We have treated
about the history and the canonical status of separation in the Church
Tradition. This gave an overview on how and why some members were
excommunicated from the Church. We need now to move forward and look at
separation of members from the religious institute. Since religious are members
of the Church, they can be separated from the institute for the same reasons
the Church has established as unbecoming for its members.
The canons
dealing with separation are meant to protect the rights of both individuals and
institutes. In order to have a clear idea on what separation is all about, we
will focus on three forms of separation from an institute: transfer from one
institute to another, exclaustration and definitive departure from the
institute. These three forms will therefore constitute the main subject of this
chapter. For this reason, we will deepen each type of the types of separation
enumerated. Hence, we will consider sources, formulations and analysis of each.
The notion of transfer has a long history in the
Church. Transfer consists in departure from and entrance into an institute of
consecrated life or a society legitimately established by an ecclesiastical
authority and following the general and proper law that is pertinent.
With regards to
the sources of transfer, we have to look at the historical background of this
notion. In the early centuries of monastic life, there was no restriction
attached to transfer. But in order to safeguard stability and to avoid multiplication
of transfers made sometimes from the fickleness on the individual or with a
desire to escape from some obligations, a juridic bond between the member and
the institute was recognized. Transfers were since then restricted on the basis
of motivation, of types of institutes involved, and of the authority competent
to grant them.[1][116]
In the Middle
Ages, transfers of members to groups of less strict observance and transfers
requested without serious cause were denied. In fact, some members would wish
to transfer as a way of running away from some religious obligations. Some also
may seek to transfer after committing some crimes and thus, they feel guilty in
the institute. Such religious would create a reason for transfer or they may
end living the institute through other means like voluntary exclaustration.
Such situations concerning transfer came up in the Council of Trent. For this
reason, this Council imposed certain ecclesiastical disqualifications on those
who had transferred for any reason, and by the eighteenth century the Holy See
exercised its power on most cases of transfers.[2][117]
Concerning the
sources, the most elaborated source of transfer is the 1917 Code. It is to be
noted that canons 684-685 of the 1983 Code are reflected in canons 632-636 of
the 1917 Code. This means that the 1917 Code, but also the Vatican II
ecclesiology have greatly contributed to the codification of the 1983 Code.[3][118] For instance, Vita consecrata 75, § 3 used the
expression “qui momento transitus definitive cooptatus erat” which was
suppressed by canon 610 of the 1980 Schema
Codicis and replaced that
expression by that of “sodalist” which was now maintained as canon 684 of both
the 1982 Schema Codicis and the 1983 Code.[4][119]
However, there are other passages which did
not change from the 1980 Schema Codicis
till the final wording of 1983. For instance, canon 610, § 5 of the 1980 Schema Codicis goes as follows: “Ut ad
Institutum saeculare aut ad Societatem vitae apostolicae vel ex illis ad
Institutum religiosum fiat transitus requiritur licentia Sanctae Sedis cuius
mandatis standum est.”[5][120] This kind of phrasing
has been maintained in canon 684, §5 of the 1982 Schema Codicisi and canon 684, §5 of the 1983 Code.
However, since the end of Vatican II the number
of transfers increased, this compelled religious institutes to call for renewal
and formulation of norms of transfer relevant to the contemporary time.[6][121] An exegetical study of
the two canons 684-685 (1983) in the light of five canons 632-636 (1917) will
help us to understand the formulation of new norms on transfer.
In order to
understand well the canons on transfer in the 1983 Code, we must read them in
the light of the previous Code, that is, with reference to the 1917 Code. There
are differences between norms on transfers as found in both Codes. In the
Pio-benedictine Code (1917), the Sacred Congregation or the diocesan Bishop was
competent depending on the type of the institute; whereas in the 1983 Code, the
supreme moderators and respective councils are the competent authorities for
transfer from one religious institute to another. For instance, canon 634 of
the previous Code goes as follow:
Sollemniter professus
aut professus a votis simplicibus perpetuis, si transierit ad aliam religionem cum votis
sollemnibus vel simplicibus perpetuis, post novitiatum praetermissa professione
temporaria, de qua in can. 574, vel admittatur
ad professionem sollemnem aut simplicem
perpetuam vel a pristinam redeat religionem; ius tame nest superiori eum
probandi diutius, sed non ultra annum ab
expleto novitiate.[7][122]
This canon
contains some elements which are no longer present in the 1983 Code. This Code
does not require a new novitiate during the period of probation of a minimum of
three years required for the period transferring. The 1917 Code mentions the types of vows as
solemn and simple (c.1308, § 3). This precise distinction concerning vows is
not mentioned in the 1983 Code, but rather, the new Code talks of four types of
vows, that is, public and private, solemn and simple, personal and real, and
real vow (c. 1192). Furthermore, the
1917 Code mentions directly the transfer of dowry or patrimony or the
arrangements for sustenance during time of transfer, whereas the 1983 Code is
silent about the issue though this does not mean that those elements should be
neglected.[8][123]
According to
canon 632 of the 1917 Code, it was forbidden for religious to transfer to
another religious institute without the authorization of the Apostolic See. The
new discipline, that is, the 1983 Code, however, distinguishes three different
cases. It should be noted that the new discipline considers the transfer of a
perpetually professed religious to another institute, but ignores here, the
transfer of temporary professed. In this case, the new law does not necessarily
need the approval of the Holy See for a transfer to take place. That means,
transfer may be granted by the supreme moderators of the institutes a quo and ad quem, with the consent of their respective councils.[9][124] This is stipulated in
canon 684 of the 1983 Code: “A member in perpetual vows cannot transfer from
one religious institute to another without the permission of the supreme
moderator of each institute given with the consent of their respective
councils…”
For transfer,
only the major superior of autonomous monastery (c. 615) may grant the
permission with the consent of his or her council. In addition, the religious
wishing to transfer should put in writing his or her desire and the motivation
to transfer. The receiving institute has a right to request all information
about the prospective member, such as might be provided by a curriculum vitae. This will help to know
whether there have been periods of exclaustration or incapacitating illness or
period of absence (c. 655). It is to be noted that
While norms of
confidentiality must be observed, it would be irresponsible for a superior
general simply to give consent for transfer of a religious who has a history of
chronic physical or psychological illness or of substance abuse or who is
facing accusations before a civil tribunal.[10][125]
Since a Superior
General may refuse to grant permission without clear motivation, one may
instigate a recourse to a higher ecclesiastical authority, according to the
status of one’s own institute. But a transfer is not a right strictly speaking
and a religious in perpetual vows should not be forced to request an indult of
departure to change the institute.
The law prescribes
a minimum probatory period of three years, but the Code leaves to the proper
law of the institute the specific determination of the length and manner of
probation. That means some institutes could allow more than three years. If
after the probationary period, the individual does not request for perpetual
vows in the new institute, or if he/she is not accepted, he or she must return
to the original institute, unless an indult of departure has been received.[11][126]
Concerning
transfer within a particular monastic family (autonomous monastery), canon 684,
§ 3 indicates that the competent superiors are major superiors. In this case,
only the consent of the monastery receiving the candidate is required. In the
previous Code, the transfer from one sui
iuris monastery to another monastery of the same order required a new
religious profession:
For a religious to transfer from an autonomous monastery
to another of the same
institute or federation or confederation,
it is required and is sufficient to have
the consent of the major superior of both monasteries and the chapter of the
receiving monastery, with due regard for other requirements determined in
proper law; a new profession is not required (can. 684, § 3).
This paragraph has become the object of an authentic
interpretation. According to the Pontifical
Commission for the Authentic Interpretation of the Code of Canon Law, the
word “religious,” in this paragraph, includes both temporary and perpetually
professed. Since both monasteries are
the same and share the same rule, a new profession is not required.[12][127]
When the transfer
involves institutes of different types, there is another way of proceeding.
Basically the consent of the supreme moderator and their councils is no longer
sufficient. For example, when a religious transfers from a secular institute or
a society of apostolic life to a religious institute and vice-versa, the
permission of Holy See is required (c. 730). In fact, religious and secular
institutes have diverse life-styles and a different approach to mission. That
is why the Holy See is the competent body to grant permission in the case of
transfer.
As for hermits
(c. 603) and for consecrated virgins (c. 604), technically transfer is not
possible since hermits and consecrated virgins are recognized as individual,
not collective, forms of consecrated life.[13][128] In cases where one wishes to pass from a religious institute to
one of the individual forms of consecrated life, an indult of departure be must
required in the usual way and to assume a new state, he or she must follow the
necessary procedures for being accepted by the diocesan Bishop.[14][129]
Canon 685 governs the juridical situation of
religious during transition. The effects
of transfer are similar to those in the former law (c. 633 of 1917 Code). That means the member remains obligated by
the vows; the rights and obligations in the former institute are suspended but
not lost during the probatory period and cease with profession in the new
institute.[15][130] With the new profession the member acquires
new rights and obligations according to the proper law of the new institute.
These rights are those mentioned in cc. 662- 672 and other rights and
obligations in universal or proper law of the institute.
However, a
transfer between an institute with simple vows and one with solemn vows
requires additional attention to the vow of poverty. One who originally
professed solemn vows does not require renouncing to personal patrimony, but he
or she may require the capacity to inherit. In this case, attention will be
given to the cession of administration and possibly to the adjustment of one`s
will. If, at the new profession the member is asked to make a total
renunciation called for in c. 668, §§ 4-5, the previous act of cession will be
terminated and the will adjusted as necessary.
Prior to the new
profession, documents related to personal patrimony must be examined; the will
and other legal documents will also be examined. If the religious is a deacon or priest, the
incardination is passed to the new institute with the new profession. In brief,
profession in the new institute effects full incorporation into it as a
professed member.
First of all, the
technical term “exclaustration” appears in the 1983 Code in c. 686 and 687 in
the title On Religious Institutes which encompasses cc. 607-709. So, we can say
that “the canonical vehicle of exclaustration can apply only to institutes
whose members are bound by requirements that somehow related to cloister or
enclosure.”[16][131]
But the technical
meaning of exclaustration encompasses much more than merely being out of the
enclosure. Etymologically, the term
exclaustration derives from two Latin words ex
= from/out of and claustrum =
enclosure, from the Latin word claudere
or the Italian, chiudere meaning to
close up/ to shut up.[17][132]
Therefore, by
definition, exclaustration[18][133] can be defined as
permission granted legitimately by the authority for a member to remain outside
the cloister for a definite or indefinite period of time during which the
exclaustrated remains a religious but with some rights and obligations
mitigated.
In
addition, according to Dictionnaire de
Droit Canonique,
« L’exclaustration, appelée
avant le code sécularisation temporaire, est la condition d’un religieux
autorisé à vivre hors du couvent (ex
claustris, extra claustra), sans être soumis à ses supérieurs religieux,
soit pour un temps déterminé, soit aussi longtemps que durera la cause pour
laquelle l’indult a été accordé […] l’exclaustration est essentiellement une
situation provisoire […]. Il ne faut pas confondre l’exclaustration avec la
simple permission de vivre plus de six mois hors du couvent […] L’exclaustration
est une mesure très grave parce qu`elle peut aboutir à la sortie de l’état
religieux par la sécularisation définitive »[19][134]
Exclaustration, so defined, is not to be confused with the leave
absence[20][135] treated in can. 665 or
with the permanent departure as treated in cc. 691-693.[21][136] In the previous Code, exclaustration was referred to as temporary
secularization. It means that, exclaustration is not new in the 1983. It draws
its origin from the previous law but slight differences as we shall see it in
the formulation of norms.
Cc. 686-693 of
the 1983 Code are rooted in the cc. 637-641 of the 1917 Code. These canons, that is to say, cc. 637-641 of
the 1917 Code, have been interpreted and commented on in order to get the
proper meanings of the words. It is in this perspective that, c. 688, §2 (1983)
coming from c. 638 (1917) was explained in the decree Religiorum Laicalium in these terms “Obtinendi pro suis subdis, id
pertentibus, ut a votis temporariis dispensentur ab Ordinario loci domus cui
Orator ad scriptus est;”[22][137] likewise the decree De Religiosorum Saecularizatione
reference to canon 638 is an other source: “utum verba loci ordinarius de quibus in canone 638, designent Ordinarium loci
commorationis religiosi, an ordinarium loci domus principis.”[23][138]
In addition, c.
689, § 2 of the 1983 Code comes from c. 637 (1917 Code) was explained by the Sacra Congregationio pro Religiosis et
Institutis Saecularibus:
Quod clausulam finale can. 637 C.I.C., ea ita
intellidenda est, ut a votis, renovandis vel a professione perpetua emittenda
excludi posit a superior competent de consensus sui consilii professus a votis
temporariis qui, praevio medicorum vel aliororum peritorum iudico, ob
infirmitatem physicam vel mentalem, etiam post professionem contractus, non
idoneus comperitur ad vitam religiosam ducendam absque damno sive ipsius
religiosi, sive Instituti ad quod pertinent. In his casibus diiudicandis
caritate atque aequitate uti oportet. [24][139]
While c. 693 (1983)
comes from c. 641 which was later explained and interpreted
as
follows: “utum verba canonis 641, §1: Episcopus
potest probationis tempus prorogare, intelligenda sint tantum de
prorogatione expressa, an etiam de prorogatione tacita”[25][140]
The canons
treating the departure from an institute are eight in numbers, from c. 686 to
693 of the 1983 Code as compared to the previous Code of 1917 which contained
nine canons, from c. 637 to c. 646.
The formulation of canons of the 1983 Code is
a product of various changes, additions, reformulations, substitutions and
suppressions. C. 686, §1 of the 1983 Code is a development of c. 612, §1 of the
1980 Schema Codicis which contained
the word “sacerdote” and was maintained in c. 686 of the 1982 Schema Codicis, but it disappeared in
the final wording of the c. 686 of the 1983 Code which replaces the word
“sacerdoce” by “cleric.” However, there are other elements which were
maintained and did not change despite various sessions in which canonical
questions were discussed. This is the case of the expression “gravi de causa”
in the same c. 686, §1. This expression was maintained by Vita Consecrata 77, c. 612 of the 1980 Schema Codicis, c. 686 of the 1982 Schema Codicis and the 1983 Code.[26][141]
With regard to
additions, there are some phrases completely new which did not appear neither
in the previous Code nor in the Vita
Consecrata and the various schemas of codification of 1980 and 1982. Canon
689, §3 is a typical instance to sustain this statement: “A Religious, however,
who becomes insane during temporary vows, even though unable to make a new
profession, cannot be dismissed from the institute.”[27][142]
The final text as
we have it in the 1983 Code is a product of a lot of changes, additions,
substitutions, reformulations. This final text needs an interpretation of
canonical statements. In the next
section, we will analyze the types of exclaustration which will clarify better
the ways of departure from the institute.
Among the various ways
of departing from the institute, we have the indult of voluntary
exclaustration, qualified exclaustration, imposed exclaustration, departure
after the temporary profession, departure during the temporary profession, and
subsequent non admission to the institute. These ways are to be distinguished
from expulsion or dismissal from the institute.[28][143]
3.2.3.1. Voluntary Exclaustration
A religious may
desire that he or she be granted an indult of exclaustration. The petition is
addressed in a written form to the supreme moderator. In the previous Code,
exclaustration was granted only by the Holy See or Apostolic Delegate:
An indult of staying outside the cloister, whether
temporary in which case it is an indult of exclaustration, or perpetual, in
which case it is an indult of secularization,
can only be granted by the Apostolic See in a religious institute of pontifical right; in a religious institute
of diocesan right it can be granted by
the local ordinary.[29][144]
In the 1983 Code,
since the initiative comes from the religious himself or herself, this type of
exclaustration described in canon 686, §1 is called voluntary or ordinary or
simple exclaustration.[30][145] The indult of exclaustration is intended for
perpetually professed members: “With the consent of the council the supreme
moderator for a grave reason can grant an indult of exclaustration to a member
professed of perpetual vows but not for more than three years…”(c. 686, §1). In
order that the petition for exclaustration be legally established, formalities
and right procedure must be observed. The petition must be signed by the
religious with his handwriting. The purpose for requesting for voluntary
exclaustration must be grave:
Si
dice semplice l’esclaustrazione richesta a seguito di domanda libera da parte
del religioso e consessa a un professo di voti perpetui, in un istituto di
diritto pontificio o di diritto diocesano, dal Moderatore supremo col concenso
del suo consiglio, per una causa non solo giusta, ma grave, per un tempo non
più lungo di tre anni e quindi anche meno.[31][146]
The following reasons lead to the request for voluntary
exclaustration: vocational discernment, support or care of aged or infirm
parents, personal health problems, doing pastoral work, business ventures etc.[32][147]Before granting the
indult of voluntary exclaustration, efforts may be made to resolve difficulties
by spiritual direction, counseling etc. If the religious is not ready to change
his or her mind, he or she should be made aware of the juridical effects and
implications of voluntary exclaustration. If the exclaustrated religious
desires to transfer to another institute, he or she may return first to the
original community and initiate the process of transfer or may initiate the
process of transfer while exclaustrated so that exclaustration ceases upon
beginning of probation in the new institute.[33][148]
As
for the duration, the indult of exclaustration cannot be longer than three
years. From the wording of canon 686 §1, it is clear that extending an indult
beyond three years is reserved to either the Holy See for institutes of
pontifical or the diocesan Bishop for diocesan institutes. As compared to the
1917 Code, no time was specified for the duration of exclaustration, but the common
practice was to limit the duration to the three years in ordinary
circumstances.[34][149] If the term of
exclaustration is indefinite, we talk of
exclaustratio durante necessitate because it lasts as long as the reason
for which the exclaustration was granted and it is granted by the Holy See or
the diocesan Bishop.[35][150]
For nuns, the
petition for exclaustration is reserved to the Sacred Congregation which must
receive the opinion of the supreme moderator before granting the
exclaustration. The Holy See is the sole responsible for the granting of the
indult of exclaustration for nuns. If the exclaustrated person is a cleric, the
prior consent of the Ordinary of the place where the person must live is
requested. If he wants to leave his institute to become a diocesan priest and
has found a diocesan Bishop willing to receive him on trial basis the
exclaustration called Ad Experimentum
is granted by the Holy See.[36][151] If the religious cannot
find a Bishop who will consent to having the exclaustrated cleric live in his
diocese, the religious should refer the matter to the Sacred Congregation.[37][152] If he does not want to be incardinated and
yet he wants to be exclaustrated, then the institute must look for an
appropriate way to help him discern his vocation.
3.2.3.2. Qualified Exclaustration
It may happen
that the religious seeking exclaustration does not seek incardination and even
the exercise of sacred orders. Historically, the concept of “exclaustratio
qualificata” (qualified exclaustration) was developed in order to prevent
laicization. It came in practice of the Sacred Congregation for Religious as
early as October 1953 and was used as temporary remedy for a priest religious
seeking reduction to the lay state. Though not specified in the Code of canon
law, this type of exclaustration continues to be employed currently.[38][153]
Qualified
exclaustration permits and requires the priest to live as a lay person and
dispenses him from all clerical privileges, rights and obligations (like
wearing clerical garb) except the vow of chastity. The exercise of the sacred
ministry and use of the ecclesiastical habit are prohibited. The religious
shall promise in writing to provide for his own needs in the world during
exclaustration and he is to return to the Congregation when the time granted in
the indult has ended.[39][154] This exclaustration is
likened to temporary reduction to the lay state; its term is only one or two
years and this is not commonly extended.[40][155]
Qualified
exclaustration is offered as a time of reflection for cleric religious who are
thinking about their vocation; its purpose is to allow them to reconsider their
decision. For this reason, religious under qualified exclaustration remains
under the special care of the local and religious ordinary.[41][156]
3.2.3.3. Imposed Exclaustration
The imposed exclaustration or enforced exclaustration is described
in c. 686, §3 of the 1983 Code. This type of exclaustration did not appear in
the 1917 Code, but it has developed from the practice of the Sacred
Congregation for Religious. Historically, as early as 1952 and with the norms
issued on 19 January 1974 by the Sacred Congregation for Religious and Secular
Institutes (SCRIS), it was clear that imposed exclaustration was part of the
jurisprudence of that Sacred Congregation. This type of exclaustration was
referred to as exclaustratio ad nutum Sanctae Sedis that means at the
good pleasure of the Holy See for the institute of pontifical right and as exclaustratio ad nutum Episcopi for the
institute of diocesan right. Imposed exclaustration intends to respond to grave
situations where a religious’ personality and behaviour makes life in the
institute very difficult but, on the other hand, it does not constitute facts
and sufficient reasons for making possible a dismissal process. Imposed
exclaustration perdures as long as Rome so wishes.[42][157]
According to c.
686 of the 1983 Code, imposed exclaustration entails dispensation from the rule
incompatible with the new status of the religious:
Exclaustrated members are free from obligations which are
incompatible with their new
condition of life and at the same time remain dependent on and subject to the care of their superiors and
also the local ordinary, especially if the member is a cleric. The members may
wear the habit of the institute unless it is determined otherwise in the
indult. However, they lack active and passive voice.
It
is incumbent upon the Holy See or the Diocesan Bishop with the recommendation
of the superior with the consent of his or her council, to permit the religious
to retain the habit. The religious has no right to demand such permission. In
fact, exclaustration is not a right but a favour; the religious is obligated to
return when the superior so wishes. If a religious thinks that his or her
rights are being violated by the imposition of exclaustration, in a diocesan
institute, the matter can be referred to the diocesan Bishop and eventually to
the Sacred Congregation. In a pontifical institute, it could be referred
directly to the Sacred Congregation. An imposed exclaustration, since it is an
administrative precept, any recourse made cannot suspend the effects of the
indult.[43][158]
The
exclaustration imposed ad nutum is a
strong disciplinary measure, but it is also an act of clemency.[44][159] There must be “grave
causes” for imposing exclaustration such as continual refusal to obey
legitimate requests of superiors in serious matters,[45][160] disruptive behaviour promoting disharmony in community life, a
derogative witness to religious life causing scandal.[46][161] The Holy See is the competent authority to impose exclaustration
on the request of the general superior with the consent of his or her council
for a member of an institute of pontifical right. The diocesan Bishop is the
competent authority to impose exclaustration for a member of an institute of
diocesan right. The Congregation of the Roman Curia in charge of cases of
exclaustration is the Congregation for Institutes of Consecrated Life and the
Societies of Apostolic Life and the Congregation for the Eastern Churches.[47][162]
It
is to be noted that the seriousness of the consequences of imposed
exclaustration demands that the measure be taken only for the common good and
after the causes are proven, the incorrigibility is continuous, and the
individual has been given a chance to defend him or herself before the superior
who made the admonition or before the supreme moderator.[48][163] Since it is enforced exclaustration or imposed exclaustration, it
is granted to the member whether he consents, is opposed, or is indifferent to
the decree.[49][164]
In
imposing exclaustration equity and charity must be observed. However, the
exclaustrated member is obliged to support him/herself. Though whatever the
member earns belongs to the institute according to canon 668, §3, the person on
exclaustration must provide for himself or herself. If the member cannot
provide a descent living, the institute is obligated to assist. But, according
to James Coriden,
In helping the religious
get settled, the institute should not provide a community-owned car or allow
the continued use of congregation credit cards. In certain circumstances, an
institute may have to take civil means to clarify the distancing between the
institute and individual to distinguish the locus of liability for financial
transactions or criminal behavior.[50][165]
If the religious on exclaustration wants to move
from the religious vocation to the possibility of entering marriage, he or she
should petition for an indult of departure from the institute and the norms
laid down by the Congregation for the Doctrine of the Faith must be followed.[51][166]
There are canonical effects which follow exclaustration. The
effects may vary with the type of exclaustration and the reason for
exclaustration. Canon 687 which gives the juridic effects of exclaustration
does not, however, distinguish them according to the types of exclaustration.
That means the effects of exclaustration are somehow identical and can be dealt
with whether it is voluntary, qualified or imposed exclaustration.
Exclaustrated
religious are freed from obligations incompatible with their new condition of
life while remaining dependent upon and subject to their superiors or local
ordinaries. With regard to community life, exclaustrated religious may not vote
or be elected during the elections of the institute; he or she lacks active and
passive voice; he or she may not act as an agent of the institute; he or she is
exempt from communal prayer, and common life, he or she may be asked not to
wear the religious habit, etc.[52][167]
Regarding
the obligations of profession, religious are bound by the requirements of
canons 599-601 on chastity, poverty, and obedience. Considering the vow of
poverty the exclaustrated member is freed from many obligations, especially the
need to request certain permission for ordinary expenses and turn over income.
But for extraordinary or very large expenses, the exclaustrated religious still
is expected to request for permission.[53][168]
Concerning
the vow of chastity, juridically speaking, it can be said that chastity obliges
the member to perfect continence in celibacy. Therefore, the exclaustrated
member will be made aware that the obligation of perfect continence in celibacy
always remains unmitigated.[54][169] No faculty can be
granted to test out the vow of chastity. If the individual wants to begin a
search for a partner in marriage, then a dispensation from the vows is called
for.[55][170] For obedience, exclaustrated members are freed
from the obligation of asking permissions that they would have requested it
they were living in community.
Dismissal of a member from the institute is an action
taken by the competent authority which imposes on a professed member permanent
departure from the religious institute.
The law on dismissal is not new in the 1917 and the 1983 codes.
Historically, with the institution of the cenobitic
monasteries, rules which foresaw the dismissal of the incorrigible religious
were enacted. The monastic rules under Pope Urban VIII were not applied without
looking first at the gravity of the causes and after giving monitions for
dismissal. The first document of universal character with regard to dismissal
is the decree Sacra Congregatio dated
21 September 1624. This document treated only of the dismissal of religious
with solemn vows. With the decree Sanctissimus
of 12 June 1858 the dismissal of religious of simple vows was established.[56][171]
The
constitution Conditae a Christo of 8th December 1900 and the Normae of 1901 developed progressively
the discipline of dismissal and the
dismissal of non-ordained religious of simple vows in sacris and the dismissal of religious in simple vows, temporary
and perpetual. The more organized discipline of dismissal appeared in the de
decree Quum Single of 16 may 1911.
This decree constitutes the first elaborated discipline of dismissal for all
cases of dismissal except for the dismissal of nuns, religious of perpetual and
temporary vows and religious of simple vows not in sacris. The decree of 1911 established the causes for the
dismissal in iure, called also de facto dismissal. The causes for this type of dismissal were public apostasy,
successive cohabitation with a woman, civil marriage or attempting marriage.
All these causes were incorporated in the 1917 Pio-Benedictine Code.[57][172]
For a better understanding of the norms on dismissal of religious
in the 1983 Code, it is advisable to call to mind the basic lines followed in
the previous norms of the 1917 Code. In
both Codes the procedure of dismissal depended on whether the person to be
expelled is a temporary professed religious and a perpetually professed
religious. In the previous Code, the expulsion of a temporarily professed
religious was not identified per se with the indult of secularization but, by
law, it had the same effect as those for perpetually professed religious.[58][173]
Expulsion
from the institute involved liberation ipso
facto from religious vows. The dismissal of a perpetually professed did not
entail “secularization;” rather, the religious expelled continued to be bound
by the vows and to be a religious. That is what is affirmed in c. 669 of the
1917 Code:
A professed
religious who has given perpetual vows and who is dismissed from the religious
institute remains bound by religious vows, with due regard for the
constitutions and indults of the Apostolic See that determine otherwise. If a
cleric is constituted in minor orders, he is by that fact reduced to the lay
state.
Though
cc. 646-672 of the 1917 Code are important with regard to dismissal, some
changes have been made during various sessions on the process of the
codification of the 1983 Code. For instance, c. 694 of the 1983 code goes as
follows
Ipso facto dimissus ab
instituto habendus est sodalist? qui: (1) a fide catholica notorie decerit; (2)
matrimonium contraxerit vel, etiam civiliter tantum, attentaverit. His is
casibus Superior maior cum suo consilio, nulla mora interposita, collectis
probationibus, declarationem facti emittat, ut iuridice constet de dimissione.
The final text of c. 694 is rooted in c. 646 of
the 1917, but its formulation was affected by Vita Consecrata 85, which used the phrase “Supremus Moderator de
consensu consilii statim dimittere potest sodalem qui” which changed in the
schema of the codification of c. 620 of 1980 and the schema of the codification
of c. 694 of the 1982 and 1983 Code and became, “Ipso facto dimissus ab
instituto habendus est sodalis” that means “a member is to be held to be ipso
facto dismissed from the institute.”[59][174]
In
addition, some canons of the 1983 Code have maintained their versions with very
slight change from the schema of 1980, 1982 and 1983. A typical example is c.
696 which has its source in c. 647 of the 1917 Code and in 1980, it appeared as
c. 622 which was maintained through out the schema of 1982 and the final text
of 1983 but it became c. 696 with only one word changed. The word “reiteratae”
of c. 696 of the schema of 1982 changed to “iteratae” in the 1983 Code.[60][175]
Generally
speaking, cc. 696, 697, 698 and 699 did not have much change with regard to the
1980 Schema Codicis and the final
codification of 1983. The 1917 Code has contributed a lot to the formulation of
the 1983 Code despite some changes, additions and suppressions of certain
elements.
Before
treating the types of dismissal, we must note that the rights and obligations
of a member of religious institute or a society of apostolic life can cease
when the membership is terminated either voluntarily through legitimate
departure or transfer or involuntarily through a process of dismissal.
Dismissal, as a way of terminating the membership with the institute, is a
penal procedure and so it is subject to strict legal interpretation regarding
exact procedures according to c. 18 as has been demonstrated by the
Congregation for Institutes of Consecrated Life and for Societies of Apostolic
Life.[61][176]
We
will look at the types of dismissal from the religious institute in order to
find who initiates the process of dismissal, the causes for dismissal,
canonical procedures and the juridical consequences of dismissal.
3.4.3.1. Ipso Facto Dismissal from the Religious Institute
Automatic or ipso facto dismissal
is a canonical penalty inflicted on religious in order to protect the institute
against the actions of members whose behaviour is directly and publicly
contrary to the nature of consecrated life. According to c. 694 of the 1983
Code,
§ 1. A member is to be
held to be ipso facto dismissed from the institute who:1. has notoriously
abandoned the Catholic faith; 2. has contracted marriage or has attempted it,
even if civilly. § 2. In these instances the major superior with the council
without any delay and after having collected proofs should issue a declaration
of the fact so that the dismissal is established juridically.
In the canon, the first reason for automatic
dismissal is defection from the catholic faith. The canon talks of defection
from the Catholic faith[62][177] but it does not mention
any of the delicts mentioned in c. 751, that is heresy, apostasy, or schism,
each of which entails a latae sententiae excommunication
(c. 1364, § 1).
Since the canon is penal in nature, it would be subject to a
strict interpretation by narrowing the meaning of the words without doing
violence to the actual meaning (c.18). It follows that mere disagreement with
or objection to or questioning of certain magisterial pronouncements and
matters of faith would not constitute a direct matter for ipso facto dismissal. Likewise the simple fact that a person no
longer practices the Catholic religion on a regular basis does not imply that
he or she has notoriously abandoned the Catholic faith.[63][178]
Furthermore,
the canon clearly speaks of abandoning faith which is different from leaving
the Catholic faith. It seems reasonable to hold that abandoning the Catholic
faith requires some type of formal act similar to the one mentioned in the
canons on marriage (c.1086).
The
second reason for automatic dismissal includes civil marriage. Canon 694
distinguishes two forms of marriage: contracted marriage and attempted
marriage. Canon 1088 of the 1983 Code renders invalid any marriage by one who
is bound by the public perpetual vow of chastity in a religious institute. The
marriage of such a religious is considered to be “attempted” because no
dispensation from vow of chastity was granted. A civil bond of marriage is that
which is recognized in civil law. Those who have not made their perpetual vows
“contract” marriage but illegally.[64][179]
It must be mentioned that ipso facto dismissal may not directly be applied but rather a
medicinal penalty of suspension.[65][180] Clerics who attempt
marriage are removed from ecclesiastical office according to canon 194, and they attempt marriage, even if
civilly, incur a latae sententiae
suspension but if they do not repent after warning and continue to give scandal,
they may be dismissed from the clerical state. That means, in some
circumstances, dismissal will apply if the religious failed to comply with the
obligations of suspension. If this concerns a religious in perpetual vows who
is not a cleric and who has attempted even a civil marriage, then he will incur
a latae sententiae interdict, with
due regard for the prescription of canon 694.[66][181]
3.4.3.2. Mandatory Dismissal from the Religious Institute
Mandatory
or obligatory or compulsory dismissal is a penalty inflicted on religious for
the reasons mentioned in c. 695, § 1. Since mandatory dismissal is considered
penal in nature, a strict interpretation of this canon would be called for.
Before inflicting the penalty it must be well established that the necessary
conditions mentioned in c. 1323 have been met.
That means, if any of the conditions mentioned in c. 1323 were present,
the penalty foreseen in c. 695 should not be applied. Among these conditions,
we can mention a case where a religious acted under physical force, grave fear,
acted against an unjust aggressor for the sake of legitimate defense or defense
of an other, he or she lacked the use of reason, a person who ignorant that he
or she violated the law.[67][182]
In
addition to the conditions mentioned in c. 1323, before applying a compulsory
dismissal it is important first to have proof of the fact, and then consider
cc. 1323-1327 on exempting, mitigating, or aggravating circumstances. Because
of the seriousness of the matter and because the penalty of dismissal affects
the rights and obligations of the person, qualified experts in canon law should
be consulted before using the provision of dismissal.[68][183]
According
to c. 695, § 1, the following constitute the causes for obligatory dismissal:
voluntary homicide, detention, mutilation, gravely wounding someone, abduction
(kidnapping) by force or by fraud, (c. 1397), abortion (c. 1398), delicts
against the sixth commandment: concubinage, external sins against chastity that
cause scandal, external sins against chastity committed by force, by threats,
or in public sins against chastity committed with a minor under the age of
sixteen (c. 1395).[69][184] But not every case of
sin against the sixth commandment as prescribed in c. 1395, § 2 amounts to obligatory
dismissal.[70][185] Considerations must be
given to the possible reform of the offender, the restitution of justice, and
the reparation of scandal.[71][186]
In
some cases responsibility may be diminished or even nonexistent because not
committed with full consent, but results from a pathological condition. Not
every case of the above delicts entails obligatory dismissal. As to sexual sins
committed with young people and certain others mentioned in c. 1395 dismissal
may not be mandatory if provision can be made for the possible reform of the
offender, the restitution of justice and the reparation of the scandal.[72][187]
With
regard to the sexual misconduct of some religious members today, in many parts
of the worlds, attention is given to sexual delicts committed with minors under
18 years of age whether based on pedophilia, ephebophilia, homosexuality or
heterosexuality.[73][188] Civil lawyers judge
this kind of cases very severely, and the perpetrator once found, is usually
sent to prison. The religious superiors should check whether the sexual
misconduct is due to malice or pathological state of the mind. According to the Norms Applicable in the Congregation of the Augustinians of the
Assumption in cases of Sexual Abuse,
An ordained member found to have abused a minor or
vulnerable person would not be allowed
to function as a priest or deacon, including public celebration of the sacraments,
use of the title “Father” or “Reverend” in public communication and the wearing of clerical attire.[74][189]
Since
in today’s environment of litigation against priests and religious men and
women on charges of child sexual abuse, the superior’s decision requires great
prudence, with due regard to the input of experience legal counsel.[75][190] Likewise, since the
secular society is very severe in treating cases related to sexual misconduct
by church members, religious institutes must be keen in dealing with sexual
allegations.
With
regard to sexual allegations, some considerations of the praxis of Congregation
for the Doctrine of Faith are relevant. According to art. 4. § 1 of Normae substantiales, a delict against
the sixth commandment by a cleric with a minor below the age of 18 is reserved
to the Congregation for the Doctrine of Faith.[76][191] This delictum cum minore (delict with a minor) is not only a physical
contact or direct abuse, but it includes indirect abuse such as showing
pornography to minors; lewd indecent exposure in front of minors, possession
of, or downloading from the internet of pedophilic pornography. This type of
behavior is also a civil crime in some nations. In this regard, some priests
have been incarcerated for possession of thousands of pornographic photos of
children and youth.[77][192]
However, the legal maxim “innocent until
proven guilty”[78][193] opposed to that of
“guilty until proven innocent” must be upheld when clerics are alleged with
that kind of crime. Indeed, the right of
defense must not be violated: “if a court does not allow the accused priest to
be heard, to present his side of the picture, and respond to accusations,
natural justice is seriously offended.”[79][194]
If the allegation brought by the alleged
victim or by the parents or legal guardian are true the religious institute
will offer counseling services to the victim of misconduct to enable healing.
In this case, the criminal action of sexual abuse will be extinguished by
prescription after 10 years running from the day on which the delict was
committed or, if the delict were continuous or habitual, from the day on which
it ceased. In cases of sexual abuse, the period of 10 years will begin to run
the day on which the minor completes his or her 18 years.[80][195] For cases in which a law-suit has been filed against the
institute all contacts with the victims and alleged victims and their families
must be brought through the attorney for the institute.[81][196]
For
mandatory dismissal there are no canonical warnings needed, but rather the
major superior is to gather the evidence concerning the facts and the
imputability of the offence; and the religious has the right to present a
legitimate defense (c. 221).
3.4.3.3. Facultative or Optional or Discretionary Dismissal from
the Religious Institute
Facultative
dismissal may be inflicted to religious for seven reasons. These reasons do not
constitute an exhaustive list. The Code recognizes the possibility of other
causes which may be found in the proper law of an institute.
According
to c. 696, a member can be dismissed for other causes, provided that they are
grave, external, imputable and juridically proven, such as: habitual neglect of
the obligations of consecrated life; repeated violations of sacred bonds;
pernicious disobedience to lawful prescriptions of superiors in serious matter;
grave scandal arising from the culpable behavior of the member; pernicious upholding or spreading of doctrines condemned
by the Magisterium of the Church; public adherence to ideologies infected by
materialism or atheism; unlawful absence lasting six months; other causes of
similar seriousness.
Such
causes are mentioned in cc. 1364-1399[82][197] and those which may be determined by the proper law of the
institute. Even causes of lesser seriousness determined in proper law suffice
for the dismissal of a member in temporary vows. That means that the members of
the institute must be aware of both the universal law and the particular law of
the institute in order to vindicate their rights when they are violated but
also in order to fulfill their obligations.
The Rule of life of the Augustinians of the Assumption reflects some elements
related to other reasons for dismissal. Dismissal of a temporary or perpetually
professed religious from the Augustinians of the Assumption can be effected
because of constant disparagement of the institute and of its superiors and
habitual behaviour which holds religious apostolic life in contempt and hinders
its functioning.[83][198]
In
the process of dismissal, after collection of evidence, the superior warns the
offender in writing or orally before two witnesses with an explicit caution
that dismissal will follow unless the member reforms.[84][199] If the person does not reside in a house of the institute, the
warning can be sent by registered mail with a return postal receipt to prove
the reception of the warning. The telephone conversation is not sufficient for
a juridical proof. If the religious is no where to be found, the major superior
can send a warning to the person’s family or friends for communication, or he
can issue a citation of edict in the institute newsletter, etc.[85][200]
In
inflicting a facultative dismissal, the four conditions must exist
simultaneously: the cause must be grave, external, imputable and juridically
proven. If one of the four conditions is not met, it is forbidden to proceed to
the dismissal. Since very few institutes have established in their proper law
causes for lesser gravity to justify the dismissal of members in temporary
vows, instead of being embroiled in the dismissal process, institutes allow the
time to lapse and then refuse admission to the renewal of profession. Not
admitting a person to the renewal is not a dismissal because the institute is
never obligated to accept as member someone who is not judged suitable for the
institute (c. 657, §1).[86][201]
3.4.3.4. Immediate Expulsion from the Religious House
Immediate
expulsion from the house is justified by serious external scandal and gravest
harm to the institute. The scandal here must be external, not internal.
Expulsion is not a form of dismissal from the institute but a provisional measure.
The Latin uses the superlative gravissimi
nocumenti to qualify the scandal being considered.[87][202] If dismissal follows, the legal procedure for dismissal must be
applied. It is c. 703 which talks of immediate expulsion, but it does not
explicitly state the reasons for such an expulsion.
According
to Thomas Pazhayampallil, the cause
of grave external scandal could be for example sins against the sixth
commandment of the Decalogue, sexual crimes with students of the institute,
serious threat to set the house on fire or against the life of a member of the
institute, or serious loss of temporal property.[88][203]
A
member falling into a situation of immediate expulsion may request himself or
herself an indult of departure or a major superior may expel the member on his
or her authority. However, if there is a danger in delaying it, this can be
done by the local superior with the consent of his or her council, and the next
step will be to inform immediately the major superior.
3.4.3.5. The Exclusion from Further Vows
Exclusion
from vows is another way of separating from the institute. The competent major
Superior, after consulting his or her council, can exclude a member from
further profession on the completion of temporary vows.[89][204] Strictly speaking exclusion is not dismissal; exclusion is not
expulsion. For dismissal, there must be a grave reason. For exclusion, a just
reason is sufficient. It could be the lack of docility, lack of religious
spirit, incompatibility of character to the demands of religious life, etc.
Whereas dismissal is a penal procedure, exclusion is not a penal procedure. The
one who is excluded from renewing the vows, if he or she finds he or she
unjustly treated, may have recourse to the higher Superior or to the Holy See.
However, a recourse against exclusion to the Holy See usually has little hope
of success except in the case of a clearly illegal exclusion.[90][205]
With
regard to exclusion for a physical or psychological infirmity, even if
contracted after profession, physical or psychic illness which in the judgment
of experts renders the member who is bound by temporary profession, unsuited to
lead a religious life, constitutes a reason for admitting such a person to a
renewal of vows or to make perpetual vows, unless the infirmity was contracted
through the deliberate negligence of the institute or because of the work
performed in the institute. The institute has the duty to provide reasonable
care for all of the members without discrimination. The case of insanity is
different. If a religious becomes insane during temporary vows, even though
unable to make a new profession, cannot be dismissed from the institute but
rather must receive appropriate treatment and care. To ascertain his or her
insanity status, medical experts are to be used, with due respect to
confidentiality and privacy.[91][206]
The
procedures for dismissal are a legal process which must be well established for
the gravest causes which are external, imputable and juridically proven. It
will depend on the type of dismissal and the kind of causes for dismissal. But,
some of the procedures are common to all types of dismissal. Among them, we
have the following standard procedures: initiation of the process, consultation
of the council composed of a least four members in addition to the supreme
moderator, collecting and completing evidence, initial warning, first formal
warning[92][207] in writing or orally
made before two witnesses, giving the possibility for defense, second formal warning
after fifteen days, after fifteen days, council votes on forwarding acts of
dismissal to the Superior General, General council votes on dismissal, then the
member is notified of dismissal, issuing the degree of dismissal expressing the
motives in fact and in law and indicating the right of recourse with suspensive
effect.[93][208]
If
the case is to be dealt with through a judicial process or a penal process, the Code of canon law presents three distinct
stages that should be pursued before any penalties are imposed. In the first
place, there must be a preliminary investigation (cc.1717-1719) to ascertain
the imputability of the one accused of misconduct. This investigation helps to
determine if an offence truly occurred and if the accused is responsible for
the offence.
During
this process the names or the good reputation and the privacy of the accused
(c. 220) must be protected, and confidentiality must be assured. Secondly, the
penal process (cc. 1720-1728) is the stage where the accused will be informed
and have the opportunity to respond to the allegations. There can be a
canonical trial only for offences listed in canons 1364-1398 or in the
particular law (cc. 1315-1320). The accused has the right to have an advocate.
In this process, the accused must be given the right to write or to speak last
in the process and is never bound to confess his delict. The last stage is the
victim’s right to seek repair of damages (cc. 1729-1731) sustained due to an
offence.[94][209]
The canonical effects of legitimate dismissal
follow ipso facto, in all types of
dismissal. Canon 701 states:
By legitimate dismissal, vows as well as rights and
obligations deriving from profession cease ipso
facto. Nevertheless, if the member is a cleric, he cannot exercise sacred
orders until he finds a Bishop who receives him into the diocese after an
appropriate probation according to the norm of can. 693 or at least, permits
him to exercise sacred orders.
This canon already gives some canonical effect
which follow dismissal. With dismissal, the religious looses rights and
obligations arising from profession. For a cleric, the exercise of sacred
orders is prohibited until a Bishop permits this. The obligation of celibacy
does not end with dismissal of a cleric. Celibacy remains intact unless
laicization has been obtained.[95][210]
The separation of the
members from the religious institute can take place in various ways. As we have
analyzed the modes of separation, that is, transfer, exclaustration and
dismissal, we focused on the different types of each of the mode by giving
first the historical background in order to find the sources of the mode of
separation, then we looked at the formulation of norms dealing with each mode of separation, and
finally we analyzed each mode of separation by underlining the causes of
separation, the procedures to be followed, and the juridical effects of each
separation.
Separation
of members is not a pleasing factor in the institute. For this reason, each
institute must avoid as much as possible all situations which could lead to the
separation of members. Since the reasons for separation may lie on the side of
the religious, religious members must also avoid situations which may lead them
to a possible separation from the institute.
The
institute is free to admit candidates who want to live a religious life but if
they do not comply with universal law of the Church or the particular law of
the institute, they may request themselves to leave the institute. In this way,
the institute is not held in anyway to recompense religious for years of work
in the institute but equity and charity shall apply towards the members who
transfer, depart or are dismissed from the institute.[96][211]
[1][116] Cf. E.
McDONOUGH, “Separation of Members from the Institute: canons 684-709,” in J.
HITE, S. HOLLAND and D. WARD (eds.), A
Handbook on Canons 573-746, Liturgical Press, Collegeville, Minnesota 1985,
p. 222.
[2][117] Cf. E.
McDONOUGH, “Separation of Members from the Institute: canons 684-709,” in J.
HITE, et al. (eds.), A Handbook on Canons
573-746, p. 222.
[3][118] Codice di Diritto
Canonico Testo Officiale e versione italiana sooto il
patrocinio della Pontificia Università Lateranense e della Pontificia
Università Salesiana Terza edizione Riveruta, corretta e aumentata, Unione
Editori e Librari Cattolici Italiani,
Roma 1997, and Canon Law Digest I: 324-25; III: 256-57.
[4][119] Cf. E. N. PETERS, Incrimenta
in progressu 1983 Codicis iuris canonici, with multilingual introduction,
Wilson & Lafleur, Notre Dame 2005, p. 635.
[6][121] Cf. E. McDONOUGH, “Separation of Members from the
Institute: canons 684-709,” in J. HITE, et al. (eds.), A Handbook on Canons 573-746, p. 227.
[8][123] Cf. E.
McDONOUGH, “Separation of Members from the Institute: canons 684-709,” in J.
HITE, et al. (eds.), A Handbook on Canons
573-746., p. 228.
[9][124] Cf. E.
CAPARROS, M. THERIAUT, J. THOREN (eds.),
Code of Canon Law Annotated, Wislon
& LaFleur Limitée, Montréal 2004, p. 685.
[10][125] S. HOLLAND, “Separation of Members from the
Institute [cc.684-704],” in J. BEAL, et al. (eds.), The New Commentary on the Code of Canon Law, p. 852.
[12][127]Cf.
PONTIFICAL COMMINSSION FOR THE AUTHENTIC INTERPRETATION OF THE CODE OF CANON
LAW, Reply, 29 April 1987, in L’Osservatore Romano, ed. English, 28
September 1987; L. WRENN, Authentic
Interpretations on the 1983 Code, CLSA, Washington DC 1993, pp. 36-38.
[13][128]Cf. S.
HOLLAND, “Separation of Members from the Institute [cc.684-704],” in J. BEAL,
et al. (eds.), The New Commentary on the Code of Canon Law, p.
852.
[15][130] Cf. R.
McDERMOTT, “Separation of Members from the Institute [cc. 684-704],” in J.
CORIDEN, T. GREEN, D. HEINTSCHEL, The
Code of Canon Law. A Text and Commentary, Paulist Press, New-York/ Mahwah
1985, p. 514.
[16][131] E.
McDONOUGH, “Exclaustration: Canonical Categories and Current Practice,” in The Jurist 49 (1989), pp. 568-606.
[17][132] Cf. T.
GUERIN SULLIVAN, “Separation of Members From the Institute,” in M. JOYCE, C.
DARCEY, R. KSLYN and M. SULLIVAN, Procedural
Handbook for Institutes of Consecrated Life and Societies of Apostolic Life,
The Catholic University of America, Washington DC 2001, p. 138.
[18][133]
Exclaustration is not available to temporarily professed members of religious
institutes because it is perceived as neither appropriate nor necessary. Since
those who have made temporary profession are in the process of formation
leading to perpetual vows, permitting a partial separation from the institute
by exclaustration would not be in keeping with their primary purpose. In
addition, those in temporary vows are free to leave the institute when their
vows expire (can. 657, §1), and during the time of temporary profession they
can obtain a total separation from the institute through an indult of departure
issued by the supreme moderator in accord with can. 688, §2 (Cf. E. McDONOUGH,
“Exclaustration: Canonical Categories and Current Practice,” in M. JOYCE, C.
DARCEY, R.KSLYN and M. SULLIVAN, Procedural
Handbook for Institutes of Consecrated Life and Societies of Apostolic Life,
p. 138.)
[19][134] E. JOMBART,
« Exclaustration », in R. NAZ
(sous la direction de), Dictionnaire de Droit Canonique, Tome V,
Duagensis Collection, Intérêt et Usure, Librarie Letouzey et Ané, Paris 1953,
p. 610 ; L. SABBARESE, « Esclaustrazione, Uscita e dimissione dei
religiosi dall’istituto », in Euntes Docete. Commentaria Urbaniana Nova Series LXIV 2011, Vol 2, Urbaniana University Press, Città del Vaticano
2011, pp. 99-128.
[20][135] The leave of
absence is given for a just cause by a major superior with the consent of the
council according to c. 665, § 1.
[21][136] Cf. E.
McDONOUGH, “Separation of Members from the Institute: canons 684-709,” in J.
HITE, et al. (eds.), A Handbook on Canons
573-746, p. 230.
[24][139] SCRIS Decr. Dum Canonicarum legume, 8 dec. 1970, 5 (AAS 63 [1971], p. 319. This reference is
also a source for c. 702 of the 1983 Code. Cf.
AAS 63 (1971), p. 308.
[27][142]
Ibid., p. 641 « Si vero
religious, perdurantibus votis temporaries, amens evaserit, etsi novam
professionem emitter non valeat, ab instituto tamen dimitti non potest »
[28][143] Cf. F.
RAMOS, “Separation of Members from the Institute,” in A. MARZOA, J. MIRAS and
R. RODRIGUEZ-OCAÑA (eds.), Exegetical
Commentary of on the Code of Canon Law, Prepared under the responsibility
of M. AZPILCUETA Institute, Faculty of Canon Law, University of Navarre, vol. II/2,
l, Wilson & LaFLeur, Montréal 2004, p. 1839.
[29][144] C. 638 of
the 1917 Code. To avoid confusion between canons of the 1917 Code and those of
the 1983, we will be writing the canons of the previous Code followed with the
year; whereas for the canons of the 1983 Code, we will be writing only the
canons without mentioning the year.
[30][145] Cf. T. G.
SULLIVAN, “Separation of Members from the Institute,” in M. JOYCE, et al.
(eds.), Procedural Handbook for
Institutes of Consecrated Life and Societies of Apostolic Life, p. 138.
[31][146]L. SABBARESE, “Esclaustrazione, Uscita E Demissione dei
Religiosi Dall`Istituto,” in Euntes
Docte. Commentaria Urbaniana Nova Series LXIV 2011, vol. 2, p. 115.
[32][147] Cf. T. G.
SULLIVAN, “Separation of Members from the Institute,” in Procedural Handbook for Institutes of Consecrated Life and Societies of
Apostolic Life, pp. 141-142. Voluntary exclaustration is not to be confused
with the leave of absence mentioned in c. 665. During the leave of absence the
person maintains his or her rights and obligations. For the types of leaves of
absence: Health leave, Leave for continuing formation or renewal,
Administrative leave, Personal Leave and Authorized leave Cf. J. P. BEAL,
“Leaves of Absence,” in R. CALVO and J.
N. KLINGER (eds.), Clergy Procedural
Handbook, The Catholic University of America, Washington DC1992; see also
R. SMITH, “Institutes of Consecrated Life and Societies of Apostolic Life,” in
J. BEAL, et al. (eds.), The New
Commentary on the Code of Canon Law, pp. 830-831; Cf. S. SINDIRIGHA,
interviewed in Butembo, on 1st July, 2011.
[33][148] Cf. E.
McDONOUGH, “Separation of Members
from the Institute. Canons 684-704,” in J. HITE, et al. (eds.), A Handbook on Canons 573-746, p. 236.
[35][150] Cf. T. G.
SULLIVAN, “Separation of Members from the Institute”, in M. JOYCE, et al.
(eds.), Procedural Handbook for
Institutes of Consecrated Life and Societies of Apostolic Life, p. 141.
[36][151] L.
SABBARESE, “Esclaustrazione, Uscita e Demissione dei religiosi
dall`Istituto,” in Euntes Docte. Commentaria Urbaniana Nova Series LXIV 2011, vol. 2, p. 106:
“The indult of exclaustration Ad
Experimentum […] is granted if the priest religious wants to definitively
leave his Institute to become a diocesan priest, and if he has found a diocesan
bishop who is willing to receive him in the diocese on a trial basis.”
[37][152] Cf. E.
McDONOUGH, “Separation of Members
from the Institute. Canons 684-704,” in J. HITE, et al. (eds.), A Handbook on Canons 573-746, p.
236.
[38][153] Cf. E.
McDONOUGH, “Exclaustration: Canonical
Categories and Current Practice,” in The
Jurist 49 (1989), pp. 568-606. The formula for qualified exclaustration
appears in Latin in Leges 2:3213-3214
(dated October, 1953); See also A. QUITEREZ, “De exclaustratione qualificata,” Commentarium
pro Religiosis 34 (1955), pp. 374-379.
[39][154]Cf. S.
HOLLAND, “Separation of Members from the Institute [cc.684-704],” in J. BEAL,
et al. (eds.), The New Commentary on the
Code of Canon Law, p. 856.
[40][155] Cf. T. G.
SULLIVAN, “Separation of Members from the Institute,” in M. JOYCE, et al.
(eds.), Procedural Handbook for
Institutes of Consecrated Life and Societies of Apostolic Life, p. 140.
[41][156] Cf. F.
RAMOS, “Separation of Members from the Institute,” in A. MARZOA, et al. (eds.),
Exegetical Commentary of on the Code of
Canon Law, II/2, Wilson & LaFLeur, Montréal 2004, p. 1846.
[42][157] E.
McDONOUGH, “Exclaustration: Canonical
Categories and Current Practice,” in The
Jurist 49 (1989), pp. 568-606. See also Cf. L. SABBARESE, “Esclaustrazione, Uscita E
Demissione dei religiosi dall`Istituto,” in Euntes
Docte. Commentaria Urbaniana Nova Series LXIV 2011, vol. 2, pp. 99-130.
[43][158] Cf. E.
McDONOUGH, “Separation of Members
from the Institute. Canons 684-704,” in J. HITE, et al. (eds.), Handbook on Canons 573-746, p. 236.
[44][159] Cf. E.
McDNONOUGH, “Exclaustration:
Canonical Categories and Current Practice,” in The Jurist 49 (1989), pp. 568-606.
[46][161] Cf. R. McDERMOTT,
“Separation of Members from the Institute [cc. 684-704],” in J. CORDIEN, et al.
(eds.), The Code of Canon Law. A Text and
Commentary, p. 515.
[48][163] Cf. F.
RAMOS, “Separation of Members from the Institute,” in A. MARZOA, et al. (eds.),
Exegetical Commentary of on the Code of
Canon Law, II/2, pp.
1842-1843.
[49][164] Cf. R.
McDERMOTT, “Separation of Members from the Institute [cc. 684-704],” in J.
CORDIEN, et al. (eds.), The Code of Canon
Law. A Text and Commentary, p. 515.
[50][165] S. HOLLAND,
“Separation of Members from the Institute [cc.684-704],” in J. BEAL, et al.
(eds.), The New Commentary on the Code of
Canon Law, p. 857.
[51][166] “On January
13, 1971, the Congregation for the Doctrine of the Faith issued a circular
letter to all local Ordinaries and the general moderators of clerical religious
institutes explaining a series of norms to which the letter was appended. The
undated norms appeared in the AAS of the April 30, 1971 together with the
circular letter, are entitled “Norms for the preparation, in Diocesan and
religious curias, of cases of reduction to the lay state with dispensation from
the obligation attached to sacred ordination” (F. SEPER, “Procedure for Return
to the Lay State,” in The Jurist, A Quarterly
Review, 31-32 (1971/72), pp. 672-680.
[52][167] Cf. E. CAPARROS et al. (eds.), Code of Canon
Law Annotated, p. 546; R. McDRMOTT, “Separation of Members from the
Institute [cc. 684-704],” in J. CORIDEN, et al. (eds.), The Code of Canon Law. A Text and Commentary, p. 515.
[53][168] Cf. T. G.
SULLIVAN, “Separation of Members from the Institute,” in M. JOYCE, et al.
(eds.), Procedural Handbook for
Institutes of Consecrated Life and Societies of Apostolic Life, p. 141.
[54][169] Cf. E.
McDONOUGH, “Exclaustration: Canonical
Categories and Current Practice,” in The
Jurist 49 (1989), pp. 568-606.
[55][170] Cf. P. COGAN
J., CLSA Advisory Opinions 1984-1993,
Canon Law Society of America, Washington DC 1995, p. 198.
[56][171] Cf. L. SABBARESE,“Esclaustrazione, Uscita E Demissione
dei Religiosi Dall’Istituto,” in Euntes
Docte. Commentaria Urbaniana Nova Series LXIV 2011, vol. 2, pp. 99-129.
[61][176] Cf. T. G.
SULLIVAN, “Separation of Members from the Institute,” in M. JOYCE, Procedural Handbook for Institutes of
Consecrated Life and Societies of Apostolic Life, p. 215.
[62][177] J. H. PROVOST, “Ecclesiastical Offices
[cc.145-196], in M. JOYCE, et al. (eds.), Procedural
Handbook for Institutes of Consecrated Life and Societies of Apostolic Life,
p. 227. Public defection from the Catholic faith is similar to but not
precisely the same as apostasy which is total repudiation of Christian faith
public defection from the communion of the Church is similar to but not
precisely the same as schism which is defection from Catholic communion (c.
751).
[63][178]Cf. F. RAMOS,
“Separation of Members from the Institute,” in A. MARZOA, et al. (eds.), Exegetical Commentary of on the Code of
Canon Law, vol. II/2, p. 1862.
[64][179] E.
McDONOUGH, “Separation of Members from the Institute: canons 684-709,” in J.
HITE, et al. (eds.), Handbook on Canons
573-746, p. 253; See also c.1453 of CCEO (1990).
[65][180] A medicinal
penalty or censure is intended to heal or cure the offender. There are three
types of medicinal penalties or censures: excommunication, interdict, and
suspension. Excommunication is a partial exclusion from the communion of the
faithful. It does not separate from the Church, but it implies here an impaired
participation. The excommunicated person is forbidden to celebrate or receive
the sacraments or to carry out any offices or ministries (c. 1331). Interdict
has the same sacramental restriction, but not that of governing functions (c.
1332). Suspension forbids either some or all acts of the power of orders, of
the power of governance, or the exercise of rights or functions of office;
suspension applies only to ordained ministers (cc. 1333-1334). Since the
purpose of medicinal penalties is conversion, a censure must be lifted when the
offender repents and is willing to repair the harm done or the scandal caused
(c. 1358) [Cf. J. A. CORIDEN, An Introduction
to Canon Law, Paulist Press, New York 1990, p. 177.]
[66][181] Cf. S.
HOLLAND, “Separation of Members from the Institute [cc.684-704],” in J. BEAL,
et al. (eds.), The New Commentary on the
Code of Canon Law, p. 865. The 1983 Code is no longer including the
automatic dismissal clause for running away with a person of the opposite sex
which was included in the 1917 Code (cf. E. McDONOUGH, “Separation of Members
from the Institute: canons 684-709,” in J. HITE, Handbook on Canons 573-746, p. 265.)
[67][182] S. HOLLAND,
“Separation of Members from the Institute [cc.684-704],” in J. BEAL, et.al.
(eds.), The New Commentary on the Code of
Canon Law, p. 1542.
[68][183] Cf. T. G.
SULLIVAN, “Separation of Members from the Institute,” in M. JOYCE, et al.
(eds.), Procedural Handbook for
Institutes of Consecrated Life and Societies of Apostolic Life, p. 156.
[69][184] Cf. F.
RAMOS, “Separation of Members from the Institute,” in A. MARZOA, et al. (eds.),
Exegetical Commentary of on the Code of
Canon Law, vol. II/2, p. 1865; cf. C. 1453, §1(CCEO); Cf. A. J. STRICKLAND,
“To Protect and To Serve: the Relationship Between the Victim Assistance
Coordinator and Canonical Personnel,” in Proceedings
of the Seventy-First Annual Convention. October 12-15, 2009, Louisville,
Kentucky, CLSA, Washington DC,
2009, pp. 232-235.
[70][185] In most
cases for religious women/nuns, pregnancy is a sufficient reason for dismissal
from the institute (Cf. J. Kwalikwalava, interviewed in Nairobi, on 25th February, 2012).
[71][186] Cf. S.
HOLLAND, “Institutes of Consecrated Life and Societies of Apostolic Life,” in
J. BEAL, et al. (eds.), The New
Commentary on the Code of Canon Law, p. 865.
[72][187] Cf. S.
HOLLAND, “Separation of Members from the Institute [cc.684-704],” in J. BEAL,
et al. (eds.), The New Commentary on the
Code of Canon Law, p. 866.
[73][188] Cf. C. J.
SCICLUNA, “The Procedure and Praxis of the Congregation for the Doctrine of
Faith Regarding Graviora Delecta,”in
M. DUGAN (ed.), The Penal Process and the
Protection of Rights in Canon Law. Proceedings of a Conference Held at the Pontifical
University of the Holy Cross Rome, March
25-26, 2004, Wilson & Lafleur Ltée, Montréal 2005, p. 239.
[74][189]AUGUSTINIANS
OF THE ASSUMPTION, Norms Applicable in
the Congregation of the Augustinians of the Assumption in Cases of Sexual
Abuse. Procedures to be Followed in the Case of Accusations of Abuse and the
Prevention of Abuse, General House, Rome 2010, p. 8. See also the documents
on penal law in the Church: Cf. JOHNPAUL II, motu propio, Sacramentorum Sanctitatis Tutela , April 30, 2001, AAS 93(2001), pp. 737-739, English
translation in W. WOESTAMN, Ecclesiastical
Sanctions and the Penal Process, 2nd ed., St. Paul University,
Ottawa 2003, pp. 300-309; The Circular Letter of the CDF, “Ad exequendam
ecclesiasticam legem” (May 18, 2001); See also USCCB, A Recourse or Handbook for Canonical Processes for the Resolution of
Complaints of Clerical Sexual Abuse of Minors, 2003; Cf. BENEDICT XVI, Pastoral Letter to the Catholics of Irland,
19 March, 2010 in htt://www.vatican.vat/holy father/benedicct
xvi/letter/2010/documents/ht-xvi let, accessed on 3/28/2010.
[75][190] Cf. S.
HOLLAND, “Separation of Members from the Institute [cc.684-704],” in J. BEAL,
et al. (eds.), The New Commentary on the
Code of Canon Law, p. 866.
[76][191] Cf. JOHN
PAUL II, Apostolic Letter Motu Propio
Sacramentorum Sanctitaties Tutela, Prima pars, art. 4, in AAS 93(2001), pp. 737-739. “Reservatio
Congregationi pro Doctrina Fidei extenditur quoque ad delictum contra sextum
Decalogi praeceptum cum minore infra aetatem duodeviginti annorum a cleric
commissum.”
[77][192] Cf. C. J.
SCICLUNA, “The procedure and Praxis of the Congregation of the Doctrine of
Faith Regarding Graviora delicta,” in
M. DUGAN (ed.), The Penal Process and the
Protection of Rights in Canon Law, p. 238.
[78][193]Cf. K.
PENNINGTON, “Innocent Until Proven Guilty: The Origins of Legal Maxim,” in P.
DUGAN (ed.), Penal Process and the
Protection of Rights in Canon Law. Proceedings
of a Conference held at the Pontifical University of the Holy Cross, Rome, March 25-26, 2004, Wilson and
Lafleur, Montreal, 2005, p. 45.
[79][194] F. G.
MORRISEY, “The Advocacy for the Accused and the Right of Defense,” in P. DUGAN
(ed.), Advocacy Vademecum, Wilson
& Lafleur, Montréal 2006, p. 3.
[80][195] JOHN PAUL
II, Apostolic Letter Motu Propio
Sacramentorum Sanctitaties Tutela, Pars Prima , art. 5, §§1-2, in AAS 93(2001), pp. 737-739; Cf. C. J.
SCICLUNA, “The procedure and Praxis of the Congregation of the Doctrine of
Faith Regarding Graviora delicta,” in
P. DUGAN (ed.), The Penal Process and the
Protection of Rights in Canon law, p. 240.
[81][196] Cf.
AUGUSTINIANS OF THE ASSUMPTION, Norms
Applicable in the Congregation of the Augustinians of the Assumption in Cases
of Sexual Abuse. Procedures to be Followed in the Case of Accusations of Abuse
and the Prevention of Abuse, p. 19. For more comments on Institute wide
policies regarding sexual misconduct;
Cf. R. SMITH, “Institute-Wide Policies,” in M. JOYCE, et al. (eds.), Procedural Handbook for Institutes of
Consecrated Life and Societies of Apostolic Life, pp. 53- 61.
[82][197] Cf. E. GAMBARI, Vita Religiosa Oggi, Secondo il Concilio e il Nuovo Diritto Canonico,
edizioni Monfortane, Roma 1983, p. 609. Offenses
listed in canons 1364-1399: Offenses
against Religion and unity of the Church in cc.1364-1369: apostasy, heresy,
schism, throwing the consecrated species, public show or speech, writings which
damage the good morals, express wrongs against religion of Church; offences
against ecclesiastical authorities and freedom of the Church in cc. 1370-1377:
use of physical force against the Holy Father, the Bishop, a cleric or
religious, spreading the teaching condemned by the Roman Pontiff or ecumenical
Council or the Magesterium, publicly stirring up hostilities or hatred against
the Apostolic See or against an ordinary or inciting subjects to disobey them,
joining an association against the Church, intimidating the elector or the
elected or the ecclesiastical minister, alienating ecclesiastical good without
the prescribed permission; Usurpation of Ecclesiastical Functions and Offences
in their exercise in cc. 1378-1389: Granting absolution to an accomplice in a
sin against the sixth commandment of the Decalogue, a non-priest who attempts
to enact the liturgical action of the Eucharistic sacrifice, attempting to
impart sacramental absolution or hearing sacrament confession when one cannot
validly act so, celebrating or receiving sacrament through simony, usurpation
of ecclesiastical office, Consecrating someone a bishop or receiving
consecration without pontifical mandate, illegitimately taking profit from mass
stipend, soliciting a penitent to sin
against the sixth commandment of the Decalogue, violating directly the seal of
confession; the crime of falsehood in cc. 1390- 1391: falsely accusing a
confessor before an ecclesiastical superior of the sin of solicitation during
or a the occasion of confession, injuring the good reputation of a person,
fabricating a false public ecclesiastical document, or changes, destroying or
concealing an authentic document, or using a false or changed document, stating
a falsehood in a public ecclesiastical document; offences against particular
obligations in cc. 1392-1396: practicing trade or business against the
prescriptions of canons, attempting a civil marriage, living in concubinage or
remaining in another external sin against the sixth commandment of the
Decalogue which produces scandal, committing an offense against the sixth
commandment with force or threats or publicly or with a minor below the age of
sixteen, violating the obligation of residence; offences against human life and
freedom in cc. 1397-1398: committing homicide, forcibly kidnapping, detaining,
mutilating or serious wounding a person, procuring a successful abortion. We must mention that Latae sententiae or ferendae sententiae
censures penalties of excommunication, suspension, interdict or expiatory
penalties or penal remedies and penances are inflicted to the offender
depending on the gravity, imputability, the external violation of law and the
juridical proofs.
[84][199] Sometimes,
religious may not want to read or to open the dismissal letter. In such a case,
c. 55 and 56 may be applied “With due regard for the prescriptions of cc. 37
and 51, when a most serious reason prevents the handling over of the written
text of a decree, the decree is considered to have been communicated if it is
read before a notary or two witnesses to the person for whom it is destined and
all present sign an instrument stating this was done. A decree is considered to
have been communicated when the person for whom it was destined was properly
summoned to receive or hear it, even if the person without a just cause did not
appear or refused to sign it.”
[85][200] Cf. T.
PAZHAYAMPALLIL, Pastoral Guide. Vol. 3 A
Handbook on the Latin and Oriental Codes of Canon Law, p. 966.
[86][201] Cf. F. G. MORRISEY, “The Dismissal of
Members,” in A. MARZOA, et al. (eds.), Exegetical
Commentary of on the Code of Canon Law, vol. II/2, p. 1870.
[88][203] Cf.
PAZHAYAMPALLIL, Pastoral Guide. Vol. 3 A
Handbook on the Latin and Oriental Codes of Canon Law, p. 970; J. BEAL, et
al. (eds.), The New Commentary on the
Code of Canon Law, p. 873.
[90][205] Cf.
PAZHAYAMPALLIL, Pastoral Guide. Vol. 3 A
Handbook on the Latin and Oriental Codes of Canon Law, p. 970.
[92][207] If a member
refuses to receive the required warning by returning unopened letters, not
appearing when summoned, not answering the phone etc, attempts must be made to
contact the member through family or friends. Since legally one who has never
been properly warned cannot be dismissed, a legally knowledgeable member might
use these means to avoid this action of warning. After repeated and carefully
documented attempts to contact and warn the member, the entire acts of the case
should be sent to the Apostolic See (Cf. E. McDONOUGH, “Separation of Members
from the Institute,” in J. HITE, Handbook
on Canons 573-746, p. 266).
[93][208] Cf. T. G.
SULLIVAN, “Separation of Members From the Institute,” in M. JOYCE, et al.
(eds.), Procedural Handbook for
Institutes of Consecrated Life and Societies of Apostolic Life, p. 157; E.
McDONOUGH , “Separation of Members from the Institute: canons 684-709,” in J.
HITE, Handbook on Canons 573-746 , p.
265.
[94][209] Cf. V.
VONDENBERGER, “Judicial Processes,” in M. JOYCE, et al. (eds.), Procedural Handbook for Institutes of
Consecrated Life and Societies of Apostolic Life, pp. 213-214.
[95][210] S. HOLLAND,
“Separation of Members from the Institute [cc.684-704],” in J. BEAL, et al.
(eds.), The New Commentary on the Code of
Canon Law, pp. 857-858.
[96][211] S. HOLLAND,
“Separation of Members from the Institute [cc.684-704],” in J. BEAL, et al.
(eds.), The New Commentary on the Code of
Canon Law, p. 872.
Aucun commentaire:
Enregistrer un commentaire