Canonical clergy discipline for ecclesiastical offences

wrongdoing. There is a clear perception of some ontological hierarchy as between the clergy and laity that needs to be corrected.

Canonical clergy discipline for ecclesiastical offences

A key aspect of any status is the entitlement to formal processes before it may be removed involuntarily. It has been observed that “[d]iscipline of the clergy is a subject of perennial interest...[and t]he subject has a long history.”71 Orders do not confer perfection or immunise from discipline, either in the sight of God or man. But over the years many barriers have shielded clergy from effective accountability.

Back in the heady days of clerical power after the murder of Archbishop Beckett, lay persons could not, as a general rule, initiate or even testify in disciplinary proceedings against clergy, ostensibly out of fear of vexatious accusations. All proceedings were in the court of the bishop (or Ordinary, as he was called in that context) and all decisions were in his hands, with ultimate appeal to Rome.72 There were (and still are) extensive layers of secrecy (especially but not exclusively under Catholic canon law processes), in marked contrast to the civil law’s core principle of open justice.73

Under canon law, clergy discipline involves what are called ecclesiastical offences and adverse outcomes are called “sentences” in the Anglican polity and “penal sanctions” in the Catholic polity. For Anglican clergy in Australia, the Church Constitution has modified the inheritance of English canon law by limiting “sentences” for such offences to deposition from orders, prohibition from functioning, removal from office and rebuke.

Involuntary deposition from Anglican Holy Orders for ecclesiastical offences is effected by a bishop but may only be imposed pursuant to the sentence of a church tribunal following trial in a tribunal identified in the Constitution. 74 The Constitution requires each diocese to have a tribunal with jurisdiction to hear charges against clergy. The bishop’s so-called “prerogative of mercy” is however preserved, subject to a duty to consult with the tribunal.75

Ecclesiastical offences recognised under the Anglican Church Constitution include breaches of faith, ritual, ceremonial or discipline,76 an offence of unchastity, an offence involving sexual misconduct or an offence relating to a conviction for a criminal offence punishable by imprisonment for twelve months or upwards.77 The Offences Canon 1962 adds drunkenness, habitual and wilful neglect of ministerial duty after written admonition in respect thereof by the bishop of the diocese and wilful failure to pay just debts. It also treats as an offence “conduct, whenever occurring, which would be disgraceful if committed by a member of the clergy, and

71 R M Helmholz, “Discipline of the Clergy: Medieval and Modern” (2002) Ecclesiastical Law Journal at p 189. 72 Ibid. 73 As to the “open justice” principle in Australian common law, see, eg John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 (Spigelman CJ). As to secrecy in Catholic canon law, see, eg Kieran Tapsell, op cit. Cf T S Eliot’s observation that “The Church of England washes its dirty linen in public....In contrast to some other institutions both civil and ecclesiastical, the linen does get washed” (Essay, “Thoughts After Lambeth” 1930). 74 See Holy Orders, Relinquishment and Deposition Canon 2004 for the current arrangements within the Anglican Church of Australia. It is currently in force in most dioceses but will be replaced by the Holy Orders (Removal from Ministry) Canon 2017 when it comes into force in the dioceses. 75 Constitution, s 60 (2). 76 All four of these terms are defined, after a fashion, in s 74 of the Constitution. 77 Constitution, s 54 (2) and (2A). There must be a link between the member of clergy charged and the diocese: see s 54 (2A).

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which at the time the charge is preferred is productive, or if known publicly would be productive, of scandal or evil report”. In 2017 further offences of child abuse and failure without reasonable excuse to comply with laws requiring the reporting of child abuse to police or other authority were added. Canons of the General Synod and diocesan ordinances have created additional offences.

Clergy offences do not threaten liberty and may only indirectly threaten the wallet. Penal processes “are not victim-focussed and are mainly concerned with dealing with accused persons”.78 They are defined so as to address the past conduct of the accused cleric as distinct from its impact on victims or others. The authoritative Phillimore 79 states that “the object of all punishment [for ecclesiastical offences] inflicted by...the bishop or his court...is the promotion of the soul’s health by the reformation of the life and moral conduct, or the irreligious and heretical opinion, of the guilty person”. Since, however, such punishment may be life-long (as with deposition from orders) there is some conscious ambiguity here, just as there is with the multiple functions of sentencing in the secular criminal law and the striking off of doctors and lawyers.

Time and ignorance preclude a detailed discussion of the canonical offence system for Roman Catholic clergy. Even Catholic insiders have been frustrated by inconsistent messages received from the Vatican about penal norms and processes as the sexual abuse disaster has unfolded. Confusion has related to things such as the definitions of abuse capable of attracting disciplinary action, limitation provisions, and the exact agency in Rome to which requests for action by bishops is to be directed. There are complex appeal processes in which lay persons exercise no determinative roles, with an ultimate appeal to Rome and absolute dispositive authority residing in the Pope. Catholic clergy (including bishops) have nevertheless been laicised by the Pope on various grounds.80

For Catholic clerics, the 1983 Code of Canon Law contemplates the discretionary modification of penalties in a wide range of circumstances including where “the offender has repented and repaired the scandal, or if the offender has been or foreseeably will be sufficiently punished by the civil authority”.81 Dismissal from the clerical state (ie laicization) is a permanent measure whereby the cleric is from then on treated as a layman. It may be imposed as a penalty (ad poenam) or granted as a favour at the priest’s own request. Laicization does not in itself remove the obligation of celibacy: only the Pope can grant that dispensation. Nor does it entirely remove the indelibility of orders, given that Catholic doctrine allows a laicised priest to give absolution to someone in danger of death.

Anglican bishops in Australia may also be charged with offences and deposed from orders through disciplinary processes.82 Ecclesiastical offences for them include breaches of faith, ritual, ceremonial or discipline, unchastity, drunkenness, wilful failure to pay just debts, conduct that is disgraceful in the manner set out above, wilful violation of the constitution or applicable church

78 Submission from the Truth, Justice and Healing Council, Royal Commission Issues Paper No 2, “Towards Healing”, 30 September 2013, cited in DEF v Trappett [2015] NSWSC 1840 at [12]. 79 Robert Phillimore, The Ecclesiastical Law of the Church of England, 1st ed, 1873, p 1087. 80 See generally Tapsell, op cit. 81 1983 CIC, Canons 1343-1345. The Royal Commission was highly critical of this “pastoral” attitude. See also Tapsell, op cit. 82 In 2004, a retired Anglican bishop (Donald Shearman) was deposed from Holy Orders for his misconduct in a sexual relationship that spanned many years which had commenced when the woman was fourteen. This occurred through the disciplinary processes applicable in the Diocese of Brisbane. In 2010 the Special Tribunal recommended prohibition from functioning in the office of a bishop and the removal from office for various contraventions of the Offences Canon by another diocesan Bishop (Ross Davies). The Primate pronounced the sentences recommended.

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