Voice of the Faithful - In the Vineyard

COMMENTARY

Crimen Sollicitationis: Observations by Thomas Doyle, O.P., J.C.D. Observations by August 16, 2003

THE 1962 VATICAN INSTRUCTION “ CRIMEN SOLLICITATIONIS,” PROMULGATED ON MARCH 16, 1962

The recently revealed Vatican document outlining the procedures for dealing with cases of solicitation of sex by priest-confessors has caused a swell of alarm and surprise on the part of survivors, attorneys and others.
This document was issued by the Congregation of the Holy Office in March, 1962. It was presented by the Prefect, Alfredo Cardinal Ottaviani, to Pope John XXIII for the Pope’s approval. This is the normal manner of receiving Papal approval for documents of this nature. It was then sent to all the bishops in the world. The bishops were admonished to maintain strict secrecy about the document and ordered not to allow it to be reproduced or commented upon.
The document is essentially a set of procedural norms for processing cases of accusations against priests for soliciting sex while in the act of sacramental confession. Solicitation is an especially heinous canonical crime and one which results in severe penalties for those found guilty. Prior to the publication of this document such cases were processed according to the norms for penal judicial processes found in the 1917 Code of Canon Law. It is not known why the Vatican officials deemed it necessary to issue special procedures for the crimes included in this document. The fact that the new instruction was issued does not necessarily indicate a rise in cases of clergy sex crimes but could indicate a heightened concern.
The document, known as an “Instruction,” was sent to every bishop in the world; yet detailed awareness of its contents has been limited. In fact it is probably accurate to assume that the majority of bishops in today’s church as well as the majority of canon lawyers, were probably unaware of the Instruction’s existence until it was mentioned in the recent Letter on dealing with More Grave Delicts, issued by the Congregation for the Doctrine of the Faith, May 18, 2001 (Sancitatis Sacramentorum Tutela). It has come under discussion by canon lawyers and Vatican officials on several occasions in the past few years. Nevertheless the secrecy under which the document was originally distributed has possibly resulted in such restricted awareness.
This document was issued before the Second Vatican Council had taken place and before the revision of the present Code of Canon Law. The Vatican practice of issuing special procedural rules for its various courts or tribunals is not unusual. It is also not unusual to have a special document issued for a specific type of problem which in this case was solicitation of sex in the context of sacramental confession.
Title V of the document includes the crimes of sexual contact with same sex partners, sexual contacts with minors and bestiality which are also to be processed according to these special norms. The document does not imply that these crimes were to have been perpetrated through solicitation in the confessional. It included them under the title “The worst crimes” and presumably because of their serious nature, they were included under these special procedural norms. The norms of Crimen were thus established as the obligatory procedures for prosecuting cases of four separate and distinct canonical crimes, namely, a) solicitation for sex in the act of sacramental confession, b) homosexual sex, c) sexual abuse of minor males or females, d) bestiality or sex with animals. It is therefore incorrect to state that the norms and procedures of Crimen Sollicitationis are applicable only to cases of solicitation for sex in the confessional.
It must be noted that these types of sexual crimes were already included in the Code of Canon Law (1917 version). Solicitation is covered in canon 2368, 1 and sexual contact with minors and bestiality in canon 2359, 2. Ordinarily the prosecution of these crimes would be processed according to the procedural laws of the Code. The 1962 document provided special norms with an added emphasis on confidentiality because of the very serious nature of the crimes involved. It may seem to be some sort of clandestine plan but in fact it is an expansion with added detail, of the procedural laws to be followed. The existence of this document also clearly proves that the highest Catholic Church authorities were aware of the especially grave nature of the clergy sexual crimes considered. This of course makes it difficult for any Church leader to credibly claim that the problem of clergy sexual abuse was an unknown quantity prior to 1984.
The Instruction specifically states that those involved in processing cases under these norms are bound by the Secret of the Holy Office. Violation of the secret resulted in automatic excommunication, the lifting of which was especially reserved to the Holy Father. In fact, this represents the highest degree of Vatican secrecy which is imposed for the most serious processes and situations. The Instruction imposes the same oath of secrecy on the accuser and on witnesses but states that the penalty of automatic excommunication is not imposed. However this or other penalties may be imposed on the accuser or witnesses should the church authority handling the case deem it necessary.
The secrecy that was (and still is) imposed on parties and witnesses in canonical proceedings is intended to assure witnesses that they can speak freely. It is also intended to protect the reputations of the accused and accuser until guilt or innocence is determined. The almost paranoid insistence on secrecy throughout the document is probably related to two issues: the first is the scandal that would arise were the public to hear stories of priests committing such terrible crimes. The second reason is the protection of the inviolability of the sacrament of penance.
According to the document, accusers and witnesses are bound by the secrecy obligation during and after the process but certainly not prior to the initiation of the process. It seems to be stretching a bit too far to conclude that this process is a substitute for civil law action or is an attempt to coddle or hide clergy who perpetrate sex crimes. The document was written in 1962 in a style and within an ecclesiastical context common for that pre-conciliar age. It is also a legal-canonical document written in highly technical language. The translation, though basically accurate, is also strained and awkward which can lend itself to misunderstanding.
To fully understand the concern for secrecy one must also understand the traditional canonical concept known as the “privilege of the forum” or “privilegium fori” which has its roots in medieval Canon Law. Basically this is a traditional privilege claimed by the institutional church whereby clerics accused of crimes were tried before ecclesiastical courts and not brought before civil or secular courts. Although this privilege is anachronistic in today’s society, the attitude or mentality which holds clerics accountable only to the institutional church authorities is still active.
Although the objective reasons for the extreme secrecy may be understandable within the context of the time it was written, the obsession with secrecy through the years has been instrumental in preventing both justice and compassionate care for victims. It has enabled the widespread spirit of denial among clergy, hierarchy and laity. The secrecy has been justified to avoid scandal when in fact it has enabled even more scandal.
The press reports quote several church sources which state that this document is obscure and probably had remained unknown to the vast majority of bishops and church bureaucrats until it was cited in the new norms issued in 2001. Though the document may have been unknown to many in Church authority positions in recent years, there is documentary evidence that it was used in the prosecution of cases of clergy sexual misconduct in the past. Several clergy files from dioceses around the country have contained documents which referenced Crimen Sollicitationis.
The1962 document reflects a secretive attitude with regard to internal church matters that is understandable for the time it was written, but is no longer acceptable as the preferred way of dealing with such heinous crimes. These crimes have a profound impact on the lives of the victims, yet this impact can become lost in the concern for confidentiality. The obsession with secrecy causes denial to flourish. Certainly the institutional church and its clergy and hierarchy would have been deeply embarrassed in 1962 were the public to have learned of clergy sexual crimes. This embarrassment should have been endured because it is nothing compared to the spiritual, emotional and physical devastation of the victims.
Nevertheless we cannot accurately interpret and criticize this document solely by our contemporary standards based on the institutional church's handling of clergy sex abuse cases over the past few years. It is dangerous to isolate the document and strain to make it more than what is was intended to be for in so doing the meaning of the document and the actual intention of the framers can become distorted.
The institutional Catholic Church has been criticized for having a culture of secrecy, especially with regard to clergy sexual misconduct. Such secrecy in these matters has not been the constant practice of Church leadership since its own official documentation from the past demonstrates that official attempts to curb violations of mandatory clerical celibacy were regularly published to all. For example, the Apostolic Constitution Sacramentum Poenitentiae, issued by Pope Benedict XIV in 1741, was included in the 1917 Code of Canon Law. The next official document dealing with solicitation in the confessional which applied to the universal Church was a set of procedural norms similar to those contained in the 1962 document. This document was issued in 1922 and was shrouded in total secrecy. It appears that the obligation of secrecy on such cases was imposed by Pope Pius IX in 1866. The official document that imposes the secrecy was published on February 20, 1866 by the Sacred Congregation of the Holy Office in the form of an “Instruction”. This instruction provided clarification on certain aspects of the previous papal constitution dealing with solicitation in the confessional,
Sacramentum Poenitentiae (1741) of Pope Benedict XIV. The actual text is as follows:
The 1962 document and its predecessor from 1922 are not proof of an explicit world-wide conspiracy to cover up clergy sex crimes. It seems more accurate to assess both statements as indications of a policy of secrecy rather than a conspiracy of cover up. This policy, whether it has ever been officially published as such or not, has been deeply rooted in the ecclesial culture for centuries. The documents under consideration are a product of that culture. They did not create it.
On the other hand, there are too many authenticated reports of victims having been seriously intimidated into silence by church authorities to assert that such intimidation is the exception and not the norm. It is quite possible that most of the bishops who have served during the past thirty years were not aware of the existence of the 1962 document until it was publicly acknowledged by the Vatican in 2001. The cover-up happened whether or not bishops were aware of the 1962 document. It was and remains grounded in a culture of secrecy, clericalism and institutional self-preservation. The 1922 and 1962 documents did not create this culture. They arose out of it and gave legal force to the culture of secrecy. If the 1922 and 1962 documents have been used as a justification for any cover-up or intimidation then we possibly have what some of the more critical commentators have alleged, namely, the distinct appearance of a blueprint for a cover-up.
Crimen Sollicitationis remained in effect until 2001. The Vatican published a new set of procedures in 2001. Two official documents were issued. The first was an apostolic letter of Pope John Paul II, known by its Latin title Sacramentorum sanctitatis tutela, by which the actual norms were promulgated. This letter, dated April 30, 2001, was followed on May 18, 2001 by an official document that set forth the norms. This latter document was signed by Cardinal Josef Ratzinger, prefect of the Congregation for the Doctrine of the Faith. Both documents refer to certain serious canonical crimes and among those is sexual abuse by clerics. These documents represent revised procedures to be used by Bishops and major religious superiors in response to allegations of clergy sexual abuse.
Clergy sexual abuse issues are handled by the Congregation for the Doctrine of the Faith, a major department of the Vatican administration. This has been the case since the 18th century although the name of the present congregation has been changed twice during this period. It was first known as the Congregation of the Holy Inquisition. It later became known as the Congregation of the Holy Office and after Vatican II, the Congregation for the Doctrine of the Faith. Cardinal Ratzinger, presently Pope Benedict XIV, had been the prefect, or head, since 1981. Although he signed the letter containing the revised norms and quite possibly had a direct role in drafting it, the procedures themselves had to be approved or promulgated by the Pope for validity and effect.
There is also an over-riding omission in both the 1962 document and its descendant, the 2001 declaration. Both documents concentrate on prosecuting the alleged offenders and protecting the institutional church from the fallout of public knowledge of the crimes. Neither document approaches the far more challenging and important task of pastoral care and spiritual healing for the victims of these crimes. There is no evidence that the official Church ever issued any norms, guidelines or instructions on the pastoral care of those harmed by clergy sexual abuse.
In light of the controversy that these documents have prompted, it is essential that they be properly understood before they are used as evidence of either criticism or affirmation of the policies and practices of the Catholic Church.
Yet it is not difficult to see why so many have seen in the 1962 Vatican Instruction a "smoking gun." Over the past 18 years but especially since January 2002 we have witnessed wave after wave of deception, stone-walling, outright lying, intimidation of victims and complex schemes to manipulate the truth and obstruct justice. If anything we have watched as the culture of secrecy ended up causing much of what its proponents hoped it would prevent. The Vatican document did not cause the clandestine mode of dealing with clergy sex abuse. Rather it reflects it and should be a strong reminder that there is a much more important value than protecting the institutional church and its office-holders and that value is the creation and nurture of an attitude and aura of openness and honesty wherein true justice and compassion can flourish as the most visible of Catholic virtues.
The reasons for the seemingly perennial problems of clergy sexual abuse and its cover-up will not be found in Church documents alone. One must delve deeper than the documents into the very nature of the ecclesial culture. The documents are indicators but not the cause of clergy sexual abuse nor are they the foundation of the official Church’s response to such abuse.

NEWS Update:

John Allen offered his own concise perspective in a 2003 National Catholic Reporter commentary, which is available on the BishopAccountability.org website.

The recent BBC documentary can be viewed here.
To read Crimen Sollicitationis, click here and click on the second listing on the page.
The later document, dated 2001, can be found here – “Letter Explains New Norms for Vatican Handling of Certain Grave Offenses”.)

According to the Telegraph.co.uk website: “The documentary, called ‘Sex Crimes and the Vatican’, purported to reveal how the future pope, then Cardinal Joseph Ratzinger, issued ‘a secret Vatican edict’ to instruct the world's Catholic bishops to put the interests of the Church before the safety of children.” Read more.