Contemporary tribulations of the Church penal law
On 5 October 2021, the “Sauvé Commission”, that is the French Independent Commission on sexual abuse in the Church in France between 1950 and 2020 (CIASE), published its report after three years of investigation and at the request of the French Conference of Bishops. Emotion ran high and the media lynching was skillfully orchestrated. The list of 45 recommendations drawn by the commission includes a few inanities such as exceptions to the secret of confession. Mgr de Moulins-Beaufort, President of the French Conference of Bishops, reacted immediately by reminding that sacramental secrecy was stronger than the laws of the Republic, which resulted in a crisis leading Bishop Beaufort to repent to State authorities as ecclesiastics often do, with total disregard for canon 1311.
The spirit of the Council
Let us leave these schemes behind, though, to look at the causes of the original dysfunctions of the penal law of the Church for more than fifty years (which concerns, it is important to note, firstly delicts against the Faith… secondly delicts contra sextum). For that, we will rely on the analysis of the crisis of efficiency of the canonical penal legislation from Etienne Richer, Priest and Honorary Dean of the School of Canonical Law of the Catholic Institute of Toulouse, France. The report is harsh: “If the Church has no mission to punish, and a fortiori even less to punish for the sake of punishing, yet she ought not to ignore the delicts when the offenders are her own members. To leave unpunished or not followed with proportionate measures demeanors incriminated by canonical legislation would amount to a miscarriage of justice at the expense of the victims, whether they are persons or institutions. The Church has also no mission […] to let faithful in her mist be the subject of accusations […] without discerning all the ins and outs and without making sure the natural right of the defense is guaranteed and legal proceedings carried out fairly. Between permissiveness and rigorism is where law and justice reside.”
The Apostolic Constitution Sacræ disciplinæ leges of 25 January 1983 notes that the new Code for the Latin Church “has enacted the spirit of the Council. […] In a particular sense, one could even see in this Code the big effort made to translate in a canonical language this very same doctrine of the conciliar ecclesiology. […] As a result, what constitutes the main novelty of the Vatican II Council, in the continuity with the legislative tradition of the Church, particularly in regards to ecclesiology, constitutes also the novelty of the new Code.” Among the elements which characterize this ecclesiology is the doctrine of the Church as communion. That is why theologians, historians and canonists were designated to participate in the complete revision of the 1917 Corpus of canonical laws which were still in place after the Council: the works which preceded the new Code had to find their inspiration in the Council once completed. Therefore, it is necessary to start again where it was left, not so much in terms of the writing of this long and complex endeavor but in terms of the very substance of the penal laws elaborated under the inspiration of the doctrine of the Church as communion.
Etienne Richer sets the tone in his book on the crisis of efficiency of penal law in the Church: “The years immediately following the Council, which were also the years when the revision of the code was taking place, were particularly marked by the reinforcement of a movement which, carried by a sort of strong idealistic vision of the ecclesial communion, had a tendency to rather push to the side the disciplinary, normative and institutional aspect of the Church as well as its life to the point of leaving very little space to discipline and law in general and, a fortiori, to anything which has to do with sanctions in particular.”
The diminished state of penal law in the Code of 1983
The Code of 1983 is limited to 89 canons and two parts in its Book VI dedicated to Sanctions in the Church, excluding any doctrinal definition. In comparison, the Code of 1917 talked of penal law in 220 canons and three parts in its Book V on delicts and penalties. The subject was therefore revised quite a bit from one Code to the other with a particular attention given to the pastoral usefulness of penal law, supported by the momentum of the “pastoralist” movement of Jesuit Peter Huizing and the review Concilium. Exceptions to the law, possible non-recourse to trials and canonical sanctions, reduction of legal formalities, those three alone, have a pastoral importance.
But, they were forgetting that justice, general norms, trials, and sanctions, every time they prove to be necessary are required in the Church for the good of souls. Canon 6 of the new Code had expressly abrogated all other penal law previously in existence. Preparatory works took a long time and transcripts of discussions could be found in the review Communicationes published by the Pontifical Council for Legislative Texts between the years 2012 and 2017. These debates have shed a light on fundamental questions, starting with the very existence of a penal law of the Church. The question was asked during the drafting sessions of the Code of the usefulness of maintaining penal law after the Vatican II Council.
For the school of ecclesiastic public law, which saw its apogee in the years preceding the Code of 1917 and which it deeply marked, the existence of a penal law in the Church was evident. Besides the historic tradition of penitential discipline in the antic Church and during the early Middle Ages, this school supported the idea that the Church constitutes a juridically perfect society just like the State and that the proper of any society is to possess a coercive power over its members. The Code of 17 inscribed itself in this perspective, specially in Book V c. 2214 § 1 which affirmed the proper and original right of the Church to use a coercive power.
To this ecclesiology founded on the idea of perfect society we find an ecclesiology founded on the notion of communion largely promoted by Cardinal Antonio Rouco Varela, Libero Gerosa and Eugenio Correco. This school of thought, supporter of a People of God-Church against the Hierarchicy-Church of the Code of 17, raises the question of maintaining a coercive power in the Church. This power steps over the competence of the civil power and contradicts the declaration on religious liberty of the Vatican II Council. “It is therefore all of penal law which, in this theory, must lose its retributive nature to become a penitential system sui generis in which the main sanction, the latæ sententiæ excommunication, now only has a declarative effect of a situation of not being in communion and in which the concerned party has put himself or herself.”
Nonetheless, at the very last moment penal law remains, but in a diminished state. The first canon of Title I of the First Part of Book VI c. 1311, its subsistence being something of a miracle, would only be a outdated vestige of a “jusnaturalist” nature incompatible with the Vatican II Council and the new conception of ecclesial law; this unpopular canon, though fundamental, reads: “The Church has the innate and proper right to coerce offending members of the Christian faithful with penal sanctions.” But this penal law is relegated to a suppletive role. In this way penal law “appears to be pushed back as far as possible behind the imperious law of charity” (Olivier Échappé).
The 2021 “reactionary” reform, prepared by Benedict XVI
Pope Benedict XVI took a critical look when he said: “Ecclesial penal law had worked until the end of the 1950’s; certainly, it was not perfect – much could be criticized – but in any case, it was enforced. But since the mid 1960’s, it is simply no longer. The dominant idea affirmed that the Church should no longer be the Church of law but the Church of love, she should no longer punish. We had lost the idea that a punishment could be an act of love. […] There was in the past an alteration of the conscience which lead to a certain cloudiness of the law and concealed the necessity of punishment. In the end, a diminution of the concept of love occurred [..] which also rests in truth.” A Church contemptuous of its law would risk of being not a Church of charity but a Church of the arbitrary.
The revision of the canonical scheduling was such that the new penal system started almost from scratch after 1983. “The number of delicts characterized had been drastically reduced to the demeanor of a particular gravity and the imposition of sanctions subjected to the criteria of appreciation of the Ordinary [in short the bishop], which was inevitably different.” The Secretary of the Pontifical Council for Legislative Texts in addition says: “some canons of the Code contain themselves indeed invitations to tolerance which could sometimes be unduly seen as a desire to dissuade the Ordinary from utilizing penal sanctions in places where it might be necessary as required by law.”
The late Cardinal De Paolis spoke of the “inadequacy of the penal system.” Cardinal Ratzinger addressed a request as soon as 19 February 1988, that is five years after the promulgation of the Code, in which he denounces the negative consequences produced by certain options of the new penal system. The negligence of the bishops is offset by a strong centralization towards the Roman congregations (for the Faith, for the Clergy and for the Evangelization of Peoples within which 50% of the particular Churches come under) and an inflation of corrective texts.
Concretely, very close to the officialities, the penal procedure have been so rare that judges are tripping over their words for lack of legal precedent.
This is why, considering the poor state of penal law, Benedict XVI worked towards an in-depth reform of Book VI. After twelve years of work the new penal Book has been promulgated and is to go into effect 8 December 2021: It is in fact a return to the spirit of the penal law of 1917, so much criticized in the post-conciliar years.
Fr. Alexis Vernet
 La lumière montre les ombres. Crise d’efficience et fondements du droit pénal de l’Église, Les Presses Universitaires / Institut catholique de Toulouse, 2016. The enigmatic title is inspired by the Constitution Lumen Gentium, 8. The author is a first-hand witness to the crisis that has shaken the community of the Beatitudes.
 Op. cit.
 “Fondements ecclésiologiques du Code de droit canonique de 1917”, Concilium, 107, 1975. For an in-depth study of the doctrine of E. Correco and the theological radicalisation of the positions of his German mentor Klaus Mörsdorf, see Carlos J. Errazurriz, Il diritto e la giustizia nella Chiesa, Giuffrè, 2000.
 Olivier Échappé, « Le droit pénal de l’Église », in Droit canonique, edited by Patrick Valdrini, Précis Dalloz, 1999 (1989).
 Benoît XVI, Light of the World: The Pope, The Church and the Signs of the Times. A conversation with Peeter Seewald, Ignatius Press 2010.
 Juan Ignacio Arietta, « L’influsso del cardinale Ratzinger nella révisione del sistema penale canonico [The influence of Cardinal Ratzinger over the revision of the canonical penal system.] », La Civiltà Cattolica, 161/5 (2010). The subsidiarity and the decentralization were one of the directing principle for the revision of the Code.