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The Rights of Accused Clerics: An Examination of Prescription and Condonation

Introduction

The following article is based on the original research and analysis of Charles G. Renati, J.C.D, J.D. His insightful examination of the issues regarding the derogation from prescription is set forth in his article entitled Prescription and Derogation from Prescription in Sexual Abuse of Minors Cases, written in August of 2005 and distributed at the convention of the Canon Law Society of America in October of 2005. Mr. Renati’s article is also posted on the Opus Bono Sacerdotii website. Mr. Renati’s further insight in first suggesting the filing of exceptions based on “Agreement Litis Finitae,” when applicable, was shared with the author who is most grateful and deeply indebted.

          On April 23, 2002, Pope John Paul II met with the Cardinals of the United States to address the issue of the Church’s clergy sex abuse crisis in this country.  At the time, the bishops were in the process of drafting the Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons and the Charter for the Protection of Children and Young People which would eventually be approved by the United States Conference of Catholic Bishops at their meeting in Dallas in November of 2002.

          While commending the work of the American bishops for the policies that they were then drafting, the Holy Father also stated:

At the same time, even while recognizing how indispensable these criteria are, we cannot forget the power of Christian conversion, that radical decision to turn away from sin and back to God, which reaches to the depths of a person’s soul and can work extraordinary change.

          Church law and jurisprudence have traditionally accepted the reality of such Christian conversion in the life of individuals and recognized that extraordinary change can be effected in a person’s life.  Unfortunately, these principles do not always appear to be at the forefront at the present time in the consideration of many of the specific cases involving the individual circumstances of accused clerics. 

         

There is certainly no question that one of the darkest periods for the Church recently has been the revelation of the issue of the clerical sexual abuse of minors and the failure of some Ordinaries to deal with this problem correctly or effectively.  While the manifestation of these problems has been made very public over the past three years and continues to remain in the public fore as a result of the media coverage afforded criminal actions, civil lawsuits and the involvement of special interest groups, the unfortunate reality and truth is that the sexual abuse of minors is not a new or unknown tragedy within the Church. 

          Formal Instructions promulgated in 1922 and 1962 by the “Sacred Congregation of the Holy Office,” as the Congregation for the Doctrine of the Faith was known of at the time, addressed the issue of “the worse crime” which included, among other specific offenses against the sixth commandment, “any external, obscene, gravely sinful act attempted or completed by a cleric with a child below the age of puberty.”1

          The1962 edition of this Instruction was made public in 2003 through reports in the media,2 and the Latin text of the Instruction and an English translation which is not altogether accurate were soon posted on line.3  This resulted in a tremendous amount of criticism being directed at the Church over the secret nature of this Instruction and the requirement of Pontifical Secrecy that it mandated in the handling of individual cases of abuse involving members of the clergy.  Given the irresponsible manner in which some Ordinaries had handled these cases – at times an irresponsibility extending over a period of decades, this outrage is certainly understandable. 

          It can also be argued that the decision of the Holy See in 2001 to designate the delict against the sixth commandment of the Decalogue committed by a cleric against a minor below the age of eighteen years as “more grave” and to reserve judgment concerning this delict to the Congregation for the Doctrine of the Faith is itself an indication of the Holy See’s concern regarding the irresponsible manner in which cases of this nature had been handled by local dioceses.4  Prior to the promulgation of the motu proprio, Sacramentorum sanctitatis tutela, this delict had never been reserved to the “Holy Office”; rather, its investigation was the primary responsibility of the local Ordinary who could refer the case to the “Holy Office” or seek the Congregation’s guidance if he felt this was necessary.  Victims of abuse also retained the right to report their abuser directly to the “Holy Office” if they wished to do so.5

          While the most egregious examples of the Church’s failure to address these crimes have been the subject of innumerable media articles, the correct and satisfactory resolution of such crimes only rarely if ever becomes known to the public.  This is due, principally, to the continuing requirement of Pontifical Secrecy which prohibits any involved party from making public comments concerning the investigation or resolution of such cases.  The only exceptions are in those instances when adverse publicity has damaged a cleric’s reputation.  If he has been exonerated through an ecclesiastical process, there is an incumbent responsibility to repair the damage that has resulted from such publicity, especially if such publicity is the result of actions or statements on the part of the ecclesiastical authority itself.6

          The Church’s law and jurisprudence have traditionally respected the privacy of both the victims of sexual abuse, their families, and accused members of the clergy whose alleged acts of abuse have not been formally established or proven.7  Assuming an environment of responsibility in which such allegations would be dealt with in a correct, proper and forthright manner, such privacy is not an issue of “undue secrecy,” but rather one of respect for individual rights.  While the current practice of “transparency” is an attempt on the part of ecclesiastical authority to demonstrate responsibility, this practice does raise questions regarding a basic respect for the rights that individuals enjoy in canon law, not to mention the obligation of maintaining Pontifical Secrecy in addressing cases of this nature.8

          Members of the clergy who have found themselves recently confronted with older allegations that were investigated and resolved decades ago, especially if such allegations have resulted in adverse publicity and the loss of ministry, can certainly question whether their rights under Church law have been respected or simply ignored.  At issue, therefore, is the question of exactly what rights a cleric has in circumstances of this nature when addressing older allegations in a formal ecclesiastical process. 

          This article will consider the application of relevant law to cases of a specific nature, namely, a single allegation dating from the 1970s to1980s involving a minor under the age of sixteen that was investigated and resolved by the ecclesiastical authority at that time.  The resolution determined that the cleric did not pose a threat to the Christian faithful and provided for the cleric’s being returned to ministry, a decision that was acceptable to the victim and the victim’s family. 

          Following the implementation of the USCCB Charter and Essential Norms, cases of this nature have been re-opened, and bishops have removed clerics from ministry seeking approval from the Congregation for the Doctrine of the Faith to impose appropriate penalties.  This article will examine the consequences of Congregation’s acceding to such a request and granting a “derogation from prescription” permitting the initiation of a criminal action against the cleric.  

          The two principal issues that will be examined are:  (1) the question of the “derogation from prescription” which addresses not only the canonical principles by which a criminal action against an accused individual is extinguished following the time limits that have been established by the law itself but also the faculty for derogation that has been granted to the Congregation for the Doctrine of the Faith; and (2) the canonical effect of the earlier investigation and resolution of an incident at which time all issues had been resolved to the satisfaction of all parties.

Prescription: its Application and Derogation

The Principle of Prescription

          Canon 197 defines prescription as “a means or method of acquiring or losing rights and of freeing oneself from obligations.”  In the case of criminal actions, prescription extinguishes (1983 canon 1362, “extinguitur”) or destroys (1917 canon 1702, “perimitur”) the right to impose or declare penalties or to pursue a penal action to enforce a penalty once the established time limits have lapsed.

          Basically, prescription becomes effective once a set period of time has lapsed.  This period of time can vary depending on the requirements of either universal or particular law; and, under certain circumstances, this period of time can be suspended, interrupted or extended.  However, once this period of time has lapsed, the subjective right in question – in this case the extinction of the criminal action – is established as a matter of law.

The Principle of Derogation

          By definition, “derogation” removes or sets aside a law or a process.  Certain derogations are provided for by the law itself, as in the case of canon 20 which provides that

A later law abrogates, or derogates from, an earlier law if it states so expressly, is directly contrary to it, or completely reorders the entire matter of the earlier law. A universal law, however, in no way derogates from a particular or special law unless the law expressly provides otherwise.

          Canon 38 notes that a derogation can also be granted by means of an administrative act, but only if that act expressly provides for such a derogation:

An administrative act, even if it is a rescript given motu proprio, lacks effect insofar as it injures the acquired right of another or is contrary to a law or approved custom, unless the competent authority has expressly added a derogating clause.

          On November 7, 2002, the Holy Father conceded to the Congregation for the Doctrine of the Faith the faculty of providing for the derogation of the time limits of prescription on a case by case basis. 

          The exact wording of this faculty is very important.  The original Italian states:

Il Santo Padre nell’Udienza concessa all’Ecc.mo Segretario della CDF, SER Mons. Tarcisio Bertone, il 7 novembre 2002, ha concesso la facoltà alla CDF di derogare ai termini della prescrizione, caso per caso, su motivata domanda dei singoli Vescovi. (Emphasis added)

          [The Holy Father at the Audience granted to the Most Excellent Secretary of the CDF, the Most Reverend Tarcisio Bertone, on November7, 2002, has conceded to the CDF the faculty of derogating from the time limits of prescription, on a case to case basis, on the motivated query of individual Bishops.]9

          As a “singular administrative act,” the wording by which this faculty was granted is subject to strict interpretation, as is confirmed by canon 36, §1, of the Code of Canon Law, which states:

An administrative act must be understood according to the proper meaning of the words and the common manner of speaking. In a case of doubt, those which refer to litigation, pertain to threatening or inflicting penalties, restrict the rights of a person, injure the acquired rights of others, or are contrary to a law which benefits private persons are subject to a strict interpretation; all others are subject to a broad interpretation.

          At issue is the precise meaning of the faculty that has been granted to the Congregation for the Doctrine of the Faith.  By reason of canon 36, §1, the application of this faculty is subject to strict interpretation since it was conceded to the Congregation for the express purpose of “threatening or inflicting penalties.”

          The exact wording of this faculty provides that the Congregation for the Doctrine of the Faith can derogate only from the time limits of prescription.  This clearly assumes that the time limits provided for by law have not yet lapsed and can, therefore, be extended, interrupted or suspended.  This faculty does not provide for the reinstatement of time limits that have, in fact, lapsed or for the re-establishment of a criminal action that has been extinguished once prescription has become effective with the expiration of the prescribed time limits. 

The Time Limits of Prescription

          Prior to the promulgation of the Norms concerning the more grave delicts reserved to the Congregation for the Doctrine of the Faith, on April 30, 2001, the “delict

against the sixth commandment of the Decalogue committed by a cleric with a minor below the age of eighteen years” was not reserved to the Congregation for the Doctrine of the Faith.  This is most clear from a number of sources, most notably the Instruction, Crimen sollicitationis, promulgated by Pope John XXIII on March 16, 1962.

          Although addressing principally the investigation and application of penalties for the delict of a priest’s soliciting a penitent to sin against the sixth commandment of the Decalogue, this Instruction also addressed the investigation and application of penalties for other delicts under the heading of De Crimine Pessimo [The Worse Crime].  These included the specific offenses of any external, obscene, gravely sinful act attempted or completed by a cleric (1) with a person of the same sex, (2)with a child below the age of puberty or (3) with an animal.10

          The Instruction notes that the responsibility for the investigation and adjudication of these crimes in first instance belongs to the local ordinary of the place in which the accused has a residence; and it is noted that such cases “can” (not “must”) be referred to the Congregation of the Holy Office for adjudication or for advice in how to proceed.11

          Since the investigation of an allegation in the 1970s through 1980s would not have been reserved to the Congregation for the Doctrine of the Faith, prior to the promulgation of the 1983 Code of Canon Law prescription would have been governed by the relevant canons of the 1917 Code of Canon Law, namely:

Can. 1702. - Every criminal action is destroyed by the death of the accused, by condonation of the legitimate authority, and by the lapse of useful time for proposing a criminal action.12

Can. 1703. - Without prejudice to the prescript of canon 1555, §1, concerning delicts reserved to the Sacred Congregation of the Holy Office, the useful time for proposing a criminal action is three years, unless it treats: ...

2° of an action concerning qualified delicts against the sixth and seventh divine precepts, which action is destroyed in five years,...13

Can. 1555. §1.  The Tribunal of the Congregation of the Holy Office proceeds by its own manner and institute, and it retains to itself its proper custom; and inferior tribunals also must follow the norms handed down by this same Congregation in cases which are are examined before the Tribunal of the Holy Office.14 

          On the basis of the principles expressed in these canons, the time limits for initiating a criminal action for a case involving a delict that had occurred in the 1970s or 1980s would have lapsed five years after the incident – certainly no later than the mid 1980s – “destroying” (“perimitur”) any possibility of imposing a penalty.15

          Special derogations were granted to the National Conference of Catholic Bishops on April 25, 1994.  Among these were a special “transitory norm” granted by Pope John Paul II addressing the time limits for prescription to be applied to delicts committed against a minor prior to the date of promulgation of these special derogations.  This “transitory norm” provided that

with respect to delicts already committed, criminal action is not to be deemed extinguished until the minor who has suffered the injury has completed the twenty-third year of age.

          Hence, on the basis of the principle expressed in this “transitory norm,” the time limits for a case involving a delict that had occurred in the 1970s or 1980s involving a minor who was, for example, fifteen years of age in 1970 would have lapsed in 1978, the year in which this minor would have reached his twenty-third birthday, thus extinguishing any examination of this matter as a criminal action at the present time.

          Only with the promulgation on April 30, 2001, by motu proprio, Sacramentorum sanctitatis tutela, of the Norms concerning the more grave delicts reserved to the Congregation for the Doctrine of the Faith, was the “delict against the sixth commandment of the Decalogue committed by a cleric with a minor below the age of eighteen years” reserved to the Congregation for the Doctrine of the Faith as expressed in article 4, §1, of these Norms.

          Article 5 of these Normsprovides for the time limits by which a criminal action for such reserved delicts is extinguished:

§ 1. Criminal action for delicts reserved to the Congregation for the Doctrine of the Faith is extinguished by prescription after ten years.

§ 2. Prescription runs according to the norm of can. 1362, § 2, of the Code of Canon Law and can. 1152, § 3, of the Code of Canons of the Eastern Churches.  However, in the delict mentioned in art. 4, § 1, prescription begins to run from the day on which the minor completes the eighteenth year of age.

          The Norms concerning the more grave delicts reserved to the Congregation for the Doctrine of the Faith cannot be applied to delicts committed prior to their promulgation.  However, even if they could be applied retroactively, the time limits for a delict that had occurred in 1970 involving, for example, a fifteen year old minor would have lapsed in approximately 1983 extinguishing any examination of this matter as a criminal action on the basis of the principles in Article 5 governing prescription.

Application of the Faculty Granted to the Congregation

          Any attempt on the part of the Congregation for the Doctrine of the Faith to invoke the faculty granted to it by the Holy Father to derogate from the rights that have been established by reason of the expiration of the time limits associated with prescription is clearly an invalid use of this faculty.  The principles of law that address the application of this faculty mandate that it is subject to strict interpretation; and, as noted above, the application of this faculty is limited solely to the extension, interruption or suspension of the time limits of prescription that have not yet expired.  Hence, this faculty cannot be used to direct the initiation of a criminal action that has been extinguished with the expiration of these time limits. 

          Since the time limits provided for by all applicable law would have clearly expired in considering a case dating from the 1970s or 1980s, the invalid use of this faculty affords an accused cleric the right to present a “peremptory exception” claiming the nullity of any sentence that a tribunal would render due to the absolute incompetence of the judges to adjudicate a criminal action by reason of the expiration of the time limits permitting such an action.16

          Additionally, if penalties have been imposed against a cleric in an ecclesiastical trial by reason of the invalid use of this faculty, the cleric would also have the right of presenting a petition to that tribunal seeking the reversal of this decision.17

Agreement Litis Finitae

          The investigation of the case being considered, namely, an older, single allegation dating from the 1970s to 1980s involving a minor under the age of sixteen, established that there was no basis for the imposition of a penalty.  Hence, with the agreement of the victim and the victim’s family, the cleric was returned to ministry. 

          A proper and complete investigation would have involved the participation of both the accused cleric and the minor victim and the victim’s family.  Since the cleric was returned to ministry, it must be concluded that the bishop arrived at a determination that either the allegation could not be substantiated or that a final resolution addressing a credible allegation was reached that was acceptable to all parties.

          In a criminal action, the principal parties are the accused and the Church, specifically, the diocese in which the delict occurred or the accused cleric has a residence.  Although the Promoter of Justice provides for the public good of the diocese in the formal adjudication of penal cases,18 it is the diocesan bishop who represents the diocese in all of its juridic affairs; and he is the de facto party to the case.19  Additionally, in a criminal action, the “injured party,” that is the minor victim of the alleged sexual abuse and the victim’s family, also have the right to seek the repair of any damages that have been suffered and can, therefore, be a party to the action.20

          If the bishop did, in fact, enter into an agreement with the accused cleric and the “injured party” resolving all issues associated with the allegation raised in the case, the accused cleric would have the right to file a “peremptory exception” on the basis of canon 1462, §1, of the Code of Canon Law.  This canon states:

Exceptions of res iudicata, of agreement, and other peremptory exceptions which are called litis finitae must be proposed and adjudicated before the joinder of the issue.  A person who proposes them later must not be rejected but is liable for expenses unless the person proves that the presentation was not delayed maliciously.

          In effect, this canon provides for a right to claim that an agreement that has been entered into by the parties must be considered as “having ended the litigation” (“litis finitae”).

          When investigating the allegation which occurred, the bishop ascertained that there was no reason to impose a penalty, a determination that was agreed to by the “injured party,” that is, the minor and the minor’s family.  The bishop, therefore, determined on the basis of the principles expressed in 1917 canon 1702 that no criminal action was warranted on the basis of “condonation.”21  Hence, by reason of this determination, the accused cleric was exonerated; and any criminal action against him was “destroyed.”

          Canon 1462, §1, of the current Code of Canon Law recognizes that such an agreement between parties terminating a litigation is a possibility; and agreements of this nature do have juridic effect.  Especially in the case at hand where the bishop as the competent ecclesiastical authority utilized the principle of “condonation” provided for in the 1917 Code of Canon Law, this agreement reached between the bishop and the other interested parties would render impossible the implementation of a criminal action at the present time.

Condonation: An Abandonment or Acceptance of Pastoral Responsibility?

          Many will have difficulty with the principle expressed in canon 1702 of the 1917 Code of Canon Law which affords ecclesiastical authority the option of “condoning” or “pardoning” an offense especially when addressing the grave issue of the sexual abuse of a minor.   Although this principle is not explicitly repeated in the 1983 Code, the current Code of Canon Law does provide guidelines regarding the application of penalties, most notably those contained in canon 1341 which states:

An ordinary is to take care to initiate a judicial or administrative process to impose or declare penalties only after he has ascertained that fraternal correction or rebuke or other means of pastoral solicitude cannot sufficiently repair the scandal, restore justice, reform the offender.

          Hence, if the repair of scandal, the restoration of justice and the reform of the offender have been properly provided for, the imposition or declaration of penalties is considered unwarranted.

          The purpose and intent of this article is not to argue returning to ministry predatory, abusive members of the clergy who have been responsible for multiple offenses throughout their ministry.  Rather, this article has considered only the situation of a cleric whose life and ministry have been marred by a single, isolated incident that was investigated and resolved to the satisfaction of all interested parties, most notably, including the injured party.

          The Gospel of Luke, chapter 5, recalls Peter’s reaction to his call by Jesus:  “Depart from me for I am a sinful man, O Lord.”  Jesus, however, did not depart from him then or at the time of his later denial of the Lord.  Jesus saw in Peter a man who recognized his weaknesses, acknowledged his betrayal, and effectively proclaimed the Gospel not in spite of these weaknesses but because of them.  Hopefully this example from the Scriptures, which Pope John Paul II has spoken of as “the power of Christian conversion, that radical decision to turn away from sin and back to God, which reaches to the depths of a person’s soul and can work extraordinary change,” will be seen as possible, effective and operative in the lives and commitment of clerics who have themselves fallen in a terrible fashion but, with God’s help, have been able to reform their lives.


Endnotes

1.  Cf. Instructio de modo procedendi in causas sollicitationis, promulgated on June 8, 1922, and Instructio de modo procedendi in causas sollicitationis, promulgated on March 16, 1962.  Citing art. 71 of the 1962 text: “...quodvis obscoenum factum externum, graviter peccaminosum, quomodocumque a clerico patratum vel attentatum cum impuberibus cuiusque sexus...”

2.  Cf. articles by John Allen in the National Catholic Reporter dated August 7 and 15, 2003.  There is also a reference to the 1962 Instruction in the letter of the Congregation for the Doctrine of the Faith dated May 18, 2001, signed by then Prefect, Cardinal Joseph Ratzinger, publishing the fact of the promulgation of the motu proprio, Sacramentorum sanctitatis tutela.

3.  Latin text:  http://www.cbsnews.com/htdocs/pdf/crimenlatinfull.pdf

English translation:  http://www.cbsnews.com/htdocs/pdf/Criminales.pdf

4.  Cf. Letter of the Congregation for the Doctrine of the Faith, Ad exsequendam ecclesiasticam legem, May 18, 2001.

5.  Cf. Crimen sollicitationis, nn. 2 and 72.  The 1962 Instruction was intended to aid local ordinaries in their investigation and resolution of such cases.

6.  Cf. Norms concerning the more grave delicts reserved to the Congregation for the Doctrine of the Faith,  Art. 25:

Ҥ 1. Cases of this nature are subject to the pontifical secret.

“§ 2. Whoever has violated the secret, whether deliberately (ex dolo) or through grave negligence, and has caused some harm to the accused or to the witnesses, is to be punished with an appropriate penalty by the higher Turnus at the request of the injured party or even ex officio.”

Cf., also, Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons , n. 13:

“Care will always be taken to protect the rights of all parties involved, particularly those of the person claiming to have been sexually abused and of the person against whom the charge has been made. When an accusation has been shown to be unfounded, every step possible will be taken to restore the good name of the person falsely accused.”

7.  Cf. canon 1717, “§1. Whenever an ordinary has knowledge, which at least seems true, of a delict, he is carefully to inquire personally or through another suitable person about the facts, circumstances, and imputability, unless such an inquiry seems entirely superfluous.

          “§2. Care must be taken so that the good name of anyone is not endangered from this investigation.”

8.  Canon 220 in the Code of Canon Law provides that “No one is permitted to harm illegitimately the good reputation which a person possesses nor to injure the right of any person to protect his or her own privacy.”

9.  The use of the word “termini” in Latin and in Italian is clearly understood and properly translated as “time limits” in English (cf. canon 1465, §1).  Although the official English translation of this faculty speaks of the faculty “to derogate from the prescription,” this is not an accurate or precise rendering of the original Italian.

10.  Cf. Crimen sollicitationis, nn. 71 and 73:

“71. Nomine criminis pessimi heic intelligitur quodcumque obscoenum factum externum, graviter peccaminosum, quomodocumque a clerico patratum vel attentatum cum persona proprii sexus.”

“73. Crimini pessimo, pro effectibus poenalibus, aequiparatur quodvis obscoenum factum externum, graviter peccaminosum, quomodocumque a clerico patratum vel attentatum cum impuberibus cuiusque sexus vel cum brutis animantibus (bestialitas).”

11.  Cf. Crimen sollicitationis, n. 2:

“2. De infando hoc crimine cognoscere in prima instantia spectat ad locorum Ordinarios in quorum territorio Reus residentiam habet (V. infra nn. 30 et 31), idque nedum iure proprio sed etiam ex speciali Sedis Apostolicae delegatione; eisque omnino praecipitur, graviter onerata eorum conscientia, ut posthac causas huiusmodi coram proprio tribunali quamprimum introducendas, discutiendas et terminandas curent. Ex peculiaribus tamen gravibusque rationibus possunt hae quoque causae, ad normam Can. 247, §2, directe ad S. Congregationem S. Officii deferri vel ab ipsamet S. Congregatione ad se advocari. Quin et ipsis Reis conventis integrum manet in quovis iudicii gradu ad S. Officium recursum habere; sed recursus sic interpositus non suspendit, excluso casu appellationis, exercitium iurisdictionis in iudice qui causam iam cognoscere coepit; quique idcirco poterit iudicium prosequi usque ad definitivam sententiam, nisi constiterit Sedem Apostolicam causam ad se advocasse (cfr. Can. 1569).”

12.  Can. 1702. - Omnis criminalis actio perimitur morti rei, condonatione legitimae potestatus, et lapsu temporis utilis ad actionem criminalem proponendam.

13.  Can. 1703. - Firmo praescriptio can. 1555, §1, de delictis Sacrae Congregationi S. Officii reservatis, tempus utile ad actionem criminalem proponendam est triennium, nisi agatur: ...

          2.° De actione ob delicta qualificata contra VI and VII divinum praeceptum, quae quinquennio perimitur;...

14.  Can. 1555.  §1. Tribunal Congregationis S. Officii suo more institutoque procedit sibique propriam consuetudinem retinet; et etiam inferiora tribunalia, in causis quae ad S. Officii tribunal spectant, normas ab eodem traditas sequantur oportet.

15.  The 1983 Code of Canon Law which became effective on November 27, 1983, provides for similar time limits.  Cf. canon 1362, §1, 2°, which states, “Prescription extinguishes a criminal action after three years unless it concerns: ...2° an action arising from the delicts mentioned in cann. 1394, 1395, 1397, and 1398, which have a prescription of five years.”  Canon 1395, §2, includes the delict against the sixth commandment of the decalogue with a minor below the age of sixteen years.  The Norms concerning the more grave delicts reserved to the Congregation for the Doctrine of the Faith raised the age of a minor to eighteen years.

16.  The following canons govern the presentation of such an exception:

“Can. 1459 §1. Defects which can render the sentence null can be introduced as exceptions at any stage or grade of the trial; the judge can likewise declare them ex officio.

“Can. 1460 §1. If an exception is proposed against the competence of the judge, that judge must deal with the matter.”

17.  This petition seeks the restoration of the cleric’s status prior to the imposition of the penalty and is based on canon 1645, the relevant portions of which states:

Ҥ1. Restitutio in integrum is granted against a sentence which has become res iudicata provided that its injustice is clearly established.

Ҥ2. Injustice, however, is not considered to be established clearly unless:...

          “4° a prescript of the law which is not merely procedural was clearly neglected;”...

The injustice resulting from a failure to provide for the rights associated with an extinguished criminal action due to the expiration of the time limits of prescription would arise from the neglect of a substantive and “not merely procedural” law.

18.  Cf. canon 1430. “A promoter of justice is to be appointed in a diocese for contentious cases which can endanger the public good and for penal cases; the promoter of justice is bound by office to provide for the public good.”

19.  Cf. Canon 393, “The diocesan bishop represents his diocese in all its juridic affairs.”

20.  Cf. canon 1729, §1, “In the penal trial itself an injured party can bring a contentious action to repair damages incurred personally from the delict, according to the norm of can. 1596.”

21.  Cf. 1917 canon 1702, “Every criminal action is destroyed by the death of the accused, by condonation of the legitimate authority, and by the lapse of useful time for proposing a criminal action.”