II. CANON LAW, SANCTIONING PROTOCOLS, AND THE CHURCH’S DISCIPLINARY SYSTEM
A. Code of Canon Law
The Code of Canon Law (the Code) is the code of ecclesiastical laws governing the
Catholic Church.78 It is theological in all aspects and represents the codification of church theology
into legal language.79 The Code does not constitute statutes or laws, it is more akin to exhortative
or theological statements.80 It is created and enforced by the hierarchical authorities of the Church
to regulate external organizations and the government.81 It is binding and sets the policies for
bishops to run their diocese, as well as the procedure on how to handle errant priests.82
The first Code of Canon Law was created in 1917.83 Prior to the codification of the laws
from the fourth century up until 1904, the Roman Catholic Church followed separate decrees or
Instructions created by different Popes to govern the Church.84 The 1917 Code listed a series of
crimes, including engaging in delict acts with a minor, adultery, and bestiality, among others, for
which clergy members could be “suspended, declared infamous, and deprived of office.”85 The
Code allowed bishops to dismiss or depose priests from the clerical state without a canonical trial,
but only in “more serious cases” and only after it was determined that reformation of the offender
was impossible.86 The Code also codified the Secret of the Holy Office, which was a vow of
permanent silence that, if breached, led to automatic excommunication from the Church.87
Knowledge of any crime involving sexual misconduct that was obtained through the Church’s
internal inquiries and trials was made subject to the Secret of the Holy Office.88
Canon 243, Section 2, established that all those belonging to the Roman Curia were obliged
to observe secrecy regarding matters they knew by virtue of their role as a cleric.89 The Secret of
the Holy Office reflected the concerns of the Holy See at the time.90 Particularly, the Holy See was
concerned with avoiding “scandal” and thus created this privilege for clergy members.91
Containing “scandal” within the walls of the Church meant that civil authorities would not be privy
to any sexual misconduct occurring within the Church.92 The Church was to deal with the sexual
misconduct in a manner it deemed fit and the major punishment within the canonical courts at this
time was dismissal from priesthood.93
78 U.S. CONFERENCE OF BISHOPS, What We Believe: Canon Law, http://www.usccb.org/beliefs-and-teachings/what-we-believe/canon-law/ index.cfm (last visited Feb. 11, 2019).
79 Perciaccante, supra note 68, at 177.
80 Id. at 177; State v. Zimmer, 487 N. W.2d 886, 891 n.3 (Minn. 1992).
81 Perciaccante, supra note 68.
82 See generally Perciaccante, supra note 68.
83 Brendan Daly, Sexual Abuse and Canon Law, 43 COMPASS 33 (Sept. 15, 2009),
84 KIERAN TAPSELL, CANON LAW ON CHILD SEXUAL ABUSE THROUGH THE AGES 10,
86 Daly, supra note 83; TAPSELL, supra note 84, at 10–11, 16.
87 TAPSELL, supra note 84.
88 Id. at 11.
89 PHILLIPPE LEVILLAIN, THE PAPACY: QUIETISM-ZOUAVES, PONTIFICAL 1339 (Taylor & Francis US) (2002).
90 TAPSELL, supra note 84, at 11.