By Paul Collins and Tony Flannery
He who is the object of an enquiry should be present at the process, and, unless absent through contumacy, should have the various headings of the enquiry explained to him, so as to allow him the possibility of defending himself. As well, he is to be informed not only of what the various witnesses have accused him of, but also of the names of those witnesses. (Fourth Lateran Council, 1215)
Nowadays it is widely agreed in the church that the processes and procedures of the Congregation for the Doctrine of the Faith (CDF) are contrary to natural justice and in need of reform. They represent the legal principles, processes and attitudes of the absolutism of sixteenth and seventeenth century Europe. They don’t reflect the gospel values of justice, truth, integrity and mercy that the church professes to uphold. They are out of keeping with contemporary concepts of human rights, accountability and transparency that the world expects from the Christian community and which the Catholic Church demands from secular organizations. The purpose of this proposed new approach is to reflect the attitude of Jesus (Matthew 18:15-17) and to integrate values that the world sees as basic to a functioning, civilized society.
Principles Underlying any New CDF Process
Underlying any church procedures must be a set of principles that involve a just and equitable process, accountability on the part of the CDF and Bishops’ Conferences, the presumption of sincerity, innocence, and loyalty to the church on the part of the person being investigated, as well as transparency and the wider involvement of the local Catholic community and the Synod of Bishops representing the universal church. The process appended to this set of principles tries to avoid some of the worst aspects of the present CDF’s investigations as experienced by the signatories and others who have been involved in dealing with the CDF over the last decades.
1 The basic principle must be to avoid anonymous denunciation by person(s) unknown to those being investigated. By naming them publicly, you stop frivolous claims by often totally unqualified individuals or organizations.
2 The same applies to the secret CDF appointed consulters. Consulters need to be named and their qualifications or otherwise in the area under consideration, be scrutinized. This also gives the one being investigated a chance to know the biases and expertise/training or otherwise of each of the consulters appointed by the CDF.
3 The whole issue of enforced secrecy and the often crippling isolation of the person being investigated must be circumvented by the CDF being made to deal directly and personally with them. They should be no longer be dealt with at third and fourth hand via a network of bishops and superiors – who might even have been the primary accuser of the person being investigated in the first place.
4 People being investigated have very often found that their work is inaccurately or unfairly interpreted by CDF consulters, or sentences or opinions are taken totally out of context and that the qualifications that they have made are completely ignored. Consulters they have never heard of, or are completely unknown to them, become the sole arbiters of the correct interpretation of their work. Even opinions they don’t hold are attributed to them. The involvement of the persons being investigated and their counsel from the beginning to some extent circumvents this. It also makes sure that consulters, whose sole experience is of the Roman schools of theology with its emphasis on propositional approaches to doctrinal positions, are challenged, and are not accepted as normative for those working on the prophetic edge of theological and ministerial frontiers.
5 People under investigation have often complained of the sheer rudeness and lack of even basic politeness – let alone Christian charity - on the part of CDF personnel. Letters are ignored, or lost. Processes are dragged out in an attempt to wear down the resistance of those being investigated. Even extremely sick or dying people have been investigated and forced to respond to often silly accusations. Strict time limits and direct personal face-to-face communication would circumvent this. With supporting counsel present and the knowledge that all documentation and the names of accusers and all personnel involved will be revealed to the wider Catholic community and the media will bring about at least some measure of accountability which at the present moment is totally lacking in CDF processes.
6 The process must prevent the same people acting as investigators, prosecutors and judges. By referring on-going cases to the Synod of Bishops the process takes decision-making out of the hands of CDF, and re-situates the views under investigation within the broader cultural context in which they were first articulated.
7 The wider community of theologians, the faithful people of God and the sensus fidelium are involved in the discernment of the faith and belief of the church. No longer should the CDF and its Rome-based advisers be the sole arbiters of correct doctrine and belief.
8 The process should be no longer characterized by the absolutist presumptions of an antiquated legal system that has nothing to do with the Gospel. The process should be tempered by the mercy and forgiveness of God, and by the open dialogue that should characterize the community of Jesus. It integrates something of the contemporary emphasis on human rights and the need for free speech, pluralism, transparency and accountability within the church community.
Dr Paul Collins, writer and broadcaster, Australia
Rev Charles Curran, Scurlock University Professor of Human Values at Southern Methodist University, Dallas, USA
Rev Roy Bourgeois, priest and activist, USA
Rev Brian D’Arcy CP, writer and broadcaster, Ireland
Rev Tony Flannery CSsR, writer and broadcaster, Ireland
Sister Teresa Forcades, OSB, Benedictine nun and physician, Spain
Sister Jeannine Gramick, SL, Loretto Sister, Co-Founder, New Ways Ministry, USA
Sister Elizabeth A. Johnson, CSJ, Distinguished Professor of Theology, Fordham University, New York, USA
Professor Paul Knitter, Emeritus Paul Tillich Professor of Theology, World Religions and Culture, Union Theological Seminary, New York, USA
Rev Gerard Moloney, CSsR, Editor, Ireland
Bishop William Morris, Bishop Emeritus of Toowoomba, Australia
Rev Ignatius O’Donovan, OSA, Church Historian, Ireland
Rev Owen O’Sullivan, OFM Cap, Chaplain and Writer, Ireland
Bishop Patrick Power, retired Auxiliary Bishop of Canberra- Goulburn, Australia
Rev Marciano Vidal, CSsR, Former Ordinary Professor, Pontifical University Comillas, Madrid, Spain, Extraordinary Professor, Alphonsian Academy, Rome
The following is a proposed outline of a more just and fair procedure, honoring the rights and dignity of the people involved. However, it doesn’t necessarily represent the views of all the signatories in all its detail.
The proposed process proceeds in two stages
(1) the first is within the CDF itself;
(2) the second stage is an open process before the church conducted by a committee of experts entirely separate from the CDF. This committee would be set up by the Secretariat of the World Synod of Bishops in full consultation with the person being investigated. This committee would make a final recommendation to the next meeting of the Synod and the Pope.
This proposed process tries to address the following problems that people subject to previous CDF investigations have experienced:
* The person investigated doesn’t get a chance to meet, or cross-examine his/her accusers and may never learn who they are;
* The CDF acts as investigator, accuser, judge and jury and imposes the penalty; if an appeal is made, it is heard by the same people;
* In many cases the accused is not allowed to have any direct communication with the CDF, but only through a religious superior or bishop, so there is no possibility of any proper defence;
* The procedure may drag on for years, with sometimes negative consequences for the mental and physical health of the accused.
1. The Process within the CDF
In order to maintain accountability and transparency, when a person is delated (or reported for unorthodoxy) to the CDF, or accused of promoting doctrinal errors or “dangerous” opinions by anyone, whether those accusing be bishop(s), priest(s), religious, lay person(s), or organization(s), and as soon as a CDF file is opened the person under investigation must be immediately informed of the following:
1.1 The full name(s) and address(s) of the person(s), and/or organization(s) who have accused or delated them to the CDF and of the theological qualifications of these person(s) or organization(s) equipping them to make such a judgment. A copy of the full letter of complaint and all other material sent to the CDF by accusers must be included with the names and addresses and sent to the person being investigated.
1.2 If the complaints reach the stage of consideration by the CDF congresso (the weekly meeting of the CDF staff), the names, theological or canonical qualifications, academic affiliations of every staff person participating in the congresso must also be sent to the person under investigation.
1.3 If the congresso authorizes an ‘office study’ of the work(s) of the person being investigated, the full names, addresses, academic appointments and qualifications of all consulters and/or other experts who consider the work(s) in question must be provided to the person under investigation.
1.4 At any stage in the process the person being investigated must be permitted to come to the Palazzo of the Holy Office in Rome where they must be allowed to examine all documentation relating to the case held by the CDF. The person being investigated has the right to appoint up to two defense counsel. The cost of bringing the person being investigated to Rome and maintaining them there for a reasonable period of time must be paid by the CDF.
1.5 At the end of the office study, no decisions can be reached by the CDF without the person being investigated and her/his defense counsel being present. If the CDF decides at the end of the Office Study that the publication or opinion ‘appears to contain grave doctrinal error’, the person being investigated may prepare a dissenting report which must be presented along with the CDF’s report and decision to the Secretariat of the World Synod of Bishops.
1.6 The expenses of the investigation, including the expenses incurred by the accused will be borne by the CDF. The accuser(s) will also be asked to contribute towards these expenses.
1.7 This stage of the process should be kept confidential to the parties involved, though the accused person should be free to discuss his/her situation with people who could provide support and advice. If the process is terminated at this stage for whatever reason, the person who has been investigated has the right to make the details of the investigation public.
1.8 This CDF process must be completed within a period of six calendar months. A failure to complete this stage within this time frame will render the case void.
2. The Open Process before the Church
If the CDF forwards the case to the Secretariat of the World Synod of Bishops the case proceeds to a second more open stage.
2.1 The Synod Secretariat will appoint an independent committee of seven theologians or experts in the area in dispute; at least three of these should come from the country or region from which the investigated person comes. The Synod of Bishops may appoint four people to the committee and the accused three. This committee should be established within six calendar months. The case against the accused should now become public so that the local church may be involved in and become a witness to the whole process, although consideration should be given to a request from the person being investigated if they ask for privacy. The investigated person and her/his counsel must be involved in the whole committee process.
2.2 The CDF must provide the committee with all of the material relating to the case in its possession. The committee or the person under investigation can make this material public. Both the committee and the person being investigated may call expert witnesses to give evidence or advice regarding any of the material under consideration.
2.3 All the committee’s costs (including those of the person being investigated) must be borne by the CDF and the local episcopal conference.
2.4 The committee must report within six calendar months outlining a recommended process of reconciliation that involves both concern for Catholic teaching and orthodoxy and respect for the person being investigated and their rights. Due consideration should be given to the principles of pastoral theology, the place of best pastoral practice and the necessity not ‘to crush the broken reed’. The assumption of sincerity on the part of the person being investigated must underpin any conclusions or recommendations that the committee makes. Such people are often working at the prophetic cutting edge of theology or ministry and respect for their loyalty to Catholicism must underpin all dealings with them.
2.5 The committee’s recommendations must be considered final and must be respected by all, including the CDF, the local bishops’ conference and the primary accusers.
2.6. An ‘Appeals Court’ appointed by and under the auspices of the World Synod of Bishops should be constituted to deal with extreme cases, or cases where the final judgment of the open process is not accepted by the Bishop of Rome or the person being investigated. The decision of this appeals court will be absolutely final.
Official Text of the Procedure, AAS89(1997), 830-835.
Paul Collins, The Modern Inquisition, Woodstock and New York: Overlook Press, 2002. See especially pp 32-45.
Charles E. Curran, Loyal Dissent. Memoir of a Catholic Theologian, Georgetown: Georgetown University Press, 2006.
Richard R. Gaillardetz, When the Magisterium Intervenes, Collegeville, Minn.: Liturgical, 2012. See especially Bradford E. Hinze, “A Decade of Disciplining Theologians”, pp 3-39.
Tony Flannery, A Question of Conscience, Dublin: Londubh Books, 2013.
In Good Conscience: Sister Jeannine Gramick’s Journey of Faith. 2005 DVD at www.outofthebluefilms.com; 2015 updated website download at http://ingoodconscience.com
Georges Cottier, Le rôle de la Congrégation pour la doctrine de la foi et son évolution depuis Vatican II: AA. VV., La responsabilité des théologiens (Paris, 2002) 453-461.
P. Ferrari da Passano, Il Regolamento della CDF per l’esame delle dottrine, La Civiltà Cattolica, 148 (1997) IV, 589-598.
J. A. Fuentes, Nuevo Reglamento de la CDF sobre el examen de las doctrina, Ius Canonicum 38 (1998) n. 75, 303-341.
S. Lederhilger, H. Kalb, Römische Erlässe. Kongregation für die Glaubenslehre: Ordnung für die Lehrüberprüfung, Theologisch-praktische Quartalschrift 146 (1998) 6871.
L’affaire Balasuriya: Revue des Sciences Religieuses 85 (1997) 497-503 Editorial (J. Moingt).
Due Process in the Church: America (April 9, 2001) 3. Editorial.
C. Alcaína Canosa, Procedimiento doctrinal en el Santo Oficio. Evolución histórica, Compostellanum, 53 (2008) 187-245.