Removal from Ministry
The Use of Canon 1044.2:2 in Removing a Priest from Ministry
The following persons are irregular for the reception of orders:
1° one who suffers from any form of insanity, or from any other psychological infirmity, because of which he is, after experts have been consulted, judged incapable of being able to fulfill the ministry;
§2 The following are impeded from the exercise of orders:
2° one who suffers from insanity or from some other psychological infirmity mentioned in can. 1041, n. 1, until such time as the Ordinary, having consulted an expert, has allowed the exercise of the order in question.
In responding to an allegation of sexual abuse by a priest or deacon, some bishops are invoking canon 1044,2:2 to remove a priest from ministry. The canon says that a person who is affected by amentia or some other psychic illness is impeded from the exercise of orders until the ordinary, after consulting an expert, permits the exercise of orders. In effect, the canon refers to someone who is not incapable, but unqualified to fulfill his ministry.
Any cleric receiving notification from his ordinary that he is removed from active ministry on the basis of this canon should consult a competent canonist immediately. This canon lends itself to being abused by an ordinary who wishes to remove a cleric for allegations of sexual abuse. Moreover, the canon has its own inherent difficulties.For instance, it does not specify how the ordinary is to consult, or how the expert will determine the nature of the psychic illness. Remember, it is the constant teaching of the Church that no one is to undergo psychological testing against their will.
The ordinary, in declaring that a cleric must not exercise orders, is bound by the provisions of an administrative act. Consequently, before this individual decree is issued, the ordinary must have proof. He may not prevent the exercise of ministry, hoping that the evidence will come out later. He must also hear the cleric against whom an allegation of abuse has been made. Again, the accused is not required to admit anything concerning the issue.
The decree must contain the reasons for its issuance, at least in summary form, since the person whose rights are restricted has the right to know the reasons. Such reasons will provide the basis of an appeal should the accused on the advice of his advocate so decide.
In law the term Ordinary means, not only diocesan bishops but also vicars general and episcopal vicars; likewise, for their own members,major superiors of clerical religious institutes and clerical societies of pontifical right, and who have at least ordinary executive power.
This canon states that the bishop is required to consult experts and if real counsel from an individual professional has not been sought and heard then the act of the bishop and the superior is invalid. Canon 1041:1 requires that the bishop consult with “experts”