that have allowed child sexual abuse and facilitated its pursuit and cover-up? Does he recognize the past experiences of seminarians and nuns sexually abused by their superiors? What role, if any, does the #MeToo movement play in a new understanding of how exploitative power differentials can vitiate consent? Does failure to implement a zero tolerance policy undermine institutional commitment to change?
First, the code newly criminalizes the sexual abuse of adults by priests who abuse their authority. This widens the scope of crimes covered by canon law beyond priests who engage in sexual acts with minors or someone who “misses the point” or priests who have used force or violence. threats against adults. Such priests can now be defrocked. In this case, the Catholic Church can often be the only option to punish such behavior. The majority of states in the United States do not criminalize such behavior, and I suspect the same is true of many jurisdictions around the world. Such an expansion is consistent with #MeToo’s focus on sexual abuse in the workplace and its recognition and exploration of how extreme power differences create situations conducive to abuse. As other religious institutions struggle with their own versions of #ChurchToo, the Catholic Church ban provides an important example to consider, and its continued application (or lack of it) may offer some useful data,
Second, the code now subjects lay people who hold church office to penalties for sexual abuse. In the past, the Catholic Church has blamed the lack of jurisdiction for its ineffective responses to abuses committed by lay founders of Catholic societies. Take, for example, the response of the Catholic Church to Luis Figari, the secular founder of Peru-based Sodalitium Christianae Vitae who, along with other senior executives, has sexually and emotionally abused dozens of adult and child members for decades. While the Catholic Church eventually fired him and investigated the group, the long campaign seek criminal responsibility for Figari and those who allowed it failed. Now, presumably, such an individual could and would be punished by the Catholic Church.
Third, the code criminalizes priests who prepare or induce a minor or a person who usually has an imperfect use of reason to participate in pornography. These priests can be punished with deprivation and dismissal from the clerical state.
Fourth, the code builds on recent reforms to establish clear penalties for failure to report sex crimes to relevant church authorities. In 2019, Pope Francis obligatory “Bishops and religious superiors to report sex crimes and explained how they would be subject to criminal investigation if they did not.” The code of canon law adds bite to this requirement by providing for penalties for such breaches, including dismissal. Bishops convicted of culpable negligence, including failure “to properly investigate or sanction predatory priests ”could face a similar sanction.
Despite these changes, the code is insufficient for those looking for an aggressive application against attackers and those who allow them. For example, the editors declined to include a criminal sanction for failure to report to civilian authorities despite numerous exhortations from victims and defenders to do so. While the Catholic Church maintains that it enforce any imperative obligation report to civil authorities, the survivors lament this missed opportunity to facilitate civil investigations and sanctions. For those who fear that the Catholic Church is still ill-equipped to control its own, it should be noted that this reform does nothing to strengthen the authority or capacity of the state.
Likewise, despite pressure from survivors, the code of canon law rejects a zero tolerance approach towards aggressors and allows great discretion in setting sentences or remitting them after imposition. Take for example Canon 1398, according to which priests who prepare minors or vulnerable adults to participate in pornography may be subject to deprivation of office and “when the case requires it, to the revocation of the clerical state” . The phrase “where the case requires” gives a great deal of latitude to decision-makers. In addition to the caveats that often litter the sentences to be imposed for specific crimes like that in canon 1398, canon 1324 identifies a number of instances in which sentences can be reduced or penance substituted in its place. While many articulated reasons would find corollaries in national criminal law such as “one who had only imperfect use of reason”, providing reasons such as “one who lacked reason due to culpable drunkenness or other mental disorders of a similar nature ”is deeply problematic given the nature of the crimes targeted. More worryingly still, the “heat of passion” seems to allow for crime cancellation in cases where “the passion itself had  been deliberately stimulated or fed ”as well as the provision for“ one who acted against another person who was gravely and unjustly provocative ”. This latter provision has often been used in the past to present children as the reasons for their own abuse. That said, the code also contains reasons why harsher penalties can be imposed, such as canon 1326 which allows penalties to be increased if, among other things, a person who is established in a position of dignity, or who, in order to to commit a crime, has abused a position of authority or a function.
In short, I think that the reforms reflect a serious consideration of past scandals; evolving understandings of consent; and an attempt to use the penal code to deter bad behavior both on the part of sexual abusers and those who would protect them rather than their victims. The editors probably listened in deciding to expand on the individuals and behaviors covered. Even so, the absence of a zero-tolerance policy coupled with the absence of criminalization of failure to report to civil authorities and broad discretion over the imposition of sentences or their remission after imposition justifies a healthy skepticism. The Code requires voluntary rather than reluctant application by law enforcement officials. Policymakers have the tools to be held to account if they wish to use them, but those who wish to avoid meaningful sanctions will often be able to do so. Likewise, those who don’t report, investigate, and sanction are likely to wait and see how seriously those above them take these reforms. An active app might put them off, but it’s too early to tell.