Congregation for the Clergy, Letter Concerning Licit Psychological Testing of a Priest with Appended Study on the Topic, 9 June 1998.


Most Rev. N., Bishop of X.

Address

City, State Zip

U.S.A.

Your Excellency:

This Congregation has received the additional materials you kindly sent on the matter of the Reverend A. of your diocese.

We have thoroughly studied the extensive information and feel that Your Excellency had to deal with a very difficult situation and did so in an appropriate fashion.

We are enclosing, for Your Excellency’s perusal, a copy of the study conducted by this Congregation of the process followed in this matter. You may find it helpful for any such future situations. We all know that these processes can be fraught with many pitfalls, from the canonical perspective. We offer this information to you only in an attempt to be helpful to you and your canonical advisors.

I take this opportunity to renew my sentiments of esteem and with every best wish, I remain,

Sincerely yours in Christ,

Dario Cardinal Castrillón Hoyos

Prefect

pg. 953

pg. 954

Study Prepared by the Congregation for the Clergy

I—Summary of the Facts:

1. On 7 October 1997 the Congregation of the Clergy received a letter from Reverend A., a priest ordained for your diocese, complaining of actions taken against him by the diocese, actions that led to his status as an abandoned cleric under the Code of Canon Law. He complains of being summarily released from his assignment on 21 September 1996 and of not having the opportunity to defend himself. He speaks of being in a year of what can only be called Hell; I have been abandoned as a cleric and left in this misery for a one year period (p. 3); he further complains that he has no means of sustenance. He says he has not heard from the diocese since 21 March 1997, when his superiors seemed favorable to his request for a transfer to another diocese.

The general tone of his letter, however, is not to present a recourse against the administrative acts of his ordinary, but simply to get the Congregation to intervene so that he might be released from the authority of the ordinary of the diocese and be able to practice ministry somewhere else.

2. In response to a request for information, the diocese has presented a full dossier on the case and has presented the facts in a quite different light.

Although we do not have full and precise details as to the date and actual origin of the difficulties with Father A. (E.g., no explanation is given for the diocese’s letter of 21 March 1997, which gives a favorable reply to his request to seek another benevolent bishop), the bishop informs us that he began a canonical investigation into allegations against Father A. on 11 April 1997, in accord with c. 1717. Thus there is a discrepancy between what the recurrent alleges about the date of his removal from his assignment and the date of the beginning of the investigation as claimed by the diocese. Was the recurrent still exercising his ministry in the parish at the time of the formal canonical investigation, or had he already been effectively removed?

At any rate, it seems that the diocese had received information that Father A. was using his position as a priest to unduly influence the faithful,

pg. 954

pg. 955
particularly the victim, to donate money to him so that he could continue his higher studies. Furthermore, he fabricated false documents and passed himself off as a civil lawyer; then he drew up a will for the victim, making himself the executor and also a beneficiary of the will. He also, publicly, in the parish bulletin, made false statements about his activities as a Reserve Air Force Chaplain and with regard to help given to Cuban and Bosnian refugees.

3. The bishop assures us that during that investigation, Father A. was kept informed of his rights and that he had the help of a canonical advocate, even though he did not actually participate in the proceedings except by undergoing a psychological evaluation. Thus “[o]n the basis of the investigation, consultations with assessors, and a formal hearing, I issued a decree dated 22 September 1997. In that decree, among other determinations, I declared that Father A. was irregular for the exercise of orders.”

Since the issuance of the decree the recurrent has attempted to avoid being served a copy of it and has also violated a precept given to him to keep the bishop informed of his address.

In his decree, the bishop also determined “that the monthly payment which the diocese has been providing for Father A. be directed into a fund to make restitution to the victim.”

II—Evaluation of the Procedure:

4. In general, and at first glance, one would have to say that the procedure followed by the ordinary in this case seems to be in accord with the provisions of the Code, providing of course that the recurrent did have effective access to his canonical attorney so that his right of defense could have been exercised before practical steps and definite actions were taken against him. (For example, why is it that the recurrent visited the diocesan appointed psychologist on 21 February 1997, if the preliminary investigation was initiated only on 11 April 1997?).

The preliminary investigation in accord with c. 1717 was begun on 11 April 1997 and evidence was collected, including testimony from Father W., pastor, and workers in the rectory of Saint M. Parish, and also from the daughter and son-in-law of the victim, as well as various priests.

pg. 955

pg. 956
A lawyer was appointed for Father A. on 11 June, that is, before the completion of the preliminary investigation. However, c. 1720, 1° and c. 1723, §1 seem to suggest that the lawyer be appointed only after the decree mentioned in c. 1718, §1 has been issued, that is, when the actual decision to proceed to a penal action has been made.

At any rate, on 5 August 1997 the bishop issued the decree called for in c. 1718 stating that he would follow the administrative rather than judicial process. One must note however, that the bishop does not indicate the just causes which preclude a judicial process (cf. c. 1342, §1) and which incline him instead to pursue the administrative process.

A hearing was held on 9 September 1997 at which the recurrent, despite two citations, did not present himself. His advocate was available by phone and had presented the recurrent’s position in a brief.

5. I use the phrase above, “at first glance,” because questions could be raised as to the suitability and liceity of using one and the same process (c. 1720, “per decretum extra iudicium”) to determine the existence of and punish true crimes and delicts and also to determine the existence of an irregularity or impediment to orders in accord with cc. 1044, §1, 1° and 1044, §2, 2°.

Canon 1342, §2 clearly tells us: “Per decretum irrogari vel declarari non possunt poenæ perpetuæ […].”

Yet the practical result of a finding of the presence of an irregularity is the priest’s permanent exclusion from the practice of the ministry. One of the assessors in the case is quite aware of this since he advises: I see an advantage in a declaration of the existence of an irregularity […] a declaration of the existence of an irregularity, if such can be established, would have the same effect as a permanent suspension from the exercise of orders. […]

De facto, the bishop, in the case in question, finds a determination of unfitness according to c. 1044 to be another and more fitting remedy […] which should be employed in the place of the imposition of an expiatory penalty (Decree, p. 4).

pg. 956

pg. 957
6. A further problem from the combining of both processes arises, in my opinion, from the difficulty of isolating the two contrasting perspectives upon which each separate judgment is to be made.

From the point of view of ecclesiastical penal law, the investigator and the ordinary are trying to determine crime and punishment, delict and penalty, imputability and extenuating circumstances. Yet, in the exact same process and at the same time, the ordinary, with impartial serenity of mind and with the principal purpose of providing for a seriously ill brother priest, is supposed to use the exact same information as evidence, no longer as of sin or crime, but now as of an incapacitating medical and psychological condition.

Thus one could hold that it is contradictory, illogical and unjust to consider the same situation contemporaneously as one involving both a true illness and a serious crime; for if we were truly dealing with a serious, perpetual condition or psychic cause which so interfered with the subjects freedom and responsibility that he would be incapable of exercising the priesthood, then his exterior criminal action would not be morally imputable to him.

Furthermore, the medical expert’s reports which are obtained with the cooperation of the person being investigated for the purpose of evaluating his psychic condition so that he might obtain care if needed, should not be admitted as evidence in a penal case. These are confidential medical records which are meant to be used for the good of the patient; other use of them violates the principle of confidentiality and of the doctor-patient privilege. What is provided in an extra legal forum for the benefit of a patient, cannot be used in a legal forum against that patient’s interests and rights (even if, under compulsion, he should have consented to such use [cf. psychological report, p. l]).

7. The ordinary himself seems to have been aware of the above possible objection since he does try to address in the decree this question of the relation between psychic defect and true imputability. Father Advocate, the lawyer for the recurrent, had argued that the crimes could not be considered imputable to Father A. because of his psychological impairment. But, the bishop replies that Father A. appears to have at least some use of reason and seems to be able to understand the nature of his actions. He continues:

pg. 957

pg. 958
“The presence of a pathology and the reality of culpability are not mutually exclusive. Father A. is an intelligent man. His very efforts to cover up and create plausible excuses for his manipulative behavior reveal that he did have a basic understanding that his actions were seriously wrong.”

If this is true, does it not then seem very difficult to sustain that there is also present such a serious psychic irregularity which would have made Father A. incapable of ministry? If he had knowledge, freedom and culpability, how is it that his actions are also judged at the same time to be not under his control, that he is not dominus sui?

Our Holy Father in his talk to the Rota on 8 February 1987 has warned us to evaluate carefully the underlying anthropology of the experts consulted: “l’aiuto di esperti […] non dispensa il giudice ecclesiastico, nell’uso delle perizie, dal dovere di non lasciarsi suggestionare da concetti antropologici inaccettabile, finendo per essere coinvolto in fraintendimenti circa la verità dei fatti e dei significati (AAS, 79 [1987], p. 1454)1 and “Quindi anche i risultati peritali, influenzati dalle suddette visioni, costituiscono una reale occasione di inganno per il giudice che non intraveda l’equivoco antropologico iniziale” (ibid., p. 1457).2

8. As an argument to sustain both the presence of full imputability and a truly incapacitating psychic defect in the recurrent, the bishop makes use of the reasoning presented by one of the assessors: [...] a severe personality disorder is sufficient to render him incapable (there is a parallel in c. 1095 on incapacity for marital consent).

The parallel with matrimonial consent used by in his explanation of the influence of personality disorders is only an analogy and not a strict comparison. Marriage comes about by a contractual consent between two




1. “The help of experts […] does not dispense the ecclesiastical judge, in the use of experts, from the obligation of not permitting them to hypothesize from unacceptable anthropological concepts concluding by being involved in misunderstandings concerning the truth of the facts and what is signified” (unofficial translation).

2. “Therefore, even the experts results, influenced by the above-mentioned perspectives, constitute a real occasion of deception by the judge who has not glimpsed the initial anthropological misunderstanding” (unofficial translation).

pg. 958

pg. 959
parties, and the contract is seen to be null and void if one of the parties is judged not able to consent or to deliver the object of his consent. The sacrament of orders, however, is not exactly similar.

Holy orders is the result of a divine call, a vocation, and is a permanent gift of God, which impresses a character on the sou1 of the individual and gives him sacred powers including that of confecting the Eucharist. The Catechism of the Catholic Church teaches us that the sacrament of holy orders “conferisce un dono dello Spirito Santo che permette di esercitare una potestà sacra, la quale non pu~ venire che da Cristo stesso, mediante la sua Chiesa (no. 1537) e Come ogni grazia, questo sacramento non può essere ricevuto che come un dono immeritato (no. 1578).3 Since it is a gift conferred through the hands of another minister, reception of orders, per se, does not require the actual use of reason. It follows then that the incapacity to fulfill the obligations of ordination, since it does not make up part of a consensual contract, in contrast to the case in matrimony, does not of itself nullify or void the sacrament.

Accordingly, the widespread use of the procedures and the line of reasoning used in this case could lead to a factual situation which, in practice, would be equivalent to the nullification of holy orders and the imposition of a perpetual penalty by means of a decree.

8 [sic]. One further caution could be raised about the procedure used in this case. Canon 1350 provides that: “In pœnis clerico irrogandis semper cavendum est, ne iis quae ad honestam sustentationem sunt necessaria ipse careat, nisi agatur de dimissione e statu clericali.”4

Apparently then, the ordinary, even though he has declared the recurrent psychologically incapable of exercising ministry, seems to consider him as dismissed from the clerical state since Father A. is not actually receiving




3. “[…] confers a gift of the Holy Spirit which permits the exercise of a sacred power, which cannot come but from Christ by means of His Church. […] As each grace, this sacrament cannot be received but as an unmerited gift” (unofficial translation).

4. Can. 1350, §1. “Unless it concerns dismissal rom the clerical state, when penalties are imposed on a cleric, provision must always be made so that he does not lack those things necessary for his decent support.”

pg. 959

pg. 960
support and sustenance. The money which would have been provided to him has been put in a fund to make restitution to the victim. This is a noble and charitable provision, and is in fact an obligation of justice on the part of Father A. But the direct payment by the diocese of this money to the victim has the double disadvantage of 1) leaving Father A. someone judged as psychically incapable of exercising ministry, without any sustentation whatsoever, and 2) also of creating the precedent (perhaps also under civil law) that the diocese itself will in the future be responsible for making up for all the debts and injustices of all its priests and clerics.

III—Conclusion

9. While in the particular case I do not see, apart from the problem of the actual date of the original disciplinary actions against the recurrent and the initiation of the canonical process, serious violations of procedural law, I would suggest that the Congregation encourage that this model of combining both processes not be widely used in the future because of the reasons illustrated above. A difficult decision concerning a cleric’s incapacity to rightly exercise ministry according to c. 1044, §2, 2°, should be taken in the context of charitable assistance to a sick brother, not in the context of penal law and punishment.




W.H. Woestman, The Sacrament of Orders and the Clerical State: A Commentary on the Code of Canon Law, 3rd rev. ed., (Ottawa: Faculty of Canon Law, Saint Paul University, 2006):432-437.