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Settimo Cielodi Sandro Magister 07 gen 20

The Other Side of the McCarrick Case. The Vatican Supreme Court Against Trials Without Guarantees and Without Theology

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After many unjustified postponements, the informative note on the case of Theodore McCarrick promised by Pope Francis in October of 2018 is perhaps close to being published, with the foreseeable fresh explosion of the controversies over the cover-up from which he is alleged to have benefited, at the highest levels of the Church hierarchy.

In the meantime, however, a prominent representative of the Vatican supreme court – very close to Benedict XVI but not devoid of criticism toward him – has raised very serious objections against the exclusion from the clerical state of the former cardinal archbishop of Washington, not for the reasons that led to this condemnation – which remain very grave, and this is a matter of sexual abuse committed over decades – but because of the dubious canonical and ecclesiological legitimacy, and in any case of the “overwhelming inadvisability,” of the reduction of a bishop to the lay state.

Raising the objections is the bishop Giuseppe Sciacca (in the photo), secretary of the Supreme Tribunal of the Apostolic Signatura, in the essay that opens the latest issue of “Jus – On Line,” the scholarly journal of legal studies of the faculty of jurisprudence of the Catholic University of Milan:

> Note sulla dimissione del vescovo dallo stato clericale

The fundamental objection from which Sciacca sets out is that the “clerical state” is strictly connected to the sacred order. While the former is typically used to indicate an essentially juridical condition, of belonging to a group, to a category, the latter is a sacrament which impresses on those who receive it an indelible, ontological character, like baptism and confirmation. So much so that even if a sacred minister were forbidden the exercise of sacramental acts, such as for example the celebration of Mass, such acts would still remain valid even if they were performed in contempt of the ban.

But that’s just it, Sciacca points out, especially for bishops “the discordance between ontological status and legal status induced by this situation is a manifest symptom of a pathology.”

In the Church, the awareness of this “pathology” has grown above all thanks to Vatican Council II, which powerfully brought to light the sacramentality of episcopal ordination – which confers the fullness of the sacrament of orders – and therefore also the theological and sacramental root of the bishop’s power of jurisdiction. One indication of this heightened awareness is in the new postconciliar code of canon law, which in canon 290 prescribes that dismissal from the clerical state can be granted “to deacons only for grave reasons” and “to priests only for the gravest of reasons,” without mentioning bishops.

It is only with the motu proprio “Sacramentorum sanctitatis tutela” of 2001 that dismissal from the clerical state is explicitly foreseen for bishops as well. And it is by virtue of this motu proprio that this penalty has been applied in three very recent cases: in addition to McCarrick, to the Chilean bishops Francisco José Cox Huneeus and Marco Antonio Órdenes Fernández.

But more than canonical, Sciacca insists, the problem is ecclesiological, even more so after the exploration of the nature of the bishop carried out by Vatican Council II.

He writes:

“In order for episcopal consecration to be not only valid but licit, hierarchical communion is required with the head of the apostolic college and with the members. Once this occurs, it is irreversible and produces the irreversible insertion of the subject into the college. And the college is not a metaphor, but rather an institutional and juridical reality.

“Therefore, it follows that the loss of hierarchical communion, through a criminal provision from the pontiff, cannot, acting retroactively, cause expulsion from the college, insertion within which is irrevocable by virtue of the sacramental consecration, but only inhibits the exercise of the corresponding ‘munera.’ Sacrament and law are here intimately interwoven.”

But to what extent is all of this understood?

Sciacca points out that public opinion – even that of the “holy faithful people” so dear to Pope Francis – interprets the dismissal of a bishop from the clerical state as proof that “the priesthood is a temporary function, conferred ‘ad tempus’ or ‘ad nutum,’ since it is susceptible to being revoked, albeit for very serious reasons. And if this appears problematic for priests, it can be paroxysmal and subversive for bishops, if we consider that the provision is taken by one who – holder of papal primacy and in the fullness of jurisdiction – is however still sacramentally their equal.”

The “devastating risk” of this mistaken perception – Sciacca continues – “is that it could be translated into a real and proper erosion of the sacrament of orders, which, instead, is mystically, supernaturally and also in a positively verifiable and verifiable historical manner the bond that connects the Church, through the uninterrupted apostolic succession, to its divine founder.”

It would therefore be good, in Sciacca’s judgment, that for a bishop guilty of serious crimes the punishment should be enforced from now on – all the more by a pope committed to the abolition of the death penalty and life imprisonment – in a form that is no longer “vindictive” but “medicinal,” according to “graduality” and “proportionality,” for “re-educational” purposes, in practice with fixed-term suspensions and other limitations such as the residence requirement, the ban on using the episcopal insignia, etc., such as occurred in 2019 for the archbishop of Agaña, Anthony Sablan Apuron.

Not only that. Sciacca insists on respect for the “fundamental guarantees without which the legal order ceases to be such, like the presumption of innocence, the right of defense, the non-retroactivity of positive penal law, the need for reaching moral certainty before issuing convictions and, certainly not least, prescription, as being rooted, albeit in a mediated way, in the natural law itself.” Entirely the opposite – he points out – of the hasty convictions by administrative decree issued in recent years by the Holy See against bishops and cardinals, as if they were company officials, therefore with the risk that the Holy See would also be called to answer for their faults, in contempt “of the indispensable principle of juridical civilization according to which criminal liability is personal.”

So far, in its substance, the essay by Sciacca on “Jus.”

To which, however, he adds, “almost by way of corollary, some reflections on the ‘Notes’ of Benedict XVI, published in April of 2019, on the phenomenon of pedophilia in the Church.”

The full text of those “Notes” or “Jottings” is on this other web page:
> The Church and the scandal of sexual abuse

And this, with minor cuts, is Sciacca’s commentary.

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THE RISK OF A SUMMARY JUSTICE

by Giuseppe Sciacca

With due respect and affectionate filial gratitude to Benedict XVI, [in those “Notes” of his] there is a point, indeed in the judgment of the writer not secondary, where it is not possible to follow him, and it is when he says that there was – in the approach to cases of pedophilia in the clergy – an excess of garantismo [presumption of innocence, due process – tr].

“By now,” Josef Ratzinger writes, “what was considered ‘conciliar’ was only so-called ‘garantismo.’ This means that above all the rights of the accused had to be guaranteed, and this to the point of effectively ruling out a sentence.”

This was not at all a matter of garantismo – which is a category or, better, a way of being necessary for any sound, correct, evolved legal system – but the total culpable absence of any and all recourse to a legal remedy, notably within penal canon law, on account of the widespread, pervasive prejudice, or rather the complete anti-juridical and anti-Roman ostracism present in many authoritative protagonists of those years, […] a prejudice that essentially persisted until the promulgation of the Code of Canon Law by John Paul II in 1983. […]

To that heavy climate of authentic anti-juridical and anti-Roman intimidation some highly authoritative figures reacted. I am thinking of Hans Urs von Balthasar (“The anti-Roman complex”) and Ratzinger himself, who brought into being – but here we are on the explicitly theological and not the canonical side – the journal “Communio.”

So it was not a matter of excessive garantismo in favor of the guilty – “rectius” of the accused – but of the complete absence of an intervention of a juridical nature, and alas, it must be added that of guarantees […] no trace is to be found in the first legislative intervention on the subject – “Sacramentorum sanctitatis tutela” of 2001 – nor even less in the subsequent “Norms” of May 21, 2010, when not only the statute of limitations was bloatedly extended, even reaching the point of providing for the dispensation from limitations tout court (which would leave any person of average sensitivity and juridical-secular culture stunned), but no account was taken either of the principle of non-retroactivity of the positive penal law (with the significant exception of a subsequent law, if more favorable to the accused), or of the graduality of the sentence, immediately imposing dismissal from the clerical state, or the necessary exercise of the right of defense, since – contrary to the dictate of can. 1342 § 2, according to which a perpetual penalty can be imposed only in a process that is judicial and, therefore, adversarial – this, casually, is also applied, indeed almost always, by administrative decree.

Also revealing and dismal is what Ratzinger courageously confesses, which is that the wise and prudent proposal of the “Roman canonists” to impose the suspension of the guilty was replaced with that of dismissal from the clerical state, as this “could not be accepted by the American bishops, because in this way [that is, with suspension ‘a divinis’] the priests remained at the service of the bishop, thus being considered as figures directly linked to him.”

So, to avoid bureaucratic complications and financial consequences – “business is business” – there proceeded full speed ahead the imposition of a penalty, dismissal from the clerical state, which – as attempt has been made to demonstrate – is intrinsically problematic, since, if not correctly understood, as often happens, it conflicts with the doctrine and truth of the indelible character imprinted by the sacrament of orders.

The risk is that – albeit animated by the best intentions and with the sacrosanct duty to protect the victims, without minimizing what they have suffered, and to duly punish the guilty – matters will proceed to give rise to a summary justice, the fruit of rapid emergency legislative interventions – driven by formidable media pressure – from which, together with the summary justice just mentioned, de facto special courts could emerge, with all the consequences, sinister echoes and the sad memories that this entails. The danger is that – paradoxically in spite of the rediscovery and enhancement of episcopal collegiality – there could be the occurrence and repetition, to the detriment of the diocesan bishop, of that devaluation of his function in the Church which took place back when there was the desire, and rightly so, to protect the bishop from secular power in the feudal era and Roman centralization developed bloatedly, as Olivier Rousseau OSB acutely wrote back in the early sixties of the last century.

The above, not indeed with the presumption of having solved a problem, but with the intention of highlighting its existence and the desire for in-depth contributions from others.

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(s.m.) Regarding the “so-called garantismo” denounced by Ratzinger in his “Notes” of 2019 and critically discussed by Sciacca, it must be noted that, as pope, Ratzinger also mentioned this in the important pastoral letter to the Catholics of the Ireland of 2010, in these words:

“The programme of renewal proposed by the Second Vatican Council was sometimes misinterpreted and […] in particular, there was a well-intentioned but misguided tendency to avoid penal approaches to canonically irregular situations […] resulting in failure to apply existing canonical penalties.”Condividi:

•  07 gennaio 2020
•  English