Earlier this weekend the venerable Ed Peters published a post about latae sententiae penalties, those which a person incurs automatically, in which he restated his case for their abolition. As is his way, Ed Peters’ article was coherent and persuasive and his case stridently put.
I have some sympathy with his exasperation with the way in which penal law in the Church is often interpreted out of existence. It’s also true to say that an automatic excommunication on its own has very little effect on the person in question from a juridical standpoint, probably even less at the personal level. It is true that the effects of an automatic excommunication do not begin to gain real traction until the penalty is formalized, either by being imposed or declared (c. 1331).
But I’m not sure any of this lends itself to the abolition of automatic penalties. The question I’d ask Ed Peters, rhetorically mind you, I’m not suggesting he will or should take any notice of this post, is this: if they are abolished, what then?
I suspect the implied hope is that, absent the automatic penalty, bishops would have to start actually using formal penal processes again.
He’s right that formal penal trials have virtually disappeared from the canonical landscape at every level. It’s certainly true that bishops often prefer to side step thorny issues by pointing out that those who’ve unquestionably violated a law with a penalty of automatic excommunication attached “excommunicate themselves”.
I’d go a step further and say that many (perhaps most) bishops, at least in the English speaking west, find the whole idea of formally, publicly, sanctioning a member of the church (clerical or lay) supremely distasteful at the conceptual level. In many places the Church has internalized the Elizabethan cartoon image of hooded monks solemnly prodding weeping virgins with red-hot pokers in the name of doctrinal purity. Never mind that this was always pure political fiction and had no basis in reality, many bishops loath the thought of being seen as “inquisitorial”, or perhaps in the current style, “judgmental”.
This natural reticence was capitalized upon by a very real, very identifiable, school of canonical thought after Vatican II, which considers the very ideas of crime and punishment as alien to their ecclesiology (see previous post).
The result was the elimination, in practice if not in theory, of formal penal procedure at the diocesan level in favor of a more “pastoral” approach. Public crimes became “personnel issues”. Therapy sessions replaced trials. A life of prayer and penance was ditched for a stay in a treatment center. Remorse and conversion disappeared in the face of psychiatric evaluations and “emotional adjustment”, and it led directly to the abhorrent and horrific cycles of re-offending we saw in the clerical sexual abuse scandals. Only now are dioceses beginning to take the need for penal procedures seriously, and only for those matters which have been dragged to their attention.
To hope that removing automatic penalties will lead to more widespread use of formal penal processes is, I think, starry-eyed in its optimism.
A far more likely outcome is that any crime, apart from those reserved to the Holy See (including sexual abuse), would be effectively relegated to the internal, theological, realm of mere sinfulness. This would be a further, grave, hammer blow to the reality of the Church as a coherent society and not merely a religious community. Canon 1311 calls the power of the Church to punish a “birthright”, but it isn’t a mere privilege to be exercised at will, it’s a sacred obligation for the good of the whole community. If the Church spoke only of sin and never of crime, it would speak, by omission, of only the private/individual sphere of action and never the public/corporate. The Church has a public character and actions against it are crimes requiring public recognition and, when necessary, public censure.
Ed Peters is right in his post that, whenever a situation involving an automatic excommunication arises, the conversation quickly gets diverted down a canonical cul-de-sac. But at least the conversation is being had. If there were no automatic penalties there would simply be no conversation. I’m damn sure there wouldn’t be any more trials. Instead of a public debate of “are they or aren’t they” the conversation would start and stop with “have they been put on trial?” And the answer, especially if a lay person is involved, will be “No”.
The effects of automatic penalties do depend, in large measure, upon the penalty being formalized, either by declaration or by imposition. Yet even those obligations which come with an undeclared automatic excommunication have a public aspect. Taking an example: one who has incurred a latae sententiae excommunication cannot have any ministerial part in the celebration of the Eucharist (c. 1331 §1, 1º), yet, if the penalty is not declared, they are not bound to publicly observe it since this would risk their good name (c. 1352 §2). So a priest or bishop who incurs the penalty can still say mass publicly. This is reasonable; to force a person to effectively declare their own privately incurred penalty in public is to make them make a public manifestation of conscience, which is a big canonical no-no.
But, and it is a big but, the suspension of the penalty in public provided by c. 1351 depends upon the matter not being notorious (ibid). Notoriety in canon law comes in two forms: de iure notoriety and de facto notoriety. De iure notoriety basically means that the issue has been settled by a judicial proceeding, so we know that canon 1351 isn’t referring to this since we are specifically dealing with penalties which have not been formally declared or imposed. De facto notoriety is when an offence is so publicly known that it cannot be hidden or excused, in other words, people know and are talking about it.
So as a hypothetical, let’s posit that a Cardinal participates in the formation of a pact to commit votes to a certain candidate in an upcoming conclave and by doing so he incurs an automatic excommunication (UDG, 81). Let’s further suppose that, for a while, he keeps this information to himself. During this time he is not required to publicly observe the terms of his excommunication and can continue to say mass publicly. But let’s go one step further and pretend that our hypothetical cardinal relaxes after a few years and, perhaps overcome with smug self-satisfaction in preparation for a meeting of some kind, to which he has been inexplicably invited, he begins boasting of the fact in public, even suggesting his involvement in a book he authors. Enough people might come to know of this hypothetical cardinal’s hypothetical crime that he becomes notorious and bound to publicly observe his penalty. If he does not, public scandal has a legitimate claim for public clarification on the matter and some kind of recourse could be lodged.
It’s unlikely to go very far, for the reasons Ed Peters points out, but at least there is a mechanism for the voicing of public scandal. If, as has been suggested, automatic penalties were abolished, there would simply be no trial, no penalty and, so the public would be tacitly informed, no crime; and that would be a real scandal.
I would submit that, rather than placing our canonical hopes in some new zeal for chancery criminal trials, which are every bit as laborious and stacked against the interests of justice as Ed Peters describes, we take inspiration from the philosophy behind Mitis Iudex and the Holy Father’s recent reforms to the marriage nullify procedure. In this case we have been told, over and over again, that the purpose of the reforms is to streamline procedure without compromising the integrity of the process or damaging the interests of justice and truth. The short form marriage procedure introduced by Mitis Iudex seems, to me, to be remarkably similar to the process contained in the Code for a bishop to declare a penalty by extra- judicial decree (c. 1342, ). This process includes the bishop’s personal involvement (c. 1718), the use of advocates to safeguard the right of defense, and of two assessors to safeguard the interests of justice (c. 1720, 1-2º), and the ability to act quickly if the facts of the matter are manifestly clear (c.1720, 3º). This is often the case with excommunicable offenses; attempted women’s ordinations usually come with press packets, priests who break communion with their bishop often do so with civil legal proceedings.
At the risk of disagreeing with a canonist of Ed Peters’ standing, I’d prefer the tide to turn the other way entirely. I think it is the full judicial penal process which has had its day. I would prefer to see more, rather than fewer, automatic penalties in the Code, allowing bishops to proceed with the less procedurally burdensome process of declaring them by decree when the facts are evident, rather than having to convene what amounts to a show trial, offering endless opportunities for frivolous claims of diminished personal responsibility.
It’s well-known among canonists that Book VI of the Code of Canon Law (on penal law) is under a slow and laborious process of review and eventual reform and, I think, there is a very real chance that they might agree that latae sententiae penalties are out of step with the modern ecclesiology and remove them entirely from the Code. This was a very real school of thought during the drafting of the 1983 Code, and remains so today; I pray they do not get their way. If they do, I might as well resubmit my dissertation on penal law for an history degree.