Canon lawyers explain how Vatican abuse trials function

IMAGE: CNS photo/Paul Haring

By Cindy Wooden

VATICAN CITY (CNS) — Any member of the clergy accused of
the sexual abuse of a minor is tried according to procedures outlined in the
Code of Canon Law and specific norms spelled out in “Sacramentorum Sanctitatis
Tutela” (“Safeguarding the Sanctity of the Sacraments”).

Normally those trials take place in the diocese where the
crime occurred, but under the direction of the Congregation for the Doctrine of
the Faith. However, when the accused is a bishop, it is up to the pope to
determine the way to proceed.

When the Vatican press office announced July 28 that Pope
Francis had accepted Cardinal Theodore E. McCarrick’s resignation from the
College of Cardinals, it also said the pope “ordered his suspension from
the exercise of any public ministry, together with the obligation to remain in
a house yet to be indicated to him, for a life of prayer and penance until the
accusations made against him are examined in a regular canonical trial.”

The “regular canonical trial” for an accused
bishop, canon law experts said, usually would be a trial conducted by the
apostolic tribunal of the Congregation for the Doctrine of the Faith. However,
the phrase in the original Italian announcement referred to the “regolare
processo canonico,” which could be translated as “regular canonical

The regular process described in “Safeguarding the
Sanctity of the Sacraments” includes the option of an “extrajudicial
decree,” an administrative process by which the accused is presented with
the evidence and given an opportunity for self-defense, but there is no trial
and no witnesses are called.

Two canon lawyers experienced with how the apostolic
tribunals of the doctrinal congregation work spoke with Catholic News Service in
Rome in early August, but requested their names not be used because they are
not congregation staff members and cannot speak for the congregation.

Both lawyers said canon law also would view as a crime the
sexual abuse or harassment of an adult by his superior, for example, in the
case of a bishop abusing adult seminarians. The crime could be prosecuted as an
“abuse of office” or as a “delict against the Sixth Commandment,” which says, “You shall not commit adultery.” The
phrase in church law, one of them said, may sound vague, but it leaves room for
prosecuting a variety of sexual crimes. And the punishment prescribed is to be
commensurate with the offense.

A canonical trial at the Vatican differs in many ways from
criminal trials in the United States, for example.

An apostolic tribunal of the doctrinal congregation has at
least three and as many as five judges. In the past, accusations against
bishops have been tried before a five-judge panel with all of the judges being

In canon law, there is a basic presumption of innocence but
not to the extent seen in U.S. or British law. The accused has the right to
defend himself and the right to counsel. But the promoter of justice, a role
similar to prosecutor, does not have to prove motive, means or criminal intent.

Also unlike U.S. trials, the prosecutor and defense counsel
do not question the witnesses. That is the task of the judges.

Both the prosecutor and the defense counsel propose a list
of witnesses, but the judges must approve them. The judges have access to the
report of the preliminary, diocesan investigation and are likely to use that to
determine which witnesses are essential.

The accused can testify and can refuse to answer questions
that might incriminate him. Also, in accordance with canon 1728.2, no oath is
administered to the accused. One of the canon lawyers told CNS that the oath is
so sacred to the church that it would not risk putting a person in the position
of violating it with perjury.

The promoter of justice and the defense counsel are given
copies of all the testimony, and it is their duty to summarize it and present
the summary to the judges. Each lawyer sees the other’s summary and comments on
it, pointing out where they see weaknesses or inconsistencies in the testimony.
The comment process can go back and forth several times, but when the promoter
of justice says he is finished, the defense counsel is given the last word.

The judges deliberate in private, usually at the Vatican. Three
verdicts are possible: guilty, not guilty or not proven. The last indicates
that while there is no condemnation or penalty, the accusations raised enough
questions that church officials should be cautious in the future about
assigning the accused to unsupervised ministries with minors or vulnerable

In a canonical trial, everything is covered by confidentiality,
usually referred to as “pontifical secret.” The phrase does not
indicate a refusal on the church’s part to report a crime to the police — in
accordance with local laws, such reporting already should have occurred when
the crime was first reported to the diocese before the allegations were
forwarded to Rome, one of the canonists told CNS.

If there is a guilty verdict and the penalty involves the
accused being removed from ministry or from office or having limits placed on
ministry, it is announced publicly because it impacts the Catholic community.

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