Canon law is the body of norms that govern the Catholic Church. The time-honored principles of canon law help define and protect the rights and duties of the faithful, making sure that the Church lives up to the mission entrusted to it by the Lord.

A canon lawyer can help people in need of advice, assistance, or representation with any issue regarding the Catholic Church. This can include actions relating to defamation, declarations of marital nullity (“annulments”), fiscal mismanagement in a parish or diocese, difficulties within religious congregations, or issues relating to sexual abuse claims or abuses of ecclesiastical power.

As soon as someone’s canonical rights begin to appear to be threatened, the early involvement of a reputable, knowledgeable, and competent canon lawyer is absolutely critical. If you are a cleric accused of misconduct, you need to call such a canonist as soon as possible, as time is of the essence.

Civil lawyers are used to negotiating and problem solving. They also can be trusted to keep client confidences under the attorney-client privilege. Being familiar with both systems of law can be of tremendous assistance when helping clerics accused of misconduct.

Under the canon law of the Catholic Church, every bishop[1] has certain duties when an accusation of sexual misconduct is made against one of the priests of his diocese. Generally, a bishop must investigate the allegation and, if there exist sufficient grounds to believe that the allegation may be true, the bishop must proceed as canon law directs. In the recent revision of Book VI of the 1983 Code of Canon Law, the essentially pastoral purpose of the Church’s penal law is made clear (cf. c. 1311), meaning that enforcing discipline in the Church is a necessary part of a bishop’s duties, and in no way is to be downplayed as somehow in tension with the charity that is supposed to animate the life of the ecclesial community.

The Catholic Church has long understood the importance of the role of a local bishop in the governance of his diocese. While the pope is the visible head of the universal Catholic Church, local bishops are seen as successors of the apostles who have been entrusted by God with the care and governance of individual dioceses across the world; the English word “bishop” itself comes from a Greek word meaning “overseer.” The Second Vatican Council (“Vatican II”), a series of meetings of bishops from all over the world held in Rome between 1962-1965, emphasized the significance of the role of bishop in the life of the Church, though it did so in way that was in harmony with the long tradition of the Church rather than introduce any kind of radical innovation in this regard.

Within the Catholic hierarchical structure, the bishop in charge of a particular diocese, as a “successor of the Apostles” and having been “appointed by the Holy Spirit” (Vatican II, “Decree Concerning the Pastoral Office of Bishops in the Church,” Christus Dominus, #2 (28 October 1965), is seen as having all the “ordinary, proper, and immediate power required for the exercise of his pastoral office,” except for those matters that have been reserved to the supreme or some other ecclesiastical authority (canon 381 of the 1983 Code of Canon Law).[2] A bishop governs the particular Church (i.e., a diocese) entrusted to him with “legislative, executive, and judicial power, in accordance with the law” (c. 391).

Beyond dozens of other duties specifically listed in canon law, bishops must appoint pastors (cf. cc. 519-524) and associate pastors (cf. c. 548) of parish churches, and, as bishop, is specifically “bound to foster the discipline common to the whole Church, and so press for the observance of all ecclesiastical laws” (cf. c. 392). Very often this is accomplished by means of diocesan policies and procedures, which are supposed to be promulgated as “particular law” by him so as to guarantee their efficacy (cf. c. 8). Every five years the bishop is bound to submit to the pope a “report on the state of the diocese entrusted to him, in the form and at the time determined by the Apostolic See”[3] (cf. c. 399 §1). This is generally accomplished by means of an “ad limina” (“to the threshold”) visit to Rome every five years, where the bishop visits the tombs of Saints Peter and Paul in Rome and meets with the Pope and with various officials from the different entities[4] within the Holy See.

[1] NB: A “bishop” is the generic title for the head of a diocese. When a particular diocese is of special size or prominence, it is referred to as an “archdiocese” and is thus governed by an “archbishop.” These Q&As, unless otherwise indicated, deal with dioceses and not institutes of religious life (e.g., the Franciscans or Dominicans) or societies of apostolic life (e.g., the Priestly Fraternity of St. Peter). Nevertheless, the superiors of religious communities frequently have rights and duties similar to those of bishops when it comes to handling allegations of misconduct.

[2] Unless otherwise noted, all references to the “Code of Canon Law” will be to the most recent version of the Code, i.e., the Code of Canon Law promulgated in 1983 for the Latin Rite Catholic Church, the largest and most well known of the Rites that make up the universal Catholic Church. Individual canons will be referenced with the abbreviation “c.”

[3] NB: The phrase “Apostolic See,” also referred to as the “Holy See,” refers to the seat of ultimate authority in the universal Church, governed by the Pope, who is the visible head of the Church as the successor of St. Peter as the “Bishop of Rome”).

[4] These various entities have, until very recently, been referred to as “congregations” (e.g., the “Congregation for the Doctrine of the Faith,” or “CDF”). As a result of recent legislation (i.e., the apostolic constitution Praedicate Evangelium, with an effective date of 5 June 2022), they are now referred to as “dicasteries” (e.g., the “Dicastery for the Doctrine of the Faith,” or “DDF”).

-copyright Michael J Mazza, JD, JCD (2024)

Canon law has long provided that clerics who inflict harm on children through sexual misconduct are to be punished. Church Councils such as the Council of Elvira (Spain, early 4th century) strongly condemned the sexual abuse of children, as did influential theologians such as St. Peter Damian (Italy, mid-11th century). Similarly, the first hugely influential collection of canon law documents and commentaries, Gratian’s Decretum (mid-12th century), identified unnatural sex acts with young boys as a grave canonical “delict” (the canonical word for a crime). Only upon the first codification of ecclesiastical law, in the early 20th century, were such provisions presented in a modern code.

The Church has also long recognized that certain crimes, by their very nature, may violate both ecclesiastical and civil law. The sexual abuse of children is one such crime. The prosecution of a cleric, however—for this or any other criminal act—depends on the relationship between ecclesial and civil powers in the particular time and place. While the Church has at times throughout history insisted on its exclusive right to punish clerics, such prerogative is no longer being claimed, at least in the USA at the present moment.

-copyright Michael J Mazza, JD, JCD (2024)

Yes, Catholics believe that as a structured community of believers established by Christ himself, the existence of a system of justice within the Church is a fundamental and necessary reality. While the Catholic Church has always had some sense of “law,” understood as a system of rights and obligations, the notion of compiling a “code” or a compilation of written statutes is a modern phenomenon.

 In the Church’s first Code of Canon Law (“CIC17”), promulgated in May 1917, canon 2359 §2 stated that clerics who committed a sexual offense against a minor under the age of sixteen were to be “suspended, declared infamous, and deprived of every office, benefice, dignity, or responsibility” they may hold, and, “in more serious cases, they are to be deposed.” Canon 2404 of the 1917 Code further provided that penalties could be imposed on bishops for “abuse of ecclesiastical power,” which at least in theory could have included the failure to adequately supervise the clerics of his diocese. Moreover, detailed provisions were spelled out in canons 1925-1959 for how bishops and others in positions of ecclesiastical authority were to proceed when investigating and prosecuting claims of misconduct.

Other important canonical provisions in the 1917 Code address the power of a bishop to discipline clergy are noted here:

• Canon 120 §1, providing that clerics in “all” cases be brought before an ecclesiastical judge, “unless it has been legitimately provided otherwise in certain places”;
• Canon 2186 §1, which allowed a bishop to suspend a priest without a penal process, based solely on a bishop’s “informed conscience” (ex informata conscientia);
• Canon 2222 §2, which permitted a bishop to impose non-penal restrictions even if he thought it only probable that a priest had committed a delict; and
• Canons 2357-2358, which provided that an Ordinary[1] could inflict penalties on members of the laity or on seminarians who had been convicted of the canonical delict involving a “violation of the Sixth Commandment of the Decalogue” (the general phrase referring to sexual misconduct) with a minor “below the age of sixteen.”

[1] NB: The general term “Ordinary” in canon law generally refers to those in positions of authority, including diocesan bishops.

-copyright Michael J Mazza, JD, JCD (2024)

On 9 June 1922, just four years after the Code of 1917 went into effect, the Holy See released an Instruction entitled Crimen Sollicitationis (“the crime of solicitation”). Approved by Pope Pius XI, the Instruction was essentially a procedural guide for the prosecution of certain very grave crimes of a sensitive nature, crimes which had already been referenced in the Code of 1917. The Instruction was seen as an update, in light of the new Code, to the Apostolic Constitution that had been promulgated in 1741 by Pope Benedict XIV entitled Sacramentum Poenitentiae (“the sacrament of penance”). This 1741 document had discussed the sin of “solicitation in the confessional,” i.e., when a priest uses the sacrament of penance in furtherance of a sexual sin, either with the confessor himself or with a third party.

Prosecuting a sensitive crime such as solicitation in the confessional raised procedural difficulties, including how to respect a priest’s right of defense when he was prevented from revealing the contents of a confession in light of the sacramental seal. There were also concerns for the reputation of the accused priest as well as for the good name of the alleged victim. The special procedures outlined in the document provided for an indirect method of achieving the moral certitude necessary for a definitive decision in such difficult cases, focusing largely on the credibility of the accuser as well as the life and behavior of the accused priest.

In light of the risk of false accusations, public scandal, and violations of the sacramental seal in prosecuting allegations of such sensitive crimes, Crimen Sollicitationis was not published in the official organ of the Holy See, the Acta Apostolicae Sedis (the “Acts of the Apostolic See”). Instead, it was sent directly to each of the bishops around the world, with instructions that it was to be kept carefully in the archives of the curia for internal use only, and not to be otherwise “published or augmented with commentaries.” The complete four-page Latin text of the 1741 document by Pope Benedict XIV, however, was included as an appendix in printed copies of the 1917 Code.

In addition to addressing the crime of solicitation in the confessional (referenced in canon 904 of the 1917 Code), the 1922 Instruction Crimen Sollicitationis also mentioned the crimen pessimum (“the foulest crime”); which specifically included three types: (i) homosexual acts by clergy, (ii) acts of bestiality, and (iii) “any external obscene act, gravely sinful, perpetrated or attempted by a cleric in any way with pre-adolescent children [impuberes] of either sex.” Such crimes, it must be emphasized, had already been listed as such in the 1917 Code (cf. c. 2359 CIC17); their inclusion in the 1922 Instruction merely provided for the special procedures to be used in their prosecution. Given their special gravity, their prosecution was entrusted to the Congregation of the Holy Office, per canon 247 §2 of the 1917 Code.

The Instruction pointed out the very severe mandatory reporting requirements for the crime of solicitation, given its hidden nature and great risk to souls. Specifically, a person solicited in the confessional, i.e., the victim, was required to report the crime to the appropriate church authority, within a month, on pain of excommunication (cf. c. 2368 §2 CIC17). Moreover, any member of the faithful was said to have had the right—and perhaps even a duty—to report the crime of solicitation of which he or she had certain knowledge. No such reporting obligation was placed on victims of a crimen pessimum, at least not by the positive law of the Church. The document did not rule out any other source for a duty to report, such as one arising under the natural law (e.g., a parent of a victimized child).

The Instruction also addressed the requisite level of confidentiality in any canonical proceedings relating to these sensitive crimes. While certain participants (e.g., bishops and tribunal officials) were said to be bound to the solemn “secret of the Holy Office,” the punishment of excommunication for violating this confidentiality applied only to clerics, and certainly did not preclude the communication of relevant facts to those who had a need to know (e.g., a bishop in a neighboring diocese regarding a disciplined priest). The lesser penalty of an ecclesial censure was, generally, not even applicable to lay people (including, for example, accusers and witnesses). Beyond that, this more generic obligation of secrecy (i.e., not that of “the Holy Office”) only applied once a canonical trial began, but not before such point. The oath might even be temporary, i.e., aimed at protecting the integrity of the proceedings so long as they ran but not binding after a verdict was reached. Thus, there was no conflict presented by the canon law of the Church with reporting grievous misconduct to the civil authorities, much less any bar to the criminal prosecution of these same acts by secular authorities.

-copyright Michael J Mazza, JD, JCD (2024)

Yes. On 16 March 1962, the Holy See issued another version of Crimen Sollicitationis, this time under the authority of the then-reigning Pope John XXIII. It was essentially identical to the Instruction published forty years before, but with minor additions, expanding its applicability to priests in religious orders and attaching an appendix with model language to be used in various circumstances. As a result of its wider applicability, the document was addressed not only to bishops, but to the heads of religious communities as well.

 Like the 1922 version, the 1962 edition of Crimen Sollicitationis provided that “reserved crimes” such as the clerical sexual abuse of minors (“crimen pessimum”) fell under the exclusive jurisdiction of the Holy Office. The “Holy Office” was renamed the “Congregation for the Doctrine of the Faith” in 1965 as the Second Vatican Council ended; another name change was made in June 2022, so that it is now known as the Dicastery for the Doctrine of the Faith. Regardless of its various name changes, this entity within the Holy See has over the years consistently maintained exclusive jurisdiction for the prosecution of certain sensitive crimes, including the clerical abuse of minors.

Neither the 1922 nor the 1962 versions of the Instruction Crimen Sollicitationis was intended by the Church to serve as a modern type of comprehensive legislation regarding sexual misconduct, but merely as a procedural guide in handling very sensitive cases. More specific, “comprehensive legislation” would soon come, however, especially after explosive stories in the international media began circulating in the 1990s and early 2000s. Thus, it would be inaccurate to portray these Instructions as part of an international “cover-up” on the part of Church authorities of clerical sexual misconduct.

The extent to which the 1962 version of Crimen Sollicitationis was physically distributed is subject to debate. One position is that copies were made ready for distribution to bishops who came to Rome for the Second Vatican Council, but for some reason were never actually handed out. Another position is that bishops were made aware of the existence of the 1962 document if and when they ever had to approach the Holy See for a case involving the crime of solicitation in the confessional. Others maintain that knowledge of the document was relatively widespread, pointing to deposition testimony of officials such as Cardinal Francis George of Chicago (in 2008) and Bishop Joseph Madera of Fresno (in 2006). Cardinal George is said to have testified that he knew of the existence of the document as far back as his seminary training in the early 1960s; Bishop Madera said that he had been made aware of the document as a priest of the Archdiocese of Los Angeles in the 1960s. (See Thomas Doyle, “Voice from the Desert,” 12 March 2010).

-copyright Michael J Mazza, JD, JCD (2024)

The revision of the 1917 Code of Canon Law, a project called for by Pope John XXIII in 1959 but necessarily delayed by the Second Vatican Council (1962-1965), was finally brought to fruition in 1983. Promulgated on 25 January of that year, its provisions went into effect on the first Sunday of Advent, i.e., 27 November 1983. Explicitly reflecting the ecclesiology of the Second Vatican Council, the 1983 Code differed in major ways from the 1917 Code. One notable difference concerned a greater concern for the way individual rights were exercised. For example, bishops were no longer able to suspend a priest without a penal process, as the ex informata conscientia provision in canon 2186 of the 1917 Code was abolished. Nevertheless, the greater emphasis on subjective rights did not mean that accused priests could not be subject to discipline; it simply called for a greater attention to the demands of due process under the law. In any event, cultural influences led many church leaders away from applying the provisions of canon law, especially in the years following Vatican II. This antinomian tendency had catastrophic consequences, especially vis-à-vis clerical sexual abuse.

While the revised Code of Canon Law ushered in many changes, one thing that did not change was the exclusive jurisdiction for cases involving the clerical sexual abuse of minors. This meant, among other things, that the procedures set forth by the (then) Congregation for the Doctrine of the Faith still controlled, which included the provisions of the most-recent iteration of the Instruction Crimen Sollicitationis in 1962. Canon 1402 of the 1983 Code provided that procedural norms of the 1983 Code did not affect the separate norms of the tribunals of the Apostolic See, which included the tribunal of the Congregation for the Doctrine of the Faith judging cases involving reserved grave delicts. Nevertheless, at a practical level, there seems to have been uncertainty on the precise nature of what those “reserved grave delicts” were.

Book VI of the 1983 Code contained the Church’s new penal provisions, which, in a way essentially in harmony with the 1917 Code, continued to provide for canonical sanctions for any cleric who sexually abused a minor (cf. c. 1395 §2), as well as for any bishop who failed in his duty of diligence in the exercise of his office (cf. c. 1389). In addition, similar provisions appeared in the 1983 Code as had appeared in the 1917 Code pertaining to the necessary steps of a bishop’s investigation upon receipt of an allegation of wrongdoing by one of the priests under his authority (cf. cc. 1717ff ). Book VI was subjected to substantial revision recently, and a new version of the entire Book was promulgated by Pope Francis in May 2021 by means of an Apostolic Constitution entitled Pascite gregem Dei, with an effective date of 8 December 2021.[1]

One other comment needs to be made concerning the document retention and destruction provisions in the 1983 Code, a practice that is frequently misunderstood. Canons 486-491 of the 1983 Code require that certain archives be maintained. Canon 486 §2 provides that such archives contain “documents and writings concerning both the spiritual and the temporal affairs of the diocese”; canon 489 in particular requires that a “secret archive” be maintained and kept secure for certain sensitive documents. Each year, documents relating to “criminal cases in matters of morals” are to be destroyed when the accused party has died or ten years have elapsed from the condemnatory sentence (cf. c. 489 §2).

The term “secret” as used in canon 489 is intended to describe how the documents are to be kept; i.e., separate and apart from other documents such as personnel files or the other diocesan archives. The word “secretum” in Latin does not imply “hidden” here as much as it relates to the duty to keep especially sensitive documents “separate,” given the risk to the reputation of others. The existence of the “secret” archives, as a factual matter, is well-known. For example, the records of secretly celebrated marriages and cases involving clergy discipline are to be kept in this separate archive, which is to be accessed only by the bishop, but even he is not permitted to remove documents from it (cf. c. 490).

[1] One of the many changes in the new Book VI is the possibility, now, for a lay person or other non-cleric to be subject to certain canonical discipline if found guilty of child sex abuse. Cf. c. 1398 §2.

-copyright Michael J Mazza, JD, JCD (2024)

In response to a growing awareness of the depth of the problem of sexual misconduct on the part of some members of the clergy, especially in the wake of news articles concerning horrific acts of child sexual abuse in the 1980s and 1990s, church authorities began taking a number of steps to address the crisis. In retrospect, however, it is clear that these steps were insufficient to prevent a global crisis from spreading in the early part of the 21^st century. Yet even before the series of news reports in The Boston Globe were published in early 2002, Pope John Paul II had already made an important change in the law. On 30 April 2001, by means of the apostolic letter Sacramentorum Sanctitatis Tutela (“SST”), he updated the norms for handling grave crimes against the faith and the sacraments, including the clerical sexual abuse of minors.

The continued applicability of Crimen Sollicitationis from 1962 until 2001, at least with respect to its procedural norms, was made explicitly clear in a letter dated 18 May 2001 by Cardinal Joseph Ratzinger, then prefect of the Congregation for the Doctrine of the Faith. The letter, entitled De delictis gravioribus, accompanied the apostolic letter Sacramentorum Sanctitatis Tutela issued motu proprio[1] that had been promulgated by Pope John Paul II a few weeks earlier, on 30 April 2001. Cardinal Ratzinger’s letter pointed out that SST, like its predecessor Crimen Sollicitationis, was intended to set forth the procedural norms that were to be used in the prosecution of certain sensitive crimes already prescribed in the Code of Canon Law. In the letter, Cardinal Ratzinger stated that the 1962 Instruction Crimen Sollicitationis had been in force “until now” (“hucusque vigens”), i.e., until 30 April 2001, when the new law from Pope John Paul II took effect.

The fact of the continued juridical significance of the provisions of Crimen Sollicitationis appeared to have caught many observers, even experienced canonists in the United States, by surprise, judging by a review of the literature at the time. Ignorance of, or at least uncertainty regarding, the 1962 Instruction might also explain why the U.S. bishops took such great pains to solicit the Holy See for special permission to deal with what they saw as a burgeoning sexual abuse crisis in the 1990s. For example, the U.S. bishops sought from Rome a “derogation from canonical prescription,” i.e., permission to waive the applicable statute of limitations, so that they could prosecute “older” cases involving the clerical sexual abuse of minors. Many bishops (and, evidently, their canonists) thought that a five-year period of prescription applied to such cases, given that a five-year period of prescription appeared in the text of canon 1362 §1, 2° of the 1983 Code. The reality, however, is that such cases likely still fell under the exclusive jurisdiction of the Congregation for the Doctrine of the Faith, per Crimen Sollicitationis. Given their gravity, as gross violations of the divine law, these crimes were seen as not even being subject to prescription (cf. c. 1509, 1° CIC17).

The other change the U.S. bishops sought from Rome related to the age of a “minor.” Universal church law had provided that for sexual abuse to be considered a grave delict, the victim had to be younger than sixteen years of age. The requested change involved raising the age to eighteen. This was granted to the U.S. bishops in 1994, and eventually became part of universal law with the promulgation of SST in 2001. The provision now appears in canon 1398 of the revised Book VI of the Code of 1983.

The Norms applying Pope John Paul II’s original SST document have been modified twice so far, once in 2010 and again in 2021. In light of the issues discussed herein, I note that the most recent modifications have implemented a twenty-year period of prescription for reserved crimes, measured (at least for crimes involving the sexual abuse of a minor) from the day the minor turns eighteen years old (cf. Art. 8).

[1] At times certain papal documents might be referred to as a “motu proprio,” a Latin phrase meaning “on his own authority.” Technically, this phrase simply defines how a given document was issued, i.e., on the pope’s own authority, not what kind of document it was (a letter, a constitution, etc.).

-copyright Michael J Mazza, JD, JCD (2024)

Six months after the now famous articles on clerical sexual abuse in the Catholic Church that appeared in The Boston Globe in January 2002, the U.S. bishops met in Dallas in June of that year to discuss the growing crisis. They ultimately promulgated “particular norms” (i.e., law for each of the dioceses in the U.S.) after securing the requisite recognitio (“recognition”) from the Holy See. Early on, notable figures such as Cardinal Avery Dulles expressed worry that the rule of law was being ignored in the interest of political expediency.[1] In fact, several important changes had to be made to the first iteration of the Essential Norms so as to provide more protection for the exercise of the right of defense on the part of the accused. In any event, the Essential Norms have fundamentally altered the initial process which goes into effect once a Catholic priest in the United States is accused of misconduct.

It is important to note that The Dallas Charter is not law; only the Essential Norms are. The Charter serves as a kind of an interpretative preface for the Norms, as a “declaration of intent on the part of the bishops regarding future policies and provides a framework for the implementation” of the Essential Norms.[2] The Preamble to the Essential Norms goes on to emphasize that the Norms must be understood as being “complementary to the universal law of the Church and are to be interpreted in accordance with that law.” (See also Apostolic Signatura, definitive sentence of April 28, 2007, coram Grocholewski, prot. no. 37937/05, CA, n.14).

Technically, the Essential Norms  apply only to allegations of child sexual abuse, which (thanks be to God) have become an increasingly rare occurrence in recent years. In fact, the number of accusations involving recent sexual abuse of minors by active priests continues to decline precipitously. According to the USCCB Annual Report (reporting numbers from 1 July 2022 through 30 June 2023), there were 1,308 allegations of clerical sexual misconduct involving minors, only 17 of which involved current minors. (For some perspective, consider that there are some 50 million Catholics in the U.S.) Of these 17 cases, only three (3) were considered to be “substantiated.” Many of the claims made against Catholic clergy were leveled against men who were already dead, with the misconduct alleged to have occurred decades earlier.[3]

In any event, a phenomenon known as “Charter creep” has become widespread in the U.S., meaning that even allegations that have nothing to do with child sexual abuse have been treated in a way similar to those that actually do involve child sexual abuse. For example, allegations of sexual misconduct involving adults, allegations involving financial misconduct, or allegations of various other types of merely imprudent (e.g., not respecting proper boundaries) or even immoral behavior (e.g., drinking alcohol to excess) from many years ago have been treated under the same regime as those involving child sexual abuse. It is important to keep in mind that while crimes involving minors and those who “habitually have an imperfect use of reason” (e.g., people with a severe intellectual disability) are reserved to the DDF, a crime against someone in the more general category of “vulnerable persons” does not necessarily fall under the exclusive jurisdiction of the DDF.

[1] Avery Dulles, “Rights of Accused Priests: Toward a Revision of the Dallas Charter and the ‘Essential Norms,’” America (June 21, 2004), available at https://www.americamagazine.org/issue/488/article/rights-accused-priests. See also Joaquín Llobell, “The Balance of the Interests of Victims and the Rights of the Accused: The Right to Equal Process,” in The Penal Process and the Protection of Rights in Canon Law, Patricia M. Dugan, ed. (Montreal: Wilson & Lafleur, 2005) 67-127; Ladislas Orsy, S.J., “Bishops’ Norms: Commentary and Evaluation, Boston College Law Review 44/4 (2003) 999-1029.

[2] USCCB, “Diocesan Review Boards, Questions & Answers,” in Diocesan Review Board Resource Booklet, p. 2, available at https://www.usccb.org/issues-and-action/child-and-youth-protection/upload/2012-Diocesan-Review-Board-Resource.pdf.

[3] USCCB, 2023 Annual Report: Findings and Recommendations (May 2024), p. 17, available at https://www.usccb.org/resources/2023%20Annual%20Report.pdf.

-copyright Michael J Mazza, JD, JCD (2024)

The notion of having more specific provisions regarding the reporting, investigating, and processing of allegations of clerical sexual abuse of minors is understandable, particularly in light of the crisis of credibility the U.S. bishops have faced in recent years. While there may be little that is facially violative of the rights of accused priests in the Essential Norms, in practice there are many reasons for concern. For instance, many times there is a de facto presumption of guilt against an accused priest that is manifested throughout the process articulated by the Essential Norms: investigators and review boards operate without reference to canon law, rash judgments are made, prejudicial statements are released to the press, et al. Such issues are discussed in more detail below.

When an accusation is made against a priest, his “Ordinary”[1] is required under canon 1717 to evaluate the accusation. Canon 1717 provides that “[w]henever the Ordinary receives information, which has at least the semblance of truth [saltem veri similem], about an offence, he is to enquire carefully, either personally or through some suitable person, about the facts and circumstances, and about the imputability of the offence, unless this enquiry would appear to be entirely superfluous.” What exactly is meant by “saltem veri similem” is not completely clear,[2] but canonists generally agree that the standard is intentionally low, given that the intent here is to weed out claims that appear to be manifestly false or frivolous, or at least do not merit examination by a full-blown canonical process, whether judicial or extra-judicial. Appropriate questions to ask at this initial phase would include whether it is even possible for the event(s) to have occurred or whether a canonical crime even appears to be involved. There is no duty to investigate an allegation that reasonably appears unlikely to have occurred, or is not a canonical delict. Nevertheless, it may be prudent to keep some elements of documentation as well as some information on the reasons that supported the decision that the allegation lacked verisimilitude, and to inform the DDF when necessary.

It must be remembered that the conduct must be an external violation of a penal law, committed by a Catholic (cf. c. 11), that is gravely imputable to the offender, either because of “wilful intent” or because of “negligence,” by someone who is not entitled to an excuse under c. 1323 (e.g., age, fear, self-defense, lack of reason). “Negligence” can be defined as “ignorance of the law or omission of due diligence,” but in such cases punishment is permitted only if the law or precept so provides (cf. c. 1321 §3). Among other things, this means that ordinary moral failings or internal acts are not canonical crimes. Rather, there must be some concrete external act for a delict to exist, and with respect to grave delicts reserved to the DDF, the act must be an “external offense against the sixth Commandment of the Decalogue committed by a cleric with a minor.” If the conduct is a sin but not a crime, the Ordinary may rely on “penal remedies and penances” (cf. c. 1339), which are not strictly speaking “penal” but rather “disciplinary,” including by means of tools such as remedies, penances, or penal precepts.

[1] See 1983 CIC c. 134 §1. Generally speaking, a diocesan priest’s “ordinary” is his diocesan bishop; if the priest is a member of an institute of consecrated life or society of apostolic life, his “ordinary” is his religious superior.

[2] See R. Lucien Millette, “An Analysis of the Preliminary Investigation in Light of the Rights of the Accused,” The Jurist 75/1 (2015) 109-95, 139-140.

-copyright Michael J Mazza, JD, JCD (2024)

After having received the notitia criminis (the notice of the criminal conduct) and after having evaluated it as not manifestly false or frivolous, the Ordinary is to “enquire carefully” about the facts, circumstances, and imputability of the alleged offense, either personally or through another. He does this not to determine guilt (which is inappropriate at this early stage), but to decide whether to initiate a process, either judicial or extra-judicial, after which a penalty may be imposed or declared, assuming such a move would serve the aims of penal law (cf. c. 1718 §1).

In many American dioceses and religious orders, the canonical “preliminary investigation” is, in practice, far from “preliminary.” Investigations are often outsourced to independent investigation firms staffed by former law enforcement officers, who can spend great amounts of time and money in extensive investigations that can take several months. How a person who is being investigated interacts with the investigator can have a tremendous impact on the way the allegation is handled and the priest’s ultimate fate. This topic will be discussed in more depth in the next section.

Two dicasteries of the Holy See have issued guidance on what a proper canonical preliminary investigation should look like. First, the Dicastery for the Doctrine of the Faith (“DDF”) issued a “Vademecum,” or handbook, “On Certain Points of Procedure In Treating Cases of Sexual Abuse of Minors Committed by Clerics,” first in July 2020 and then an updated version in June 2022. While directly applicable only to those “more grave” delicts (“graviora delicta”) reserved to the DDF, the Vademecum articulates basic principles of legal process that apply in other situations. Specifically, the Vademecum states that the length of a preliminary investigation should not be excessive, but rather, “for the sake of equity and a reasonable exercise of justice, [that it] correspond to the purpose of the investigation, which is to assess the plausibility of the notitia de delicto and hence the existence of the fumus delicti. An unjustified delay in the preliminary investigation may constitute an act of negligence on the part of ecclesiastical authority” (n.66).

The Dicastery for Legislative Texts, the entity entrusted by the Holy Father with, among other duties, formulating the authentic interpretation of the Church’s laws and offering clarifications on the meaning of norms, released a “User Guide” about two years after the revised Book VI (on penal sanctions in the Church) was promulgated by Pope Francis by means of the Apostolic Constitution Pascite gregem Dei on 23 May 2021. The User Guide for Book VI, dated 31 May 2023, does not apply to norms regulating the procedures relating to the grave delicts reserved to the DDF. It does, however, provide helpful guidance for the proper understanding and application of the norms touching many other types of procedures. With respect to preliminary investigations in general, the User Guide states that the scope of the preliminary investigation should be limited and focused (n.188). The only purpose of the investigation is to collect enough information that will help the Ordinary to decide (i) whether a process to inflict or declare a penalty can be initiated (c. 1718 §1, 1°) and (ii) whether this is expedient given the goals of canonical penal law (c. 1341).

“The preliminary investigation has the purpose of providing the elements necessary for the Authority to take the decision to start the penal procedure or to close the investigation. Therefore, it is not necessary to collect all the evidence and testimonies that lead to the certainty of the delict committed at this time, as this task belongs to the trial.” (n.184, emphasis supplied)

“Exigencies of equity and justice require that the preliminary investigation mentioned in can. 1717 is carried out in a limited time frame and with the necessary celerity, taking into account that the purpose of this investigation is only to reach the well-founded verisimilitude of the notitia criminis and the corresponding existence of the fumus delicti, making necessary in this case the initiation of the prosecution. It will be during the judicial process or extrajudical process that all the remaining testimonies or proofs required to reach the conclusion will have to be collected. The unjustified extension of the duration of the preliminary investigation can constitute negligence on the part of the ecclesiastical Authority.” (n.187, emphasis supplied)

The User Guide adds that while investigations by civil authorities may alleviate some of the burden of a canonical preliminary investigation, “it will be necessary to evaluate very carefully the procedural development and the arguments that emerge during the civil investigations since the relative evaluation criteria can vary, sometimes significantly, with respect to what is prescribed by canon law” (n.178). Regarding communications with the civil authorities, informing them of a concrete delict will be done when obligatory, per applicable law, but is “absolutely not applicable when it is necessary to observe the sacramental seal, or the requirements linked to the internal forum” (n.185, emphasis in original); when civil authorities demand documents, ecclesiastical authorities may comply “within the limits established by canonical legislation.”

Below are several foundational questions that should be considered when beginning a preliminary investigation:

• Has the passage of time resulted in prescription, such that any penal prosecution of the alleged misconduct is impossible, without a derogation from prescription granted by the Holy See (cf. c. 1362)?
• Does the Ordinary have jurisdiction over the matter, either because he is the Ordinary of the subject accused or of the place where the act allegedly took place (cf. cc. 1408, 1412)?
• Has the appropriate Ordinary issued the relevant decree beginning the canonical preliminary investigation, as is required under canon 1719?
• Has the Ordinary named the person who is to conduct the investigation by decree, with due attention to the requirements of an auditor, especially regarding character (cf. c. 1428 §2), objectivity (cf. c. 1448), and sufficient familiarity with canon law (cf. DLT User Guide, n.182)?
• Will the investigator proceed with due care for the reputation of all involved, including a presumption of innocence, in favor of the person accused (cf. cc. 1321 §1, 1717 §2)?
• Has the investigator been educated about the appropriate use of questioning in a canonical proceeding, excluding all captious, deceptive, leading, offensive, or irrelevant questions (cf. c. 1564)?
• Does the investigator have sufficient awareness of the rights of the person to be investigated? Among other things, this means that the person to be investigated must be aware that he has the right not to be interrogated, that he is under no obligation to answer any question in an interview, and that he can end an interview at any time. It also means that no oath may be administered to the person accused and that he cannot be forced to confess to anything (cf. c. 1728 §2). In practice, this means that the “interview” may consist of a priest responding to written questions provided to him in advance, submitting a written statement to the investigator, or simply stating at the outset of an interview that he categorically denies the accusations, and beyond that he has nothing more to say, upon the advice of counsel, as is his right under natural, civil, and canon law.
• Will a notary be appointed to assist the person carrying out the preliminary investigation? The DLT’s User Guide recommends the practice, as it helps to guarantee “the public faith of the deeds drawn up” by him (n.182). In cases where the reputation of a priest can be called into question, the provisions of canon 483 §2 apply (a priest-notary should be appointed, except for cases reserved to the DDF), ad liceitatem.
• Is the person to be investigated aware of his right to counsel? The DLT’s User Guide suggests that “from the moment in which the suspect is informed about the ongoing investigation, it will be necessary to allow him to make use of a trusted lawyer chosen by him, even if this is not yet mandatory at this stage.” (n.190, emphasis in original).

-copyright Michael J Mazza, JD, JCD (2024)

Very often dioceses and religious orders refuse to take any canonical action on an allegation until all risk of secular litigation (criminal or civil) is over, so as to avoid any accusation that they are interfering with such proceedings. This argument may have some merit in special circumstances, but to remain inert as a general rule is problematic on the level of both theory and practice.

First, it is essential to remember that the civil and canonical realms have their own ends and means. While the state is supposed to protect the common good in a temporal sense with recourse to coercive police power, the Church is obligated to foster the salvation of souls, almost exclusively through spiritual means of persuasion and the use of various options under canon law. Simply abdicating that sacred obligation for what could be an extended period by refusing to take action on an accusation betrays either vincible ignorance of this obligation or a lack of commitment to carrying it out. Civil corporations routinely have to navigate these waters when a complaint is made against one of their employees when the nature of the complaint raises the possibility of criminal or civil liability. If secular businesses can figure that out, it is reasonable to expect the Church to do so as well, especially when aided by competent lay people.

Second, as a practical matter, an accused priest named in a lawsuit could wait for many years before the matter is resolved, given the large amount of litigation in U.S. courts and legal developments such as extended statutes of limitation. Pope Francis famously lamented in 2014 about the intolerable delays that many lay people experience when seeking a declaration of nullity. If a period of “years” is too long for lay persons to have to wait to receive a judicial determination of their marital status, it seems only fair to expect a prompt determination of priest disciplinary cases as well. It is simply unconscionable to expect priests to wait for long and indeterminate periods before taking any action whatsoever, and it is difficult not to notice the comparatively strict timing requirements of Vos estis lux mundi (cf. Art. 15, for accusations against bishops) and the lack of such requirements for priests and deacons. Canon 221 §1 provides that Christ’s faithful have the right to lawfully vindicate and defend their rights before the competent ecclesiastical forum in accordance with the law. Excessive delays either mean that right is simply an empty formula or that the Church does not have a functioning system of justice. There is simply no alternative.

-copyright Michael J Mazza, JD, JCD (2024)

The Essential Norms call for an independent review board to assist the Ordinary with his determination as to whether the allegation meets the “semblance of truth” standard. The board itself is to made up of at least five Catholics of “outstanding integrity and good judgment in full communion with the Church,” and must include “an experienced pastor” of the diocese as well as an “expert in the treatment of child sexual abuse.” The board is to function as a “confidential, consultative body”; rather than having an investigatory role, the board is to “evaluate evidence presented by the investigator and offers advice” to the bishop. A majority of the board must be lay persons who are not diocesan employees. Thus ostensibly free from conflicts of interest, they are seen as being able to offer to the Ordinary their honest opinion on whether a given allegation meets the semblance of truth standard. If the Ordinary accepts the board’s recommendation that a given allegation has met the standard, he generally commences an official canonical process himself or, if the allegation involves a reserved delict, informs the Disciplinary Section of the DDF in Rome.

If the members of such a review board are not sufficiently aware of their rights and duties under the applicable (canon) law, much harm can result. Some boards may not keep to their consultative role, and instead may effectively dictate to a bishop what his decision should be. Others may stray into the area of conducting investigations by interviewing parties and witnesses, thus jeopardizing their objectivity and possibly creating civil legal liability for themselves and their dioceses. Still others may rubber-stamp whatever an investigator brings to their attention, falling victim to confirmation bias and thus limiting their effectiveness. It is for good reason that the Essential Norms recommend that the diocesan Promoter of Justice is encouraged to participate in the meetings of review boards, so as to make sure that no one’s rights are violated and that canon law is observed.

At the end of an extremely thorough investigation lasting several months, conducted by an investigator experienced with bringing charges involving serious criminal behavior, a review board might very well view itself as a type of jury, tasked with deciding whether a person accused is guilty. Given that there has been no formal process yet, and especially because the person under investigation has not had an opportunity to exercise his natural right to self-defense, a finding of guilt is not only not appropriate, but represents a serious violation of justice and of the law.

Beyond that, at the conclusion of a lengthy investigation, review boards may also believe it to be important, in the name of “transparency,” to publish the names of those who have been “credibly accused” or who have a “substantiated accusation” against them. In the absence of any canonical process, publishing the names of men simply accused of heinous conduct runs the risk of inflicting serious and lasting damage on their natural, civil, and canonical right to reputation. In the current media, legal, and cultural environment, publishing the names of the accused can result in many negative immediate and long-term consequences for the person accused, including such things as (i) having other accusations being made against the same priest, some or all of which may be made solely in the interest of lucre, (ii) being evicted from one’s residence or being fired from one’s place of employment, and (iii) having one’s salary, pension, or insurance benefits be terminated. It also can have the practical effect of obviating the need for any real canonical process, since the “preliminary investigation” has instead supplanted the actual trial called for under the law. A one-sided investigation, however, can in no way provide for the safeguarding of the fundamental rights of the accused.

The group Men of Melchizedek has developed a helpful handbook for use by review boards. It is available free of charge at https://menofmelchizedek.org/independent-review-board-member-orientation-handbook.

-copyright Michael J Mazza, JD, JCD (2024)

In the interests of justice, such as safeguarding the integrity of the judicial process and protecting the rights of all involved, certain restrictions on the ministry of the one accused may be imposed. Church law makes it clear, however, that such restrictions should be limited in scope, proportionate to their cause, and should never unduly harm the reputation of the persons involved.

For accusations involving the clerical sexual abuse of a minor, the Essential Norms provide that once a bishop determines there is “sufficient evidence that sexual abuse of a minor has occurred,” the Dicastery for the Doctrine of the Faith “shall” be notified and the precautionary measures mentioned in canon 1722 “shall” be applied; namely, that the accused will be withdrawn from the exercise of sacred ministry or any ecclesiastical office or function, that residence in a given place or territory will either be imposed or prohibited, and that the accused will be prohibited from the public participation in the Most Holy Eucharist pending the outcome of the process (cf. EN, n.6). Not to be forgotten, however, is the discretion given every bishop to dispense from laws such as the Essential Norms when “he judges that it contributes to the spiritual welfare of the faithful” (cf. c. 88).

For other accusations, disciplinary measures may be taken during the investigation (DLT User Guide, nn.191-192), and precautionary measures may be taken once the process begins (c. 1722; DLT User Guide, n.206). Disciplinary measures may be taken with just cause and on the basis of the Ordinary’s authority (cf. c. 392) that are “proportional and reasonably limited in time,” e.g., limiting the exercise of the pastoral ministry or ecclesiastical office of the subject under investigation, even in cases not reserved to the DDF (DLT User Guide, n.191). These measures are “similar” to those indicated in canon 1722: removal from sacred ministry or from an ecclesiastical office or task, imposing or forbidding him to reside in some place or territory, or even forbidding him from public participation in the Eucharist. The authority has a “duty of justice . . . to limit the use of this type of measure to what is strictly necessary, both in terms of content and duration” (DLT User Guide, n.191). The Authority “is required in justice to cancel the ‘disciplinary’ measures if he decides not to start the penal case” or “transform them with a new Decree into actual ‘precautionary’ measures” if proceeding to a penal investigation of the case, after having heard the Promoter of Justice and citing the accused, per canon 1722, paying due attention to the person’s right to reputation (DLT, n.191). Furthermore, “[i]t is a strict duty of justice for the competent authority to ensure, even formally, that these measures cease, a duty that must also extend to repairing any consequences that may have damaged the good reputation of the person concerned” (DLT User Guide, n.191, italics in original).

Outside of reserved delicts, canon 1722 restrictions may be imposed only after a process begins, and only after promoter of justice is consulted (for validity, per c. 127 §2, 2°), and should be in writing and with reasons (per c. 51), and only after the affected cleric, “whose rights can be injured,” be heard “insofar as possible” (cf. c. 50). The restrictions must be proportionate and must take into account the suspect’s right to reputation (1717 §2), even though when a grave delict is involved Ordinaries have great latitude. Nevertheless, the DDF’s Vademecum notes these restrictions should not be referred to as “suspension” or “penalties,” but rather as “prohibitions” (nn. 61-62). These measures are not a “criminal sanction; penalties will only be imposed at the end of the process, either by administrative decree or by judgment. This detail should be made clear to all those who intervene in any capacity, in particular the accused, so that it does not appear as if this measure is some sort of final judgment on the culpability of the accused” (DLT User Guide, n.192). Regarding precautionary measures imposed under c. 1722 in a matter involving a grave delict, the DDF Vademecum points out that “it should be clearly explained to the party in question that the measure is not penal in nature, lest he think that he has already been convicted and punished from the start” (n.61).

The list of precautionary restrictions in canon 1722 is taxative, meaning that restrictions not listed in canon 1722 cannot be imposed, and that in any event the restrictions must end when the process ends (cf. DDF Vademecum, nn.59,65). The imposition of these restrictions is subject to administrative recourse under cc. 1732-1739, but the recourse generally is without suspensive effect (cf. c. 1736 §§2-3). As with other types of recourse, before seeking it, a petition (“supplicatio” or “remonstratio”) must be made to the appropriate party within the peremptory time-limit of only ten (10) canonical days from the time the decree was lawfully notified (c. 1734 §2). Upon receipt of a denial or upon the passing of thirty (30) days of administrative silence (c. 1735), the petitioner then has only fifteen (15) canonical days in which to seek recourse with the competent hierarchical superior (c. 1737 §2). In the case of a bishop, the “competent hierarchical superior” is the appropriate dicastery in the Roman curia.

-copyright Michael J Mazza, JD, JCD (2024)

The Holy See has specifically and repeatedly cautioned against the prejudicial practice of publishing of the names of accused clerics, including by means of one of the 14 “Reflection Points” offered at the February 2019 Meeting on the Protection of Minors in the Church, and, more recently, the 2022 Vademecum from the Dicastery for the Doctrine of the Faith, which specifically warns that “great caution should be exercised in providing information about the facts” when, in fact, “public statements must be made.” Before the possible guilt of an accused person is established through a process, the Vademecum warns that “all care should be taken to avoid—in public statements or private communication—any affirmation made in the name of the Church, the institute or society, or on one’s own behalf, that could constitute an anticipation of judgment on the merits of the facts” (see Vademecum, nn. 45-46; see also Pope Francis, motu proprio Vos estis lux mundi, 25 March 2023, Art. 5 §2 (calling for the protection of the “good name and the privacy of the persons involved” in any investigation into sexual abuse allegations covered by Vos estis lux mundi)).

 Most recently, the May 2023 User Guide to Book VI from the Dicastery for Legislative Texts states on this specific point:

“When having to carry out the preliminary activities in view of a possible penal process, the Ordinary can freely consult in private with experts in penal canonical matters. However, it is necessary to absolutely avoid [NB: emphasis in original] any inopportune or illicit dissemination of information to the public (such as press releases) that could jeopardize subsequent investigations or damage the person’s reputation and presumption of innocence. Official secrecy is already in force at this moment, even if it is not possible to impose any bond of silence on the alleged victims or complainants, other than those deriving from the moral law (n.180).”

Number 193 of the DLT’s User Guide recalls the duty under Canon 1717 §2 to protect the good name of the persons involved, “particularly at this time of the investigation,” as well as the right of the person accused to the presumption of innocence. “These principles must, consequently, guide the various steps to be taken during the prior investigation and, in particular, guides the way news is communicated to the media.” Not all announcements are forbidden, obviously, but when they are made they must be prudent, stating that

“an investigation has been commenced into the matter. In such communications, one must try to use essential and concise forms, avoiding any sensational methods, in order to respect the wishes of the presumed victims as much as possible and, above all, to refrain from any advance judgment (whether in the personal name of the person making the communication, or in the name of the Church or Institute to which the person belongs) on the person under investigation, which would represent a kind of prejudice on the merit of the facts. An imprudent management of the news could constitute in certain cases the delict referred to in can. 1390 §2, the duty of reparation also having to be taken into account (n.193).”

For more on this issue of publishing lists, see Michael J. Mazza, “Bona Fama in an Age of ‘Transparency’: Publishing Lists of ‘Credibly Accused’ Clerics, The Jurist, vol. 78, no. 2: 445-476 (2022).

-copyright Michael J Mazza, JD, JCD (2024)

Remember the ABCs:

 A: Say an “Ave Maria.”

In other words, ask Our Lady for assistance, knowing that neither she nor her Son will abandon you in your hour of trial, no matter what kind of trial it is. And don’t forget to call upon your guardian angel.

If you are falsely accused and are totally innocent, know that you are certainly not the first and very likely not the last to suffer this way. Offer it up, keep your wits about you, thank God, and move on.

If you have fallen by committing a terrible sin, know that it is infinitely better that you repent and try to make up for it on this side of the grave. Your priesthood was entrusted to you as a sacred gift from the Lord for the good of his Church. If you fell, you betrayed that trust and (likely) hurt other people. So be contrite, try to repair the wrong you have done, keep your wits about you, thank God, and move on.

And if you have fallen morally but not committed any canonical crime, remember that you have rights that must be respected, as do the people you may have hurt by your actions. So be contrite, do your penance, keep your wits about you, thank God, and move on.

B. Remember to “Breathe.”

As difficult as it may be to hear, remember that worse things have happened to better men than you. So keep this current trial in perspective. The Lord is allowing you to bear this Cross for a particular purpose, whether you realize it or not. Just try to relax, remember that whatever this trial involves it is only temporary, and breathe.

C. Contact Competent Canonical Counsel.

As discussed above, the timelines under canon law are very short. Prompt action is necessary if you want to protect your rights. As a practical matter, “an ounce of prevention is worth a pound of cure,” so before digging a hole for yourself, it is essential that you contact competent canonical counsel as soon as possible once you even suspect that you are being accused of some type of misconduct.

Even civil lawyers may be of great help in dealing with an accusation, but it is critical that they are familiar with canon law and the present situation in the Church lest they inadvertently make the situation much worse for you. If you value your priesthood, you do not want to “win the battle and lose the war.” In other words, you don’t want to so antagonize your bishop by “lawyering up” that you are never allowed back into public ministry.

-copyright Michael J Mazza, JD, JCD (2024)

Every situation is very fact-specific, and the advice of knowledgeable, experienced, and competent canonical counsel is of critical importance. That said, there are common landmines about which an accused cleric should be aware:

 1) Talking too much to the Diocese – Many priests believe that if only they have a chance to speak to the Diocese (i.e., the bishop, the vicar for clergy, the safe environment coordinator, the private investigator, etc.) then all will be well. The reality is that once a priest is accused, all too often the relationship between the priest and his diocese becomes adversarial, in which everything the priest may say “can and will be used against him.” Before speaking to anyone from the Diocese, it is critical to get sound legal advice. It is likely that the Diocese has spoken to its civil and canon lawyers, as well as lawyers from its liability insurance company, in situations involving accusations against priests.

 2) Talking too little to the Diocese – If you (or your canonist) are seen as completely uncooperative or even obstructionist, you might “win the battle but lose the war.” In other words, you might not be charged with a canonical delict, but you might never exercise public priestly ministry again for the simple reason that the bishop can’t trust you. He does, after all, have a right and a duty to look out for the rights and duties of all the faithful under his charge. So there is a delicate balance to be struck here, keeping in mind the possibility of making hierarchical recourse against a decree of the bishop with which you disagree. Again, having the assistance of competent counsel is an absolute must. As noted above, “cooperation with the process” might consist of you, with the assistance of such counsel, answering written questions that are provided to you in advance, submitting a written statement to the investigator, or simply stating at the outset of an interview that you categorically deny the accusations and that beyond that you have nothing more to say, as is your right under natural, civil, and canon law.

3) Making hasty decisions – St. Ignatius of Loyola famously counseled that decisions made in periods of great stress are seldom the best ones. Serious prayer and wise deliberation are necessary in weighty matters, even when time is of the essence, and there is absolutely no reason why someone should be forced to make an important decision on the spot, without an opportunity to consult competent counsel and to pray. Canon law recognizes that juridical acts performed out of grave fear unjustly inflicted, or as a result of deceit, can be rescinded by a judge in certain circumstances (cf. c. 125). If you find yourself in a situation where you feel you are being forced to make an important decision without proper preparation, you have every right to ask for at least a day to think and pray over the matter before deciding.

4) Signing a release for your medical records to be turned over – Under federal law (HIPAA), people have a right to keep their protected health information confidential and secure. This includes Catholic priests, who have a right under natural, civil, and canon law to keep matters relating to their mental health and internal forum confidential. That said, bishops also have a right and a duty to make sure they can trust priests whom they assign to various ministerial roles in the diocese. If a diocese demands that you release your protected health information to them, keep in mind that those records may very well be seen one day by many others inside the chancery, the diocesan liability insurance company, a state attorney general’s office, plaintiff’s lawyers, or even the media. The language of any releases should be carefully negotiated by competent counsel before signing.

5) Participating in an interview during a “preliminary investigation” – While an attractive option to many accused priests who simply want “to tell their side of the story” and “to clear up any misunderstandings,” speaking with trained and experienced investigators (often retired law enforcement personnel) is fraught with peril for a man who wants to return to ministry. Many times a priest’s situation is made much more difficult by speaking with someone who, whether intentional or not, is looking for any sign of misconduct whatsoever (even that which is not delictual) or any indication that a priest has contradicted himself. In most cases, the target of an investigation is interviewed last so that the interviewer may “catch” him in denying information the interviewer already knows from previous interviewees. This is often a no-win situation, and generally extremely stressful, so competent counsel should be consulted before agreeing to participate in any such interviews.

6) Disobeying the restrictions imposed upon you – Even though a priest may chafe against restrictions imposed upon him that he believes are unjust, there is a great deal to be lost and very little to be won by disobedience. Canon law provides that priests who disagree with a bishop’s administrative decision may seek hierarchical administrative recourse to the appropriate dicastery in Rome. If a penal trial occurs, church law also allows for appeals to a higher tribunal. Thus, there is no reason to panic or despair if the bishop’s initial decision appears to be negative. The important thing is to secure competent canonical counsel so as to take the appropriate next steps in the appropriate manner.

7) Seeking refuge in the civil courts – Many priests believe that if they don’t receive what they perceive to be a just result from the Church, they can easily turn to the civil sphere. While tempting, priests who believe that civil litigation will vindicate them should be careful. A short-term rush of publicity may satisfy the desire to make a stand in defense of one’s reputation, but the harsh realities of litigating defamation claims in the U.S. cannot be ignored. Significant hurdles exist under both civil and canon law, and competent counsel in both areas is a must before going down that path. For a discussion of some of these issues, as well as a survey of recent cases, see Michael J. Mazza, “Civil Suits by Catholic Priests: A Status Report,” in The Catholic World Report (4 April 2024), available at https://www.catholicworldreport.com/2024/04/04/civil-suits-by-catholic-priests-a-status-report.

-copyright Michael J Mazza, JD, JCD (2024)