By Brian Hennessy, as regards the Comboni Missionaries Clerical Abuse process. It is the 3rd of 3 articles on the Comboni Missionaries Code of Conduct.
Administrative Procedures Required in the Consideration of Alleged Abuse
1. The Code states that at the investigation stage, there must always be clarity about the the presumption of innocence, and no promises should be made regarding financial compensation to those making allegations.
2. The Code states that the person in charge of the inquiry, in agreement with and in the presence of members of the family, is to hear the testimony of the alleged victim, so as to become acquainted with the real facts, and to verify, with the appropriate respect, the psychological and spiritual situation of the person alleged to have been wounded by the confrere’s behaviour.
3. The Code states that as regards the inquiry, the general guidelines (for inquiries) are to be followed bearing in
mind that, in the case of alleged abuse against a minor, it is especially advisable to seek the services of a team or, in any case, of appropriately qualified persons. Equally, any meeting with the alleged victim should take place in the presence of witnesses.
4. The Code states that the choice of the method to be followed in conducting the inquiry will take account of the plausibility, entity and gravity of the allegations as well as of the availability of persons who can be relied upon to carry out this task.
Whatever the case, the inquiry is to be conducted in a circumspect and efficient manner, respectful of all those involved, and of the cultural context, as well as of the legislation in force in the country in question and/or issued by the respective Episcopal Conference.
5. The Code states that the following statement may be determined by an act of the provincial superior.: “that to preclude scandals, to protect the freedom of witnesses and to safeguard the course of justice” measures may be taken in accordance with CIC 1722 to the effect that “the ordinary, at any stage of the process, can remove the accused from the sacred ministry or from any ecclesiastical office or function, can impose or prohibit residence in a given place or territory, or even prohibit public participation in the Most Holy Eucharist”.
6. The Code states that after the process has been completed the provincial superior is to:
• Provides for the sentence to be carried out and in particular communicates the result of the process and the decisions reached regarding:
(a) the manner of providing aid and moral support to the victim;
(b) the imposition of the penalties on the guilty party;
(c) measures for the full rehabilitation of an accused person found to be innocent and for the necessary retraction and reparation by the accuser;
• Communicates the results of the inquiry to the Christian (and civil) communities affected by the event (while avoiding possible scandal) and puts in place suitable measures to heal the wounds inflicted on them.
7. The Code states that for the good of all concerned, everything possible will always be done to resolve the matter in a pastoral manner limited to the internal inquiry and its conclusions (CIC 1718 §4).
When however the conclusions of the preliminary inquiry are not sufficient to resolve the matter to the satisfaction of all the concerned parties, or to ensure the reparation of the scandal caused and the amendment of the person found guilty (CIC 1341), it is required to proceed to the canonical penal process.
This decision is to be taken by an act of the provincial superior.
8. The Code states that The relevant provision will define one of the following:
• The decision to proceed by a decree without a trial (CIC 1720), bearing in mind the directives of CIC 1342.
• The decision to initiate a judicial penal process (CIC 1721 and following).
9. The Code states that in the case of a decree without a trial, the provincial superior will proceed as directed by CIC 1720. The person who has been responsible for the inquiry cannot act as an assessor in the case.
10. The Code states that when the provincial superior decides that a judicial penal process is necessary, he will communicate this decision to the person responsible for the inquiry so that he may take on the office of promoter of justice. The provincial superior has full powers to appoint another person to this office.
11. The Code states that the provincial directory, bearing in mind the Code of Canon Law, may determine the procedure de qua agitur. In certain cases (for example the abuse of minors), however, the legislation of some countries includes the duty to report the matter to the civil authorities, foreseeing that this could lead to a trial before a civil court.
12. The Code states that when an abuse is at one and the same time under investigation by other bodies and persons concerned to establish the truth of the facts, the Institute is committed to cooperating in the required and appropriate manner with the various parties involved (diocese, judicial and civil authorities), so that justice may be done, following the dispositions of the law in force (civil and canonical), especially those regarding the duty of bringing the case to the attention of the competent authorities.
Regarding this latter point, both excessive zeal and the temptation to conceal facts and reports are to be avoided.
13. The Code states that the provincial superior communicates to the general council his decision to initiate an administrative or penal process sending a written document which sets out the legal and factual elements of the situation under inquiry, the name of the accused confrere, and a brief report. Every penalty imposed is also to be communicated to the general council.
14. The Code states that the provincial superior and those in charge of the case will keep written and secret documentation pertaining to the different stages of the process, as well as of its conclusions and the measures adopted as a consequence.
The provincial council lays down who may have access to such documentation and until when.
15. The Code states that once the internal inquiry has reached its conclusion, the person in charge of the investigation will present the provincial superior with a full report regarding both the matters of fact and of law involved. The provincial superior will then reach a decision regarding the case (CIC 1718) that can take one of the following two forms:
• Consigning the notitia criminis to the archives;
• Initiating a penal process.
16. The Code states that proof of admonishment and rebuke must always be retained, at least by a document conserved in the secret archive of the provincial superior (CIC 1339).
17. The Code states that at the end of his mandate, the provincial superior presents his successor with adequate information about confreres in special difficulty.
He then sends all the relevant documentation to the general archives in Rome so that it may be conserved by the competent authority.
18. The Code states that,in respect to documentation, directives CIC 489 § 2 are to be followed by the Provincial Superior and higher formations: “Every year documents of criminal cases are to be destroyed in matters of morals in which the criminal has died or in which ten years have passed since the condemnatory sentence; but a brief summary of the case with the text of the definitive sentence is to be retained”.
19. The Code states that offences defined in the Motu Proprio Sacramentorumsanctitatis tutela as being reserved for referral to the Congregation for the Doctrine of the Faith .
20. The Code states that the following offences are listed amongst those to be referred to the Congregation for the Doctrine of the Faith:
• CIC 1378: the absolution of an accomplice in a sin against the sixth commandment of the Decalogue;
• CIC 1387: soliciting a penitent to sin against the sixth commandment of the Decalogue in the act or on the occasion or under the pretext of confession;
• DG: any offense against the sixth commandment, committed by a cleric with a minor of less than 18 years of age.
21. The Code states that regarding the above offenses, the provincial superior, after having carried out the preliminary inquiry, transmits to the Congregation for the Doctrine of the Faith, by his own act and through the superior general, a full report drawn up by the person responsible for the investigation
22. The Code states that the Congregation for the Doctrine of the Faith can decide to deal with the matter directly, or it can order the provincial superior to make provisions for the penal process according to the dispositions that the Congregation itself will consider opportune to give. Any appeal against the sentence lies within the competence of the Congregation for the Doctrine of the Faith itself.
23. The Code advises that the Institute expects and requires its members to live consistently with the values and purposes that they have freely chosen by means of a public commitment. As a consequence, when faced with proven cases of sexual abuse against minors, the Institute, taking account of the sentence passed by the Congregation of the Doctrine of the Faith, may adopt one or more (and hence also cumulatively) of the following provisions:
• to invite the religious to undergo a medical and psychological examination;
• to encourage him to accept the necessary help so as not to prejudice the welfare of other minors;
• to place him in a situation in which he has no direct contact with minors, even when he continues to deny his guilt;
• to prevent him in the future from working or having direct contact with minors, even when he has been helped by specialists.
24. The Code advises that in order to be able to entrust the religious in question with a ministry suitable to his situation, the superiors concerned must be informed of any precedents in the area of sexual abuse when the religious is assigned to their province and/or community. In his turn, the provincial superior must inform the bishop of the diocese in which the religious will exercise his pastoral ministry, if the religious has precedents in matters of sexual abuse against minors proven by one of the procedures described at no. 50 above.
25. The Code advises that regarding cases of sexual abuse, especially against minors, various episcopal conferences have developed their own praxis governed by detailed norms that in some countries are particularly severe and restrictive. In communion with the local Church, the Institute is committed to observing such norms and procedures.
They are thus to be included in the provincial directories.
26. The Code advises that civil law regarding cases of abuse varies greatly from country to country, but is becoming ever stricter and more severe, especially regarding sexual abuses committed against minors by persons of trust or in authority. The Institute is committed to informing its members regarding the civil and penal dispositions in force in the country where they work and requires them to obey these local laws.