During my brief period defending victims of sexual abuse by clerics, I have encountered a practice unthinkable in any other context. The cleric under investigation requests from the Pope dispensation from his clerical obligations; if granted, the criminal proceedings are halted at that point. According to internal data from the Dicastery for the Doctrine of the Faith itself, 1,058 of the 6,236 cases recorded between 2012 and 2020 concluded in this manner—one in six. Behind each of these files lies one or more individuals who reported having been abused in their childhood and to whom the Church never stated whether it believed them. Upon thoroughly investigating this absurd and scandalous practice, I discovered that it is neither a bureaucratic anomaly nor an improvisation by overwhelmed dioceses. It has a written doctrinal justification, published in a leading academic journal and signed by one of its architects: Monsignor Jordi Bertomeu Farnós, official of the Disciplinary Section of the Dicastery, Francis’ envoy to Chile and Peru, pontifical commissioner of the Sodalitium, and one of the principal promoters of this catastrophic legal concept, which to this day the Dicastery of Cardinal Víctor Manuel Fernández is applying (I will explain why I believe it does so irregularly). His 2021 article is now the theoretical foundation of a practice that scandalizes even high-ranking Vatican judicial authorities.
The text is titled «The practice of the CDF regarding dispensation from clerical obligations: n. 157 of the Vademecum» and was published in Ius Canonicum, the canon law journal of the University of Navarra (vol. 61, no. 122, 2021, pp. 733–765; DOI 10.15581/016.122.004). It is open access and follows a previous work by the same author in the same journal. What matters is who writes it: a Vatican official from the body that decides, with access to figures no one else knows, who describes the practice of his own office and concludes that it is legitimate. This transforms the article, more than a study, into the unofficial defence of a system of silence and impunity.
What Bertomeu argues
The cornerstone is n. 157 of the Vademecum of 2020, which recognises that the accused, «from the moment there is notitia de delicto», has the right to request from the Holy Father dispensation from all clerical obligations, including celibacy. The Vademecum stops there: it recognises a right to request, but says nothing about what happens to the ongoing criminal proceedings. It is Bertomeu who takes the next step, and he does so in the very abstract of his article:
«Although it interrupts investigative or ongoing proceedings without reaching a conclusion regarding the guilt or innocence of the accused, the processing before the Holy Father of this grace is legitimate due to the protection of various juridical goods in the delicta graviora from the prevalence of the principle of the bonum commune within the Church» (p. 733).
He reiterates this in the body of the text with the same clarity: the CDF allows the accused to request grace «at any moment during investigative or procedural diligence», and «the acceptance of such a request, moreover, entails the interruption of the ongoing criminal proceedings» (p. 749). The thesis is therefore that the accused can halt their own proceedings by requesting to cease being a priest, and that the Church does well to allow it for the «good» of the Church itself.
What Bertomeu knows
What makes the article particularly grave is not that it defends this thesis, but that it does so while fully aware of its implications: impunity and victims left without reparation. Bertomeu does not ignore any of the objections; he himself sets them out, with the precision of a jurist, before dismissing them. It is worth following the thread of his admissions.
The article begins by acknowledging that there is no law supporting what it describes. The institute «is not expressly set out in any legislative text on delicta reservata» (p. 741), and the Vademecum from which it stems «does not constitute further legislative reform» nor is it «a normative text» (pp. 740–741). To overcome this obstacle, he proposes that «despite the non-normative character of the Vademecum, the content of n. 157 can be considered as a practice with normative value due to the specific endorsement of the Roman Pontiff in each dispensation granted» (pp. 741–742). In other words, a rule that exists nowhere acquires the force of law because it has been applied many times with papal signature. No serious legal system—and canon law should be no exception—accepts that in penal matters the repetition of singular acts creates law: the law exists when it is promulgated (can. 7), penal norms are strictly interpreted (can. 18), and the practice of the Roman Curia only fills gaps and never in matters of penalties (can. 19). Bertomeu knows these canons. He cites them. And despite them, he constructs a plan for evading proceedings through dispensation.
He continues by acknowledging what happens to the victims: the interruption «not only avoids reaching an authoritative declaration regarding the guilt or innocence of the accused, but inevitably entails that the presumed victim cannot have the harm caused by their aggressor repaired» (p. 751). Inevitably. The author of the thesis describes its effect on the victim with the word that best defines it, and he maintains it.
He also acknowledges that he cannot find the reason that would justify the grace. Every canonical dispensation requires a just and reasonable cause (can. 90 §1), and Bertomeu himself recalls, citing Urrutia, that without it «it could even be invalid» (p. 742). And yet he admits that «the difficulty remains in identifying what just and reasonable cause could permit this gracious concession without undermining justice» (p. 751). He therefore upholds the legitimacy of an act whose validity condition he admits he cannot identify with certainty.
He also acknowledges that all of this occurs in secret. «Unlike other tribunals such as the Roman Rota, the CDF does not publish its decisions», which «leaves in darkness important formal (procedural and administrative) and material aspects» (pp. 738–739). This is written by an official of the body that does not publish, in a text that begins by invoking the «transparency, accountability and responsibility» of the February 2019 summit, and which immediately thereafter justifies a practice lacking all three.
And he acknowledges, with figures that few can provide, that this is not an exception. «If between 2012 and 2020, 6,236 cases were recorded at the CDF, 1,058 concluded with the granting of a dispensatio ab oneribus, with an annual average of 117, that is, 17% of the total» (p. 750); dispensations rose from 79 in 2012 to 179 in 2020, more than double in eight years. In plain terms: more than a thousand cases of abuse of minors reaching the supreme tribunal of the Church have been closed without anyone establishing what occurred, and the pace is increasing, including the controversial dispensation of Leo XIV to Eleuterio Vásquez, the priest of Chiclayo whom he himself was tasked with investigating. Behind these thousand files lie, at the very least, a thousand people who reported abuse and received no response. It is likely more than one per file. Thousands of men and women, in any case, to whom the very system that encouraged them to report was later denied the truth and reparation in exchange for a poor subterfuge.
Finally, Bertomeu includes in a footnote the most devastating objection against his own thesis, formulated by canonist Luis Navarro: «it would be more coherent that no grace be received for a crime; otherwise one might think that the path to exemption is to commit a crime, which would certainly cause scandal among the faithful» (footnote 65). The citation is devastating, yet the author does not respond to it. It is difficult to find in canon law literature a clearer example of an author who sets out the argument refuting his thesis and then proceeds as if he had never read it.
Why his justifications do not hold
In response to the objection that the practice violates the principle iustitiam restituere, Bertomeu offers four reasons (pp. 758–760). None withstands scrutiny.
The first is that the victim «always has the possibility of asserting the harm suffered before state judicial authorities», which would be «the optimal forum». The argument is unsustainable even within Church law, and for three reasons that the author cannot ignore. The Church reserves to Rome jurisdiction over these crimes precisely because it claims they protect its own juridical goods; it cannot claim jurisdiction for itself and, when it decides not to exercise it, send the victim elsewhere. The article itself explains, a few pages earlier (p. 752), that the Church extended its statutes of limitations because victims of abuse often take decades to speak out and civil statutes of limitations have usually expired, meaning that the «optimal forum» to which it refers is, in most cases, a closed forum—and Bertomeu knows this when he writes the sentence. And above all, there is something no state tribunal can judge: the responsibility of bishops and superiors who received the report and mismanaged it, which, since Vos estis lux mundi (art. 1 §1 b), is canonically prosecutable but can only be established on facts that have first been clarified. When the main case is closed without determining the facts, the responsibility of the entire chain of command is forever beyond examination. This is the most serious effect of the practice and the least explained: it not only exonerates the accused, but shields those who protected, transferred, or looked the other way. A practice that produces this result in one in six cases is not a flexible instrument of justice. Objectively, it functions as an institutional cover-up mechanism, regardless of the intentions of those who designed it.
The second reason is that the cleric, by requesting dispensation, «has implicitly acknowledged unfitness for ministry». But a tacit confession extracted from an act that the Vademecum itself describes as a right, without legal assistance or any proof, is neither a declaration of facts nor serves any purpose: it does not give the victim the truth, it does not grant an innocent accused absolution, and it leaves the community with a suspicion that the rescript itself allows the bishop to disclose, «the fact of the dispensation» and «the canonical cause» (footnote 52), without anyone having judged it. The third reason—that the Ordinary can monitor the dispensed cleric—repairs nothing and moreover assumes that we know what needs to be monitored, which is precisely what has not been investigated.
The fourth reason reveals the core of the issue:
«In the fourth and final place, because it is not trivial to consider that penal causes in the canonical forum do not always conclude with a conviction of the accused. Due to a supposed excessive sensitivity to guarantees and by relying on procedural formalities, there is a certain unease within the Church regarding some rulings of the past seven years, in hierarchical appeals, of reformatio in melius if not outright acquittal or dismissal» (pp. 759–760).
A tribunal official judging abuse cases justifies a means to avoid trial because trial, with its guarantees and formalities, sometimes acquits or reduces penalties. Proceedings are not dispensed with despite the possibility of acquittal; they are dispensed with because acquittal is possible. The reasoning is incompatible with the very idea of a trial, which exists precisely so that the outcome is not predetermined. Moreover, it is an admission that the practice does not seek justice but a result: removing the priest without having to prove anything. What Bertomeu calls «excessive sensitivity to guarantees» is what in any civilised legal system is called the right to a fair trial. That an official of the Dicastery should describe it as an obstacle should concern anyone, beginning with the priests themselves.
What Church law provides
None of this requires invoking principles foreign to the Church. The Code suffices. Dispensation (cann. 85, 290, 3°, 291 and 292) is an act of grace concerning the personal status of the cleric: it frees him from celibacy and causes him to lose the clerical state. The causes for the extinction of canonical penal action are limited to prescription (can. 1362) and the death of the accused. Dispensation is not among them, and it cannot be so by way of practice, because the Code has expressly shielded penal and procedural laws from singular relaxation (can. 87 §1). What Bertomeu presents as «originality of canon law» is in reality the attribution to an act of grace of an effect that the law does not grant, over an object—the facts and their reparation—that is not its own.
The Code also recognises concrete rights for victims that this practice annuls. The right to bring a claim before the ecclesiastical forum (can. 221 §1). The right to reparation for harm (can. 128). The right to bring an action for damages within the penal trial itself (can. 1729 §1), an action that disappears with the trial. And the right to be heard before the authority issues an act that harms their rights (can. 50). In the practice Bertomeu describes, the victim does not participate, is not heard, and often learns nothing until informed that everything is over. Reparation is reduced to the clause of the rescript by which the dispensed cleric is obliged to make reparation «onerata conscientia», in conscience (footnote 53). An obligation that exists only in the conscience of the accused cannot be enforced by anyone.
And the Code, in its reformed version, points in the opposite direction to the thesis. The article relies on Pascite gregem Dei (2021) for its theory of juridical goods, but omits that this same reform turned into a duty what was previously a faculty: can. 1311 §2 obliges the protection of the good of the community «etiam poenarum irrogatione vel declaratione», and can. 1341 replaces «curet» with «promovere debet». The legislator wanted the prosecution of these crimes to be mandatory. The practice Bertomeu defends makes it optional at the will of the accused. Against all of this, the appeal to the «common good» and to salus animarum (can. 1752, which is the closing norm of the transfer of parish priests, not a clause to extinguish penal actions) proves too much: with the same common good it can be argued that the Church must judge to the end, and with the same salvation of souls it is demanded that the victim know the truth. A principle that serves for one thing and its opposite justifies nothing.
What the Church has promised
If the contrast with internal law is grave, the contrast with the Church’s external commitments is even more so, because it affects its given word. The Holy See ratified in 1990 the Convention on the Rights of the Child, whose article 19 obliges States to establish «effective procedures» for investigation and judicial intervention regarding abuse, and whose articles 34 and 39 demand protection against sexual abuse and reparation for victims. In 2014, after examining the Holy See, the Committee on the Rights of the Child specifically pointed to internal case management, the silent departure of clerics without purification of responsibilities, and the lack of cooperation with civil authorities, and demanded full investigations, accountability of authors and superiors, and transparency. The Committee against Torture issued similar demands that same year. A practice that closes one in six cases without a concluded investigation, without a declaration of facts, and without enforceable reparation, at the request of the accused himself, is not a debatable interpretation of these commitments: it is their negation. And Bertomeu, who appeals to the criteria of an «increasingly egalitarian, democratic and rights-based society» as the horizon of Church reform, does not mention the Convention in thirty pages.
The same applies to concordats. States guarantee the Church the free exercise of its jurisdiction, as seen in the Agreement on Legal Matters with Spain of 1979 (art. I) following the suppression of the privilege of the forum in 1976, or the Agreement with Peru of 1980 (art. I), which Bertomeu himself invoked in ABC to explain his actions in the Sodalitium. This guarantee has a premise: that jurisdiction is exercised. States do not recognise the Church’s autonomy so that its tribunals can be halted by the accused, nor so that it can refer victims to civil tribunals it knows to be time-barred. When the Church claims the concordat as a shield against interference and, at the same time, uses dispensation to avoid judging, it is employing autonomy in both directions at once: to exclude the State and to avoid doing what the State has recognised it has the right to do.
In 2019, Francis gathered the presidents of episcopal conferences under three words: transparency, accountability and responsibility; that December he suppressed pontifical secrecy in abuse cases; in 2021 he made prosecution mandatory. Bertomeu cites the first of these milestones as the framework of his article. The practice he defends fails on all three.
A named flaw
Through Bertomeu, the Congregation for the Doctrine of the Faith presents the practice of dispensation as «flexibility in Church law, whose supreme law is the salvation of souls». What his own article documents is an escape route available from the very first day of an investigation, activable by the accused, processed without the victim, decided without justification, not subject to appeal (cann. 333 §3 and 1732), not published, without recognised legal basis, without identifiable just cause, with reparation in conscience that no one can demand, that refers victims to a forum known to be closed, that makes unverifiable the responsibility of superiors, and that has been applied to more than a thousand cases with an alarmingly increasing trend. Each of these traits, in isolation, would already be a serious defect. Together, they describe a system that produces impunity for the accused, cover for those who managed the cases, and silence for the victims, and that presents itself as an act of mercy. That the person who theorised it is the canonist whom Rome sends to dispense justice in Chile and Peru, and that he did so in a university journal with all academic precautions, does not make it any less scandalous.
High-ranking Vatican judicial officials have told InfoVaticana that dispensation affects the personal status of the cleric, not the Church’s duty to clarify the facts, repair victims, and purge the responsibilities of those who managed the case. Perhaps the final word has not yet been spoken regarding this procedural trick that is causing so much harm to thousands of people. That reading, and not that of Jordi Bertomeu’s article, is the only one compatible with the Code, with the 2021 reform, with the Convention on the Rights of the Child, and with the concordats. And it is the one that should prevail wherever, invoking the doctrine analysed here, those who reported abuse are told that their case has concluded because the accused has ceased to be a priest. Dispensation may be the end of a ministry. It can never be the final word on facts that no one has been willing to judge.
Javier Tebas Llanas, lawyer.
