- Posted by Mary's Advocates
- On August 19, 2018
Telephone Survey finds Unlawful Practices
Before the news settles about Bishop McCarrick and the Pennsylvania grand jury report on homosexual-predator priests, I suggest that this whole mess swirls around the interests of the morally depraved to have their deviant sexual behaviors normalized. Their mindset has infected diocesan and university leadership in other ways too – resulting in the collapse of marriage and family.
The Church is not defending marriage when diocesan tribunals issue decrees of invalidity of marriage via unjust methods. Rather than preventing scandal, tribunals give scandal. They virtually never identify marital abandonment and adultery when it occurs. They don’t provide pastoral care instructing abandoners, adulterers, and abusers of their obligation to stop breaking their marriage promises and start working on reconciling. Sixty-seven tribunals judged the marriage to be invalid for 100% of cases judged in 2015 (statistics).
I conducted a telephone survey of Catholic diocesan tribunals and found unexplainable inconsistencies that undermine the rights of a party defending the validity of his or her marriage.
Saint Pope John Paul II, Cardinal Raymond Burke, Bishops publicize concerns
Saint Pope John Paul II said it was a violence to the truth to grant annulment decrees to valid marriages under some pretense of pastoral care:
Cardinal Raymond Burke said some tribunals are run by unprepared and unjust workers.
His Excellency Robert Morlino, Bishop of Madison Wisconsin said the annulment process has been abused for years. “The annulment processes in the United States, honestly, have been abused for many years” (see here).
One priest reported that his own bishop fired him from the position of lead judge in the tribunal when the priest didn’t grant the bishop’s request to give annulments to over 95% of the petitioners. This was reported by the priest to Fr. Jaimes Ponce when working on his dissertation:
Bishop Michael Sheridan of Colorado Springs identifies the psychological ground for invalidity of marriage that is misused by tribunals:
I called fifty-nine dioceses that have issued over 100 decisions a year and asked several procedural questions of those who answered. My findings are comprised from the sixteen dioceses below.
Detroit, Erie, Hartford, Joliet, Louisville, Milwaukee, New York, Omaha, Phoenix, Pittsburgh, Portland in Maine, Sacramento, San Antonio, Springfield (Cape Girardeau), Springfield IL, St. Cloud MN, St. Louis.
Does your tribunal mail parties a copy of the definitive sentence?
I asked each tribunal whether they mail the final sentence to the parties. Answers varied. Numbers in parenthesis show how many had the same answer.
Yes, upon request (2)
Yes, but only if party wants to appeal (1)
Yes, but only if party participated in the process (1)
No, but party can pick it up from the tribunal office (1)
No, but party can read it in the tribunal office (5)
No, but party could talk to judge and make exception (2)
A definite sentence shows the final judgment of the diocesan tribunal, and must contain the basis in law and facts that led to their conclusion that the marriage was invalid, or not. The law gives no allowance for the discretion of the judge to decide whether, or not, to give parties their own final definitive sentence. If a party is aggrieved by the fist tribunal’s sentence, the law requires the party to attach a copy of the sentence to his reasons for appeal when he sends them to the appellate tribunal. Relevant canons include 487 §2, 1614, 1615, 1509, 1540 §1, and 1634. If the local tribunal will not give the party a copy of his own sentence, the Code of Canon Law shows that the appellate tribunal is supposed to instruct the local tribunal to fulfill its duty to hand over the sentence (c. 1634 §2).
A party writing his reasons for appealing the local sentence needs a copy of the sentence so he can prepare his appeal. Only he knows the play-by-play procedural occurrences that might have violated his right of defense. Only he knows the facts of the marriage and can quickly identify the falsehoods and disproportionate exaggerations that might have been cited by the judges to support their decision of invalidity of the marriage. It would be obviously unfair to require a defending respondent to write his reasons for appeal in the tribunal’s office during his appointment to read the sentence. He’d need the sentence next to him when writing his appeal, because he’d want to base his appeal on various exact quotes from the sentence. He would surely want to refer to any resources he accumulated at home.
In the last couple years, both Ignatius Press, and Catholic University of America have published books that would be pivotal for defending the validity of one’s marriage. Cardinal Raymond Burke, the former prefect of the Supreme Tribunal of the Signatura, wrote the preface for the book published by Ignatius Press, When Is Marriage Null? Guide to the Grounds of Matrimonial Nullity for Pastors, Counselors, and Lay Faithful. Former appellate judge at the Tribunal of the Roman Rota Judge, Msgr. Cormac Burke, wrote the book published by Catholic U., The Theology of Marriage; Personalism, Doctrine and Canon Law. Moreover, the internet library, “Archive.org” has available for web-browser loan the Exegetical Commentary on the Code of Canon Law from the University of Navarra. Web-versions that allow one to save notes are available for purchase at “Redshelf.com.”
Something as critical as having one’s own copy of the definitive sentence is not, by law, left up to the discretion of the local diocesan personnel. If tribunals make exceptions on a case-by-case basis as to whom, and under what circumstance, to send a party his own copy of the sentence, there is no equality under the law. Legal equality is the doctrine that all persons, regardless of wealth, social status, or the political power wielded by them, are to be treated the same before the law. For the lucky defendants who reside in a diocese that mails or hands them their own copy of the sentence, there is an unfair advantage over the defendants who are not allowed to have their own copy of the sentence.
Two professors of Canon Law at Catholic University of America have published papers on the unhindered obligation of the tribunal to give the parties a copy of their own sentence. Prof William Daniel wrote “The Publication of the Definitive Sentence” published in Studia Canonica (42 (2) (2008): 393-436). Prof. John Beal wrote “Publish or Perish: Transparency and the Marriage Nullity Process” published in Proceedings of the Seventy-fifth Annual Convention of the Canon Law Society of America, 2014 (pp. 59-84). Another paper discussing this obligation was published by Wilson & Lafleur Ltée, written by the former Roman Rota Judge, Grzegorz Erlebach, “The Challenge of the Sentence and the Transmission of the Cause Ex Officio to the Appeal Tribunal” (Studies on the Instruction Dignitas Connubii, 2006, page 127).
During the publication of the acts, are parties free to write and keep own notes?
In a tribunal case investigating the validity of the marriage, the parties are not allowed to be in the same room when the other gives oral testimony. Canonical procedures include collecting written testimony from parties and witnesses. After testimony is collected, the tribunal is obligated to let the parties inspect the testimony and documents in the record. This inspection of the record is called the “publication of the acts” (canon 1598 §1). Some dioceses let the parties write and keep their own notes when inspecting the record of the case, while others forbid it.
When I asked whether tribunals let parties write and keep their own notes, there were 5 different answers.
No, though the party can give statement to tribunal personnel who is helping with the review (1)
No, but party can leave party’s own written notes with the Tribunal (3)
Depends on the circumstances (1)
After reading the record of the case, the law allows a party to “complete the proofs” and “propose additional proofs” (c. 1598 §2). Even later, the law allows a party to write his own defense brief supporting his position (cc. 1601-1603). The defendant, who has with him his own notes made during his inspection of the record, can refer to the testimony and proofs document name, date, and page number. If he wants to offer rebuttals to specific exaggerations or false statements made by the other party or witnesses, he doesn’t need to rely on his memory, because he can refer to his own notes about the statements. In his response, he can challenge the other party’s honesty by pointing out duplicitous statements in the record.
However, the respondent who was forbidden to make and keep his own notes can only rely on his memory. There is no equity under the law because the defendants whose diocesan tribunal allows them to keep their own written notes made during their inspection of the record of the case, have an unfair advantage over the defendants who are not allowed to keep their own written notes. Furthermore, there is no law forbidding parties from making and keeping their own notes.
Does the first letter of the Respondent include a summary of facts upon which petitioner is basing his case
Investigations about the invalidity of a marriage can only start with a petition asking for the decree of invalidity signed by a Petitioner, (or it could be signed by another person mandated to serve as the alter ego of the petitioner called his procurator). If both parties are not jointly petitioning for a decree of invalidity, the other party (respondent) should be informed when a canonical case is starting.
Canon law specifies how the respondent is supposed to be notified, and what should be included. The respondent must be sent a copy of the petition that must include two elements: the canonical basis in law by which his marriage is being alleged to be invalid, and the general facts that support the allegation. Consider, for example, if you were being accused of stealing a car. You have a right to know the law applicable to the accusation; stealing a car is illegal in South Carolina under sections on stolen property for which guilty party is punishable. Secondly, you have a right to know the general facts alleged; you are being accused of stealing the Honda Accord on August 2nd at 12:45 pm from the McDonalds at the corner of Main Street and West 65th.
From the tribunals I contacted, there was no consistent answers to whether or not they send the respondent a summary of the facts upon which the petitioner is basing his case:
Depends, sometimes the petitioner writes something about facts on petition, sometimes not, we just sent the petition (1)
No, the grounds would be sent to the respondent (2)
No, however, the responded is free to come to the tribunal in person to read (1)
No. First letter does not contain the facts, but can review the petition during the publication of the acts (1)
I can imagine several reasons why a tribunal would neglect to send the respondent the required summary of the facts: personnel think they can keep it secret, no summary exists, or the tribunal doesn’t know the difference between the grounds, summary of facts, and the collection of testimony (called proofs).
The tribunals are not allowed to keep the petition (including summary of facts) secret. Once the judicial vicar (who is the top judge on a diocesan tribunal), decides that a petition should not be rejected outright, he must send a copy of the petition to the respondent (See Motu Proprio Mitis Iudex c. 1676 §1).
A summary of facts might not exist if the judicial vicar starts a case without requiring the Petitioner to provide it: specifically, the law requires the petitioner to show “at least generally, the facts and proofs which will prove the allegations” (c. 1504 o2). I’ve seen tribunals that start cases by requiring the Petitioner to answer a long questionnaire that describes both parties’ life history, courtship, marriage break-up and all sorts of other information. Nowhere in the questionnaire does it ask the petitioner to identify the relevant facts that support the allegation of invalidity proposed. This practice was criticized in 2009 by by the Canon Law Society of America that taught “it is not permitted to require the petitioner to include with the petition answers to a lengthy series of questions regarding the pre-matrimonial and matrimonial period. The petition should not be seen as a vehicle for an early instruction of the cause” (from Dignitas Connubii: Norms and Commentary, p. 209). The phrase “instruction of the cause” means collection of evidence by the judge.
For dioceses that methodically give annulment decrees to 100% of the petitioners, disobeying the law requiring the petitioner to identify the facts supporting the allegation of invalidity is a necessary maneuver. The most commonly abused ground for nullity is the psychological ground based on failings of the petitioner (canon 1095.2). This ground is only supposed to be applicable to those who were mentally ill, under the debilitating influence of mind altering substances at the time of the wedding, or those who suffered from a grave psychic anomaly. Commonly, tribunals blame the petitioner for causing his own marriage to be invalid, and if tribunals let petitioner know that they he had to accuse himself of mental illness at the time of the wedding, petitioners would object.
Furthermore, there is a clear cut difference between a “pre-judicial or pastoral inquiry” conducted by diocesan personnel and the submission of petition for invalidity of one’s marriage, called a libellus. If diocesan personnel wanted to require a petitioner to complete a questionnaire, that process could be outside of any canonical case, and it would not waive the requirement for the petitioner to identify the facts that support his own claim of invalidity. The law shows that “the inquiry culminates in the libellus, which, if appropriate, is presented to the competent tribunal.” (See Motu Proprio Mitis Iudex, “The way of proceeding,” Art. 2 – Art. 5). It would be illegal for the judge to both conduct the pre-judicial inquiry and be the judge on any particular case.
Withholding from the respondent the summary of facts upon which the petitioner bases his case is a travesty against justice because the respondent assists the judge during the collection of testimony by specifying the items about which the witnesses can contribute (c. 1552 §2). Just as a defendant accused of auto theft has the right to know the general facts justifying the accusation, so does a defendant in a marraige nullity case. Some tribunals seemed to think the defendant only had a right to know the general facts justifying the accusation after the testimony was all collected (during the publication of the acts). However, that is not fair and it is against the law. An accused party has a right to know the general facts before the judge starts collecting evidence, not when the judge is nearly finished.
Bogus annulments don’t help anyone.
I suspect that dioceses that violate the rights of defense of respondents in nullity of marriage cases also have a pastoral emphasis that diminish culpability for all sins, and rewrite moral norms so that perpetrators are not held accountable, cease their offenses, nor repair damage caused to victims. Marital abandonment and adultery are immoral acts that leave victims – the other spouse and children. Covering over offenses with bogus annulments doesn’t help anybody.