By Ed Condon
Washington D.C., Apr 11, 2019 / 15:45 pm
After the April 11 publication of a new essay by Pope Emeritus Benedict XVI, commentators are mostly discussing their perception of the politics surrounding the release, or Benedict's assessment of the sexual revolution and its relationship to the crisis.
But lost in that discussion is the immediate practical application of the document, which articulates a theology of law that seems to support the 'zero tolerance' approach to addressing sexual abusers in the Church, which Pope Francis has long endorsed, even while he has not yet arrived at a practical way of delivering it.
At the heart of his new argument, the former pontiff insists that the purpose of punishing the perpetrators of sexual abuse is the salvation of souls, which is the highest law of the Church.
Recalling that, in the 1980s, the crisis of abuse began to reach Rome after decades of building at the diocesan level, Benedict's essay explained that there was in Rome a double failure of law and theology, which left both victims of abuse and the faith itself unprotected.
While the previous Code of Canon Law contained a long list of specific crimes a cleric could commit - including a litany of sexual delicts - "the deliberately loosely constructed criminal law of the new Code" of 1983 offered a much pared down set of penal norms, Benedict argued.
He added that in accord with a prevailing ecclesiology at the time there also emerged among many canonists and bishops a false dichotomy between justice and mercy, in which mercy was seen to pre-empt and exclude the former, rather than following and tempering it.
Benedict highlighted the emergence of a kind of legal "guarantorism," in which the rights of the accused seemed to be afforded the central concern of the canonical process, often at the expense of victims, restorative justice, and the public good.
Temporary suspensions and stints in therapy for abusive clerics were treated as adequate punishment, and local bishops were left with abusive priests they were expected to rehabilitate.
Under Pope St. John Paul II, reforms to the process began, starting with Rome's decision to raise the canonical age of majority for these cases to 18, and to extend the canonical statute of limitations. The reforms under Pope St. John Paul II culminated in 2001, when Sacramentorum sanctitatis tutela established new legal norms for the handling of "major crimes" against faith and morals in canon law.
Among the most crucial of St. John Paul's reforms was, Benedict noted, the transfer of competence of sexual abuse cases from the Congregation for Clergy to the Congregation for the Doctrine if the Faith. This change was not, the pope emeritus explained, a merely bureaucratic move, but one rooted in a proper understanding of the nature and gravity of the crime of sexual abuse.
Benedict said the decision was a recognition that sexual abuse of minors is a crime against the immediate victim, and against the faith itself.
Certainly, the experience of recent decades appears to bear out the effect of the sexual abuse scandals on the faith all of Catholics, at least some of whom have lapsed in the practice of the faith following the sexual abuse crises.
This does not suggest that Benedict's essay ignored concern for the right of defense. Instead, Benedict argued that "a properly formed canon law must contain a double guarantee - legal protection of the accused, legal protection of the good at stake."
The idea that there is a legal necessity to defend the "good of the faith" in sex abuse cases will likely prove the most important contribution Benedict will make to the ongoing progress of reform.
Benedict's essay articulated its own version of "zero tolerance" in that framework, noting that "Jesus protects the deposit of the faith with an emphatic threat of punishment to those who do it harm."
Presenting sexual abuse as a crime against the soul, not just the body, and recognizing that it can have cascading tiers of victims, refocuses the legal process through the lens of its most quoted maxim: "salus animarum suprema lex est."
Benedict seems to argue that if the salvation of souls is the Church's highest law, the protection of the faith should be understood as a legal good at least as important as protecting the rights of accused abusers.
(Story continues below)
From that vantage point, Benedict observed that there is much legal reform still to be done, and that Pope Francis is rightly carrying it forward.
Much of the ongoing discussion has centered around what other kinds of sexual misconduct, in addition to the abuse of children, should be canonically criminalized.
Some prominent bishops have insisted on distinguishing between the sexual abuse of minors and sexual misconduct between adults, arguing that potentially consensual sexual misconduct by clerics should not be accorded the status of a major crime. In light of Benedict's essay, some are now likely to see in that approach the juridic framework that Benedict described as guarantorism.
But other bishops, including Cardinal Séan O'Malley of Boston, have emphasized the importance of seeing sexual abuse of clerical power treated with the same gravity as abuse of a minor.
The pope seems to be thinking along the same lines as O'Malley, demonstrated by his recent expansion of the definition of a "vulnerable adult" in the canonical norms of the Roman Curia and the Vatican City State.
Benedict's theology of penal law, which holds at its center the crimes against the faith of the Church - and of the victims of abuse - offers a powerful rationale for Pope Francis' action.
"Whoever causes one of these little ones who believe in me to sin, it would be better for him if a great millstone were hung round his neck and he were thrown into the sea," Benedict quotes from the gospel.
These little ones, the Pope emeritus wrote, are not only those who physically suffer abuse but also the "common believers who can be confounded in their faith," be they children or adults.
'It is important to see," Benedict says, "that such misconduct by clerics ultimately damages the Faith."
Set against this understanding of the depth of sexual abuse as a crime both physical and spiritual, Pope Francis' ongoing efforts to articulate legally the policy of "zero tolerance" may find a renewed impetus.
Such a policy, Benedict has now argued, is essential to the salvation of souls.
