Ecclesiastical Courts

I thought I ought to do a brief article about this subject. I have no pretences at being an expert in canon law, but I am not entirely ignorant of the subject, having studied it for three years as part of my theology at Fribourg University.

Here is a good all-round article on ecclesiastical courts. It covers both penal and contentious matters, and also questions like the validity of the Sacraments and marriage nullities. See also Inquisitorial System. Here is a glossary of terms by the Congregation for the Doctrine of the Faith.

The procedure is described here:

Canonical Trials

Canonical proceedings are inquisitional rather than adversarial, adjudicated by a presiding judge and two collegiate judges. Criminal allegations contested by the accused are conducted according to the Code of Canon Law. (1983 CODE c. 1501-1670; c. 1717-1731; and c. 1732-1739.) According to DiNardo, a prosecutor – called the Promoter of Justice – presents evidence that has been gathered by an Auditor through witnesses, documents, or other means. The accused is represented by an Advocate, who possesses at least a licentiate in canon law. Most U.S. constitutional rights, including the right to remain silent, do not apply. “The court has some power over witnesses within the community of the faithful,” Lena says. “While the Bishop cannot compel testimony, witnesses can feel a strong sense of duty or obedience to testify.” Rules of evidence in federal and state civil or criminal proceedings also do not apply. “Though evidentiary privileges exist, there are no rules of exclusion, such as a hearsay rule,” Lena says. “Hearsay goes to the weight of the evidence rather than to admissibility.” At the discretion of the presiding judge, witnesses may or may not be represented by a “consulting attorney,” who also must be a canon lawyer. “The instructing judge commonly denies witness requests for representation,” says Thomas P. Doyle, a canon lawyer for 26 years who lives in Maine and has represented chief complaining witnesses in ten canonical trials. “The atmosphere is intimidating, and the language of the court is confusing. There’s very little sensitivity to what the witness is going through. At one trial in Pennsylvania, I could tell the witness was having a severe emotional reaction talking about his sexual abuse. He went outside the hearing room and vomited all over, and I told the court, ‘There’s your testimony.’ ” At the outset of the trial, according to Doyle, all participants – judges, advocates, witnesses, and the accused – are obliged to sign an oath of “pontifical secret.” The penalty for breaking that oath could be excommunication. “I advise witnesses to refuse to sign,” Doyle says. “Despite the pressure, the canonical court cannot refuse to hear testimony from a witness who refuses.” A Notary for the diocese then sees that trial documents are appropriately signed and sealed. In a canonical court the standard for determining guilt is “moral certitude,” defined by DiNardo as “a practical judgment on the part of the judge based on the available proofs, considered as a whole and not a collection of isolated factors.” According to the Q&A on canonical trials by the U.S. Conference of Catholic Bishops, penalties upon conviction range from suspension from priestly duties to “a life of prayer and penance” or dismissal, referred to as a “dispensation from the obligations of the clerical state.” The priest is no longer counted as a cleric, but remains within the Church in a different legal status. “I’ve never seen damages awarded to a victim” of clergy sexual abuse, Doyle says. Both the verdict and any imposed penalty may be appealed to the CDF in Rome. Appeals may take years, and a decision of the supreme tribunal is final. Doyle estimates that 200 to 300 canonical trials are in progress around the United States, though most of those involve marriage annulments.

It’s not a good idea to be involved in a canonical trial, since the procedure can be secret and the rules of evidence in civil law do not apply. Accountability? One would certainly hope that Anglican ecclesiastical courts would be a little more enlightened than something that clearly does not have its place in the modern world! Erastianism and French laïcité seem not to be such bad things!

In the case of Archbishop Hepworth, most of us would not recognise the credibility of a procedure that reveals neither the exact charges in opposition to the canons in question (referring to the 1983 Roman code of canon law if the TAC does not have its own code of law – I have not seen one except the Concordat and the various books of canons of some local Churches [for example] – and the Concordat is too vague and general) and reasoned conclusions.

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