Most dioceses, eparchies, institutes of religious life, and societies of apostolic life in the United States maintain a review board to assist the appropriate Ordinary in determinations relating to the canonical delict of sexual abuse of a minor. In many places, these review boards may also be asked to assist the Ordinary in other matters that do not necessarily involve a canonical delict, but may include myriad other allegations, including everything from sexual misconduct in general to “suitability for ministry.”

     Yet even as the use of these boards grows, there is little by way of standardized procedures on which the boards can rely when considering either penal or non-penal matters. In addition, depending on what procedures a particular review board employs, the accused may or may not enjoy fundamental rights of due process.  This Model Policy may be adapted as circumstances require, but always with the goal in mind of serving the truth and justice, and, above all, the salvation of souls, which is the highest law in the Church (cf. c. 1752).   

     Fair procedures are more likely to yield fairer outcomes. With that belief in mind, the following draft Model Policy has been prepared to assist ordinaries and their respective review boards in promoting justice, which includes protecting an accused’s fundamental rights of due process.    

Interpretive Principles

       Several fundamental principles guide the creation of this Model Policy:
 

• Civil law aims at protecting the common good. Canon law, on the other hand, addresses not only the common good of the ecclesial community, but the salvation of souls. Consequently, canonical penal law is concerned only with serious violations of canon law that the Supreme Legislator has determined seriously threaten the salvation of the perpetrator and/or damage the communion and peaceful existence of the faithful.  Canonical penal law does not concern itself with simply “any sin” in the internal forum, much less any conduct that might be considered to be simply imprudent, foolish, or boorish.

• Canonical penal law has a three-fold purpose: to restore justice, to repair scandal, and to reform the offender (cf. c. 1341). All three are not just important “goals for which to aim,” but are essential elements of any canonical penal process. Neglect of any of these three renders the canonical enterprise faulty, perhaps even fatally. The third consideration is especially important, as secular considerations such as civil liability and insurance coverage can often infringe upon gospel principles aimed at seeking out the lost and saving sinners.

• No one can be punished under canonical penal law unless there has been (a) an external provable violation of a canonical law to which a penalty is attached that is (b) “gravely imputable” to the actor. The first consideration is objective, the second is subjective, because it depends on a free and knowing act. The scrutiny of “imputability,” which is presumed until proven otherwise (c. 1321, § 4), also involves consideration of canonical criteria that could increase, lessen, or absolve whatever punishment is eventually applied. As specifically noted in the new Book VI of the Code of Canon Law (effective December 8, 2021), the accused has the right to be pre­sumed innocent (cf. c. 1321, § 1). In addition, as every human being has the natural right to privacy and to a good reputation (cf. c. 220), no one can be required to take an oath, much less confess, in a canonical proceeding (cf. c. 1728, § 1).

• A “preliminary investigation” under c. 1717 is not part of the formal penal process.  It is an important and necessary “bridge” that needs to be crossed before any penal process – whether judicial or administrative – can be initiated or a judgment can even be considered. The aim of such an investigation, which is only to be initiated if the accusation itself is not manifestly false or frivolous (that is, has a “semblance of truth” - “saltem veri similem”), is the gathering of facts that will aid the Ordinary in determining how to proceed.  In other words, the question to be considered by the Ordinary, with the consultive assistance of the review board, is whether there is the existence of “fumus deliciti,” which the Vademecum defines as the “plausibility” of the report of criminal conduct. Importantly, the end of the preliminary investigation - and hence the purpose of the review board's determination - is not to establish guilt or innocence to the point of “moral certitude” (the canonical equivalent of “beyond a reasonable doubt”), but merely whether there is a sufficient basis both in law and in fact to consider the accusation as having a “semblance of truth” (cf. Vademecum, n. 33). Moral certitude is a much higher standard that can be reached only after a judicial process or extra-judicial administrative procedure, during which the defendant is able to exercise his right to defense in a much more robust manner than during any preliminary investigation. A reasonable analogy to secular law might be this: In order to even entertain an accusation, there must be a “reasonable suspicion” of a crime --  that it is not “manifestly false or frivolous.” The duty of the review board is to take such accusations passing the “reasonable suspicion” test and scrutinize them further, after having been provided those “indications” collected by the investigator during the course of the preliminary investigation. After such scrutiny, the members of the review board will be in a position to recommend to the Ordinary whether there exists “probable cause” that justifies further action by the Ordinary. In this way, a review board operates somewhat like grand juries do in the secular civil context; it offers an opinion to prosecutorial authorities on whether formal charges should be filed against someone suspected of wrongdoing, who, after charges have been brought, is entitled to the full protections of the law, such as the right to counsel, the right to know incriminating evidence, and the right to cross-examine witnesses.

• Review boards must assist - but never supplant - the Ordinary in his decision-making process. In addition, care must be taken throughout the c. 1717 investigation for the good reputation of all involved, including both the accuser and the accused. (See Essential Norms, n. 13). Care must also be taken for the people involved.  The focus should not just be “is this true?” but also “what care do the parties need?”

     Accordingly, with these principles in mind, the Model Policy proposes procedures that will allow a review board to review claims against a member of the clergy that afford the member basic due process under canon law and civil law, and which offer fairness to the complainant and /or the complainant’s representatives.

Click here for a PDF version of the Model Policy