Kieran Tapsell is a retired solicitor and barrister with degrees in Theology and Law. He discusses the role of canon law in the institutionalised cover up of clergy sexual abuse and how the community is still being kept in the dark about canon law. His book, Potiphar’s Wife: The Secret of the Holy Office and Child Sexual Abuse is to be published in May 2014.

It is no secret that early Christianity borrowed and inherited many things from the Roman Empire. One practice it inherited through Emperor Constantine was the ‘privilege of clergy’: clergy had the right to be tried for all crimes in their own courts and not by the Empire’s magistrates. As the power of the Church declined, there were inevitable conflicts with the State over this, the most famous of which led to the murder in Canterbury Cathedral of Thomas a’Beckett.

The Church has always tried to negotiate some legal form of the privilege in countries where it has had some influence. In Franco’s Spain, bishops could only be put on trial with the consent of the Vatican, and priests with the consent of the bishop. The 1973 Concordat with Colombia provides that a bishop cannot be put on trial in the State courts, but only in the canonical courts. Priests can be put on trial in State courts, but the proceedings are not to be publicised. Practically everywhere else, privilege of clergy, as a right recognized by the civil law, has disappeared.

 

Despite the existence of the privilege, the Church for 1500 years recognised that simply stripping a priest of his status as a priest was not a sufficient punishment for the sexual abuse of children. Canon law decreed that after ‘degradatio’, the Church equivalent of the military dishonourable discharge, they were to be handed over to the civil authority for further punishment. This appears in decrees of Popes Innocent III, St. Pius V, the Fourth and Fifth Lateran Councils and the Council of Trent. This tradition was stood on its head in 1922 when the Church created a de facto privilege of clergy by imposing the strictest secrecy on allegations of child sexual abuse by clergy. If the State did not know about these crimes, there would be no State trials, and the matter could then be treated as a purely canonical crime to be dealt with by the Church tribunals.

In 1922, by his decree, Crimen Sollicitationis, Pope Pius XI introduced special procedures for investigating and putting on trial clergy accused of child sexual abuse. To make sure this scheme did not become publically known, Crimen Sollicitationis was never published, and the document itself required that it be kept in a locked safe with the bishop and his chancellor having the only keys. Reporting to the police of any information obtained through these Church investigations was a breach of the “secret of the Holy Office” resulting in automatic excommunication that could only be lifted by the Pope personally. Punishments for sexually abusing children did not even include excommunication.

Crimen Sollicitationis was reissued by Pope John XXIII in 1962. In 1974 Pope Paul VI, by his decree, Secreta Continere renamed ‘the secret of the Holy Office’ ‘pontifical secrecy’, and expanded it to include the allegation itself. Breach could still lead to excommunication but it was not automatic. The 1983 Code of Canon Law repealed Crimen Sollicitiationis, and provided its own procedures, but pontifical secrecy still applied under Secreta Continere for child sex abuse. In 2001, Pope John Paul II modified the Code’s procedures, and confirmed pontifical secrecy over such allegations. In 2010, Pope Benedict XVI expanded its reach by applying it to allegations of priests having sex with intellectually disabled people. There were no exceptions for reporting these crimes to the police.

The cover up of child sexual abuse did not occur because of bad faith or incompetence on the part of bishops, albeit in some cases that existed, but because they were ordered to cover it up through canon law by six Popes since Pius XI in 1922. There were many bishops in the United States, Ireland, Britain and Australia who tried to convince the Holy See to change canon law to allow reporting to the police. The most that the Holy See would allow was reporting where the local civil law required it, in other words, just enough reporting to keep bishops out of jail. That is still the current position. In every State of Australia, apart from New South Wales, there is no such requirement to report in the vast majority of cases.

The policy of secrecy may not have been so disastrous for children had canon law’s internal disciplinary procedures been adequate to dismiss such priests. Crimen Sollicitationis introduced what became known as the ‘pastoral approach’. Priests could only be dismissed if they showed no hope of reform. They were sent off for treatment, and then shifted to other parishes.

In 1983, Pope John Paul II promulgated the new Code of Canon Law which made it virtually impossible to dismiss a paedophile priest. He introduced a 5 year limitation period. If a canonical trial was not initiated within 5 years of the abuse, the priest’s crime was ‘extinguished’. If the figures presented to the Victorian Parliamentary Inquiry apply generally, 99% of all complaints of sexual abuse are made by adults abused as children.

Under Crimen Sollicitationis, reforming the priest was a matter to be taken into account on sentence. The 1983 Code extended the ‘pastoral approach’ so that even before a priest could be put on trial, the bishop was obliged to try to reform him.

The 1983 Code gave the priest a Catch 22 defence: a priest cannot be dismissed for paedophilia because he is a paedophile. Two of Ireland’s most notorious paedophile priests, Fr. Tony Murphy and Fr. Patrick Maguire, were dismissed by the Dublin canonical court, but had their dismissal set aside by the Vatican appeals court because they had been diagnosed as paedophiles, and therefore were suffering from ‘diminished imputability’. The more children a priest abused, the less likely he could be dismissed.

In November 2009, the Murphy Commission in Ireland examined all the above matters, and found that ‘the structures and rules of the Catholic Church facilitated’ the cover up of sexual abuse in the Archdiocese of Dublin, and severely criticized the capacity of canon law to discipline priests. In March 2010, Pope Benedict wrote a Pastoral Letter to the people of Ireland, in response to the Murphy Report. He ignored the Commission’s findings about the secrecy required by canon law, and the inadequacy of the canonical disciplinary system. Instead he blamed the bishops for the cover up, and for not applying ‘the long-established norms of canon law’. He apologised to the victims for the crimes of the priests, but he never mentioned the central role of six Popes, the Vatican Curia and canon law in the cover up and their responsibility for these priests not being dismissed. The inevitable effect was a significant increase in sexual assaults on children by clergy.

Benedict wrote the script for the second cover up: blame the bishops, apologise to the victims for the actions of the priests, but do not mention canon law, the Popes or the Vatican Curia. Bishops are required to take an oath of loyalty on ordination, not to God, or to the Church, but to the Pope. This loyalty to the Pope can be seen in the submissions made by the Church in Victoria, called ‘Facing the Truth’ to the Victorian Parliamentary Inquiry and by the Truth, Justice and Healing Council to the Australian Royal Commission on Towards Healing.

‘Facing the Truth’ has a chronology of 150 pieces of legislation, both civil and canonical, reports, and inquiries from 1961 until the present about child abuse. The 1962 reissue of Crimen Sollicitation is is never mentioned. The 1983 Code of Canon Law is mentioned, as is the 2001 Motu Proprio of Pope John Paul II and its revision in 2010 by Pope Benedict XVI. But there is no mention of pontifical secrecy, the cornerstone of the cover up. There is no mention of the impossibility imposed by the 1983 Code of Canon Law to dismiss paedophile priests. It cherry picked passages from the Murphy Commission report, and left out its criticisms of canon law and the Vatican. The Truth Justice and Healing Council submission also makes no mention of Crimen Sollicitationis and pontifical secrecy.

At the Victorian Parliamentary Inquiry, Bishops Connors and Bird criticized their predecessor in the Ballarat diocese, Bishop Ronald Mulkearns, for covering up serial paedophiles, accusing him of ‘effectively facilitating’ child sexual abuse, and of being ‘naïve’ and of making ‘terrible mistakes’. Bishop Mulkearns had a Doctorate in Canon Law, was a founding member of the Canon Law Society of Australia and New Zealand, and was the first chairman of the 1988 Special Issues Committee appointed by the Australian Catholic Bishops Conference to find ways around canon law. As Fr. Brian Lucas told the Maitland-Newcastle Special Commission of Inquiry, the canonical procedures for dealing with these priests were “unworkable”. Everything Bishop Mulkearns did in Ballarat, misguided as in my opinion it was, followed canon law. Canon law ‘effectively facilitated’ child sexual abuse.

On 3 October 2013, the Chief Executive Officer of the Truth Justice and Healing Council, Francis Sullivan said that the Australian Community ‘has been kept in the dark for too long’ about child sex abuse in the Church. Indeed it has, and it is still being kept in the dark about the role of canon law. The cover up of clergy sex abuse followed the same pattern all over the world, because it was underpinned by canon law. Francis Sullivan in his many public statements and his many blog articles on the TJHC website has never once mentioned canon law and pontifical secrecy. It seems that he is also being kept in the dark.