Legal Loophole in Canon Law Protects Pedophiles

Published with the permission of Michael Hichborn

Original Article can be found here

Ever since the 2002 revelations of deep-seated problems of child sexual abuse by members of the Catholic clergy, the most common question among the faithful remains without an answer: “How could this have happened?”

Since then, scores of reports related to ongoing patterns of sexual abuse and cover-up by the episcopacy have shown that not only has this crisis not been resolved, it isn’t likely to end any time soon.  And while many rightfully point the finger at wicked bishops, homosexual networks in the clergy, and the fetid rot in seminaries, the fact of the matter is that all of these are mere symptoms of the issue.

One major source of the problem is a legal loophole contained within the Code of Canon Law itself which directly protects pedophile priests.  Simply put, canon law prevents criminal perverts in the clergy from being properly prosecuted and punished.  Not only does canon law make it impossible to reveal the homosexual and pederast networks existing among the clergy, but the nature of their perversion prevents punishment.

In 1917, the Code of Canon Law stood as a bulwark against clergymen who engaged in various forms of sexual perversion by publicly proclaiming their infamy.  In essence, those priests caught engaging in sexual abuse of minors, sodomy, incest, and a host of other sexually deviant behaviors were to be “declared infamous,” meaning their crimes were to be revealed publicly so as to protect future victims, much like the sex-offender registry currently in force in civil law.

C. 2359 § 2 of the 1917 Code of Canon Law states:

“If [clerics] engage in a delict against the sixth precept of the Decalogue with a minor below the age of sixteen, or engage in adultery, debauchery, bestiality, sodomy, pandering, [or] incest with blood-relatives or affines in the first degree, they are suspended, declared infamous, and are deprived of any office, benefice, dignity, responsibility, if they have such, whatsoever, and in more serious cases, they are to be deposed.”

By immediately depriving such perverts of their faculties and their office and publicly identifying them for their crimes, the Church provided a clear and rigorous defense of vulnerable members of the Church and maintained the purity of the priesthood.  However, just five years later, the law was secretly changed so as to conceal these same criminal offenses.

In 1922, a secret Vatican document titled Crimen Sollicitationis was published (republished in 1962), making it an excommunicable offense for any bishop to reveal the criminal offenses of pedophiles, homosexuals, and zoophiles.  The document primarily deals with priests who solicit the penitent to engage in illicit or immoral acts, and in dealing with such cases, paragraph 11 of the document says:

11. Since, however, in dealing with these causes, more than usual care and concern must be shown that they be treated with the utmost confidentiality, and that, once decided and the decision executed, they are covered by permanent silence (Instruction of the Holy Office, 20 February 1867, No. 14), all those persons in any way associated with the tribunal, or knowledgeable of these matters by reason of their office, are bound to observe inviolably the strictest confidentiality, commonly known as the secret of the Holy Office, in all things and with all persons, under pain of incurring automatic excommunication, ipso facto and undeclared, reserved to the sole person of the Supreme Pontiff, excluding even the Sacred Penitentiary. Ordinaries are bound by this same law , that is, in virtue of their own office; other personnel are bound in virtue of the oath which they are always to swear before assuming their duties; and, finally, those delegated, questioned or informed [outside the tribunal], are bound in virtue of the precept to be imposed on them in the letters of delegation, inquiry or information, with express mention of the secret of the Holy Office and of the aforementioned censure.

Toward the end of the document, the entire procedure in dealing with priests accused of solicitation is extended to clerics accused of homosexuality, pederasty, pedophilia and bestiality.

71. The term crimen pessimum [“the foulest crime”] is here understood to mean any external obscene act, gravely sinful, perpetrated or attempted by a cleric in any way whatsoever with a person of his own sex.
72. Everything laid down up to this point concerning the crime of solicitation is also valid, with the change only of those things which the nature of the matter necessarily requires, for the crimen pessimum, should some cleric (God forbid) happen to be accused of it before the local Ordinary, except that the obligation of denunciation [imposed] by the positive law of the Church [does not apply] unless perhaps it was joined with the crime of solicitation in sacramental confession. In determining penalties against delinquents of this type, in addition to what has been stated above, Canon 2359, §2 is also to be taken into consideration.
73. Equated with the crimen pessimum, with regard to penal effects, is any external obscene act, gravely sinful, perpetrated or attempted by a cleric in any way with pre-adolescent children [impuberes] of either sex or with brute animals (bestialitas).

This document made it impossible for any bishop, priest or even victims to report such grave sexual abuses to civil authorities or even to warn others of the criminal behavior of these priests, even after the priest had been found guilty.  And so, what was once a law to declare priests who committed these abysmal crimes “infamous,” became an impenetrable secret just five years later. To make matters worse, this particular document was to be kept in the “secret archive” and never written about or spoken of publicly, including in canon law commentaries, thereby making the secret concealing of perverse crimes a secret in and of itself.

Over the course of the last sixty years, this secret change in the code of Canon Law has slowly been made known, and while certain restrictions were lifted, the central problem persisted.

• In 1962, Crimens Solicitationis was reissued, and it was later reintroduced under Secretaire Continaire in 1982.
• In 2001, Pope John Paul II lifted some of the restrictions on strict secrecy for bishops in the U.S. and Europe, allowing them to report to law enforcement “if required” by law.
• In 2019, Pope Francis somewhat lifted this requirement so that bishops could report to law enforcement anywhere in the world “if required”. However, secret agreements may remain as have for the last 100 years.
• In 2021 – canon law has changed once again – but problems remain.

But the change in law forcing secrecy regarding the sexually perverse crimes of clerics is only part of the problem.  In addition to the change of making such criminals “infamous” to holding the crimes of the criminals in secret, further developments in canon law made it impossible to actually punish those who sexually abused children.

The 1983 Code of Canon Law inserted this new canon:

Can. 1321 §1: “No one can be punished for the commission of an external violation of a law or precept unless it is gravely imputable by reason of malice or of culpability.”

The importance of this insertion into the Code of Canon Law, with regard to our current circumstance, cannot be overstated.  What this means is that if there is any indication that a crime against the laws of the Church was committed as a result of a psychological compulsion and not out of malice, then the offender can NOT be punished.  This is what the most respected Commentary on the Code of Canon Law says of Canon 1321 §1 in relation to child abuse:

“The matter of imputability is of fundamental importance in considering each of these offences, and not least the third mentioned above [c. 1395-2, child abuse]. Before imposing any penalty for such an offence, the ecclesiastical authority must be morally certain that there has been an external violation of the law which is gravely imputable in the sense explained above at Can. 1321 §1. Among the factors which may seriously diminish imputability in such cases is paedophilia. This is described as ‘the act or fantasy of engaging in sexual activity with pre-pubertal children as a repeatedly preferred or exclusive method of achieving sexual excitement’. Those who have studied this matter in detail have concluded that proven paedophiles are often subject to urges and impulses which are in effect beyond their control.”

“When the facts of a particular case are examined carefully, it may well emerge that the cleric did indeed commit a sexual offence, or a number of them, with a minor; as such, he may be liable to punishment by the criminal law of the State; nevertheless, because of the influence of paedophilia, he may not be liable, by reason of at least diminished imputability, to any canonical penalty, or perhaps to only a mild penalty, to a formal warning or reproof, or to a penal remedy.”  (Canon Law: Letter and Spirit by the Canon Law Society of Great Britain and Ireland, pg. 805) [emphasis added]

Although imputability had been well established within Catholic doctrine as a theological basis for understanding the spiritual culpability of sinners, the concept had never been used as a basis to exempt diagnosed pedophiles from punishment for offenses of child rape until the 20th century.  In short, the two sections of canon law, 1321 and 1395-2 create a legal loophole which actually forbids canonical punishment, or at least severely reduces the scope of punishment, for those convicted of the crime of pedophilia.

This admission in the most highly regarded commentary on canon law is shocking!  It also explains why so many priests accused of raping children are immediately sent to psychiatric facilities for evaluation.  Even if a priest is caught in the act of raping a child, if he is evaluated by a psychiatrist and found to be “subject to urges and impulses which are in effect beyond their control,” then as Canon 1321 §1 states, such priests cannot be “punished for the commission of an external violation of a law or precept.”

But even if a priest is found to be guilty of sexually assaulting children, it is unlikely that the bishop will impose any penalties upon the priest due to the requirements under Canon 1341, which states:

Can. 1341: “The Ordinary is to start a judicial or an administrative procedure for the imposition or the declaration of penalties only when he perceives that neither by fraternal correction nor reproof, nor by any method of pastoral care, can the scandal be sufficiently repaired, justice restored and the offender reformed.”

Again, from the Commentary on Canon Law:

“This opening canon voices an essential element in the philosophy of the Church concerning the application of penalties – a philosophy given its initial thrust by Pope Pius XII, and subsequently endorsed by Vat. II which itself introduced a new outlook and a new spirit into the penal law of the Church. This canon stresses two major principles of the revised penal law: restraint in the use of penalties, and discretion in their application. In a situation where a person has behaved in a reprehensible fashion, the law urges caution: penalties are to be imposed only as a last resort. When the Ordinary is made aware of such behaviour, he is to seek to redress the situation by fraternal correction or by a more formal reproof, or by some other means of pastoral care. He is obliged to explore every reasonable measure whereby, without having recourse to penal action, a satisfactory pastoral resolution may be found. To ignore this obligation would in many cases be to run the risk of achieving none of the three objectives listed in the closing words of this canon.

Should all other efforts to repair scandal, restore justice and reform the offender fail to produce the desired effect, then and only then may the Ordinary institute a formal procedure (judicial or administrative) for the imposition or declaration of the appropriate penalty. It is also to be noted that, should a formal judicial penal procedure be selected – as indeed, on occasion, it may have to be – the outcome will no longer be within the control of the Ordinary: it automatically transfers to the (normally) collegiate tribunal entrusted with the case. (see Can. 1425 §1 2°, §2) (Canon Law: Letter and Spirit by the Canon Law Society of Great Britain and Ireland, pg. 770)

This aspect of the Code of Canon Law sheds new light to the revolving door at Catholic psychiatric hospitals for sexually abusive priests, and why bishops defend the shuffling of priests (after psychiatric “treatment”) to other parishes or even other dioceses as “pastoral care” of such priests.  Many times, when a priest’s long history of sexual abuse comes to light, it is very often found that the priest spent time in and out of psychiatric hospitals, and following each interval, the priest is reassigned to another parish.  And what we have just explored regarding canon law provides the reason this happens:

• Bishops had been forced to maintain silence regarding a priest accused of abuse, according to the document Crimen Sollicitations. While many of the restrictions have been lifted in this regard, there is still enough room for manipulation within the law to maintain silence, even after a priest is found to be guilty.
• Canon 1321 §1 makes it nearly impossible to punish or remove from ministry a priest who abuses a child, but is found to be under the uncontrollable impulses of pedophilia.
• This is reinforced by Can. 1341, which stresses the importance of “rehabilitation” over punishment for those who commit deeds as wicked as the rape of children.

The crisis of clerical sexual abuse of minors is firmly rooted in the 1922 revision of Canon Law, not only reversing the requirement to make infamous those clerics found guilty of sexual perversion, but to place such findings under the Pontifical Secret.   The current Charter for the Protection of Children and Young People, while an improvement over protecting such priests with the Pontifical Secret is still woefully inadequate for the following reasons:

1. Guilty & admitted child abusers can and do remain in “private ministry” and in charge of children within the United States (see case of Fr. Jim Holtz, 2002-2019 here and here).
2. The Charter does not require United States dioceses to conduct criminal background checks of foreign priests, allowing sex abusers to be imported.
3. The Charter does not require United States dioceses to require that clerics use their true names when in ministry (see case of Arackal, 2018).
4. The Charter only applies to the United States, so convicted sex abuser clerics can simply be transferred to a new diocese globally to offend again (see case of Fr. Luk Delft here and here).
5. The Charter does not eliminate the explicit protections that protect pedophiles and other perverts from laicization (removal from the priesthood).
6. The Charter excludes sexual abuse against adults. Even abusers of priests can remain priests and in “private” ministry (see case of Inglot).
7. The review board is unable to investigate or verify if the information provided to them is complete or true, making their rulings entirely dependent on what the diocesan attorney provides them. (Example)
8. The Bishop can disregard the advice of the review board or direct it not to review a particular case, as it is only a consultative body and serves at the leisure of the bishop. (Example)

If there is to be an end to the sexual abuse crisis in the Church, it has to begin with a revision of canon law, re-enacting C. 2359 § 2 of the 1917 Code of Canon Law, with the added provision that those ordained ministers who are guilty of sexual abuse or sins against nature should be laicized.  Without the force of law, all talk of processes, review boards, charters, and hand-wringing apologies from bishops who are “saddened” by such wicked acts are nothing but bureaucratic facades to cover the rotten edifice of the modern Church.