There was widespread agreement among canonists that Book VI of the 1983 Code, treating Sanctions in the Church (cc. 1311-1399), needed significant reform. Most agreed, I think, that Book VI was adequate for use by bishops who were willing to apply the Church’s penal discipline against canonically criminous behavior (e.g., Abp Burke in St. Louis), but those same canons provided many ways for other bishops to avoid invoking penal procedures if, for various reasons, they were so inclined. Forty years ago, recall, John Paul II faced serious pushback from those who wanted to drop all criminal law from the proposed Code, so that assembling what criminal law finally appeared in1983 was proof of its importance, albeit a mitigated proof.
In any event Francis’ apostolic constitution Pascite gregem has introduced numerous improvements to Book VI, more than I can assess or even list in a manageable blog post. Even so, in the wake of Pascite, three issues will soon surface: first, did the textual reforms go far enough?; second, did those reforms introduce new problems?; and third, will the reforms move many bishops to apply the Church’s penal discipline in cases wherein such procedures are warranted?
Issues left unaddressed
The (in my view) excessively long list of ‘affirmative defenses’ set out in 1983 CIC 1323 and 1324 was left intact by Pascite 1323 and 1324. These overly-generous provisions contribute disproportionately to the juridic burdens that bishops confront in applying sanctions.
Also, latae sententiae (automatic) penalties are still a part of Western law, ensuring that, as has been the case for some time now, whenever someone might be threatened with an automatic penalty the public discussion of the case will turn almost completely on the complexities of penal procedural law rather than on the serious harm caused by the offending behavior. That, and many Catholics will be needlessly plagued by concerns about their canonical status when what is paramount is the repair of their spiritual.
Problems introduced
One of the weaknesses of the original Book VI was its too-frequent use of ‘facultative language’, i.e., phrasing that authorized but did not require ecclesiastical superiors (usually bishops) to take penal action against an offender; but one may wonder whether the revised Book VI, with its more frequent use of ‘directive language’, phrasing that apparently requires bishops to take penal action against an offender, might have pushed the pendulum too far in the opposite direction. For example, 1983 CIC 1341 and 1369 authorized, but effectively left optional, a bishop taking penal action against someone who used “the instruments of social communication [to] utter blasphemy [or] injure good morals”. I urged that this canon be applied against high-profile Catholic pro-abortionists. But it never crossed my mind that all, most, or even many, offenses committed via social media are best addressed canonically. Fortunately the phrasing of the earlier provisions left plausible room for declining such responses. But the revised language of Pascite 1341 and 1368, if read according to the plain meaning of the words (per 1983 CIC 17), makes such deferral much harder to justify. How many blasphemies, injuries against good morals, or railings against religion and the Church are posted in a day? In an hour? And yet, the more one ignores the plain meaning of terms in one canon the easier it is to ignore such language in others where enforcement is more plausible.
A new kind of problem appears, I suggest, in Pascite 1331 § 1 n. 4, a provision that prohibits an excommunicated person from “taking an active part in [liturgical] celebrations”, while the earlier law, 1983 CIC 1331 § 1 n. 1, prohibited an excommunicated person only from having “any ministerial participation” in such rites (my emphasis). The earlier phrasing made clear that canonical criminals should not be, say, serving as lector or minister of holy Communion, but left untouched one’s fundamental obligation to attend Mass itself (per c. 1247) and, one would hope, deriving some benefit from hearing the Word of God and seeing other Catholics engaging in sacred rites. The new law, however, by using the liturgically crucial phrase of “active” participation to prohibit same, makes it questionable whether excommunicates are still bound by, among many other things, the Sunday obligation (which, of course, concerns attendance, not going to Communion) and, if they are bound, whether they are seriously expected to attend Mass but sit in stony silence thereat, lest they ‘actively participate’ therein. Mind, there are good arguments on both sides of this question, but the injection of a liturgical term of art in a penal canon is not the place to debate it.
Will the revised Book VI be used by bishops?
I don’t know and neither does anyone else. On paper, at least, it will unquestionably be harder for bishops and religious superiors to avoid applying sanctions in the Church. But, having, even formally, a more enforcement-prone penal law in the Church is going to occasion many, many other questions for Church life ranging from the assessment of a bishop in regard to the number of offenses committed, but not pursued, on his watch to what kind of figure criminal law cuts in a society that is, as a sociological matter, voluntary in character.
Interesting times are ahead. May they also be better.
PS: May I note a small but small significant improvement in the new penal law of the Church, one that I looked for immediately and happily found: the abrogation of ‘penal transfer to another office’ as a punishment for a canonical crime. I urged the elimination of that anomalous sanction some years ago—see my “Ecclesiastical office as punishment for crime: toward the abrogation of Canon 1336 § 1, n. 4”, Ius Ecclesiae 21 (2009) 367-374—and am pleased to see that this odd punishment was eliminated.
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