Nulla Lex Satis Commoda Omnibus Est: The Implementation of the Penal Law of the 1983 Codex Iuris Canonici in Light of Four Principles of Modern Legal Codification

NULLA LEX SATIS COMMODA OMNIBUS EST: THE IMPLEMENTATION OF THE PENAL LAW OF THE 1983 CODEX IURIS CANONICI IN LIGHT OF FOUR PRINCIPLES OF MODERN LEGAL CODIFICATION Ronny E. Jenkins1 To have offered observations on the fifteenth anniversary of the 1983 code rather than on its just concluded twenty fifth anniversary might have been a far easier task. Instead of discussing the manner in which the codified penal law of the Church has been implemented since its promulgation , we could have asked instead why the penal law of the Church had hardly been implemented at all. We could have remained in the high clouds of theory, exploring all sorts of possible answers involving the nature of ecclesiastical law, the role of governance in the Church, and the ultimate purpose of punishment itself. There are no hard statistics, but I think we would agree that until a few years ago the penal law of the 1983 code was the least implemented section of our legislative text.2 Then the hard, sobering facts struck with force. In a study sponsored by the United States Conference of Catholic Bishops on clerical sexual abuse of minors in the United States between 1950 and 2002, the John Jay School of Criminal Justice presented stark facts now familiar to us: The survey responses make it clear that the problem was indeed widespread and affected more than 95% of dioceses and approximately 60% of religious communities. Of the 195 dioceses and eparchies that participated in the study, all but seven have reThe Jurist 69 (2009) 615–645 615 1 Associate General Secretary of the United States Conference of Catholic Bishops and Adjunct Associate Professor of Canon Law, The Catholic University of America. The thoughts expressed in this article are those of the author alone and do not necessarily reflect any position of the United States Conference of Catholic Bishops regarding the matters discussed herein. 2 I offer this observation without suggesting a cause for the relative disuse of the penal law of the Church. There could be many reasons for it, including the law’s own admonition that penalties be imposed only as a last resort (c. 1341). I do not intend to suggest that the penal law had not been applied in the past on occasions where it should have been. That question is neither the subject of this article nor a matter of the author’s research. 616 the jurist ported that allegations of sexual abuse of youths under the age of 18 have been made against at least one priest serving in ecclesiastical ministry in that diocese or eparchy. Of the 140 religious communities that submitted surveys, all but 30 reported at least one allegation against a religious priest who was a member of that community.3 The number of clerics accused of abuse during the period covered by the study (1950–2002) is staggering, even if it accounts for only a small percentage of the total clergy: “The total number of Catholic priests and deacons in the United States who have been accused of sexual abuse of children is 4,392.”4 We know that the annual number of incidents reported and priests accused peaked in the years immediately prior to the promulgation of the 1983 code.5 Yet, the number remained high, in the hundreds, in the years after the code took effect even to the present day.6 Since 2002, in this country and in others around the world, we have seen hundreds of instances where the penal law of the 1983 code has been applied: through penal precepts, administrative penal processes, and judicial trials, among other means available to ecclesiastical authority . And the law has been used to address more than the crime of clerical sexual abuse of minors. Media reports contain instances of the commission of other clerical, and, when applicable, lay ecclesiastical crimes, including (among others) violation of the sacramental seal, solicitation on the occasion of the sacrament of penance, abuse of office, theft, embezzlement , schism, and unlawful concelebration of the Eucharist. We have more than enough evidence, then, to reflect on the implementation of the penal law of the 1983 Code of Canon Law. But where to...