There exists in the Church a way of ending procedures for
abuse of minors that does not involve a sentence, does not establish
facts, does not hear the victim and leaves no public trace.
In
my brief period providing legal defense for some victims of sexual abuse
by clerics, I have come up against a practice unthinkable in any other
sphere.
The investigated cleric requests from the Pope the dispensation
from clerical obligations; if granted, the criminal process stops there.
According to internal data from the Dicastery for the Doctrine of the
Faith itself, 1,058 of the 6,236 cases registered between 2012 and 2020
ended this way—one in six.
Behind each of these files is one or more
persons who reported having been abused in their childhood and to whom
the Church never said whether it believed them. Investigating this
absurd and scandalous practice in depth, I discovered that it is not a
bureaucratic anomaly or an improvisation by overwhelmed dioceses.
It has
a written doctrinal justification, published in a top-tier academic
journal and signed by one of the men who apply it: Monsignor Jordi
Bertomeu Farnós, an official of the Disciplinary Section of the
Dicastery, Pope Francis’s envoy to Chile and Peru, pontifical
commissioner of the Sodalicio, and one of the main promoters of this
catastrophic legal concept that, to this day, is being applied (I will
explain why I believe irregularly) by the Dicastery of Cardinal Victor
Manuel Fernández. His 2021 article is today the theoretical support for a
practice that causes scandal even among high-ranking Vatican judicial
authorities.
The text is titled “The CDF’s praxis on the dispensation from clerical obligations: n. 157 of the Vademécum” and was published in Ius Canonicum, the canon law journal of the University of Navarra (vol. 61, no. 122, 2021, pp. 733-765; DOI 10.15581/016.122.004).
It is open access and continues earlier work by the same author in the
same journal. Who writes it matters: an official of the body that
decides, with access to figures no one else knows, who describes the
practice of his own office and concludes that it is legitimate. That
turns the article, more than a study, into the unofficial defense of a
system of silence and impunity.
What Bertomeu maintains
The point of support is n. 157 of the Vademécum of 2020, which recognizes the accused, “from the moment notitia de delicto is received,” the right to ask the Holy Father for dispensation from all clerical obligations, including celibacy. The Vademécum
stops there: it recognizes a right to request, and says nothing about
what happens to the ongoing criminal process. It is Bertomeu who takes
the next step, and he takes it in the very summary of his article:
“Although it interrupts the investigative proceedings or the ongoing process without reaching a conclusion regarding the guilt or innocence of the accused, the processing before the Holy Father of this grace is legitimate because of the protection of various legal goods in the delicta graviora from the prevalence of the principle of the bonum commune in the Church” (p. 733).
He reiterates it in the body of the text with the same clarity: the
CDF allows the accused to request the grace “at any moment of the
investigative or procedural proceedings,” and “the acceptance of said
request, moreover, entails the interruption of the ongoing penal procedure”
(p. 749). The thesis, therefore, is that the accused can stop his own
process by asking to cease being a priest, and that the Church does well
to allow it for the “good” of the Church itself.
What Bertomeu knows
What makes the article especially serious is not that it defends this
thesis, but that it defends it knowing exactly what it implies.
Impunity and victims left unattended without reparation. Bertomeu does
not ignore any of the objections; he sets them out himself, with
juristic precision, before discarding them. It is worth following the
thread of his admissions.
The article begins by acknowledging that there is no law that supports what it describes. The institute “is not expressly contained in any legislative text on the delicta reservata” (p. 741), and the Vademécum
on which it is based “does not constitute a further legislative reform”
nor is “a normative text” (pp. 740-741).
To overcome the obstacle, he
proposes that “notwithstanding the non-normative character of the
Vademécum, the content of n. 157 can be considered as a praxis with
normative value because of the specific endorsement of the Roman Pontiff
to each granted dispensation” (pp. 741-742). In other words, a rule
that is nowhere acquires the force of law because it has been applied
many times with papal signature.
No serious legal system, and canon law
should be no exception, admits that in penal matters the repetition of
singular acts creates law: the law exists when it is promulgated (can. 7),
penal norms are interpreted strictly (can. 18) and the praxis of the
Curia only fills gaps and never in matters of penalties (can. 19).
Bertomeu knows these canons. He cites them. And despite them he
constructs the plan of evading the process through dispensation.
He continues by acknowledging what happens to the victims: the
interruption “not only avoids reaching an authoritative declaration on
the guilt or innocence of the accused, but inevitably entails that the alleged victim cannot see the harm caused by his or her aggressor repaired”
(p. 751). Inevitably. The author of the thesis describes its effect on
the victim with the word that best defines it, and maintains it.
He also acknowledges that he finds no reason that would justify the
grace. Every canonical dispensation requires a just and reasonable cause
(can. 90 §1), and Bertomeu himself recalls, citing Urrutia, that
without it “it could even be invalid” (p. 742). Despite this, he admits
that “the difficulty remains of indicating what the just and reasonable
cause may be that allows this gracious concession without prejudice to
justice” (p. 751). He therefore maintains the legitimacy of an act whose
condition of validity he confesses he cannot identify with certainty.
He also acknowledges that all this occurs in secret. “Unlike other
tribunals such as the Roman Rota, the CDF does not publish its
decisions,” which “leaves important formal (procedure and processing)
and material aspects in the dark” (pp. 738-739). He writes this as an
official of the body that does not publish, in a text that begins by
invoking the “transparency, responsibility and accountability” of the
February 2019 summit, and that immediately afterwards justifies a
practice that lacks all three.
And he acknowledges, with figures that few can provide, that this is
not an exception. “If between 2012 and 2020 6,236 cases were registered
at the CDF, 1,058 concluded with the granting of a dispensatio ab oneribus,
with an annual average of 117, that is, 17% of the total” (p. 750);
dispensations went from 79 in 2012 to 179 in 2020, more than double in
eight years. T
ranslated: more than a thousand cases of abuse of minors
that reached the Church’s supreme tribunal have been closed without
anyone establishing what happened, and the pace is increasing, including
the controversial dispensation of Leo XIV to Eleuterio Vásquez, the
priest from Chiclayo whom he himself should have investigated.
Behind
those thousand files are, at minimum, a thousand people who reported and
received no response. Probably more than one per file. Thousands of men
and women, in any case, to whom the very system that encouraged them to
report later denied them truth and reparation in exchange for a poor
legal trick.
Finally, Bertomeu records in a footnote the most devastating
objection against his own thesis, formulated by canonist Luis Navarro:
“it would be more coherent that a crime not receive a grace; otherwise
one could think that, to obtain exoneration, the path is to commit a
crime, which would certainly be a cause of scandal among the faithful”
(note 65).
The citation is devastating, but the author does not answer
it. It is difficult to find in canonical literature a clearer example of
an author who sets out the argument that refutes his thesis and
continues as if he had not read it.
Why his justifications do not hold
Faced with the objection that the praxis injures the principle iustitiam restituere, Bertomeu offers four reasons (pp. 758-760). None withstands analysis.
The first is that the victim “always has the possibility of claiming
the injury suffered before state judicial authorities,” which would be
“the optimal forum.” The argument is unsustainable from the Church’s own
law, and it is so for three reasons the author cannot ignore. The
Church reserves to Rome competence over these crimes precisely because
it claims to protect its own legal goods; it cannot claim jurisdiction
for itself and, when it decides not to exercise it, send the victim
elsewhere.
The article itself explains, a few pages earlier (p. 752),
that the Church extended its prescription periods because victims of
abuse take decades to be able to speak and civil periods have usually
expired, so the “optimal forum” to which he refers is, in most cases, a
closed forum, and Bertomeu knows this when he writes the sentence.
And,
above all, there is something no state court can judge: the
responsibility of the bishops and superiors who received the report and
managed it poorly, which since Vos estis lux mundi
(art. 1 §1 b) is canonically prosecutable but can only be established
on previously clarified facts. When the main case is closed without
determining the facts, the responsibility of the entire chain of command
remains beyond examination forever. This is the most serious effect of
the praxis and the one least explained: it not only frees the accused,
but shields those who protected him, transferred him or looked the other
way.
A practice that produces this result in one out of every six cases
is not an instrument of flexible justice. In its objective functioning,
it is a mechanism of institutional cover-up, regardless of the
intention of those who designed it.
The second reason is that the cleric, by requesting the dispensation,
“has implicitly acknowledged himself unfit for the ministry.”
But a
tacit confession extracted from an act that the Vademécum
itself qualifies as a right, without legal assistance and without any
proof, is not a declaration of facts nor does it serve anyone: it does
not give the victim the truth, it does not give the innocent accused
acquittal and it leaves the community with a suspicion that the rescript
itself allows the bishop to divulge, “the fact of the dispensation” and
“the canonical cause” (note 52), without anyone having judged it.
The
third reason, that the Ordinary can supervise the dispensed, repairs
nothing and moreover presupposes that it is known what he must be
supervised for, which is precisely what has not been investigated.
The fourth reason is the one that reveals the core:
“Fourth and last, because it is not trivial to consider
that penal cases in the canonical forum do not always conclude with a
conviction of the accused. Because of an allegedly excessively guarantee-oriented sensitivity and making use of procedural formalities,
there is considered in this regard a certain ecclesial unease over some
rulings of the last seven years, in hierarchical appeal, of reformatio in melius when not directly of acquittal or of a dismissory decision” (pp. 759-760).
An official of the tribunal that judges abuses justifies a way to
avoid trial because the trial, with its guarantees and formalities,
sometimes acquits or reduces the penalty. The process is dispensed with
not despite the fact that it may end in acquittal, but because it may
end in acquittal. The reasoning is incompatible with the very idea of a
process, which exists precisely so that the result is not decided before
it begins.
And it is, moreover, the confession that the practice does
not pursue justice but a result: to remove the priest without having to
prove anything. What Bertomeu calls “excessively guarantee-oriented
sensitivity” is what in any civilized legal order is called the right to
a fair trial. That an official of the Dicastery should describe it as
an obstacle should concern anyone, beginning with priests themselves.
What the law of the Church provides
None of this requires invoking principles foreign to the Church. The
Code suffices. Dispensation (cann. 85, 290, 3º, 291 and 292) is an act
of grace regarding the cleric’s personal status: it frees him from
celibacy and causes him to lose clerical state. The causes of extinction
of the canonical penal action are limited, and they are prescription
(can. 1362) and the death of the accused.
Dispensation is not among
them, and cannot be by way of practice, because the Code has expressly
shielded penal and procedural laws against singular relaxation (can. 87
§1). What Bertomeu presents as “originality of the canonical order” is,
in reality, the attribution to an act of grace of an effect that the law
does not give it, over an object—facts and their reparation—that is not
its own.
The Code also recognizes concrete rights for victims that the
practice nullifies. The right to claim before the ecclesiastical forum
(can. 221 §1). The right to reparation of damage (can. 128). The right
to exercise the action for damages within the penal trial itself (can.
1729 §1), an action that disappears with the trial. And the right to be
heard before the authority issues an act that injures their rights (can.
50).
In the praxis Bertomeu describes, the victim does not intervene,
is not heard, and often knows nothing until informed that everything has
ended. Reparation is reduced to the clause of the rescript by which the
dispensed person is obliged to repair “onerata conscientia,” in conscience (note 53). An obligation that exists only in the conscience of the accused cannot be demanded by anyone.
And the Code, in its reformed version, points in the opposite direction to the thesis. The article relies on Pascite gregem Dei
(2021) for its theory of legal goods, but omits that that same reform
turned into a duty what was previously a faculty: can. 1311 §2 obliges
to protect the good of the community “etiam poenarum irrogatione vel declaratione” and can. 1341 replaces “curet” with “promovere debet.”
The legislator wanted the prosecution of these crimes to be obligatory.
The praxis Bertomeu defends makes it optional at the will of the
accused. Against all this, recourse to the “common good” and to salus animarum
(can. 1752, which is the closing norm for the transfer of pastors, not a
clause to extinguish penal actions) proves too much: with the same
common good it is maintained that the Church must judge to the end, and
with the same salvation of souls it is required that the victim know the
truth. A principle that serves for one thing and its contrary justifies
nothing.
What the Church has promised
If the contrast with internal law is serious, the contrast with the
Church’s external commitments is even more serious, because it affects
its given word. The Holy See ratified the Convention on the Rights of
the Child in 1990, whose article 19 obliges the establishment of
“effective procedures” for investigation and judicial intervention in
cases of abuse, and whose articles 34 and 39 require protection against
sexual abuse and reparation for victims.
In 2014, after examining the
Holy See, the Committee on the Rights of the Child
pointed precisely to the internal management of cases, the silent exit
of clerics without purging of responsibilities and the lack of
cooperation with civil authorities, and demanded complete
investigations, accountability of perpetrators and superiors and
transparency. The Committee against Torture formulated analogous demands
that same year.
A praxis that closes one out of every six cases without
completed investigation, without declaration of facts and without
enforceable reparation, at the request of the accused himself, is not a
debatable interpretation of those commitments: it is their negation.
And
Bertomeu, who appeals to the criteria of an “increasingly egalitarian,
democratic and guarantee-oriented society” as the horizon of ecclesial
reform, does not mention the Convention in thirty pages.
The same occurs with the concordats. States guarantee the Church the free exercise of its jurisdiction, as does the Agreement on Legal Affairs with Spain
of 1979 (art. I) after the suppression of the privilege of jurisdiction
in 1976, or the Agreement with Peru of 1980 (art. I), which Bertomeu
himself invoked in ABC
to explain his action in the Sodalicio. That guarantee has a
presupposition: that jurisdiction is exercised.
States do not recognize
autonomy to the Church so that its tribunals can be halted by the person
under investigation, nor so that it can refer victims to civil courts
it knows are time-barred. When the Church claims the concordat as a
shield against interference and, at the same time, uses dispensation to
avoid judging, it is employing autonomy in both directions at once: to
exclude the State and to fail to do what the State has recognized its
right to do.
In 2019 Francis gathered the presidents of the episcopal conferences
under three words—transparency, responsibility and accountability; that
December he suppressed pontifical secrecy in abuse cases; in 2021 he
made prosecution obligatory. Bertomeu cites the first of those
milestones as the framework of his article. The practice he defends
breaches all three.
A fissure with a name
Through Bertomeu, the Dicastery for the Doctrine of the Faith
presents the praxis of dispensation as “flexibility of the law of the
Church, whose supreme law is the good of souls.”
What his own article
documents is an escape route available from the first day of the
investigation, activatable by the accused, processed without the victim,
decided without motivation, non-appealable (cann. 333 §3 and 1732),
unpublished, without recognized legal basis, without identifiable just
cause, with a reparation in conscience that no one can demand, that
refers victims to a forum it knows is closed, that makes unverifiable
the responsibility of superiors and that has been applied to more than a
thousand cases with an alarmingly increasing trend.
Each of these
features, taken in isolation, would already be a serious defect. Taken
together, they describe a system that produces impunity for the accused,
cover for those who managed him and silence for the victims, and that
presents itself as an act of mercy. That the one who theorized it should
be the canonist whom Rome sends to administer justice in Chile and
Peru, and that he should have done so in a university journal with all
academic cautions, does not make it any less scandalous.
High-ranking Vatican judicial officials have maintained to
InfoVaticana that the dispensation affects the cleric’s personal status,
not the Church’s duty to clarify the facts, repair the victims and
purge the responsibilities of those who managed the file.
Perhaps the
last word has not been said regarding this procedural trick that is
causing so much harm to thousands of people. That reading, and not the
one in Jordi Bertomeu’s article, is the only one compatible with the
Code, with the 2021 reform, with the Convention on the Rights of the
Child and with the concordats.
And it is the one that should prevail
wherever, invoking the doctrine analyzed here, those who reported are
informed that their case has concluded because the accused has ceased to
be a priest. The dispensation may be the end of a ministry. It can
never be the last word on facts that no one has wanted to judge.
