Kieran Tapsell

Pope Francis’ letter to the people of Chile over child sexual abuse in that country and its cover-up would suggest that he might have read the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse. Instead of blaming the “bad apples” amongst the bishops for the cover-up, he acknowledges for the first time that there are problems with the barrel. However, he will never get rid of the culture of cover-up unless follows the recommendation of the Royal Commission and two United Nations committees and abolishes the pontifical secret imposed by canon law over clergy sexual abuse of children. He is an absolute monarch and can do it with the stroke of his pen.  (more…)

On 5 December 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse released a redacted version of its Report of Case Study No. 35: the Archdiocese of Melbourne. It strongly criticized Church personnel for failure to protect children under its care. It blamed both the culture of secrecy and inadequate structures for the failure, and described those failures a number of times as “appalling.” (more…)

Researchers from RMIT University in Melbourne have produced a landmark report on the systemic reasons for child sexual abuse in the Catholic Church. (more…)

The “Nuremberg defence” takes its name from the claim by Nazi officials at the Nuremberg War Crimes Tribunal that they should be acquitted because they were following “superior orders”. In one of the most significant judgments in international law, the Nuremberg Tribunal held that following superior orders in the case of crimes against humanity is no defence, although it may be a factor in determining the appropriate punishment.

Justice Robert Jackson, the chief prosecutor, wanted to make heads of state accountable for the orders they gave, and for what they allowed to happen under their watch. Historically, he pointed out, accountability had been the least where responsibility had been the greatest. Jackson accepted that responsibility was greatest where the power was strongest, and this is the stance now taken by the International Criminal Court.

Bishop Ronald Mulkearns, both before and after his death on 4 April 2016, has been the object of sustained criticism for the cover up of clergy sexual crimes against children that occurred during his time as bishop of Ballarat from 1971 to 1997. His successors in the Ballarat diocese, Bishops Connors and Bird accused him of “effectively facilitating child sexual abuse” and making “terrible mistakes”.

On Good Friday, former Bishop Geoffrey Robinson said on ABC radio that in the 1980s he considered Mulkearns to be one of “the most forward looking and caring bishops”, and he found it difficult to understand how he had acted as he did.

Ronald Mulkearns was a canon lawyer with a doctorate in canon law, and was one of the founders of the Canon Law Society of Australia and New Zealand, and the first chairman of the Special Issues Committee set up by the Australian Catholic Bishops Conference to find a better way of dealing with child sexual abuse by priests and religious. Anyone with that kind of background takes his canon law seriously. In 1971, when he was consecrated bishop, he had taken an oath to obey all ecclesiastical laws.

The Victorian Parliamentary Inquiry Report concluded that Mulkearns had dealt with complaints of sexual abuse in the strictest confidentiality, and had tried to “quarantine the information as far as possible”, in accordance with the policy laid down by canon law.

Bishop Robinson conceded in his ABC interview that the protocol that he created in 1996, Towards Healing, (which required reporting to the police) was not supported by the Vatican because “it didn’t follow their rules” and was “outside the laws of the Church.” The Australian bishops under Geoffrey Robinson were only prepared to defy canon law in 1996, the year before Ronald Mulkearns’ retirement. But by then the damage in Ballarat had already been done.

Mulkearns real mistake was in not breaking his consecration oath to obey canon law in which was written the “terrible mistakes” identified by Bishop Bird. Mulkearns should have defied canon law, but, as a canon lawyer, he would have known that Pope Paul VI’s 1974 Instruction Secreta Continere purported to take away his conscience where a matter, such as clergy sexual abuse of children, was covered by the pontifical secret. Keeping the secret was his conscience. In 1996, Mulkearns was interviewed on the ABC Four Corners program and stated: “I believed I acted in accordance with my conscience.”

In that same year, and one year before Mulkearns’ retirement, Fr Brian Lucas in a paper given to the Canon Law Society of Australia and New Zealand told his audience that there may be cases so sensitive, that it is in the best interests of the parties and of the Church that canonical proceedings not be commenced, and that “documents not be created in the first place.” Such a stance was justified under canon law if it was necessary to avoid scandal and the subsequent loss of faith. The most likely inference one can draw from Mulkearns’ failure to keep records was the same as the Royal Commission found with Fr Lucas: a desire to protect the Church from “scandal”, or to protect priests, or both.

Canon law prior to 2001 made it virtually impossible for a bishop to dismiss a paedophile priest, and it forbade him to report these crimes to the police. The Murphy Commission in Ireland concluded that “the structures and rules of the Catholic Church facilitated the cover up” of sexual abuse in the Archdiocese of Dublin. The same can be said of the diocese of Ballarat under Bishop Mulkearns.

Bishop Geoffrey Robinson told the Royal Commission: “However great the faults of the Australian bishops have been over the last thirty years, it still remains true that the major obstacle to a better response from the Church has been the Vatican.” That statement is still true because of the refusal of Pope Francis to reform canon law as it relates to child sexual abuse by clerics.

Which brings us back to Justice Robert Jackson and Nuremberg. If you read the submissions made by the Australian Church at the Victorian Parliamentary Inquiry and to the current Royal Commission, there is hardly a whisper about how canon law affected the behaviour of bishops. It seems that the Australian Church wants to take us back to the days before Nuremburg where accountability had been the least where responsibility had been the greatest: blame the foot soldiers and not the generals.

Following superior orders is not a defence, but in the modern world, responsibility is the greatest where power is strongest. And that power is in the Vatican and the seven popes who, since 1922, established, expanded and maintained a system of cover up under canon law.

Kieran Tapsell is the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse (2014 ATF Press)

Cardinal George Pell must now be regretting not having come back to Australia to give his evidence to the Australian Royal Commission into Institutional Responses to Child Sexual Abuse in the relatively small town of Ballarat in the State of Victoria. By claiming that his medical condition did not allow him to travel, and offering to give video evidence in Rome, he has turned his performance in the witness box into a media feast that otherwise might have gone unnoticed in the international press.

First there was the Tim Minchin song that went viral, “Come Home Cardinal Pell”: https://www.youtube.com/watch?v=EtHOmforqxk . Then the extraordinary donations by Australians of some $A 200,000 to pay for abuse survivors to attend at the Quirinale Hotel in Rome to watch Pell give evidence.

Pell’s performance in the witness box ensured an even greater media coverage. It was repeatedly put to him by counsel assisting the Commission that his claim of lack of knowledge of child sexual abuse in Ballarat was “implausible”, which gives you some idea of the findings that are likely to be made against him in the Commission’s Report. Ever since the Erebus Royal Commission in New Zealand, the Commission is obliged to put to parties being investigated a likely finding to allow them to respond. Pell’s responses only made such a finding more likely.

After the completion of his evidence, Pell met with the survivors in Rome. Survivor David Nagle said that they talked about “the future”, and what Pell could do in his position in the Catholic Church.

One thing Pell can do is to take Pope Francis aside, and tell him how essential it is for him to change canon law to reflect the demands of the United Nations Committees on the Rights of the Child and against Torture that mandatory reporting of all allegations of child sexual abuse to the civil authorities should be imposed by canon law.

At the moment, canon law requires a cover up in most circumstances because very few countries have comprehensive reporting laws. The pontifical secret as defined by Pope Paul VI’s Instruction, Secreta Continere of 1974 is imposed by Art 30 of Pope John Paul II’s Motu Proprio, Sacramentorum Sanctitatis Tutela, as revised by Pope Benedict XVI in 2010. The only exception so far allowed is where the civil law requires reporting – a dispensation given to the United States in 2002, and extended to the rest of the world only in 2010. Otherwise, the pontifical secret applies – a position that is confirmed by the Italian and Polish Bishops Conferences’ statements in 2012, 2014 and 2015 that their bishops will not be reporting clergy sexual abuse because their civil laws do not require it.

Now that Cardinal O’Malley, the President of the Pontifical Commission for the Protection of Minors, has said that it is the ethical and moral obligation of bishops to report all allegations to the civil authorities irrespective of whether there are civil reporting laws, Pope Francis really has no other option but to change canon law to reflect that position.

Bishops on ordination swear an oath to obey “all ecclesiastical laws”, not Cardinal O’Malley’s statements about their ethical and moral obligations. Secreta Continere purports to take away the bishop’s conscience when it comes to the pontifical secret. Some bishops might reject that claim but others would take it seriously, because canon law derives from the Vicars of Christ.

On 26 September 2014, Pope Francis specifically rejected the United Nations demands for mandatory reporting under canon law with the casuistic excuse that such a measure would interfere with the sovereignty of independent States. Where there is no conflict between canon and civil law, canon law interferes with that sovereignty as much as the rules of golf. No country in the world forbids the reporting of child sexual abuse to the civil authorities.

Even Archbishop Scicluna, the former prosecutor for the Congregation for the Doctrine of the Faith and one of Pope Francis’s legates before the United Nations Committees, has changed his mind from the submission he put to the United Nations Committees: it is up to the victim to report unless there is a civil reporting law binding on bishops. After seeing the movie, Spotlight, Scicluna said that “bishops must understand that it is reporting that will save the church, not ‘omerta,’” – a reference to the Mafia’s code of silence. Yet that is precisely what the pontifical secret requires: a permanent silence on allegations and information obtained by the Church about child sexual abuse by clergy.

If Cardinal Pell really wants to do something about child sexual abuse in the future, he should use his influence to advise Pope Francis to sign a decree that puts into law what Cardinal O’Malley said about the moral and ethical responsibilities of bishops. If he does that, he will go down in history as the Pope who finally put an end to the Church’s “omerta” over clergy sexual abuse of children that has existed since Pope Pius XI’s Instruction Crimen Sollicitationis of 1922.

Kieran Tapsell is the author of Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse (ATF Press 2014)