THE RIGHT TO AN ADVOCATE AND APPEAL
If an ordinary contemplates either administrative or judicial action against an accused cleric, he must provide him with a canonical advocate (canons 1481, 1 and 1723). The right to a competent defense is basic to both the civil and canon law systems, yet in many cases, clerics facing disciplinary or penal action are not advised to obtain the assistance of a canon lawyer, much less provided one.
Canonical penal trials are rare to the point of being non-existent in this country. The action taken against clerics accused of sexual contact with children has been administrative for the most part. Clerics who have been suspended or placed on administrative leave or who have had other measures taken against them often do not realize that they are entitled to an appeal process. Properly speaking, there is no appeal against an administrative decree. The appeal belongs to the formal judicial process. Rather, the Code provides for recourse (canons 1732-1739).
Recourse against an administrative decree of suspension (or the equivalent) begins with a request by the person receiving the decree to the one who issued it. This means that the accused cleric, upon receipt of the notice of suspension, writes to the ordinary, asking him to either amend its terms or revoke it entirely. In doing so, he obviously should state the reasons why he believes the decree is unwarranted. This petition to the ordinary must be made within ten working days of the date the cleric received notice of the decree. The ordinary is to respond within thirty days of receiving the petition.
The law states that the decree itself is suspended from the time a petition for change or revocation is received by the ordinary (canon 1736, 1). This canon does not state which matters result in suspensive effect, however canon 1353 tells us that any recourse against a penal decree has suspensive effect. Therefore, recourse against an administrative suspension suspends the decree by which the suspension is imposed. The cleric is not in fact suspended until the issue has been decided according to the norms of law.
If the ordinary refuses to amend the decree in any way, the cleric then has the option of pursuing hierarchic recourse. He must address his petition for recourse to the hierarchic superior of the person who issued the original decree within 15 days of receiving the response to his initial petition to the author (canon 1735). If the superior who issued the original decree is a diocesan ordinary, then the recourse is to the Holy See (the Congregation for the Clergy to be specific). As in the case of formal judicial procedures, the law states that the one making recourse has the right to the use of an advocate (canon 1738).
Return to the Lay State or Laicization
The return of a cleric to the lay state can be accomplished in three ways: a) by administrative action of the Holy See upon petition of the cleric himself, b) ex officio by the Holy See even without the cleric’s petition and possibly against his wishes and c) as a penalty following a canonical trial conducted even on the local level.
In certain instances it is conceivable that a return to any form of ministry by a cleric who has been involved in sexual contact with children is ill advised. This may be because the scandal that resulted from his actions and which could escalate if the community knew he was back in action or because of the very high risk that he will act out again. In such cases, it is perhaps best for the cleric and for the Church if he petition himself for a return to the lay state.
Laicization ex officio by the Holy See has been done in isolated instances in the past, although no documentation or hard proof of this is readily available. At the present time it is not the policy of the Holy Father to laicize priests against their will. This has been made clear by public statements of officials of the Congregation for the Doctrine of the Faith in the recent past. At this writing, there is no indication that this policy has changed. Consequently, the only possibilities for laicization are petition of the cleric himself and imposition as a penalty after a canonical trial.
Although laicization following a canonical trial is a rarity, it is worth considering both for the information of clerics who may be threatened with a penal process on the local level, and ordinaries, who may contemplate such action.
We are speaking of the canonical crime or delict mentioned in canon 1395: sexual contact with a minor of either sex below the age of sixteen. This canon does not specify an automatic penalty (latae sententiae). It states that the cleric is to be “…punished with just penalties, including dismissal from the clerical state if the case warrants it.”
We have already considered some of the rights of clerics subjected to penal process in the section on suspension. These same provisions hold true for a laicization process, v.g., the right to canonical counsel, the right to information about the accusation and the proofs (canon 1720) and the right to appeal (canon 1628). In general, the canons of Book VII, “Processes,” are applicable in penal trials. This means that the accused may call witnesses and the judges may request the assistance of expert witnesses.
The letter and spirit of canons 1321 (imputability), 1341 (penalty as last resort) and 1324 (diminishing factors) present the same problems to a laicization process as they do to a process looking towards the suspension of an accused cleric. In the first place, the use of a penal process must be a last resort but more importantly, serious imputability must be proven (graviter imputabilis). Given the nature of pedophilia and pedophilic acts, a strong case can be built for the presumption that the accused did not act with complete freedom of the will.
Even if an accused priest has been found guilty by a tribunal, canon 1324 could be invoked to preclude the possibility of laicization as the penalty.
It is obviously the task of medical experts to provide testimony concerning the general nature of sexual disorders and the particular nature of a disorder in a specific case. This leads to a most important part of our considerations: the nature of pedophilia and pedophilic acts.