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 There are often misunderstandings in the way the church is governed, especially when such governance is compared with our everyday experience. Archdiocesan experts in the Code of Canon Law explain how - and why - church law developed and how it functions. Feb. 2 A trial for a crime in the courts of the church |
Understanding Canon Law Feb. 2, 2003 A trial for a crime in the courts of the church By Father Daniel A. Smilanic How does the church deal with a serious crime that has been committed in the midst of the believing community? It is the responsibility of the civil authorities to provide the legal punishment for an individual who has violated the criminal law of a state and the federal government. But there are more than just the civil legal effects of a crime. In the case of an alleged crime, the effect on the People of God must be determined and addressed. This is the situation of a cleric who is accused of sexually abusing a minor. The church uses a trial to determine if the accused is guilty, to determine the level of responsibility and to impose a punishment. It is a search for the truth, which is concerned also with the state of the accused. In the case of the sexual abuse of a minor, the community must be assured of security in the future, the victim must be attended to, and the perpetrator must face the consequences of the crime. In order to avoid interfering with and complicating the work of the civil authorities, the church may wait until the public criminal trial is completed before beginning the church trial. In the Archdiocese of Chicago, when an allegation is received, the accuser is directed to the victim assistance minister, civil authorities are notified and the accused is apprised of the allegation. The case is brought before the Independent Review Board, made up of clergy, religious and laity. The review board’s task is to find out quickly if the allegation is sound and reasonable. Because it has to make a determination as soon as possible, it cannot conduct an exhaustive investigation. The accused has a right to consult a civil attorney and to appear before the review board with a canon lawyer. If the review board determines that the allegation has a basis, the accused is withdrawn from ministry and the case moves to a preliminary investigation, which is somewhat like a grand jury investigation. As with the review board, it employs clergy, religious and laity and investigates the situation by personal interviews and by searching for other information. The accused has a right to know the evidence against him, and to respond with the assistance of his civil attorney and a canon lawyer. If a preliminary investigation finds that the allegation is probably true, it so reports to the bishop who then refers the case to the Vatican with the request that a trial be conducted. The trial can be either at the Vatican or locally. If the Vatican mandates that a trial be conducted locally, the church prosecutor, known as the “promoter of justice,” presents a petition to the tribunal asking for a trial and the imposition of a penalty. In the case of a sexual abuse of a minor, the penalty asked for could be a complete dismissal from the priesthood or the diaconate unless the accused is gravely ill or old. The case would be assigned to a group of three or five judges—again, clergy, religious or laity—who could be assisted by two “assessors,” or non-voting judges. One of the judges would be designated as the presiding judge. The accused would be represented by an “advocate” who is a canon lawyer. The promoter, the advocate and the judges can present witnesses; the witnesses might include the original accuser as well as witnesses for the accused. They can also bring in documents that provide information and evidence. Unlike criminal trials in the United States, the examination of witnesses would be done only in the presence of the judges, the assessors, the promoter and the advocate. Only the presiding judge asks the questions although the others determine the questions to be asked. When the questioning has been done and the evidence has been presented, the promoter and the accused with the advocate have an opportunity to see every piece of evidence and to know the names of all the witnesses. Then, the promoter and the advocate present both written and oral arguments. Neither the accuser nor any other witnesses are present for the arguments. After the arguments, the judges make a decision and, if there is a conviction, impose a penalty. The presiding judge tells the results to the accused, the promoter and the bishop. The bishop releases the results publicly. The promoter and the accused have a right to appeal the decision and the penalty; the appeal would be made to the Vatican. Several things about this trial may seem odd to those accustomed to procedures in U.S. courts. One is the role of the judge. Because Canon Law follows European Continental law and not English Common Law, the tasks in a trial are assigned in a different way. In a canonical trial, the judge is more active in conducting a case. Another odd feature might be the seeming lack of publicity in a case. Because Canon Law trials do not involve public courtroom confrontations, there would not be as much information accessible. When the church trial reaches a decision and if it imposes a penalty, the information would quickly be made public. Some might be surprised by the involvement of the laity in these trials. Given the effect of the alleged crime on the whole community and the complex, technical features of the crime, for a fair and thorough trial the involvement of the laity is needed. Finally, the emphasis on the right of defense of the accused might strike some as peculiar. While at times it could seem inconvenient, it protects the presumption of “innocent until proven guilty.” The right of defense is deeply ingrained in Canon Law. Smilanic is adjutant judicial vicar for the Metropolitan Tribunal of the Archdiocese of Chicago. Understanding Canon Law:
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