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PRESCRIPTIONDecember 1, 2003 Norm 8A of the Essential
Norms provides for a dispensation from prescription and, of
course, on February 7, 2003, the Holy Father granted a derogation
from the law, empowering the Congregation for the Doctrine of the
Faith to dispense from prescription. With all due respect, the
question remains, however, as to whether this is a good law and
is in harmony with our canonical tradition.
In the newly published
volume of the Boston College Law Review, Father Ladislas Orsy, S.J.
has written the following analysis of the provision for dispensing
from prescription (Ladislas Orsy, S.J., Bishops’ Norms:
Commentary and Evaluation, Boston College Law Review, Vol 44,
Number 4/5, 2003, pp. 999-1030):
Pages
1015-16:
Norm
8.A (continued):
“If
the case would otherwise be barred by prescription, because sexual
abuse of a minor is a grave offense, the bishop/eparch shall apply
to the Congregation for the Doctrine of the Faith for a dispensation
from the prescription, while indicating appropriate pastoral reasons.”49
The
meaning of Norm 8.A is clear: the CDF may set aside the effect
of prescription. Such a power is novel: to dispense from, or to “annul,” a
prescription is an unheard of act in Roman law tradition, where
the roots of canon law are. It seems that the drafters of this
Norm confused the nature and effect of the canonical “prescription” with
that of the Anglo-American “statute of limitations.” The
two have a common effect: both erect a bar to a legal action (estoppel)
after a certain time period elapses, but they are radically different
in nature. Statutes of limitations merely bar actions; prescriptions
create or extinguish the rights and obligations themselves. Hence,
dispensation from a statute of limitations is conceivable;50 dispensation from the [*PG1016]
rights and duties created by prescription does not make sense.
Apart from undermining genuine “vested rights” in all
circumstances, in criminal law it would be equivalent to retroactive
legislation: it would recreate an extinguished crime and destroy
an acquired innocence.51
49 Id. Page
1020:
The Norms limit
the immunity acquired by “prescription” in
the case of child sexual abuse: the required “useful time” starts
when the victim turns eighteen years of age and it runs for ten
years. A significant difficulty is that the Norms substitute
the American concept of “statute of limitations” of
action for the classical Roman devise of prescription.69
69 In
early Roman law, prescription was used as a procedural norm barring
action; later however, it developed into an institution creating
and extinguishing substantive rights; for example, in matters of
property it became a way of “acquisition” that could
be asserted by vindicatio—an
action grounded in ownership. See Adolf
Berger, Encyclopedic Dictionary of Roman Law 645–46 (1953)
(entries on the various forms of “praes-criptio”).
If
the analysis of Father Orsy is correct, and prescription grants
an acquired right to immunity from prosecution, a dispensation
from prescription seems inappropriate.
Even
if one views prescription as equivalent to a statute of limitations,
it seem unjust to grant a dispensation. The
U. S. Model Penal Code eloquently expresses the reasons why justice
and equity require maintaining statutes of limitations:
“First,
and foremost, is the desirability that prosecutions be based upon
reasonably fresh evidence. With the passage of time memories fade,
witnesses die or leave the area, and physical evidence becomes
more difficult to obtain, identify, or preserve. In short, the
possibility of erroneous conviction is minimized when prosecution
is prompt.
“Second,
if the actor refrains from further criminal activity, the likelihood
increases that he has reformed, diminishing the necessity for imposition
of criminal sanctions. If he has repeated his criminal behavior,
he can be prosecuted for recent offenses committed within the period
of limitations. Hence, the necessity of protecting society against
the perpetrator of a particular offense becomes less compelling
as the years pass.
“Third,
after a protracted period the retributive impulse which may have
existed in the community is likely to yield to a sense of compassion
aroused by the prosecution for an offense long forgotten.
“Fourth,
it is desirable to reduce the possibility of blackmail based on
a threat to prosecute or to disclose evidence to enforcement officials.
“Finally,
statutes of limitations promote repose by giving security and stability
to human affairs.”
[United
States Model Penal Code (Sec. 1.06 Comment, 1985)]
The
U.S. Supreme Court, in striking down the California law which allowed
the prosecution of alleged sex offenders after the statute of limitations
had run (Stogner v. California, decided June 26, 2003), described
such a waiver of the statute of limitations as a violation of a
state’s contract with its citizens:
“...the
new statute threatens the kind of harm that, in this Court’s
view, the Ex Post Facto Clause
seeks to avoid. Long ago the Court pointed out that the Clause
protects liberty by preventing governments from enacting statutes
with ‘manifestly unjust
and oppressive’ retroactive effects.[citation omitted]
Judge Learned Hand later wrote that extending a limitations period
after the State had assured “a
man that he has become safe from its pursuit...seems to most of
us unfair and dishonest.”[citation omitted] In such a case,
the government has refused “to play by its own rules.”[citation
omitted] It has deprived the defendant of “fair warning,” [citation
omitted] that might have led him to preserve exculpatory evidence. “The
statute of limitations is ... an amnesty...” And a Constitution
that permits such an extension, by allowing legislatures to pick
and choose when to act retroactively, risks both “arbitrary
and potentially vindictive legislation...”
“Significantly,
a statute of limitations reflects a legislative judgment that,
after a certain time, no quantum of evidence is sufficient to convict.” [citation
omitted] And that judgment typically rests, in large part, upon
evidentiary concerns – for example, concern that the passage
of time has eroded memories or made witnesses or other evidence
unavailable.” [citation omitted] Indeed, this Court once
described statutes of limitations as creating “a presumption
which renders proof unnecessary.” [citation omitted]
Some
have voiced the argument that, historically, reserved sins had
no period of prescription and so dispensations from prescription
can be liberally given in these cases. However, the critical
fact is that the Church has seen
fit to establish a period of prescription for these alleged offenses.
At the request of the U.S. bishops the period of prescription
was extended in 1994. To dispense now from prescription, as a
matter of pastoral expediency, is to overlook the sound reasons
for establishing periods of prescription. In the long term, it
seems that it would undermine the Church’s long-established
legal traditions.
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