THE CANON LAWYER RESPONSE TO PEDOPHIC CASES

THE CANON LAWYER RESPONSE TO PEDOPHIC CASES

By Claude Kakule Siriwayo, AA

Today the media are bringing to light the abuse of children-minors and vulnerable young people by the Church members. This has drawn the attention of ecclesiastical authorities who have issued a lot of normative and disciplinary legislations dealing with Allegations of Sexual Abuse of Minors, of children and vulnerable you people by the members of the Church, particularly priests and religious (cf. Benedict XVI, Pastoral Letter to the Catholics of Irland, 19 March 2010).  Following this situation which is almost worldwide spread in one way or the order, let us listen to what Claude Kukule Siriwayo, a canon lawyer student, has to say (response) about the seven questions related  to the offence against the six commandment of the Decalogue.  Q= Question . R=Response.

Q/  “The Congregation for the Doctrine of the Faith has given  a diocesan bishop go-ahead to conduct administrative penal process of his priests for alleged offences against the sixth commandment with a minor less than eighteen years of age”  (Cf. can 1395). What is your opinion about this account?

R/ Actually when it comes to matters of discussing opinions we must be extraordinary cautious since we might end up going astray and disregard the fact that some of the issues are already talked of and about by important people. According to Rev. William H. Woestman, a Promoter of Justice, Archibishop of Chicago, the major problem of the above concern related to the sixth commandment, is to understand the exact meaning of the words “an offence against the sixth commandment of the Decalogue”. This problem faces Diocesan bishops, provincial superiors, Major superiors, Church administrators, and ecclesiastical Judges with a serious responsibility to interpret strictly sins and crimes against the sixth commandment of the Decalogue.

Q/ If the Code of Canon Law on this issue includes consummated sexual acts, what about sexual inclinations like touches, salacious conversation, looks, etc? Are these practices amongst the offences or delicts listed in c. 1395?

R/ I would like to be epigrammatic and straightforward. Bishops, Church administrators, major Superiors and other decision-makers, who are proficient to deal with child sexual abuse litigation, have the prerogative to determine the seriousness of the alleged act (be they touches, actions or other practices). That means, they are deputed to adjudicate not only  the alleged act proved to have taken place but also they have to see in it that the alleged act and its imputability are in accordance with canonical just penalties attached to the contravention of canon 1395 &2.

Q/ What if the pedophiles are not aware of the canonical implication of one involved in such a behavior? If those involved in abuse of minors or children are ignorant of the canonical repercussions of such an act, why and how can they be held as lawbreakers?  

R/ We have to bear it in mind that “ignorance is no excuse in law”. You cannot claim obtuse ignorance to justify your illegal behavior.   According to canon 15 “Ignorance of facts excuses, but not of law”[Ignorantia facti excusat, Ignorantia juris not excusat]. While we cannot stick to the letter of this canon, we have to be aware that law always presumes knowledge of the law, even if one is ignorant of it. Accordingly, we have to approach this question in its complexity. There is a risk to apply directly canon law principles and make more injuries instead of healing the “wounders” and the “wounded”. We have to be aware of what pedophilia is all about before applying some legal principles. This is almost what Rev, Jerome Paulson wrote in Studia Canonica, 22 (1988), p. 77-124 as he said “stigmatizing and ostracizing pedophiles is neither helpful nor Christian. That means we have to hold people guilty for the pedophilic behavior but at the same time if someone has a problem of that kind, we have to help him in the best of Christian tradition. This is not a way of canonizing pedophilic act on the ground that it is a disease just like alcoholism or HIV which are sometimes beyond our control. Today there are clinics for mental disorders, and psychological heath care and counseling centers where such pathology like pedophilia would be eradicated in one way or another. Unfortunately some pedophiles assume that it is a normal way of living forgetting that to pedophilic inclination is a mental disorder which needs a special psychological counseling.

Q/  Does the involvement in minors` abuse have civil impact? If yes, to which extend?

R/ First of all, the abuse of minors is a criminal offence that means it does not just deal with the relationship of individuals but it becomes an offence which involves the state which has the right to protect its members. At this level, abusing minors will be referred to as a Statutory rape. A statutory rape is the term generally used to describe the crime of sexual intercourse by a man with a woman who is not his wife and who is below an age specified by statute. It is a crime whether or not the woman gives her consent. This crime is based on the premise that people below a certain age, known as minors, are incapable of making an informed, intelligent decision to consent to sexual intercourse. Consequently, even if the man reasonably believes the woman is over the age of consent (which varies among jurisdictions) or the woman lies about her age, the man is generally liable for the offense. Some states have rewritten their forcible and statutory rape laws to make them gender neutral. Under these modern statutes a male can be considered a victim of rape — either at the hands of a woman or another man.

Q/ The way you are talking of the issue divulges that you opt for the ministry of pedophiles that means, you advocate for a special accompaniment of those predatory pedophiles and you wish that there be an appropriate ministry dealing with pedophiles so as to understand better the implication of this crisis. Is it that what you want to mean?

R/ In a way, yes. In fact, the understanding of the complexity of pedophilia is a prerequisite for both ministry to the pedophiles and ministry to the wounded people, those who have grievously been affected by pedophilic acts.

Q/ If pedophilia is a disease, can you elaborate more what you understand by pedophilia? Besides, what do you think could be the real drives for child sexual abuse?

R/ First of all the diagnostic and statistical manual of Mental disorders classifies pedophilia as one of the Paraphilias. Among the main paraphilias that we know we can record: fetishism (use of non-living objects for sexual arousal, zoophilia (use of animals), exhibitionism (exposing genitals to strangers), voyeurism (peeping Toms) sexual sadism, sexual masochism and pedophilia ( involvement with children). It means that, pedophilia is one of the psychosexual dysfunctions. By definition, we can say that pedophilia is an act of engaging in sexual activity with pre-pubertal or post-pubertal children as a way of achieving sexual excitement. According to some analysts, there are however two types of pedophiles people. On one hand, we have the heterosexual-oriented-pedophiles. These ones tend to prefer the eight-to-ten-old girls and they limit their pedophilic acts to looking or touching but these acts can end up into physical union of bodies. On the other hand, we have the homosexual-oriented-pedophiles. These ones prefer older children. This division was subdivided in Keller`s article on human Development (1986) as follow:

-          The fixated pedophiles: They have a restricted interest in children, with no interest in adults. In this category there are the fixated homosexual pedophiles: interested only in young boys and the fixated heterosexual pedophiles: interested only in young girls.

-          Regressed pedophiles: These ones are able to be interested in both boys and girls.

As a way of summary, there are three subdivisions of pedophilia:

1.      The homosexual pedophiles (attracted to boys only)

2.      The heterosexual pedophiles ( engrossed in girls only)

3.      The bisexual pedophiles (  Interested in both boys and girls)

Q/ Let us turn now to the question of celibacy. What would you say about the modern tendency to consider that “ Pour lutter contre la pédophilie, abolissons le célibat des prêtres”  (To avoid pedophilia, we have to abrogate the law of celibacy of priests) [Hans Kung]?

R/ This is a very challenging issue since it targets the very strength of the Church. I would like to point out, before hand that, I have read and reread scores of articles advocating for abrogation of celibacy, women ordination to ministerial priesthood, marriage of priests, etc. If you look at these issues critically, you will find that there are anticlericalist and anticatholicist movements which are deputed to assail the very quintessence of the Roman Catholic Church. One the core elements of the Roman Catholic Church, is “celibacy”. When the above quotation states that “ Pour lutter contre la pédophilie, abolissons le célibat des prêtres = To avoid pedophilia we have to abrogate the law of celibacy”, it has to be understood with extraordinary attention. As Roman Catholic faithful of the One, Holy, Apostolic and Adjudicative Church, I have to stand for what the Church holds true and not let myself be driven by individualistic dividing and emotional opinions. As cogent beings, we are free to think whatsoever we want but, we should not impact our way of thinking on others until to make it a legal norm of conduct. It is not because there are a lot of allegations on sexual abuses that we have to be compelled to derogate the bylaw of celibacy; rather we have to see in it that the value of celibacy is not in contrario with the life of the Church and that we are called for more fidelity and dedication to our vocation. Chastity and celibacy for priests are interconnected. One cannot be chaste without being celibate, and one cannot abrogate chastity without reprobating at the same time celibacy of the priesthood in the Roman Catholic Church.  As religious and clergymen of the Catholic Church, we are called to live both celibate and chaste life.

Q/ What would you give as recommendation to those engaged in the ministry of pedophiles and to the pedophiles themselves, especially to religious and priests.

To those called to assist the pedophiles, I urge that they be well erudite, well clued-up about the illness of pedophilia in order to avoid unnecessary injuries and injustices while dealing with pedophilia cases. If possible and according to circumstances, ecclesiastical authorities ought not to be constrained to hurry for extremist penalty of the abusers. There must be an appropriate peremptory time for immediate investigations before sentencing the indicted person. It is only after the inquiry legitimately carried out that the person will be either accountable or acquitted. However, there is also need to look first for pastoral means which would help the prosecuted person to uphold his good repute in the society. In fact, this does not gainsay the end of law in the Church which is the salvation of souls. (Cf.can.1752). In the same perspective, there is a call to go for canonical equity (canon 19) by applying justice tempered with sweetness of mercy, but this should not be prejudicial to the victims who also have to vindicate their right to fair treatment and legal action.

To the pedophiles and impending pedophiles, I would like to replicate the words of Alfonso Card. Lopez Trujillo, President of the Pontifical Council for the Family, that every person should be acquainted with the fact that chastity and celibacy entail discarding certain thoughts, words and evil actions, (cf. Romans 1:18; 1 Corinthians 6:9-11). To attain this requires an attitude mind, of self-mastery and of forbearance which are signs of self-determination and accountability for ones `actions. Such self-mastery implies both avoiding occasions which might lead to or encourage sin as well as knowing how to triumph over one's own natural instinctive impulses and other human sexual proclivity.

By Claude Kakule Siriwayo, AA