For some decades now, justice has been something of a dirty word within the life of the Church, unless preceded by the word “social.” Of its very nature, justice demands an unsparing examination of persons, their actions and motivations, and the consequences of each. Conscious of our fallen human reality, this presents an uncomfortable encounter with the truth, to which the exercise of justice is intrinsically bound, for all concerned. Justice is, as one of my canon law professors used to say, often seen as the dark side of the Good News. The metaphor is in one sense apt. When set next to the uncompromising love and mercy of the Divine, notions of guilt and penalties (expiatory and medicinal) can seem rather grim. But, on the other hand, considering the notion of justice, especially in the penal law of the Church, as the “dark side” of anything is perhaps best understood ironically.
Fundamentally, the process of justice—the rude mechanics of investigations and administrative processes, trials, and judicial procedures—is nothing less than the practical means by which that done in the dark is brought to the light. Justice is an act of illumination, of applying the searching, cleansing, and healing light of truth. In the context of justice, one can recall and reapply the words of our Holy Father Pope Francis, who has warned against the dangers of “a deceptive mercy [that] binds the wounds without first curing them and treating them.” The process of justice in the procedural norms of Sacramentorum sanctitatis tutela is the diagnosis and curing of the gravest injuries which can be inflicted on the earthly body of Christ which is the Church.
All too often, there is a temptation to treat the concept of procedural law in a formalistic and bureaucratic way; as a mere means of generating a record of an outcome (perhaps tacitly predetermined) or a minimum standard to be satisfied, rather than a call to the service of truth and healing. In cases of the gravest crimes—those committed contra sextum cum minores—the goods of the accused, the victim, and the society of the Church are all served by the deepest and most committed search for the full truth guided by the respect for all. This is, I would submit, justice in full measure.
The procedural norms of Sacramentorum sanctitatis tutela can and should be considered as the skeleton of the most sensitive process in the legal life of the Church, one under renewed scrutiny and reform. Flesh can, and should, be added to these bones in order to make them walk more steadily on the road to justice.
Servants of Justice
The procedural norms of Sacramentorum sanctitatis tutela begin by treating those roles which are essential to the canonical process, and the necessary criteria which must be met by those who fill them. Article 8 establishes the Congregation for the Doctrine of the Faith as the Supreme Apostolic Tribunal for the judgment of the most grave delicts in the life of the Church. Paragraph 2 notes that, from the beginning of the procedural norms, the promoter of justice is empowered to bring supplementary charges against the reus, a power not always exercised, but one I would contend is essential to considering the entirety of a case.
One can conceive of situations in which, for example, a diocesan bishop is accused of a crime or crimes against the sixth commandment with a minor and, in the course of the process, it becomes evident there is a case to answer for connected offenses of a lesser order: abuse of ecclesiastical authority (c. 1389), falsification or destruction of documents (c.1391), perjury (c. 1368), and so on, to say nothing of other graviora delicata concerning solicitation and sacramental abuse which might become apparent.
In such cases, the full canonical treatment of the connected offenses is an important part of serving justice in full measure. But this is only secondarily about seeing a full measure of justice meted out to the accused—though consideration and judgment on the fullness of his crimes is a crucial part of serving his own best interests.
It should be considered primarily as a service to the good of the Church. No less than a determination of guilt, the full “what” and “how” are as important questions for full justice to answer when considering a most grave delict. A sexual abuser may, through abusing his authority to facilitate his other crimes, accumulate numerous lesser victims along the way—chancery officials sacked or demoted, priests reassigned and so on. Justice in full measure means discovering these events and where possible making restitution as well.
It is often the case that a certain squeamishness creeps into the practice of penal law, an aversion to pouring over every detail or answering more than was asked at the beginning of the process. But every question unasked, every victim undiscovered, every alleged crime untested or unanswered is one which remains in the darkness. According to the norm of Article 9, the members of the Congregation are judges ipso iure, and the prefect of the Congregation has the responsibility of creating other stable or deputed judges, who are, we see in Article 10, to be priests, mature in age, possessing a doctorate in canon law, and outstanding in morals, prudence, and expertise. The same criteria are essential for the role of the promoter of justice (whose full latitude to act we just discussed) in Article 11.
Priests are also to fill the role of notary, per Article 12, though it should be noted that there is no explicit requirement in the law that they be outstanding in any way. Article 13 similarly provides that procurators and advocates must be priests and doctors of the law, to use an expression, and be approved by the presiding judge, and the general requirement that those participating in any formal role in the process be priests is underscored, with emphasis, in Article 14.
Yet, this clerical requirement is immediately followed in Article 15 by a general provision that it can be dispensed (along with the requirement of a doctorate) at the discretion of the Congregation. Crucially referencing canon 1421 of the Latin Code of Canon Law, we see that this power to dispense includes the possibility of creating of lay judges, even at the level of the highest disciplinary court of the Church.
Lay involvement in the handling of cases of clerical sexual abuse of minors has become something of a shibboleth in response to recent scandals. The creation of lay review boards in every diocese in the United States has been a real, if decidedly mixed, blessing. That mechanism, and similar reforming measures, has called for and achieved the inclusion in the process of lay people with a variety of qualifications and experience, including backgrounds in investigation and law enforcement, civil law, psychology and psychiatry, social work, victim support, and even more ephemeral criteria like motherhood, to form a sort of vox populi in the process.
Yet, despite these reforms at the diocesan level, the scope for lay participation in every level of the canonical process is often ignored and unused. I have myself participated in trials before the Apostolic Tribunal as an advocate, and I am aware of other lay canonists who have done so, but cases of lay canonists being dispensed to serve as judges in cases of graviora delicta, or indeed as promoters of justice, are vanishingly rare—if they exist at all. Officials at the Congregation are more than versed in the operative law and its discretionary limits, and the standing practice regarding the power to dispense from the requirement of priesthood and a doctoral degree in canon law is reasonably well known—they can and will dispense from either, but never both at the same time. One can, therefore, offer the reasonable speculation that lay judges and prosecutors are not being used in sexual abuse cases simply because bishops are not asking for them. Why not?
We can underscore here the criteria which are truly indispensable and un-dispensable for useful service to the canonical process: that all be outstanding in morals, prudence, and expertise in the law. The reservation in law and practice of meaningful roles in the judicial process to priests is understandable from an historical perspective. The existence of a cadre of truly expert lay canonists is, we should acknowledge, something which has only come about in the very recent past, but such a group does now exist. I am the first to criticize the casual presumption that lay people must be inserted into every corner of ecclesiastical life as a good in itself. The reservation of the power of governance to the clerical state is a constituent part of the very fabric of the Church as a society, and not one I would champion against.
However, in the wake of still-unfolding scandals at the national and international level, it cannot be denied that the necessary discretion with which the canonical process unfolds, together with the real (and in places justified) crisis of confidence facing ecclesiastical authority, has created the deep impression among large swathes of the faithful that the canonical process is a clerical stitch-up. This impression is reinforced by the mechanistic and formalistic attitude to canonical procedure mentioned earlier.
In short, the real lack of confidence in the canonical process is nothing short of a crisis of confidence in the very possibility of justice in the Church. If that is not a good requiring urgent service I do not know what is. The incorporation of lay people into the process in line with the full latitude provided by the law itself seems to be a clear and pressing priority for a number of reasons.
In the first case, law is not written (one hopes) without the intention that it be used. The power of the CDF to dispense is primarily to serve the interests of justice as fully as possible. There are, unanswerably, cases in which an independent lay promoter of justice, for example, could exercise a level of internal discretionary freedom which a priest may not, by the simple absence of any other ecclesiastical lines of authority outside that role. One need only consider the soft moral pressure which is often discussed in regards to the role of defender of the bond in diocesan marriage tribunals, with defenders being implicitly and sometimes explicitly discouraged from, or even disciplined for, appealing too many cases.
When one considers the potentially conflicting lines of authority for a priest in a penal case involving a senior cleric, there is clear potential for a truly independent lay canonist who, and I stress this, is at least equally if not more canonically qualified and expert than an available priest, to serve justice in the fullest possible way. In a similar vein, we regularly see lay canonists serve as minority members of a college of judges in marriage cases without compromising the law on the exercise of the power of governance being reserved to clerics.
In penal cases, especially those concerning sexual abuse, the court could find its deliberations more fully informed by the (necessarily minority) presence of a lay judge who is, in all other respects, fully qualified. In the same way that clerical judges rightly serve justice by ensuring that the life and circumstances of an accused priest are not foreign to the court’s own experience, so too victims can be served through the organic incorporation of the lay experience into the body of the college. But, more importantly than this, I would suggest that truly canonically experienced and expert lay judges can be an essential part of serving the accused cleric.
Clericalism, however one defines the term (and it is certainly a disputed word), has become part of the essential vocabulary of cases of clerical sexual abuse of minors, and those experience in canonical cases of sexual abuse are more than acquainted with both sides of that particular coin. On the one hand, there has been, especially in the United States, a lamentable and damaging history of ignoring the necessary rigors of the law in past decades in favor of treating abuser clerics as “patients” rather than malefactors, and the results have been at times devastating. More recently, especially since the revelations and subsequent reforms of 2001-2002, there has been a known movement in the opposite direction.
A sort of anti-clericalism has been observed, by which the modern mantra of “believe all victims” has crept in to the initial stages of the canonical process almost as a sort of guiding ethos. False accusations have been brought forward and innocent priests have been judged guilty and punished, sometimes to the fullest extent of the law. There is, and I have myself seen it, a tendency among some clerical judges, especially episcopal judges, to err—even with the best of intentions—on the side of the accuser rather than true objectivity. Qualified and experienced lay canonists have, I would contend, the capacity to bring and exercise a healthy judicial reservation to the consideration of accusations and especially the reception of viva voce testimony from victims, which some clerics may find themselves unwittingly biased in front of, even for good and noble reasons. Justice in full measure means serving the accused, the accuser, and the wider Church by using every means at the disposal of the process.
When one considers the known backlog of cases pending at the Congregation for the Doctrine of the Faith, the utility of lay canonists, or indeed extra-Roman clerical canonists, becomes even clearer. This is not to suggest that lay people qua lay people demand inclusion in every stage or part of every canonical process. Rather, I propose that qualified and experienced lay canonists are a potential resource identified in the law itself, and potential left forever untapped is a loss to the service of the fullness of justice.
Prevention and Prudence
Article 16 begins the actual treatment of the process to be following in handling the reserved cases of Sacramentorum santitatis tutela:
Whenever the Ordinary or Hierarch receives a report of a more grave delict, which has at least the semblance of truth, once the preliminary investigation has been completed, he is to communicate the matter to the Congregation for the Doctrine of the Faith which, unless it calls the case to itself due to particular circumstances, will direct the Ordinary or Hierarch how to proceed further, with due regard, however, for the right to appeal, if the case warrants, against a sentence of the first instance only to the Supreme Tribunal of this same Congregation.
From this single relatively short article, it is possible to make a few lengthy digressions.
No ordinary wants to receive a report of a more grave delict. Indeed, the ultimate service to justice, to victims, to the accused, and to the Church, is to prevent or at least minimize such events occurring at all. In many dioceses with which I have worked, I have observed the frustration of bishops who successfully detect an offender in the earlier stages of misconduct which, left unchecked, would clearly progress towards the commission of a grave sexual crime.
I recall one such instance, where a pastor was discovered to have been rigorously grooming a minor with obviously sexual intent, purchasing him expensive gifts, including a mobile telephone, habituating him to spending time alone with him the rectory, including in the bedroom, the exchange of constant and increasingly sexual messages, escalating physical contact and so on, even encouraging the child to sneak out of the house and meet him at night. The priest was removed from active ministry and the matter sent to the CDF which, quite rightly, determined that no grave delict had taken place and that it was not competent to handle the matter. The bishop was wrongly exasperated at the Congregation’s response, rhetorically demanding if he was supposed to wait and catch the man in the act of committing the worst possible crime in order to secure the ability to penalize him. He was rightly exasperated at his limited ability to take action proportional to the gravity of the situation. The lack of clear, rigorous, comprehensive, and escalating law criminalizing such behavior is, indeed, frustrating. As is the linked inability to impose penalties, both medicinal and expiatory, in answer to them. But this need not be so.
The universal law of the Church, especially in penal law, is not and was never intended to supplant the right and duty of the local ordinary to ensure that proper particular law governs the needs of his own diocese. Nothing prevents, indeed the current situation seems clearly to demand, that bishops once again discover their rightful role as legislators in their dioceses. Such evidence as we have strongly suggests that the worst crimes of sexual abuse do not occur spontaneously; they are the product of discernible patterns of escalating behavior that can be detected and interrupted. Serving the fullness of justice for the accused, in this case the guilty accused, often does require the consideration of sincere remorse and a desire not to offend again, possibly diminished culpability, the presence of psycho-sexual disorders, and even the possibility that an individual’s propensity for sexual abuse could itself be rooted in an experience of sexual abuse.
Medicinal remedies and penalties have a true purpose and utility, and serve the good of both victim and accused, and the wider Church, but their applicability is limited—as is the good they can do for others than the accused—past a certain gravity of offending. A pattern of emerging grooming behaviors, or failures of continence by electronic means, are, or should be, canonically criminal behaviors, but they are not of the same order of magnitude as an act of violent rape. The lesser crime, which can be punished with the medicinal rigor of the loving father to the benefit of all, can forestall the worst of crimes before they are committed.
I would advocate unequivocally for every diocese in this country to move past the current reliance on codes of conduct and general directives, often the product of, or heavily informed by, ponderous documents of compromise produced by the national episcopal conference, with all the limits that entails. Clear particular penal law, articulating an escalating series of delicts with appropriately escalating penalties would be of immediate and unquestionable service to local dioceses and, of course, to the fullness of justice.
In addition to treating those acts which do not rise to a case of a more grave delict, such laws can also supply current lacuna or points of obscurity in the law, should it be necessary. A case in point: one of the most vexatious terms in the penal lexicon is “vulnerable adult.” The substantive norms of Sacramentorum sanctitatis tutela are clear in the definition of this term. Article 6 §1, 1º defines a vulnerable adult as a person who habitually “has the imperfect use of reason” and “is to be considered equivalent to a minor.” This is understood rightly to relate to those adults who have developmental disabilities or other empirically demonstrable and ongoing conditions. Many have argued that singular circumstances arising from, for example, acute emotional distress or the presence of other militating factors, such as the existence of a hierarchical or spiritual relationship, can or should be folded into an expanded definition of this term. Here again, we see there are clear interests of justice to be served, both for victims and for the society of the Church.
Such cases may not be simple moral lapses in continence and can and should be able to be treated as canonical delicts. But the good of victims of child sexual abuse is not served by making a false equivalency between what they have suffered and what, for example, an adult may have suffered. Bluntly put, the abuse of authority or spiritual closeness against an adult is not the same thing as the rape of a child in either substance or degree, and the interests of no one—victim, accused, or the Church—are served by the creation of a legal fiction that they are. Instead, the utility of clear particular, penal law is again evident.
The matter has, in my opinion, be rendered even more pressing by the promulgation of the recent motu proprio of the Holy Father Vos estis lux mundi. Article 1 §2, point “b” of which defines a vulnerable adult as “any person in a state of infirmity, physical or mental deficiency, or deprivation of personal liberty which, in fact, even occasionally, limits their ability to understand or to want or otherwise resist the offence.” This is, to mangle the Code by comparison, a definition so broadly drawn as to be open to the same problematic applications as marriage tribunals often see with canon 1095, 2º regarding a grave lack of discretion of judgment in the exchange of matrimonial consent.
Leaving aside the disservice to justice done by making equivalent immoral, even criminal, sexual relations with an adult and the rape of a minor, if this provision of Vos estis is considered to bring such cases under the heading of the most grave delicts of Sacramentorum santitatis tutela, the current backlog of cases already pending means it could bring the practical operation of justice to a standstill at the Congregation for the Doctrine of the Faith. While canonists and bishops await an announced and necessary vademecum from the CDF, we can note that in Article 7 §1, Vos estis defines the competent dicastery for the crimes it outlines as “the Congregation for the Doctrine of the Faith, regarding the delicts reserved to it by the norms in force.” This, at least to my reading, suggests that the norms of Sacramentorum sanctitatis tutela remain unchanged, including its standing definition of those sufficiently vulnerable to be considered equivalent to minors. In the meantime, clear and explicit penal law at the particular level can serve an immediate need to distinguish between different offenses in both nature and gravity.
Returning to Article 16 of Sacramentorum sanctitatis tutela, we can turn our attention to another important phrase, the “semblance of truth.” Canonists correctly understand this term to mean “not manifestly false or frivolous.” Sadly, in the age of diocesan review boards, which are not always overly concerned with canonical standards, safeguarding the rights of the accused, or holding back from doing anything prejudicial to the canonical process, such a standard is often converted to the word “credible” or worse “credible and substantiated.” Without laboring the point, the distance between what is “not manifestly false” and what is “credible,” still more “substantiated,” is legal light years, and the use of such terms is manifestly prejudicial to the accused. The practice of using them has come about primarily through the employment of diocesan review boards or similar bodies to pass a consultative opinion over the acts of a preliminary investigation, the entire conduct of which is bound by law (c. 1717) to take care lest anyone’s good name be endangered.
When I have challenged the use of the terms “credible” and “substantiated” in several dioceses as incompatible with the standard of “semblance of truth,” the response I am usually given is that, in those places, the terms are used to indicate a higher degree of probity found by the review board’s assessment of the preliminary investigation. This is itself a clear danger to justice, both for the accused and for the wider canonical process.
Evidence collected during a preliminary investigation is required to meet only the most minimal criteria not because of some imagined inability of investigators to discover more, but because the consideration of that above the minimum standard outside of the judicial forum is itself prejudicial. The preliminary investigation has but one function, to determine if the accusation can be said to be impossible, its aim is to exclude possibility, not to consider the merits of the possible. In the process of conducting preliminary investigations, I have found, too little care is given to the evaluation of proofs aimed at this true goal. Often the physical layout or even existence of rooms or whole buildings at the time of an alleged offence is often not investigated, nor is the accused asked to produce—and if he is it is sometimes not considered indicative—evidence that the alleged time and place of a crime are impossible. Calendars, evidence of travel, and so on.
Instead, focus is often left on the gathering of personal testimony from the victim and the assessment of his or her apparent credibility, often from an emotional or personal perspective. Taken to its extreme, this sort of conduct can lead to, to take a non-canonical example, a current member of the college of cardinals facing repeated civil trials, despite the clear impossibility of time and place, and subject to an irreparable presumption of guilt in the wider public mind. These abuses of the preliminary stages do not just offend against the right of the accused, but they contribute to the detriment of wider confidence in the canonical legal process as one genuinely concerned with the search for truth.
The Right of Defense and Defending the Rights of Justice
Article 16 of Sacramentorum sanctitatis tutela provides that, with full respect for the right of defense, the Congregation may sanate acts of cases presented to it that contain violations of merely procedural law. As I hope what I have said so far underscores, if nothing else, “merely procedural law” is central to the right of defense itself, indeed it is often its first and last support. I would exhort those serving as procurators and advocates to contest, vigorously, those “merely procedural” lapses that can occur in the course of a preliminary investigation, in as much as they can introduce presumptions into the handling of cases further along. That which is not well begun can rarely be expected to end well.
I would also note that the right of defense is often not served during the preliminary investigation to the point of the accused having a properly qualified advocate—indeed he may not even be aware he has been accused. In such cases, it is even more imperative that a properly qualified and independent guardian of his rights be appointed from the very outset. The possession of a canonical degree does not automatically equip one with the experience or suitability to defend the interests of an accused at the earliest stages, if for no other reason than lack of experience in the latter stages of a penal process ill-equips one to discern what is most important at the outset.
Article 19, which itself cites the norm of canon 1722, presents the thorniest moment in the canonical penal process, in my opinion, allowing for the removal of the accused from pastoral ministry or ecclesiastical office while the canonical process continues. The concerns of canon 1722, the preclusion of scandal, the protection of witnesses, and the safeguarding of the course of justice, all render the power to remove the accused from ministry or office essential in some circumstances. But doing so in a manner which does not irreparably harm their good name and effectively render a later determination of innocence moot, is a matter of great delicacy and nuance. At this point, many ordinaries are conscious of the need to emphasize the presumption of innocence to those immediately impacted by the removal, and rightly so, while not making public the nature and certainly details of the accusation, for the good of accused and accuser alike. There is, at least as I see it, no perfect way of doing this.
One possible suggestion could be that—subject again to the need not to make public the nature and details of any charges—the one being removed be allowed to announce his own removal, or at least to make a public and where possible viva voce statement on his own behalf. This can have a salutary effect on the minimization of premature scandal, and provide at least some means of allowing him to defend his good name. After establishing in Article 20 that the Supreme Tribunal is competent to hear cases at first and second instance, Article 21 §1 makes clear the presumption of the law that cases involving more grave delicts proceed according to a full judicial process. This presumption is one to be valued. It is only in the full judicial process that the rights of all parties can be fully vindicated. As importantly, the necessary room to breathe presented by the full judicial process is essential for the discovery of the whole truth of the matter, including those connected truths and circumstances, indeed even those connected lesser delicts, which allow everything that has been done in the dark to be brought to the light.
In the conduct of a full process, the calling of different proofs, especially by a suitably engaged defense, can appear exhausting—and indeed it can be so for the defense itself. Nevertheless, the patience and resources committed to the discovery of proofs and their evaluation is, I would argue, always to the benefit of the eventual moral certitude reached at the conclusion the process. I would further note that space in the trial can and should be created by the judges in the course of hearing the arguments for a distinction between defenses of innocence and defenses of diminished imputability.
There are occasions where serving the right of defense as an advocate requires first the insistence upon the actual innocence of the accused. Commitment to that argument can be, and in truth is, undermined if the advocate is required to simultaneously argue for consideration of diminished culpability in the event that the accused is judged guilty. This is just one example of the space which the full judicial process creates for the full service of justice.
Article 21 §2, of course, allows the Congregation to determine if the matter may be dealt with by means of extrajudicial decree, either at the level of the Congregation or the local ordinary. I would note that according to the cited norms of canon 1720, this is the first occasion at which the accused must be informed of the charges and allowed to answer the proofs against him and, again in 1720, he is only to proceed to issue the decree if the offense is certainly proved. In cases of sexual abuse, I would submit that unless clear, unanswerable, objective proof is presented establishing guilt, such an avenue never be pursued. The rush to serve justice, even in apparently clear cases, can be its own defeat. While there is often asserted a desire to spare the victim the length of a full trial, many with whom I have come in contact feel the lack of a full judicial process. The offenses that they have suffered are not redressed by summarily proceeding to the imposition of penalties.
Indeed, the ability of the promoter of justice to add charges, even of lesser crimes, as we have seen, underscores that it simply cannot be known what else might be discovered in the course of the trial. Full justice means an unsparing examination of the full circumstances of the case, and not merely treating the matter as an elongated preliminary investigation in which only the minimum standard to proceed is of interest. This is further underscored by the possibility of the promoter of justice bringing forward even a specifically different charge during the appellate stage of trial, as we see in Article 23. If new charges can be brought as a result of and even after the conclusion of the first trial, of how much implicit value must we understand that first full trial to be?
For the purposes of time, I have been limiting these remarks on the procedural norms of Sacramentorum sanctitatis tutela to their scope in dealing with delicts against the sixth commandment, and specifically child sexual abuse. I would here, however, note that these norms, while dealing with distinct crimes, form a coherent whole document, and the application of one situation to another can be especially apt. So is the case with Article 24 §2, which insists that the Tribunal consider the particular importance of the question of the credibility of the accuser. This article pertains to the trial of cases involving crimes in the context of sacramental confession and therefore falling under the sacramental seal. The relevance of the question of the credibility of the accuser is central because, within the confessional, no witnesses could possibly be expected to be present.
This is also the case with a great percentage of cases of crimes of sexual abuse, which are not often committed, for obvious reasons, in places and times giving rise to much supporting testimony. Testing and weighing the credibility of the accuser is, perhaps, a most emotionally unpleasant concept when dealing with victims of sexual abuse but it is, nevertheless, essential. Such things as should be weighed, and which should be addressed by both the promoter of justice and the advocate for the defense are present in the norms of canon 1572 on the examination of witnesses, which the accusers are in these cases. They include most especially: the condition and good reputation of the person and their reliability and consistency in the evidence they present. As canon 1573 states, the testimony of a single witness—even the most compelling accuser—cannot constitute full proof. Of course, no one can be ignorant of or insensitive to the fact that, in some cases of sexual abuse of minors, the testimony of the accuser alone may be in practice all there is for the judges to consider when considering the actual commission of the act constituting a crime.
Serving the integrity of the judicial process, the right of the accused, and wider good of justice cannot and must not be suborned to the understandable desire to supply what is lacking in a diversity of proofs. But here again I would underscore the utility and service of those penal laws which could be established at the particular level and which could, as we have seen, be taken up in the trial of the graver charge. If the particular act constituting the most grave offense appears beyond proof in the judicial forum, rare indeed may be the occasion when some other act or behavior leading up to it is beyond proof.
I will here also insist upon the importance of appeal, both for the defense and the promoter of justice. Both of which are acknowledged in Article 26. The possibilities for discovery of evidence in the course of a full and properly conducted trial cannot be underestimated. The earlier acknowledgment that the Promoter may choose to introduce new charges at the point of appeal shows that this possibility serves all sides, victims and accused.
I would finish consideration of the procedural norms of Sacramentorum sanctitatis tutela with two final considerations, the first and most sordid of which is, of course, money. Article 29 provides that judicial expenses are to be paid as the sentence determines, and that if the defendant is unable to pay his own expenses, they are to be met by the ordinary. It can be observed that many judges simply do not make this necessary determination in their sentences, such concerns perhaps escaping their notice. I would also note the reticence of some local bishops to assume the obligation meet the defendant’s expenses when necessary. Indeed, some bishops have shown themselves remarkably comfortable with rejecting it outright.
In safeguarding the right to defense, the right is and should be the right to a competent defense, if possible an excellent one. While acknowledging the co-equal responsibility of advocates to present up front a clear and reasonable tariff for their labors, the unwillingness of some bishops to accept as legitimate the expenses incurred in the course of a real and vigorous defense, even in cases successfully establishing innocence, is disheartening and speaks to exactly the “bare minimum” approach to canonical processes which has done much to contribute to the current state of affairs.
Finally, we can note the application of pontifical secrecy to all cases under the purview of Sacramentorum sanctities tutela as per Article 30. The essential need to protect the accused, victim and witnesses, especially in cases treating such serious and disturbing crimes, hardly requires explanation. That having been said, I would argue that introducing a measure, a measure, of judicial discretion to produce some summarium of the final disposition of the case, suitably redacted to protect those who need protecting, merits consideration.
As we have seen in recent high-profile cases involving bishops and even former archbishops, the damage done to the wider faithful is real, and so too is their right to some understanding of the justice rendered in response. If, as I have said, the ministry of justice and the canonical penal process is not the dark side of the good news, but rather the essential work of bringing that done in darkness into the light, some allowances can and should be made for the truth to be known. Yet, the current practice is for the briefest of announcements, often carried in the daily notifications of the Holy See Press Office, which usually confirm little beyond the fact of a guilty decision and a vague indication on the nature of the crimes. Nothing in justice prevents the announcement of a clear and coherent account of the charges laid against an accused, and the actual disposition of the judges on the specific allegations.
Similarly, while details of the evidence and the factual argumentation of the judges may rightly be considered unsuitable for publication, nothing prevents the release, at least to academics and practicing canonists, the “in law” sections of judicial sentences. These alone would be an immediately useful tool in building up further the knowledge base of diocesan canonists, and could help correct misunderstandings and bad practice in future cases. Serving the good of justice for the whole Church, restoring confidence in the canonical tradition and practice, which gave to the world and preserved its legal values, requires at least that freedom to demonstrate that the system is itself just.
As a concluding thought, I would submit that there is nothing “mere” about procedural law. It is the DNA of the administration of justice. It is never more precious or powerful than in cases of the worst crimes. Holding to its complete requirements, using it to its full potential, is (in my opinion) the surest way to serve the rights of all, the accused, the victim, and the society of the Church.