When reports came out recently about Pope Francis’ decision to modify the penalties for several priests found guilty of abusing minors, the question arose as to whether the Pope was being too merciful in his decision.
Another concern was whether priests found guilty of abuse of minors
would continue to be dismissed from the clerical state, or “laicized.”
To address these issues and clear up some of the grey area on this topic, CNA spoke with a canonist, Fr. Damián Astigueta, SJ.
A professor at the Faculty of Canon Law at the Pontifical Gregorian
University with a specialty in criminal proceedings, Fr. Astigueta
offered insights on what dismissal from the clerical state is, why the
Church doesn’t always choose to dismiss from the clerical state priests
who are guilty of abuse, what those condemned to a life of prayer and
penance actually do, the role of bishops in abuse cases, the lessening
of sentences, and more.
What is dismissal from the clerical state?
While frequently used in the media, the term “laicization” doesn't
really exist anymore among canonists, Fr. Astigueta said, and has been
widely replaced by the term “loss of the clerical state.”
When a priest loses his clerical state, either because he requested
it or because it was taken from him, he is “‘dismissed from the clerical
state,’ because this is a juridical status,” Fr. Astigueta explained.
“He remains in a situation judicially as if they were a layperson. This is where the term ‘laicization’ comes from.”
He clarified that when this happens, it doesn’t mean that a priest is
no longer a priest: “the sacrament of Holy Orders isn’t lost; it
imprints an ontological sign on the being of the priest that can never
What happens instead is that exercising the rights proper to the
clerical state are prohibited, such as saying Mass, hearing confessions,
and administering the sacraments; as are the obligations, such as that
of reciting the Liturgy of the Hours and obedience to their bishop.
However, since a man dismissed from the clerical state remains a
priest, there are times at which the Church continues to oblige him to
act as a priest.
For example, if he finds someone in danger of death who asks for the
sacraments, even though he is no longer in a clerical state, he “must
hear (the person’s) confession because the most important thing is the
salvation of that person.”
Fr. Astigueta also emphasized the importance of not misinterpreting
the process to mean a “reduction to the lay state.” This phrase is not
correct, he stressed, since it inaccurately treats laity “in a
derogatory way, as if they were lesser.”
Why not all priests guilty of abuse lose the clerical state
For Fr. Astigueta, the answer to the question of why not all priests
found guilty of abuse are dismissed from the clerical state has two
primary components: not all acts of abuse are the same in terms of
severity, and the situation of the priest himself varies.
“Why doesn’t the Church dismiss from the clerical state all abusers?
Because not all abuses are the same entity,” he said.
Even civil law
recognizes a difference in severity between pedophilia – which involves
prepubescent children – and ephebophilia – which involves mid-to-late
In other cases, there may be the appearance of consent with
an older teen, he said, which can further complicate the matter. The
penalty assessed to the priest takes these factors into account, he
When it comes to priests who are found guilty of abuse, there are
different types of punishments, including dismissal from the clerical
state, or a life of “prayer and penance,” depending on the situation.
“There are certain cases in which dismissal would be the just punishment,” Fr. Astigueta said.
But there are also cases – even with several instances of serious
abuse that have caused a lot of damage – when the Church decides against
this dismissal, he said, pointing to Legion of Christ founder Fr.
Marcial Maciel as an example.
Fr. Maciel was a person “who was proven to have committed a series of
very serious crimes, a person who when one knows what he did truly
realizes they are in front of a very disturbed person,” the priest said.
“Can a disturbed person be punished with the maximum penalty?”
At times the Church prefers to use a different system, prohibiting
the person from ministry, particularly in public.
Instead, the person is
isolated at home, dedicated to prayer “and nothing more.”
This means no
visits from people, at times not even friends or their congregation.
In the case of Fr. Maciel, even his funeral, for which he had saved enormous funds, was closed to the public.
“Is it a gilded prison? In a certain way, yes,” Fr. Astigueta said.
However, he said the Church at times chooses this punishment, which is
less strong, because at a certain point, “when I give a person a
sanction that destroys them, it’s not a sanction, but revenge.”
Fr. Astigueta also spoke of the importance of mercy in the process,
particularly when it comes to elderly priests and the Church’s own
responsibility toward her members.
Even in a tragic case when a child has been abused, “the Church is
still a mother, and mercy is used for the victims and the priest,” he
said, noting that abusers often have serious psychological problems that
If a priest chooses to renounce his clerical state, he is often
inserted into society without a problem; but when it comes to those who
have been dismissed, it can be a lot harder, Fr. Astigueta said,
explaining that there is a canon (c. 1350 §2) establishing “that there exists a duty of charity toward them.”
This means “helping them and taking care of them in the measure that the person lets themselves be helped,” he said.
If an 80-year-old priest is dismissed from the clerical state, “where
do we send him? Can he find work? He’ll end up living on the street as a
homeless man. How long will he last? He won’t last anything,” he
To put a man on the street in this circumstance, unless he has relatives ready to take him on, “is practically to kill him.”
Often, despite the harm done, something good in the person remains,
he said, explaining that because of this, sometimes a more just penance
is to let him “live with his conscience.” While a life of prayer and
reflection might sound comfortable, Fr. Astigueta asked: “reflecting
with whom? With your memories before God, with your regrets.”
He noted that in order to avoid pressure from the media in these
cases, the Church “is obliged at times to punish, in my view, more
seriously than it should.”
Offering help to victims and bringing about justice is always the
Church’s top priority when it comes to clerical abuse, but concern must
also be shown to the sinner, he said, explaining that if the Church were
to immediately dismiss from the clerical state every abusive priest, it
could cause more harm.
“Sometimes we find ourselves in situations that if these people are
thrown out on the street, I am leaving a possible serial killer,” Fr.
Astigueta said, referring to pedophiles. The Church, he said, must also
take this into account.
Fr. Astigueta stressed that when it comes to mercy in abuse cases, it
“never goes against justice,” and that the first act of mercy is “to
tell the truth.”
Once the truth is known, the measure in which the offender can be
sanctioned must be taken into account “in order to avoid that the
penalty is a revenge,” because this helps no one.
“The pain of the victim is never cured with revenge; the only way to
heal the victim’s pain is forgiveness offered freely,” he said, noting
that “this can never be forced on anyone; but certainly neither can the
spirit of revenge be forced.”
What a life of prayer and penance actually means
Many priests found guilty of abuse, instead of being dismissed from
the clerical state, are instead sentenced to a life of “prayer and
But while the sentence is fairly common, among elderly priests in
particular, what it actually involves is at times a bit obscure to the
public eye, and it can seem like the priest is getting off easy despite
committing heinous crimes.
Fr. Astigueta explained that on a practical level, “the person is isolated, sometimes more, sometimes less.”
Often “the person is isolated, possibly without having direct access
to the telephone or the TV, and must dedicate himself to reading,
praying and walking around inside the house.”
At times the person might even be barred from leaving the house without permission, under pain of incurring further punishments.
He pointed to the recent case
of Luis Fernando Figari, a layman and founder of the Sodalitium
Christianae Vitae, who was found guilty of an extreme, authoritarian
style of leadership as well as several accounts of sexual, physical, and
As a punishment, the Vatican didn’t expel Figari from the community,
but ordered that he live alone, and barred him from any contact with the
community's members and from receiving people.
If a priest who receives this sentence doesn’t want to follow the
rules, the Church in this case “can impose the full dismissal” from
their clerical status, Fr. Astigueta said, noting that the majority of
priests who choose to this life are people who “want to be helped and
recognize that this penalty is a table of salvation for them.”
“It’s strong, yes, but at least I have something to eat and I can live
my final years in peace,” Fr. Astigueta said, noting that in general it
is elderly priests who end up in this situation, whereas younger ones
with some sort of major mental health disorder are typically sent to a
At times they are able to celebrate Mass with others, but “always
with the very clear ban that ‘from here, you cannot go away without
The Church, Fr. Astigueta said, “is not a prison … it doesn’t have
penitential system like a state, but someone must keep watch over those
removed from ministry.”
And this implies “a very heavy duty for the Church, because who is
the one that supervises? Who is responsible for him? It’s not so easy,
it implies a lot of obligations.”
Fr. Astigueta also noted that there’s a different canonical process for lay founders such as Figari, versus priests who abuse.
“Technically speaking, the case of a layman doesn’t enter into the canon on abuses like the priests,” he said.
Clerics who commit sexual abuse are charged under a canon (c. 1395 §2)
which criminalizes those offenses against the sixth commandment which
are committed by force or threats or publicly or with a minor below the
age of 16.
But when it comes to the laity specifically, “this lack in the code
must be thought of,” because unfortunately “the times are those in which
we can’t only think about priest founders, but of many laity who have a
position in the Church … who can abuse minors,” such as school
directors or professors.
In these cases, he said, the Church applies a canon (c. 1399)
which covers the situation in which the criminal “goes against a divine
or ecclesiastical law with harm or danger of grave scandal.”
Cases in which the victims are mentally disabled must also be taken
into consideration, he said, as well as many other forms of abuse “that
should be considered crimes,” and are in many states.
The role of the bishop in cases of abuse
When it comes to the responsibility of bishops in abuse cases, Fr.
Astigueta said that while expectations might have been murky in the
past, they are clear now, and require the bishop to act immediately.
“When the bishop is informed, when he receives the news that an abuse
has been committed, he has the obligation, a serious obligation, to
A bishop must first intervene on a judicial level, alerting civil
authorities, but also on the pastoral level, he said, explaining that
the process looks different for every nation.
On a pastoral level, bishops must from the start turn their immediate
attention to the victims “in order to welcome them and to help them
understand that we are not against them and we are looking for the
truth,” he said.
After the initial investigation has begun, the bishop may, but is not
obliged to, apply a “precautionary measure,” which is a type of
disciplinary measure enforced in order to avoid “the process from being
Giving a theoretical example, Fr. Astigueta said a priest might try
to pressure a victim into retracting their statement, so the bishop
could decide to “distance” the priest from the process. This choice
might also be made in situations where there is risk of a serious
scandal, he said.
Once a priest is found guilty, the bishop will have to carry out the
sentence, and it may even be the bishop himself to enforce the decree of
dismissal from the clerical state with the authority of the
Congregation for the Doctrine of the Faith, Fr. Astigueta explained.
Victims must be helped to live a “process of reconciliation, of
accompaniment” and one in which they are made to feel that “they are
part of the Church,” he said, but stressed that this is at a pastoral
level, which must always remain separate from the judicial level.
Fr. Astigueta also spoke on cases of negligence on the part of a bishop, which Pope Francis in his 2016 motu proprio Come una madre amorevole established as grounds for removal from office.
The canon behind the rule (c. 1389 §2),
the priest said, states that “A person who through culpable negligence
illegitimately places or omits an act of ecclesiastical power, ministry,
or function with harm to another is to be punished with a just
The issue is also dealt with in a canon (c. 193 §1)
which speaks of removal from office “for grave causes.” Removal from
office, he explained, is “the act through which a person loses a series
of rights which are part of an office.”
“So this person who was the bishop had rights and duties regarding
the community. As he has not fulfilled them, this office is removed,”
Fr. Astigueta said.
Removal in this sense can either be for disciplinary or penal
reasons, Fr. Astigueta said, explaining that in the case of penal
removal for negligence, the bishop is dismissed because “he didn’t act
as he should have.”
While in the past bishops moved abusive priests around in part
because they didn’t understand the severity of the problem, “today no
one can say that they don’t know what abuse is and the magnitude of the
In cases of abuse, then, “it’s already so severe that there is no
need for another cause, negligence is enough.” Part of this negligence,
Fr. Astigueta explained, could be moving priests, not acting
immediately, or letting time pass until more accusations arise: “Here we
would have a case of negligence.”
Another instance, he said, would be failing to take precautionary
measures against a priest accused of abuse, and it is later discovered
that the priest had committed other abuses during that time. Other
reasons for removal of office due to negligence could be that the bishop
didn’t follow the protocol requested by the state.
He noted that there are a variety of situations, but “the Pope wanted
to say that this negligence in itself so important because the damage
to the other produced due to negligence, which is almost – even if it
can’t be said in a clear way – an act of complicity due to negligence.”
Stronger punishment isn’t always the best way to prevent abuse
No matter the situation of the priest or the bishop, Fr. Astigueta
stressed the importance of pursuing the just punishment given the
particular situation, and warned against the temptation to immediately
impose the maximum punishment – dismissal from the clerical state – on
To do so, he said, “would be an injustice, it would be a type of
witch hunt, and this produces fugitives. If everyone is punished with
the maximum, with this you resolve nothing.”
It’s a fact, he said, that all states which have attempted to toughen
the penalties in order to prevent further crimes “have failed to do
The only thing that actually makes the crimes diminish, he said, are
preventative measures and “the consciousness of the people, the
intervention of the people,” specifically through education.
“If the people within the Church were all to work so that there were a
healthy environment, not one of suspicion, but healthy and prudent,”
these delinquent act would diminish. “Not because the maximum penalty is