Introduction

The recent decision of the Bishop of Gozo, Mgr Anton Teuma, that no canonical action will be taken against Fr Michael Said following investigations into his involvement in the 2008 Nadur alleged rape case has left me with serious canonical questions. It is important to state clearly what this case is, and is not, about. Fr Said was never accused of committing the alleged sexual abuse, and the four men accused in the case were ultimately acquitted. The issue concerning Fr Said is different: his intervention as an intermediary between the family of the alleged victim and relatives of the accused.

The family had reportedly approached Fr Said for assistance. However, he was also related to some of the men accused. The payment and withdrawal of the complaint took place only one day after the family had filed the police report. According to Bishop Teuma, testimony and Fr Said’s own signature confirm that the priest exercised some “influence” upon the family in relation to the withdrawal of the complaint. The Bishop himself described the intervention as “not wise”, while explaining that Fr Said intended to help the family and that the family had originally approached him. I do not question that good intentions may have been present.

My concern is different: are good intentions sufficient to conclude that no canonical response is necessary, particularly when the consequences of the conduct continue to give rise to scandal? The short answer is, no. The long answer is explained below.

1. Good Intentions do not end the Canonical Question

The Facts at Hand

Two investigations were reportedly carried out: one by the Gozo Safeguarding Commission and another by a board independent of the Diocese of Gozo, composed of a retired Maltese judge, a Maltese lawyer and a judge of the Ecclesiastical Tribunal of the Archdiocese of Malta. Bishop Teuma stated that he considered those reports, the court judgment, other documentation and discussions with the alleged victim, her family and Fr Said before reaching his decision. The reports themselves have not been published. It would therefore be unfair to suggest that the process lacked legal or canonical expertise. Indeed, an ecclesiastical tribunal judge is required to possess a doctorate or at least a licentiate in canon law (c. 1421 §3).

Nevertheless, because the reports remain confidential, the public cannot assess the canonical reasoning which led to the conclusion that no canonical action was necessary. This does not mean that confidential reports should simply be published in full. The privacy and reputation of all those involved must obviously be respected. But where such a significant ecclesial decision is publicly announced, some greater explanation of the canonical reasoning behind it would, in my view, be helpful.

Prudent Judgment vis-a-vis Intended Harm

There is also the uncomfortable question of Fr Said’s relationship with the accused. The fact that the family approached him for assistance is important. It should not be ignored or presented as though he had simply inserted himself into the situation on behalf of the accused. But neither does that remove the conflict of interest. Fr Said was related to some of the men who stood accused of extremely serious sexual offences against a minor. Even assuming the best possible intentions, I find it difficult to understand how intervening as an intermediary in such circumstances could have been considered prudent. In my view, the more appropriate response would have been to explain to the family that, precisely because of his relationship with the accused, he could not act as mediator. The criminal process should then have been allowed to take its course. At the very least, the situation called for extraordinary caution. This is not to accuse Fr Said of malicious intent. It is to question his foresight, prudence and judgment.

Canon law does not ask only whether somebody intended harm. Canon 1321 §2 provides that no one can be punished unless an external violation of a law or precept is gravely imputable by reason of malice or culpability. Good intentions may therefore be relevant when assessing culpability, but they do not necessarily end the enquiry. A canonist might also legitimately ask whether such an intervention engaged obligations arising from the clerical state. Canon 285 §1, for example, requires clerics to refrain completely from those things which are unbecoming to their state. I am not stating that Fr Said violated this canon. That determination belongs to the competent ecclesiastical authority after considering all the evidence.

My point is much simpler: “He meant well” cannot, by itself, answer every canonical question raised by what happened.

2. Scandalum: more than bad publicity

This brings me to what I believe is one of the most important canonical issues raised by this case: scandalum.

The Catechism

In ordinary speech, “scandal” usually means public outrage, embarrassment, controversy or damage to reputation. That is not enough to explain its meaning within Catholic moral and canonical thought. The Catechism of the Catholic Church defines scandal as:

“an attitude or behaviour which leads another to do evil.”

It further explains that scandal acquires particular gravity because of the authority of the person causing it or the vulnerability of those affected, especially where the person concerned has a responsibility to teach or guide others (CCC 2284–2285). Loss of confidence in the Church is therefore not automatically scandalum in the strict sense. Neither is public anger sufficient to establish it. Nevertheless, conduct, or an institutional response to conduct, may create scandal where it damages the moral and ecclesial life of others, normalises behaviour which ought instead to be corrected, or contributes to circumstances which lead people away from what is good.

Reporting Such Cases

This is why the public reaction to the present case cannot simply be dismissed as media judgment. Following the Bishop’s announcement, one Maltese MP publicly advised victims of sexual abuse not to approach the Church, but instead to turn to the police or other professionals. Whatever one thinks of that political intervention, it raises an uncomfortable pastoral question: what happens when people who are already vulnerable begin to believe that ecclesiastical structures cannot be trusted to respond properly when serious safeguarding concerns arise?

Of course, allegations of sexual abuse should be reported to the competent civil authorities. The Church must never be treated as a replacement for the police. Both institutions have their own legal systems for these particular cases and both should be taken into account. I speak extensively about this in another blogpost.

The General Norm

But this does not remove the Church’s responsibility to consider the effect of its own actions and decisions upon the faithful. This is where c. 1399 initially appears particularly striking. It provides that, even where an offence is not otherwise specifically established in penal law, an external violation of divine or canon law may be punished with a just penalty when the violation is especially grave and necessity demands that scandal be prevented or repaired.

However, c. 1399 is not an easy solution to the present case. It is a general provision which has long generated debate among canonists, and several questions would first have to be answered. Most fundamentally: what divine or canonical law was actually violated? It is difficult, on the information publicly available, to answer that question with sufficient certainty. Nor can c. 1399 simply be invoked because conduct appears unwise or because it has generated public outrage. An identifiable external violation of divine or canon law, sufficient gravity and imputability would still have to be established.

Prescription

There is also a major practical difficulty: prescription. Under c. 1362 §1, the ordinary period for the prescription of a criminal action is three years unless the offence falls within one of the categories for which the Code provides a longer period. An offence pursued under c. 1399 would ordinarily fall within that three-year period. Since the intervention at issue occurred in 2008, the possibility of commencing a penal action today under c. 1399 would therefore face an obvious and serious prescription problem. And if a censure were ever contemplated as the penalty, another safeguard would apply. Canon 1347 §1 provides that a censure cannot validly be imposed unless the offender has first received at least one warning to abandon the contumacy and has been given sufficient time to do so. The same canon connects genuine repentance with suitable reparation for the scandal and harm caused (c. 1347 §2).

For these reasons, I would not use c. 1399 to claim that Fr Said ought now to be punished. But the canon remains important for another reason. It demonstrates just how seriously the Church’s penal system takes the prevention and repair of scandal. That concern is not peripheral to canonical discipline. It runs through the penal law itself.

3. There is a canonical space between severe punishment and doing nothing

This is perhaps where I continue to find the words “no canonical action” most difficult. Canon law does not present the bishop with only two alternatives: either impose a severe penalty, or do absolutely nothing. There is considerable space between the two. Canon 1339 is particularly important here. The canon itself makes a useful distinction.

The Existence of a “Formal Warning” in Canon Law

Under c. 1339 §1, when someone is in the proximate occasion of committing an offence or, following an investigation, there is serious suspicion that an offence has been committed, the Ordinary may issue a warning. In the present case, we know that not one but two investigations have taken place. That does not mean that their findings necessarily established an offence, we do not know that, because the reports have not been published. But it does mean that the factual investigation envisaged by the canon is certainly not absent from this case.

More importantly, c. 1339 §2 provides separately that where a person’s behaviour gives rise to scandal or serious disturbance of public order, the Ordinary may correct the person in a manner appropriate to the person and to what has occurred. This is significant because a correction is not the same thing as a punishment. Nor does it require the bishop to suspend a priest, remove him from ministry or impose some other grave sanction. It is a recognised penal remedy.

And because the canon requires the correction to be adapted to the circumstances of the person and the conduct involved, there may be situations where the corrective response itself appropriately has a public dimension, particularly where the behaviour and the resulting scandal have themselves become public. In my view, the acknowledged lack of foresight in becoming involved in such a serious case, while simultaneously being related to some of the accused, would at least justify asking whether a formal warning or correction under c. 1339 was appropriate.

Penance

Canon law even allows an appropriate penance to accompany such a warning or correction (c. 1340 §3). This is precisely why I do not think the discussion should be reduced to whether Fr Said deserved a “punishment”. Perhaps he did not. But canonical discipline is wider than punishment. Canon 1341 places this within the bishop’s wider pastoral responsibility. It states that formal penal proceedings should be initiated only where pastoral care, fraternal correction, warnings or correction cannot sufficiently restore justice, reform the offender and repair scandal. The canon therefore actually expects the Ordinary to consider less severe interventions first.

Canon 1348 also deserves careful treatment. It provides that where a person has been found not guilty, or where no penalty has been imposed, the Ordinary may still provide for the person’s welfare and the common good through appropriate warnings, pastoral means and, where necessary, penal remedies. That provision should not, however, be misunderstood. If a person has been established to be factually innocent of the alleged conduct, c. 1348 cannot reasonably be used as a back door through which to treat that innocent person as though he or she were guilty. But there is a difference between being proven innocent of wrongdoing and a situation in which no canonical penalty is imposed, perhaps because an offence cannot be established, because imputability is lacking, because the action has prescribed, or for another juridical reason.

Canonical Correction or Reparation

That distinction matters here. No one is suggesting that Fr Said committed the alleged sexual abuse. Bishop Teuma has been clear about that. But Fr Said’s involvement as intermediary is itself acknowledged. The Bishop acknowledges that the intervention was unwise; Fr Said himself reportedly accepts that, with hindsight, he would have acted differently. The question therefore becomes not simply: “What punishment does he deserve?” but rather: “Does this acknowledged conduct call for some form of canonical correction or reparation?”

A proportionate response might have been considerably more fraternal: a formal correction, an appropriate penance, a clear acknowledgement of why such mediation was inappropriate, a commitment concerning future safeguarding practice, or another measure directed towards repairing the scandal. Bishop Teuma has apologised to those who have been forced to relive the pain surrounding the case. That should be recognised. But apology, accountability and the canonical repair of scandal are not necessarily the same thing.

When Pope Francis promulgated the revised Book VI through Pascite gregem Dei, he specifically warned against treating pastoral charity and ecclesiastical discipline as opposites. He identified the three purposes of canonical penal discipline as the restoration of justice, the correction of the guilty party and the repair of scandal. That is why “no canonical action” troubles me more than the absence of severe punishment.

Conclusion

Canon law is capable of recognising good intentions, diminished culpability, mitigating circumstances, prescription and proportionality. But it also recognises that actions may have consequences far beyond the intention of the person who performed them. In my view, accepting the role of intermediary in such a grave case, particularly while being related to some of the accused, demonstrated a serious lack of prudence and foresight. The wiser course would have been to decline that role and allow the competent civil authorities to deal with the allegations. That does not mean that Fr Said ought now to receive a severe canonical penalty. Indeed, the passage of eighteen years creates obvious legal difficulties for penal action, particularly because of prescription. But that is precisely why the distinction between penalty and canonical response matters. The Code provides warnings, corrections, penances, pastoral measures and penal remedies precisely because not every case requires the most severe exercise of penal authority.

Endnote

There is an irony here which strikes me particularly because of my doctoral research on the ecclesiastical interdict.

In Malta during the 1960s, ecclesiastical authority made extraordinarily severe use of the Church’s penal discipline against groups of lay faithful during a political and ecclesial conflict. In this contemporary case, by contrast, it seems to me that we risk moving towards the opposite extreme with regard to a cleric: where measured, corrective and reparative canonical discipline might contribute to restoring justice and repairing scandal, the response announced is that no canonical action will be taken. Whether the penalties imposed during the 1960s were prudent, proportionate and pastorally wise is a question I continue to examine through my doctoral research.

But the contrast remains striking. Neither severity for severity’s sake nor a reluctance to use canonical discipline reflects what penal law in the Church is intended to achieve. Canonical discipline is not punishment for punishment’s sake. Properly understood, it is medicinal, pastoral and reparative. Sometimes genuine pastoral charity requires mercy. But sometimes charity also requires correction, and the courage to repair the scandal that remains.