Trevino on the Recife Case

In yesterday’s daily article , Joshua S. Trevino’s main point is that the mainstream media’s understanding of religion is deplorable, and about that he’s certainly right. In the course of discussing Catholic doctrine and canon law in connection with the Recife case, however, Trevino says a few things I think go too far.

First, Trevino says that it’s a “myth” that the Catholic Church “imposed excommunications” on the young girl’s mother and physicians for aborting the girl’s unborn twins. His argument is that the excommunications were not the result of any juridical process in canon law (e.g., were not the result of any decision by any ecclesiastical official) but were rather excommunications latae sententiae , i.e., excommunications that happen automatically under canon law without any official action by anyone. In Trevino’s account, “The mother and physicians were not excommunicated by the Church; they excommunicated themselves.”

This makes it sound as if the Church had nothing to do with the matter. The reality, however, is that Pope John Paul II, in revising the Code of Canon of Law in 1983, affirmatively chose to retain (it had existed in prior canon law too) the penalty of excommunication latae sententiae for the canonical crime of procuring an abortion. The pope, who makes canon law as he pleases, could have chosen to impose a lesser penalty on those who procure an abortion or no penalty at all. But, for various reasons, including the gravity of abortion in Catholic moral theology, John Paul chose to retain the penalty of excommunication latae sententiae . Right or wrong, this was a conscious decision by the Church made by an authority no less than the Roman Pontiff. The individuals excommunicated in the Recife case are excommunicated not only because they chose to procure an abortion but because the Church, in the person of the pope, chose to impose the penalty of excommunication latae sententiae on all Catholics who do such things. Hence, to say that the Church had nothing to do with excommunicating these people is simply untrue.

Second, Trevino says it’s a “myth” that “the Church imposes a lesser sanction upon a pedophiliac rapist than upon a well-meaning abortionist.” His argument is that rape, since it’s a mortal sin in Catholic moral theology, results in the loss of sanctifying grace in the soul of the perpetrator and thus in eternal damnation, unless the perpetrator repent in time. This, he thinks, is a more severe penalty than excommunication. But here Trevino is confusing several different things.

To start with, in Catholic theology procuring an abortion is just as much a mortal sin as rape is, and so it too results in the loss of sanctifying grace and eternal damnation, unless the perpetrator repent in time. Hence, as far as the loss of grace and eternal damnation go, the rapist and the abortionist are in the same boat.

Furthermore, the loss of grace and consequent eternal damnation are not punishments imposed by the Church. They are punishments imposed by God. The only sanctions the Church imposes are imposed pursuant to canon law. Under that law the most severe penalty is excommunication latae sententiae . It is the penalty reserved for the most serious canonical crimes, such as a priest’s directly violating the seal of the confessional (Cn. 1388), and, as Trevino recognizes, it is the penalty imposed on procuring an abortion. Rape, while probably punishable at canon law under Cn. 1397, is punished less severely. On any reasonable reading, therefore, the Code of Canon Law punishes procured abortion more severely than rape, even the forcible rape of a child. The sentence that Trevino says is a myth—that “the Church imposes a lesser sanction upon a pedophiliac rapist than upon a well-meaning abortionist”—is in fact the absolute truth.

What we actually have in the Recife case is the juxtaposition of an especially horrific rape with an especially sympathetic abortion. While everyone agrees that rape is always a terrible crime, everyone also agrees that some rapes are worse than others, and the repeated, forcible rape of a child is about as bad as it gets. Among people who think that abortion is wrong, everyone agrees that some abortions are less wrong than others, and an abortion performed for medical reasons on a very young girl who became pregnant as a result of a forcible rape is about as little wrong as abortion gets. Add to these facts canon law’s blanket imposition of the penalty of excommunication latae sententiae on all who procure abortions, regardless of mitigating factors, and the result is that canon law—and thus the Church—can easily appear to be punishing the less guilty party more severely than the more guilty one.

Now, there may well be good reasons for this. With respect to law generally, we punish actions at law not simply because they’re immoral. Cruelly wounding the feelings of another, for example, is quite wrong, but it is almost never a crime under civil law. As to canon law in particular, it is not intended to be a general purpose penal code, setting forth just penalties for all crimes. It is intended, rather, to answer to the special theological purposes of the church, and thus it may make perfect sense for canon law to punish procured abortions—which are generally no longer crimes at civil law—but not rape, which is indeed a crime at civil law and which the state, at least most of the time, prosecutes diligently. If we want to make sense of the Recife situation, it is considerations such as these that we need to bring forward—considerations about why human societies in general and the Church as a supernatural society in particular makes any laws at all. The question is not merely about the moral gravity of the wrongdoing; it is about the nature and purposes of various kinds of legislation.