Monday, March 29, 2010

The Misrepresentation of Crimen sollicitationis

Source: Instruction on the Manner of Proceeding in Causes involving the Crime of Solicitation


Crimen sollicitationis [Hereafter referred to as CS] is the document concerning sexual solicitation in the confessional, which was in effect until the Church updated its rules in 2001, with the release of Sacramentorum sanctitatis tutela.  It also concerned actual acts of abuse apart from the confessional, as evidenced in paragraphs 71-74.

There are a good deal of myths concerning this document, and considering how Pope Benedict XVI is being smeared on account of the misrepresentation of it, I figured I should take a look at the document.

A Note: The references to canon law in CS refers to the 1917 code, not the 1983 code.

The Issue of Misrepresentation

With this latest round of false accusations against the Pope, we hear much of the so-called secret document of 1962 dealing with sexual solicitation in the confessional.  Even though the translation is found on the Vatican website, we hear constantly of how some individual "discovered" it and is "making it public for the first time" with all the typewritten graphics… in English even though the document of 1962 was in Latin.  This PDF which is going around has all these supposed top secret warnings, about how nobody was to distribute it or comment on it.

Since it has been released on the Vatican website for all to see (if they bother to look), this isn't an issue.  We can read it and comment on it.  However it is how the Church interprets its own laws and not how the average reader interprets it that is relevant here.

This is the problem of course.  There are many false interpretations out there, which the Church did not sanction.  These false interpretations are not the fault of the Church however.  If, for example, someone takes my series of articles refuting the claims of an "evil Bible" and cites them as if to claim I believed the Bible was evil, I'd refute it if I was aware of the site that misrepresented me.  However, it would not be my fault I was misrepresented.

The Church is in the same situation.  The laws of the Church are what the Church understands them to be.  Many people may misinterpret (or misrepresent) what the Church teaches.  However, the Church is not to blame for these misrepresentations of what it teaches.

The Church Did Not Forbid the Reporting of Sexual Abuse to Civil Authorities

The main misrepresentation of CS seems to come from paragraph #11 which reads:

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 ipso iure, 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. (emphasis in original)

The misrepresentation is that it forbade people who were reporting abuse to file criminal charges.  This simply is not true. This document solely dealt with the canonical penalties to be given to the offender.  Rev. Scicluna of the CDF described it this way:

A bad English translation of the text made people think that the Holy See had imposed secrecy in order to hide the facts, but it wasn’t like that. Procedural secrecy served to protect the good names of everyone involved, first of all the victims themselves, and then the accused clergy, who have the same right as everyone else to the presumption of innocence until proven otherwise. The Church doesn’t like to make a spectacle of justice. The canonical rule on sexual abuse, however, was never understood as a ban on reporting [crimes] to the civil authorities. [Emphasis added]

In other words, it was the procedure of the Church investigation which one was forbidden to comment on, not the abuse itself.  So if a witness was asked in a trial what one witnessed at the time of the abuse, that could be answered.  If a member of the tribunal was asked what was discussed at the tribunal that could not be answered. 

A major distinction to be sure.  Those who report CS as preventing reporting to civil authorities misrepresent the Church law.

The Responsibility of the Victim

Another misrepresentation was that there was a time limit of one month.  This was not the case.  Rather, because a person who was soliciting in the confessional was behaving in a monstrous manner, the Church would want a person to bring it forward as soon as possible.  Hence the document stating:

15. The crime of solicitation is ordinarily committed in the absence of any witnesses; consequently, lest it remain almost always hidden and unpunished with inestimable detriment to souls, it has been necessary to compel the one person usually aware of the crime, namely the penitent solicited, to reveal it by a denunciation imposed by positive law. Therefore:

16. “In accordance with the Apostolic Constitutions and specifically the Constitution of Benedict XIV Sacramentum Poenitentiae of 1 June 1741, the penitent must denounce a priest guilty of the crime of solicitation in confession to the local Ordinary or to the Sacred Congregation of the Holy Office within one month; and the confessor must, by an obligation gravely binding in conscience, warn the penitent of this duty.” (Canon 904).

17. Moreover, in the light of Canon 1935, any member of the faithful can always denounce a crime of solicitation of which he or she has certain knowledge; indeed, there is an urgent duty to make such a denunciation whenever one is compelled to do so by the natural law itself, on account of danger to faith or religion, or some other impending public evil.

18. “A member of the faithful who, in violation of the (aforementioned) prescription of Canon 904, knowingly disregards the obligation to denounce within a month the person by whom he or she was solicited, incurs a reserved excommunication latae sententiae, which is not to be lifted until he or she has satisfied the obligation, or has promised seriously to do so” (Can. 2358, § 2)

In other words, if a person knew of their obligation to report this (and this would be important to report this to prevent more victims), and refused to report it, they would be guilty of enabling this priest to continue.  The person who knowingly refused to report the crime would be excommunicated until they reported it.

Kind of different than it's been portrayed isn't it?  Perhaps if this had been followed, there would have been fewer abusers.

It's like this.  If I know a person is a murderer, I have a duty to report it in order to ensure justice is done and to ensure the murderer does not target another victim.  If I know this duty and refuse to do it, I am partially to blame if, because of my silence, another suffers.

No Anonymous Accusations

Now, since the Church recognized the possibility of false denunciations, it had rules on how the act was to take place, saying:

20. Anonymous denunciations are generally to be disregarded; they may however have some corroborative value, or provide an occasion for further investigations, if particular circumstances make the accusation plausible (cf. Can. 1942, §2).

21. The obligation on the part of the penitent who has been solicited to make a denunciation does not cease as a result of a possible spontaneous confession by the soliciting confessor, or his transfer, promotion, condemnation, presumed amendment or other such reasons; it does cease, however, upon the death of the latter.

Note that even if the priest was transferred elsewhere (one of the complaints against the Church) the obligation was not lifted.

Now of course I am not going to say that all those who waited years to speak up acted in bad faith.  If one, in good faith, did not know of the obligation to speak up, they were not under the penalty.

The Obligation of the Bishop and Investigators

I do find it interesting to note that for the abuse to have taken place like this, it indicates certain priests and bishops were negligent in failing to take action.  Especially when we see the document tell us:

27. Once any denunciation has been received, the Ordinary is bound by a grave obligation to communicate it as soon as possible to the promoter of justice, who must declare in writing whether or not the specific crime of solicitation, as set forth in No. 1 above, is present in the particular case, and, if the Ordinary disagrees with this, the promoter of justice must defer the matter to the Holy Office within ten days.

In other words, if the promoter of the cause did not agree with the promoter of justice, the promoter was obligated to report this to the Holy Office [Predecessor of the CDF].  The intent of this was to prevent such cases from being kicked under the carpet.

I find this interesting.  The investigation was to determine if solicitation did in fact occur.  If both agreed it happened, the investigation began.  If the Ordinary [Bishop] and the Promoter disagreed, it was to be forwarded to the Holy Office.  Only if both agreed solicitation did not happen (#28) that it would be set aside.

In retrospect, we do see a weakness in this document of course.  If the Ordinary and the Promoter were corrupt, it could indeed mean justice blocked.  However, this was not a planned weakness, but was based on the assumption that those in authority would recognize their responsibility under God to do what was right and just.  If there was collusion, the Holy Office would not be notified of the case.  If the Ordinary and the Promoter wrongly decided the victim was untrustworthy, the Holy Office would not be notified.

This is of course tragic.  However it was not deliberate, and the Church did change the law once it became clear CS was inadequate to handle these cases.

The Church wanted Credible Allegations

We do need to keep in mind that in the confessional there was the problem of no witnesses which meant the Church needed to assess the credibility of the witnesses.  If the evidence was vague or uncertain, the records were to be kept for future reference.  If entirely unfounded, the accusations were to be destroyed (See #42 a and b).

The Ordinary was to report the conclusions of the Holy Office within ten days and the Promoter, if he thought there was a miscarriage, was to report to the Holy Office as well (see #45)  The accused also had a right to appeal (see #58)

What Happened to the Convicted?

Paragraph 61-63 tells us what is to be happened to a convicted priest:

61. “One who has committed the crime of solicitation... is to be suspended from the celebration of Mass and from the hearing of sacramental confessions and even, in view of the gravity of the crime, declared disqualified [inhabilis] from hearing them. He is to be deprived of all benefices, dignities, active and passive voice, and is to be declared disqualified [inhabilis] from all these, and in more grievous cases he is even to be subjected to reduction to the lay state [degradatio]”. Thus states Canon 2368, §1 of the Code of Canon Law.

62. For a correct practical application of this canon, when determining, in the light of Canon 2218, §1, fair and proportionate penalties against priests convicted of the crime of solicitation, the following things should be taken into particular account in evaluating the gravity of the crime, namely: the number of persons solicited and their condition – for example, if they are minors or specially consecrated to God by religious vows; the form of solicitation, especially if it might be connected with false doctrine or false mysticism; not only the formal but also the material turpitude of the acts committed, and above all the connection of the solicitation with other crimes; the duration of the immoral conduct; the repetition of the crime; recidivism following an admonition, and the obdurate malice of the solicitor.

63. Resort is to be had to the extreme penalty of reduction to the lay state – which for accused religious can be commuted to reduction to the status of a lay brother [conversus] – only when, all things considered, it appears evident that the Defendant, in the depth of his malice, has, in his abuse of the sacred ministry, with grave scandal to the faithful and harm to souls, attained such a degree of temerity and habitude, that there seems to be no hope, humanly speaking, or almost no hope, of his amendment.

The Church, believing in the possibility of redemption and repentance has to practice what it preaches of course.  However, if they believe that the defendant is unrepentant, they can indeed take strong steps.

The Responsibility of the Ordinary

Paragraphs 66-70 tell us of he obligation to report to the Holy Office that such an investigation was being made:

66. No Ordinary is ever to omit informing the Holy Office immediately upon receiving any denunciation of the crime of solicitation. If it happens to concern a priest, whether secular or religious, having residence in another territory, he is at the same time to send (as already stated above, No. 31) to the Ordinary of the place where the denounced priest currently lives or, if this is unknown, to the Holy Office, an authentic copy of the denunciation itself with the diligences carried out as fully as possible, along with appropriate information and declarations.

67. Any Ordinary who has instituted a process against any soliciting priest should not fail to inform the Sacred Congregation of the Holy Office, and, if the matter concerns a religious, the priest’s General Superior as well, regarding the outcome of the cause.

68. If a priest convicted of the crime of solicitation, or even merely admonished, should transfer his residence to another territory, the Ordinary a quo should immediately warn the Ordinary ad quem of the priest's record and his legal status.

69. If a priest who has been suspended in a cause of solicitation from hearing sacramental confessions, but not from sacred preaching, should go to another territory to preach, the Ordinary of that territory should be informed by his Superior, whether secular or religious, that he cannot be employed for the hearing of sacramental confessions.

70. All these official communications shall always be made under the secret of the Holy Office; and, since they are of the utmost importance for the common good of the Church, the precept to make them is binding under pain of grave sin.

This cannot be overlooked.  The document requires many things that were not followed by certain bishops.  The Holy Office must be informed.  Compare this to what Rev. Scicluna tells us:

Between 1975 and 1985, I’ve found that no report of cases of pedophilia involving clergy arrived to the attention of our congregation. [Emphasis added]

Because of this, we see that there was a problem of many bishops failing to do what they were obligated to do.

Looking At The Accusations Against the Pope In Light of This Document

This document was in effect from 1962-2001. so it would have been the document in effect with both the accusations of Munich and of Milwaukee.  At this time, it was the ordinary of the diocese the priest was a resident of who was to investigate cases.

In the Milwaukee case, the investigation concerned events which took place thirty years prior but were not reported to the CDF (successor of the Holy Office).  In the Munich case, we have incidents where the Bishop of Essen was obligated to report the charges to Rome when having the priest undergo treatment in Munich.

In neither case did now Pope Benedict XVI act against the obligations of the document.  In the Milwaukee case, we have the case of bishops of Wisconsin acting to defrock the priest thirty years after the alleged incidents (once removed from his post in 1974, Fr. Murphy did not take part in an active ministry again, though on occasion he was given a task to do).

Fr. Murphy wrote to the CDF that he had long ago repented of his acts and was not involved in active ministry.  In light of CS 61-63, one could legitimately ask whether or not this procedure now was necessary.  The Ordinary did see this as necessary and the CDF did not halt the proceedings against Fr. Murphy.  Fr. Murphy did in fact have the right to appeal to the CDF, as we see in paragraph 58.

In the Munich case, we have a priest whose prosecution was the duty of the Diocese of Essen.  Then Archbishop Ratzinger was to be informed of the case against him.  Now, we know Rev. Gruber did assign the priest to doing certain work.  This would have been against the requirements of CS.  Rev. Gruber would have been obligated to report to the Archbishop.  However, he says he did not do so.  This means the wrong was done by Rev. Gruber, not the then Archbishop Ratzinger.

Claims he did know otherwise is to be proven, not assumed.


Crimen sollicitationis has been grossly misrepresented.  It was not to keep the accusations out of the light, but to protect both the accuser and the accused from scandal until the truth was known.  It was not a document which sought to evade prosecution of the priest, but to merely deal with the canonical penalties for such an act.

With all the misinformation out there, one has to make a strong effort not to give in to the appeal of the mob and their desire for scandal.  The document recognized the problem of the false accusations.  It did require the notification of the Holy Office/CDF of these accusations.  Yet certain bishops failed in their duties.

Such people do have an obligation to justice.  As the Pope said in the case of the Irish bishops:

11. To my brother bishops

  It cannot be denied that some of you and your predecessors failed, at times grievously, to apply the long-established norms of canon law to the crime of child abuse. Serious mistakes were made in responding to allegations. I recognise how difficult it was to grasp the extent and complexity of the problem, to obtain reliable information and to make the right decisions in the light of conflicting expert advice. Nevertheless, it must be admitted that grave errors of judgement were made and failures of leadership occurred. All this has seriously undermined your credibility and effectiveness. [Emphasis added]

The Church now is recognizing the failure of many bishops to do what they were required to do.  Some bishops may have erred.  Some may have been negligent.  Such cases need to be investigated.  However, it cannot be said that the document Crimen sollicitationis caused the abuse or caused it to be kept hidden.

Those who misrepresent this document or what it means are not official interpreters.  Nor do abuses or errors by some do not mean all bishops were this way.

In light of these current accusations it is the truth, not the hysteria, which needs to be studied.  False accusations of what Crimen sollicitationis required must be rejected in dealing with the current news stories.

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