Kieran Tapsell’s essay, “Canon Law on Child Abuse Through the Ages.” In the 17th and 18th centuries, the Church’s stand against these priests seemed to be very close to adopting what we might call these days, “zero tolerance”. In 1635 and again in 1726 the Holy See refused to reinstate priests who had served their sentences under the civil law for the sexual abuse of boys.

https://www.catholicsforrenewal.org/old_pages/documents/CanonLawOnChildAbuseThruTheAges.pdf

  Church Council and Papal Decrees from the 12th to the 18th Centuries

The Church prohibition on clerics issuing sentences that “shed blood” was formalised at the Fourth

Lateran Council under Innocent III in 1215CE. Such punishments henceforth were to be carried out

by secular authorities.31 A practice then developed requiring clergy sex abusers to be “degraded”,

and then handed over to the civil authority to be dealt with by the civil law.

The Church still effectively had a veto over a priest being tried by the State for any kind of crime,

because unless a priest was “degraded”, he still had the benefit of “privilege of clergy” to be tried

only by the ecclesiastical courts. It was this veto that was the centre of the dispute between Henry II

and Thomas A’Becket in 1170.

32

The Third Lateran Council in 1179 under Pope Alexander III decreed that clergy guilty of a “crime

against nature” were to be imprisoned indefinitely in a monastery or subjected to “degradation”.33

29 Van de Wiel: History of Canon law, par 128, loc 1013. Gratian’s Decrees were very influential in the teaching of canon

law, but it was never recognised as the official version. Gregory IX (1227-1241) commissioned Raymond of Pennafort to

prepare a new, uniform and simplified compilation that would contain only the laws in force, but he included in them

Gratian’s Decrees. The Decretals of Gregory IX became the first official publication of canon law as a whole and it remained

the most important collection until the 1917 Code: id par 141-143, loc, 1081-1092, and Doyle and Rubino: Clergy Sexual

Abuse Meets the Civil Law, Fordham Urban Law Journal (2003) Vol. 31 Issue 2 p.582,n. 224:

http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1888&context=ulj (Accessed 18 Jan 2015). There were

subsequent attempts at compilations but none of them abrogated the old law of Gratian’s Decrees: Wiel, supra par 161,

loc. 1164.

30 Decree of Gratian, D. 1, de pen., c.15 in Decretum Magistri Gratiani, editio Lipsiensis Secunda, editor, A.L. Richter,( Graz,

Friedberg, 1879, 1959). Here, Gratian was talking specifically about the sexual abuse of boys and not just homosexuality in

general: John Boswell in Christianity, Social Tolerance, and Homosexuality: Gay People in Western Europe from the

Beginning of the Christian Era to the Fourteenth Century (University of Chicago Press 1980), loc 6232. See also Fr Thomas

Doyle: Affidavit Jane Doe par 22 http://reform-network.net/?p=1464 (Accessed 6 May 2013); Cafardi Before Dallas, p.4.

Gratian also included in his Decrees a canon from the 1102 Synod of London stating that clerics found guilty of sodomy,

should either be deposed or excommunicated: Doyle and Rubino: Clergy Sexual Abuse Meets the Civil Law, p.583. John

Boswell in Christianity, Social Tolerance, and Homosexuality: loc 7967 says that legal records for the Middle Ages are

inadequate to determine the extent to which the death penalty was actually carried out.

31 Canons 21 and 18 respectively http://www.papalencyclicals.net/Councils/ecum12-2.htm (Accessed 20 September 2014)

32 Spigelman J, Becket & Henry, The Becket Lectures, St. Thomas More Society (2004)

33 Cafardi: Before Dallas p.4 and footnote 23.

http://www.awrsipe.com/patrick_wall/selected_documents/1179%20III%20Lateran%20Council.pdf (Accessed 9 February

2014). 

7

Nevertheless even if the decision was made not to “degrade” the priest, the punishment was exile

and extreme penance.34

In 1209, Pope Innocent III ruled that the degradation of a cleric should take place in the presence of

someone from the secular authority who would then take custody of him.35 The Fourth Lateran

Council in 1215 continued the condemnation of “crimes against nature”.

36 The Council also decreed

that bishops who covered up the sexual irregularities of their priests were to be “deposed in

perpetuity”.

37

At the Fifth Lateran Council in 1514, Pope Leo X decreed that clerics involved in “crimes against

nature” are to be punished “respectively according to the sacred canons or with penalties imposed

by the civil law.” 38

The Council of Trent in 1551 marked a hardening of attitude towards priests who committed serious

crimes. Whereas the previous decrees provided for a general discretion as to whether a cleric should

be imprisoned in a monastery or “degraded”, the Council of Trent accepted that some crimes were

so serious that priests who committed them had to be dismissed, and delivered over to a secular

court.”39

Ten years later, in 1561, Pope Pius IV continued this stricter policy with his papal bull, Cum Sicut

Nuper, in which he directed the Spanish Inquisition to “degrade to the secular state”, and to hand

over to “a secular judge to be punished” all priests guilty of soliciting sex in the confessional.40

In 1566, Pope St Pius V (1566-72) issued his encyclical, Cum Primum requiring clerics who committed

“an unspeakable crime against nature” to be first “degraded” by a canonical court and be subject to

“fitting punishment”.

41 Two years later, the same Pope issued his constitution, Horrendum Illud

34 Mark D. Jordan: The Silence of Sodom: Homosexuality in Modern Catholicism, (University of Chicago Press, 2000) p.123.

Pope Alexander III prohibited secular punishments to clergy and limited canonical punishments to dismissal, and

disapproved of any further punishment under the civil law: John F. Wirenius: Command and Coercion: Clerical Immunity,

Scandal and the Sex Abuse Crisis in the Roman Catholic Church: Journal of Law and Religion, Vol 27 No.2 2011-12 p.448.

Later popes, such as Innocent III had a different idea about handing over degraded clerics to be further punished by the

civil authorities.

35 Rosamond McKitterick: New Cambridge Medieval History pts.1-2.c.1024-c.1198, p. 441

36 Cafardi, Before Dallas, p.5. The Fourth Lateran Council also insisted that clergy who are guilty of a second offence of

incontinence should be “forever deposed.”

http://www.awrsipe.com/patrick_wall/selected_documents/1215%20IV%20Lateran%20Council.pdf (Accessed 9 February

2014.

37 Canon 14, Ibid:

38 Cafardi, Before Dallas p. 5 and footnote 27

39 http://www.thecounciloftrent.com/ch13.htm (Accessed 9 February 2014)

40 http://www.awrsipe.com/patrick_wall/selected_documents/1561%20Cum%20sicut%20super.pdf (Accessed 20

September 2014)

41 Pope Pius V, Cum Primum,"Romani Pontifices”, 1 April 1566, in P. Gasparri, editor, Codicem Iuris Canonici Fontes , Vol. 1,

(Vatican, Typis Polyglottis, 1926), p. 200

http://www.awrsipe.com/patrick_wall/selected_documents/1566%20Cum%20primum.pdf (Accessed 21 September 2014.) 

8

Scelus against clerics who sinned “against nature” and decreed that were to be deterred by “the

avenging secular sword of civil laws”. Those degraded by the ecclesiastical judge were to be

“immediately delivered to the secular power”.

42 An example of this was the case of Canon Fontino

from the Italian town of Loreto, who was charged in 1570 before a canonical court with sodomy of a

choirboy. He was degraded, and then handed over to the secular authority to be beheaded.43

Between 1570 and 1630, the Spanish Inquisition handled over 1000 cases of “sodomy” in Aragon,

and in some tribunals as many as one fifth of the accused were clergy. They were amongst the first

to be executed.44 In Valencia between 1565 and 1785, most of the priests or religious were accused

of committing sexual crimes with adolescents, either novices or students, or boys plying the “street

trade”.45 A Jesuit chaplain in Seville remarked that Jesuits rarely sin with women because they can so

easily find partners amongst their students and novices.46 The experience of modern times is that

opportunity is a powerful factor in the sexual abuse of children, and there is every reason to think

that it operated in the same way in earlier times when schools were attached to monasteries.47

In the 1780s, the Inquisition in Valencia and Zaragoza handed over to the civil authorities to be

burned at the stake several monks where their sodomy had become public knowledge affecting the

credibility and image of the Church.48 In some cases where the crime had not become public, the

monk was garrotted in prison, rather than being burned at the “so that the faithful did not hear

about such a bad monk” and lose their respect for religion.49 Depending on the circumstances,

priests and monks were burned at the stake, garrotted in prison, whipped, sentenced to long periods

in the galleys, imprisoned in monasteries with forced labour and fasting and sent into exile.50

“Sins against nature” or “sodomy” for the moral theologian, Cardinal Cajetan in 1517 included any form of sexual activity

that could not result in conception. So male/female sodomy was sinful, but not as seriously sinful as male/male sodomy:

Mark D. Jordan: The Silence of Sodom: Homosexuality in Modern Catholicism, (University of Chicago Press, 2000)p. 64. By

the time of St. Alphonsus Liguori in 1757, any sexual contact with a person of the same sex is sodomy: Ibid p.72

42 http://www.eurekaencyclopedia.com/index.php/Category:15th-18th_Centuries_Abuse (Accessed 6 May 2016)

http://www.awrsipe.com/patrick_wall/selected_documents/1568%20Horrendum.pdf (Accessed 4 August 2013)

43 R. Sheer, “A Canon, a Choirboy and Homosexuality in Late Sixteenth Century Italy: a Case Study,” Journal of

Homosexuality 21(1991): 1-22, Mark D. Jordan: The Silence of Sodom: Homosexuality in Modern Catholicism, (University of

Chicago Press, 2000)p.122

44 Mark D. Jordan: The Silence of Sodom, p 126

45 Mark D. Jordan: The Silence of Sodom, p. 127, and Carrasco: Inquisición y represión sexual en Valencia: pp.175-176

46 Mark D Jordan: The Silence of Sodom, p.126, citing Mary Elizabeth Perry: “The ‘Nefarious Sin’ in Early Modern Seville”,

Journal of Homosexuality 16, nos 1-2 (1988); pp.67-89

47 Professors Desmond Cahill and Patrick Parkinson explain the significant drop off in complaints of sexual abuse in

Australia since the 1980s on a number of factors, including the closure of boarding schools and the collapse of the altar boy

system: Patrick Parkinson: Child Sexual Abuse and the Churches: A Story of Moral Failure?, Current Issues in Criminal

Justice, July 2004, Vol. 26 No. 1 http://www.austlii.edu.au/au/journals/CICrimJust/2014/16.pdf (Accessed 26 December

2014)

48 Carrasco: Inquisición y represión sexual en Valencia, p179-181, and cases such as that of Fray Jeronimo Estruch, p.180.

49 Id, p.61.

50 Mark D. Jordan: The Silence of Sodom, p.123. Rafael Carrasco gives examples of lesser sentences for clergy imposed by

the Inquisition from the 16th to 18th century in Valencia, such as 4 years imprisonment in a monastery, 3 and 5 years in the 

9

In the 17th and 18th centuries, the Church’s stand against these priests seemed to be very close to

adopting what we might call these days, “zero tolerance”. In 1635 and again in 1726 the Holy See

refused to reinstate priests who had served their sentences under the civil law for the sexual abuse

of boys.

5