The exercise of the Church’s penal law is very often misunderstood as an application of simple penalties, rather than the exercise of discipline for the good of souls. This ministry of justice must always respect all involved parties, for canon law itself, almost by definition, must secure justice for the individual, the Church itself, and especially for those who have been the victims of abuse in any form.
After a nearly fourteen year long period of revision initiated by Pope Benedict XVI, Pope Francis’ Apostolic Constitution Pascite Gregem Dei (“Shepherd the Flock of God”) promulgating the revised Book VI of the Code of Canon Law is the fruit of these important revisions of the Church’s penal norms, which are always intended to be at the service of the care of souls. The new, revised norms of Book VI of the Code go into effect when the vacatio legis expires on December 8, 2021.
During the 20th century, the Church’s major source of law, the Code of Canon Law, underwent two major revisions; the first leading to the 1917 Code of Canon Law, modeled upon the civil legal codes which came into effect during the previous century and were generally based upon Roman law, and the second being the desire of both St. John XXIII and the Second Vatican Council to revise the Church’s laws. The 1983 Code of Canon Law, promulgated by St. John Paul II, was largely based upon the principles enunciated by the Second Vatican Council. Since that time, many societal changes have taken place which have necessitated the updating of the Church’s discipline regarding offenses and penalties. In particular, in the latter decades of the 20th century, a false conception of mercy and charity, which tended to avoid juridic processes due to indeterminate penalties in the law itself, was often practiced by ecclesiastical authorities.
Classically, this element of legal justice serves to regulate and properly order the relationship between the individual and the larger society. Such norms are, as the Apostolic Constitution itself notes, necessary for the good government of the Church because of a need to vindicate the order of justice, as well as serving as a medicinal purpose for the perpetrator and to repair scandal within the society that is the Church.
The Apostolic Constitution notes several foundational principles guiding the revision of Book VI:
• The presumption of innocence, taken almost for granted in most Western civil legal systems and which has its roots in canon law (as scholars such as Kenneth Pennington have ably demonstrated), is clearly brought into relief in the revision of Book VI of the Code of Canon Law.
• The question of prescription, which establishes definite time-frames for the application of penalties and the hearing of cases, in such a way that justice is administered in a timely fashion which respects the exigencies of all involved parties. This, too, is in keeping with the old legal maxim that “justice delayed is justice denied.” Such a principle is clearly exhibited in the revised canon 1362, defining a three-year time limit for a formal process to conclude.
• The right of defense, which likewise is fundamental in virtually all Western legal systems, that the accused should be granted the right to a fair hearing with his or her ability to participate in the proceedings.
• The principle of proportionality, whereby punishments can be more clearly applied to different crimes such that they better fit the nature of the delict. A corollary to this principle is the notion, seen in the new norms, that penalties are to be more clearly determined by the law itself and less left to the will of the authority imposing the penalty.
• As Bishop Juan Ignacio Arrieta Ochoa de Chinchetru, secretary for the Pontifical Council for Legislative Texts noted, a certain clarity of norms is a hallmark of the revised Book VI, as well as protection of the community and provision for means to prevent offenses and promote amendment on the part of the offender.
It should also be noted that such norms, in the Church’s juridical tradition, as unfavorable or restrictive laws, should be read and applied in a very restrictive fashion, limited to the strict definition of the words themselves of the canon. (Regula Iuris 15, in VI°)
Certain aspects of the revised Book VI will demand further clarification as time progresses from canonists and from the Church’s own jurisprudence. Certain terms, which in recent Church documents and legislation have somewhat varying definitions, will undoubtedly be the subject of discussion amongst canonists as they seek to properly interpret these new norms.
In summation, then, these revised norms should be a very clear means for the Church to restore and respect the order of justice amongst all parties within ecclesiastical life.
Rev. Albert P. Marcello, III, J.C.D. (Cand.), is the Defender of the Bond for the Providence Tribunal and is a doctoral candidate in canon law at the Catholic University of Louvain (Belgium).
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