Maike Hickson

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Did loosening Church law on sex abuse, homosexuality contribute to today’s clerical abuse crisis?

Maike Hickson Maike Hickson Follow Maike

November 9, 2018 (LifeSiteNews) – A prelate, a canon lawyer, and a theologian say sexually abusive priests should be excommunicated. A look into the new 1983 Code of Canon Law shows that the Church, with that code's promulgation, introduced a laxer way of dealing with priestly child molesters and priests who are practicing homosexuals. This lenient change had grave consequences.

Archbishop Buti Tlhagale, OMI of Johannesburg, South Africa says Church law should be changed to automatically excommunicate priests who commit sexual abuse. The U.S. Catholic theologian Scott Hahn recently made a similar statement. An internationally renowned German canon law professor, Peter Landau, even formulated a terse and strict sentence that could be added to the Code of Canon Law.

Peter Landau – a professor of canon law who has also taught at Princeton and the University of Chicago – recently proposed the following sentence be inserted into the current Code of Canon Law: “A person who hurts a minor by a sexual crime incurs an automatic excommunication.”

Professor Landau is also of the opinion that the 1917 Code of Canon Law (CIC) was much stronger than the new 1983 Code of Canon Law. In an email to LifeSiteNews, Professor Landau commented, “the prescription of the CIC is, however, much weaker than can. 2359 § 2 in the code of 1917. Today's can. 1395 § 2 is based on can. 2359 § 3 of 1917.”

In another follow-up email, Professor Landau further explains: “The [new] norm prescribes only generally the imposition of just penalties and, in grave cases, the dismissal from the clerical state.” However, “the specific penal provision of can. 2359 § 2 CIC 1917 has been canceled in 1983.”

 Canon2359 § 2 and 3 of the 1917 Code of Canon Law stated:

§ 2 If an offense against the sixth commandment with minors under sixteen years of age be admitted, or if adultery, rape, bestiality, sodomy, pimping or incest with first degree relations be carried out, they are to be suspended, declared infamous and deprived of every office, benefit, dignity and function that they might have and in the more serious cases, deposed.

§ 3. If they have committed an offense against the sixth commandment in some other way, they are to be coerced with appropriate penalties according to the gravity of the case, not excluding deprivation of office or benefit, especially if they have care of souls.

As this legal text shows, the following clear set of penalties were set forth for child molesters and homosexually active priests: “They are to be suspended, declared infamous and deprived of every office, benefit, dignity and function that they might have and in the more serious cases, deposed.”

Let us now consider the new rules as set out in 1983 CIC. Following Professor Landau's lead, we have to look at can. 1395:

§1. A cleric who lives in concubinage, other than the case mentioned in  can. 1394, and a cleric who persists with scandal in another external sin against the sixth commandment of the Decalogue is to be punished by a suspension. If he persists in the delict after a warning, other penalties can gradually be added, including dismissal from the clerical state.

§2. A cleric who in another way has committed an offense against the sixth commandment of the Decalogue, if the delict was committed by force or threats or publicly or with a minor below the age of sixteen years, is to be punished with just penalties, not excluding dismissal from the clerical state if the case so warrants.

Notice here that the abuse of a minor is not anymore placed at the top of the paragraph, but toward the end. But even more importantly, the penalties are vaguer, when the canon states that the offender “is to be punished with just penalties, not excluding dismissal from the clerical state if the case so warrants.”

As an expert in canon law who spoke with LifeSiteNews on the condition of anonymity comments, this new regulation left it in the hands of the bishops to determine the penalties, and subsequently bishops often chose to rely on the assessment of, and treatment by, a psychiatrist rather than imposing swift and clear penalties.

Important to note is also the following: According to this canon law expert, the old canon contained “mandatory determinate penalties,” which means that a bishop was ordered to take certain steps against priests who sexually abused children. There was no maneuver room with regard to most penalties, except that the laicization of the priest was to be decided upon according to the seriousness of the case. On the other hand, the new canon contains no longer a set of determinate penalties, but only a generic “mandatory indeterminate penalty.”

As the German canon lawyer Professor Manfred Baldus explains with regard to sex abuse, in the older Church law “there even existed the possibility of sending an offender, if not into prison, but at least permanently to a disciplinary institution [‘Demeritenanstalt’] for errant priests which stands under the supervision of the bishop.”

Another important aspect in this older canon is that it explicitly categorizes acts of sodomy and adultery committed by a cleric as delicts against the Sixth Commandment, something that has now been altogether deleted from the 1983 CIC. This deletion thus makes it much harder for a bishop to impose penalties upon a sexually active priest. The 1917 code as quoted above mentions as offenses, in addition to the abuse of a minor, also “adultery, rape, bestiality, sodomy, pimping or incest with first degree relations.”

According to LifeSiteNews’ expert source, under the new canon, without this explicit reference to homosexual acts, a bishop, in order to punish a homosexually active priest, would have to rely on another canon, canon 1399 of the Code of 1983. That canon requires much more difficult conditions to prove, namely “grave scandal” that the depraved acts of such a priest entails.

Another well-known canon law expert, Edward Peters, commented recently on this problem of the change of this canon, saying: “It was only with the dilution that Canon 2359 suffered when it re-appeared as Canon 1395 of the 1983 Code that the express and long-standing criminalization of homosexual acts by clergy was blurred or lost.”

Therefore, results of this laxening of the canon law with regard to sexual offenders among priests are clearer for us to see before our very eyes.

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Maike Hickson

Dr. Maike Hickson was born and raised in Germany. She holds a PhD from the University of Hannover, Germany, after having written in Switzerland her doctoral dissertation on the history of Swiss intellectuals before and during World War II. She now lives in the U.S. and is married to Dr. Robert Hickson, and they have been blessed with two beautiful children. She is a happy housewife who likes to write articles when time permits.

Dr. Hickson published in 2014 a Festschrift, a collection of some thirty essays written by thoughtful authors in honor of her husband upon his 70th birthday, which is entitled A Catholic Witness in Our Time.

Hickson has closely followed the papacy of Pope Francis and the developments in the Catholic Church in Germany, and she has been writing articles on religion and politics for U.S. and European publications and websites such as LifeSiteNews, OnePeterFive, The Wanderer, Rorate Caeli, Catholicism.org, Catholic Family News, Christian Order, Notizie Pro-Vita, Corrispondenza Romana, Katholisches.info, Der Dreizehnte,  Zeit-Fragen, and Westfalen-Blatt.