Kieran Tapsell

On 29 December 1170, four armed knights from the Court of King Henry II of England entered Canterbury Cathedral. They had previously heard the King complain about the Archbishop of Canterbury, Thomas a’Becket, who was in dispute with Henry over “privilege of clergy”, the right of clergy to be tried exclusively in Church or canonical courts for any kind of crime. “Will no one rid me of this turbulent priest?” Henry is reported to have said.  Four knights of his Court took the hint, went to Canterbury Cathedral, and sliced the top off a’Becket’s head.

Privilege of clergy was whittled away over the years, and was finally abolished by the English parliament in 1827, but the Catholic Church has always hankered back to the 12^th century when it had the exclusive right to try clergy for every kind of crime. Priests were special people, ontologically changed by God on ordination, and therefore deserving of special treatment. A secret canonical trial avoided “scandal”, which has a special meaning in Catholicism: the loss of faith when adherents realise that those who represent Christ are misbehaving badly.

In those countries where the Church exerted some influence, it has written some form of the privilege into the civil laws. The Vatican’s treaties with Latvia (1922), Poland (1925), Italy (1929) and the Dominican Republic (1954) provided that convicted clergy would serve their sentences separated from “lay people” or in a monastery. In Spain, Franco’s 1953 Concordat with the Vatican provided that a bishop could only be tried in a civil court with the consent of the Vatican, and clergy with the consent of the bishop. Any deprivation of liberty was to be spent in a religious house, not in jail, and the trial was not to be publicised.

Colombia’s 1973 Concordat with the Vatican provides that bishops cannot be tried by the State Courts, but only by Church Courts. Priests can be tried in State Courts, but the proceedings are not to be publicised. In 1993, the Colombian Constitutional Court declared the Concordat inconsistent with the 1991 Constitution, but the Vatican, as recently as 2007, insisted that the Concordat be honoured, that bishops should be above the law, and that trials of priests be held in secret.

In 1994 the Colombian Attorney General, Gustavo de Grieff started criminal proceedings against certain bishops, including Archbishop Castrillón for complicity with the drug trafficking FARC guerrillas. But he had to abandon the proceedings because of the immunity under the Concordat. Two years later Castrillón was called to Rome and appointed to head the Congregation for the Clergy, and was made a Cardinal in 1998. He remained in that post until 2006, playing a pivotal role in the strange modern re-run of the struggle between Church and State over which one was to try priests for sexually assaulting children.

While the Church could retain some elements of the privilege through the use of treaties with sympathetic governments, very few governments were sympathetic, believing that everyone should be treated equally under the law. But the Church could create a de facto form of privilege everywhere by the use of secrecy in its own canonical investigations. If the State did not know about the clergy’s sex assaults on children, there would be no State prosecutions, and the crimes could be treated as purely canonical ones to be tried and punished in the Church tribunals.

Castrillón had a colourful ecclesiastical career in Colombia before being called to Rome. He once boasted that he disguised himself as a milkman to hear the confession of the notorious Colombian drug lord, Pablo Escobar. It must have been a long one, because Escobar is reputed to have ordered the murder of 10,000 people. Most Colombian bishops refused to accept money from drug traffickers, seeing it as nothing more than money laundering. But in 1984 Castrillón admitted accepting money from Escobar, saying it was for “charitable purposes”, and to prevent it being used for “prostitution”.

In January 1997, Castrillon sent a letter through the Papal Nuncio to the Irish bishops telling them that their proposal for mandatory reporting of clergy sex crimes to the police “gives rise to serious reservations of both a moral and a canonical nature”. The canonical reservations were clear enough – pontifical secrecy applied to any such allegations. He explained the “moral” reservations in his September 2001 letter to the convicted French Bishop Pican, congratulating him for covering up a priest who had sexually assaulted a number of boys: the relationship between a bishop and a priest is a “sacramental” one, like a father and son, and that a bishop should prefer to go to jail than report a paedophile priest to the police.

On 2 June 2011, Castrillón gave an interview on Colombian CNN, in which he denied that there was any such thing as paedophilia, saying that priests who sexually assaulted children had just made mistakes, and all of them had been properly punished under canon law by being suspended, and if they “showed correction” they were shifted to another parish. It is little wonder that Cardinal Pell at the Victorian Parliamentary Inquiry said that Castrillón’s Congregation of the Clergy “did not get it”.

In 1170, the outcome of the attempt by Thomas a’Becket to preserve the de iure privilege of clergy was his murder in the Cathedral. The outcome of the Holy See’s attempt since 1922 to preserve a de facto privilege by the use of secrecy under canon law was much worse than the murder of one Archbishop. It involved the suicide of many hundreds of people who had been sexually abused as children by clergy whom the Church protected and hid from the civil authorities for no other reason than that they were clergy.

Canon law still imposes pontifical secrecy on allegations of clergy sexually assaulting children wherever there is no civil law requiring reporting, and in Australia, that means in the vast majority of cases.

Kieran Tapsell is a retired solicitor and barrister with degrees in theology and law.

The Vatican has two hats. It is the mini-State of 44 hectares in Rome, and it is the “Holy See”, the governing body of the Catholic Church. When it suits, it puts on one hat and hides the other. At the Murphy Commission in Ireland it relied on its status as a foreign country in refusing to hand over documents relevant to the Commission’s investigation of child sexual abuse.

The recent response of the Church to the UN investigating committee on child abuse is another example. Fr. Frederico Lombardi SJ said that the Holy See would not be responding to the committee because: “When individual institutions of national churches are implicated, that does not regard the competence of the Holy See, but rather the laws of the countries concerned…..The competence of the Holy See is at the level of the Holy See”. In other words, the Holy See is only responsible for sexual abuse within the 44 hectares of the Vatican City, but not elsewhere.

That statement ignores the effect of canon law. Canon 22 of the 1983 Code of Canon Law provides that, for Catholics, canon law has priority over civil law wherever there is a conflict. Further, canon law requires all those taking on positions in the Church hierarchy, to swear that they will obey canon law. Like the rules of any other private organisation, canon law has no status within the State. It cannot exempt residents within the State from complying with the civil law.  But it can require them to break it.

The Vatican City has its own civil laws like every other State, and as an independent State it has no say in the laws of other independent States, but as the “Holy See” it claims the right to control compliance with civil law in those States, especially of bishops. This is precisely what it did from 1922 until 2010 with child sex abuse allegations against clergy. In 1922, Pope Pius XI issued Crimen Sollicitationis, imposing the Church’s top secret classification, with no exceptions for reporting to the police, on any information about clergy sex abuse obtained through the Church’s internal investigations. This secrecy was confirmed by Pope John XXIII in 1962, by Pope Paul VI in 1974, by Pope John Paul II in 2001 and by Benedict XVI in 2010. It formed the framework for the cover up.

On 31 January 1997, Cardinal Castrillon, the Prefect of the Vatican Congregation for Clergy told the Irish bishops that their proposals to have mandatory reporting to the civil authorities of allegations of clergy sex crimes against children conflicted with canon law. Castrillon’s letter was an instruction to break the Irish civil law of misprision of felony that was in force at that time.

In 2001, Bishop Pican in France was given a suspended jail sentence for failing to report allegations about a priest paedophile. On 8 September 2001, Cardinal Castrillon wrote to Bishop Pican saying: “I congratulate you on not denouncing a priest to the civil authorities. You have acted wisely, and I am delighted to have a fellow member of the episcopate who, in the eyes of history and of other bishops, would prefer to go to prison rather than denounce his priest-son.” He said he would be writing to all the bishops of the world advising them to do the same.

In February 2002, Cardinal Bertone, the Secretary for the Congregation for the Doctrine of the Faith said: “The demand that a bishop be obligated to contact the police in order to denounce a priest who has admitted the offense of paedophilia is unfounded”.

On 16 May 2002, Cardinal Oscar Rodriguez Maradiaga, one of the Cardinals now advising Pope Francis on these matters, rejected any proposal to report paedophile priests to the police: “For me it would be a tragedy to reduce the role of a pastor to that of a cop. We are totally different, and I’d be prepared to go to jail rather than harm one of my priests. I say this with great clarity. We must not forget that we are pastors, not agents of the FBI or CIA.” But not pastors, apparently, to victims.

Similar statements were made on 29 April 2002 by Archbishop Herranz, the Vatican’s chief canon lawyer, on 18 May 2002 by Fr. Ghirlanda SJ, the Dean of the Faculty of Canon Law at the Gregorian University, on 8 June 2002 by the Belgian Cardinal Schotte, and in July 2002 by Cardinal Lehmann, the Chairman of the German Bishops Conference.

In June 2002, the American bishops asked the Vatican for approval to report allegations of sexual abuse of children to the police, irrespective of whether there was a law requiring reporting or not. In October 2002, Cardinal Re from the Congregation of Bishops told them that their proposals were difficult to reconcile with canon law. A compromise was reached. The Vatican agreed to allow reporting (but only for the United States) where there was a civil law requiring it, i.e. enough reporting to keep bishops out of jail. In 2010, the Vatican allowed that dispensation generally. Where there are no reporting laws, bishops are still prevented by canon law from reporting even if they want to. That is the situation in all Australian States, except NSW, for the vast majority of complaints.

The Vatican admitted in 2012 that it had investigated 4,000 cases of sexual abuse of children by clergy, and is now still investigating “thousands”.

It is disingenuous in the extreme for Fr Lombardi SJ to say that the Holy See only has responsibility for child sex abuse within 44 hectares in the city of Rome. The world has welcomed the first Jesuit Pope, but his spokesman is putting the Jesuitical back into the Jesuit.

Kieran Tapsell is a retired solicitor and barrister with degrees in theology and law.

On 19March 2010, after the Murphy Commission in Ireland found that there had been widespread cover up of child sex abuse in the Archdiocese of Dublin, Pope Benedict XVI wrote a “Pastoral Letter to the People of Ireland”.  The Murphy Commission had some harsh things to say about canon law and the requirements of secrecy, and found that “the structures and rules of the Catholic Church facilitated” the cover up. Benedict ignored this criticism, and attacked the bishops for failing to use “the long established norms of canon law” to dismiss these priests. His letter wrote the script for a second cover up:  hide the involvement of six Popes, who, since 1922, had ordered, maintained and confirmed the first cover up: see https://publish.pearlsandirritations.com/blog/?p=980 .

Since 1922, canon law has imposed “pontifical secrecy” on any allegations of clergy sexual abuse of children, preventing the reporting of these crimes to the police. In 1983, through his changes to canon law, Pope John Paul II destroyed any possibility that such priests could be dismissed through the Church’s internal procedures. The consequences of both these things were that these priests were shifted around where they attacked more children.

In 2012 Alex Gibney directed an award winning documentary, Mea Maxima Culpa: Silence in the House of God, about the cover up in the United States and Ireland. A reporter in the documentary, Mick Peelo described the angry reaction of an Irish bishop after the pastoral letter: “How dare he blame us,” the bishop said. “Show me where we didn’t follow canon law. Canon law was the problem.” Indeed it was. It had provided the legal framework for the cover up that allowed far more children to be abused than if these priests had been reported to the police, and weeded out the moment they had offended.

The cover up of the six Popes’ responsibility had started in about 2006 when newspaper articles and television programs, like the 2006 BBC Panorama Program, “Sex Crimes and the Vatican”, directly accused the Vatican, and particularly Pope Benedict XVI, of ordering and maintaining a policy of cover up through canon law.  Vatican spokesmen denied that “pontifical secrecy” prevented reporting to the police, saying that it only applied to the Church’s internal procedures. Of course it did, but the Church’s internal investigations were the source of virtually all information about the sex crimes of these priests. Pontifical secrecy did not prevent a bishop who had found a priest in flagrante delicto, in bed with an altar boy, from going to the police, but the chances of his stumbling across that were infinitesimal.

The Victorian Church authorities and the Truth, Justice and Healing Council on behalf of the Australian Church have kept to Benedict’s script at the Victorian Parliamentary Inquiry and the Royal Commission respectively. In their 150+ page submissions, they make no mention of Crimen Sollicitationis of 1922 or the pontifical secrecy imposed by subsequent decrees of Pope John Paul II in 2001 and Pope Benedict XVI in 2010.

The bishops who gave evidence at the Victorian Inquiry blamed their predecessors in the dioceses of Melbourne and Ballarat, accusing them of effectively facilitating child sex abuse, of being “very naïve”, of making “terrible mistakes” and of “inactivity”. Misguided as these predecessors were, they had been obeying canon law in accordance with their ordination oaths.  Their terrible mistakes were canon law’s terrible mistakes. Cardinal Pell in evidence before the Victorian Inquiry denied that the cover up was Rome’s responsibility, and said it was all the bishops’ fault.

But cracks started to appear in the dyke under the pressure of cross examination. Cardinal Pell admitted that the confidentiality imposed by canon law was now “inappropriate”, and that the Congregation for the Clergy, responsible for disciplining priests for much of the time, “did not get it”. Church officials admitted that the chances of dismissing a priest under canon law were virtually impossible:  https://publish.pearlsandirritations.com/blog/?p=966

Now the cracks in the dyke have widened at the Royal Commission. The Church has claimed that the reforms to canon law in 2001 gave it effective procedures for dealing with sex abuse offenders. All they did was restore the simplified procedures of the kind that existed before 1983. Canon 1341 has not been changed. It still requires the use “pastoral” methods to try to “reform” the priest prior to commencing any canonical proceedings to dismiss him. In 2002, Professor Ghirlanda, the Dean of the Faculty of Canon Law at the Gregorian University said that reporting such crimes to the police was not “pastoral” behaviour. On 19 December 2013, the Royal Commission was told what “pastoral” behaviour meant in terms of the Church’s internal procedures. Bishop Jarrett, the former bishop of Lismore said that the Vatican’s “punishment” in 2008 for an admitted serial sex abuser was requiring him to say Mass for his victims on Fridays and to live “a life of prayer and penance” in a comfortable presbytery.

The most serious obstacle to the capacity of the Church to dismiss priest sex abusers was Pope John Paul ll’s imposition in 1983 of a 5 year limitation period for bringing proceedings for dismissal. The previous canon law under Crimen Sollicitationis had no limitation period. In 2001 the 5 year period was extended to 10 years from the 18^th birthday of the victim. Bishop Jarrett agreed with Justice McLellan that even that extended period meant that the “overwhelming majority” of offenses against children would not be reported to the Holy See, which alone has the power under canon law to dismiss a priest.

The evidence of canon law’s role in the cover up is slowly leaking out of Benedict’s badly constructed dyke. The Commission hearings have been adjourned to 22 January 2014. The real issue now is whether the Truth, Justice and Healing Council will come clean over canon law, or the dyke will be opened by a thousand cuts.

Kieran Tapsell is a retired solicitor and barrister with degrees in theology and law.

“When I use a word, Humpty Dumpty said in a rather scornful tone, “It means just what I choose it to mean, neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many things.”

“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

                                                                                     Lewis Carroll: Alice in the Looking Glass

Canon law, the law of the Catholic Church, is said to be the oldest continuing system of law in the western world. It is based on Roman law, and differs from our English common law in a number of respects. Both systems have similar rules of interpretation, relying on the proper meaning of words, but in the case of ambiguity they rely on different sources for clarification. The English system relies on court interpretations, while canon law relies on declarations by the legislature (the Holy See) and the opinion of canon law scholars about what the law means. The English system uses judicial precedent, but in canon law a judicial decision only binds the parties to it.

The Murphy Commission Inquiry into child sexual abuse in the Archdiocese of Dublin had considerable difficulty working out what canon law actually said about clergy sex abuse. Even the most competent canon lawyers were confused. Part of that problem arose from misleading statements by both Pope John Paul II and Cardinal Ratzinger and Archbishop Bertone about the repeal of Crimen Sollicitationis (see Bella Figura and the Vatican https://publish.pearlsandirritations.com/blog/?p=951). But another source of confusion was the way changes to canon law are promulgated. The Murphy Commission said:

“There seems to have been a total absence of any straightforward, easily verifiable system for ascertaining which decrees or statements had the force of canon law and which had not, and what the effects of new canonical instruments, such as the code of 1983, or the 2001 procedural rules, had on previous instruments which had been treated as having the force of law…It is a basic feature of every coherent legal system that there is a firm, simple and unmistakeable procedure for the promulgation of a law. The absence of any such procedure within Church law, in the Commission’s view, makes that law difficult to access, and very difficult to implement and to monitor compliance.”

Both canon law and the English common law (less frequently) use “codes”, which is a way of containing all the law on one subject in one document. But when a State wants to change one of its codes, the changes are incorporated into the code. The Church, on the other hand, retains the code in its original form, but the Pope creates supplementary decrees. For example, the first Code of Canon Law was promulgated in 1917, and Crimen Sollicitationis became part of canon law in 1922 without becoming part of the code. The process can be analogous to the common law system where regulations, consistent with the Act, provide further detail, but sometimes the new canon law decree will provide for something totally inconsistent, such as Sacramentorum Sanctitatis Tutela of 2001, which changed the procedures for dealing with clergy sex abuse. Canon 1362§2 of the Code, for example, provides for a limitation period of 5 years for starting a canonical trial to dismiss a priest for child sex abuse. The 2001 decree extended that period to 10 years from the 18^th birthday of the victim, and when Benedict XVI revised the procedures in 2010, the 10 years was extended to 20 years.  But Canon 1362§2 of the Code still reads “5 years” from the date of the abuse.

Archbishop Coleridge told the Australian Royal Commission on 11 December 2013 that the Holy See is “neuralgic” about changing the canons, and prefers to change their “interpretation” rather than the canons themselves. That is fine, provided that the new “interpretation” fits in with the “proper meaning” of the words required by Canon 17 of the Code. But the new interpretation cannot be completely inconsistent. A period of “5 years” cannot be “interpreted” to mean “10 years” or even less, “20 years” without applying the Humpty Dumpty principle.

Another example of confusion relates to Canon 1341 that requires a bishop to use “pastoral” methods to “reform” a child sex abuser priest before commencing proceedings for dismissal, which was the canonical basis for sending such priests for treatment, and not dismissing them.

In his 2010 revised historical introduction to Sacramentorum Sanctitatis Tutela, Pope Benedict XVI criticized the “pastoral attitude” of “canonical scholars” and “diocesan or religious personnel”, who took the view that “the bishop was expected to ‘heal’ rather than ‘punish’”, ignoring the fact that the Holy See had always interpreted Canon 1341 in precisely that way, at least until then. If the revised historical introduction was meant to be a new “interpretation” of Canon 1341, (and even that is not clear), the effect is to exclude child sex abuse cases from the requirement to “reform the offender”. This was an extremely clumsy and confusing way to do it, because the plain words of Canon 1341 and the new “interpretation” contradict each other. That is unacceptable in any coherent legal system. Benedict has entrenched and extended the confusion criticized by the Murphy Commission. This confusion is obvious in the way the Holy See, even as late as 2011,  dealt with the Gannon case in Australia and those from the Archdiocese of Milwaukee (see: “New Vatican Committee on Sexual Abuse and ‘zero tolerance’ of Pope Benedict”: https://publish.pearlsandirritations.com/blog/?p=966).

Popes John Paul II and Benedict XVI turned the oldest continuing legal system in the Western world into incoherent Humpty Dumpty law, with words meaning contradictory things at the whim of those who have the power. If Pope Francis is serious about reforming the governance of the Church, one of the first things he should do is to give it a decent legal system.

Kieran Tapsell is a retired solicitor and barrister with degrees in theology and law.

Whenever there has been an inquiry into the Catholic Church’s handling of child sex abuse by its clergy, the Church has claimed that child sex abuse was some sort of hidden problem that the whole world, including the Church, had only just discovered. It has done this in the United States, Canada, Ireland, and now in Australia.

The Victorian Church in its submission, “Facing the Truth” to the Victorian Parliamentary Inquiry, and the Australian bishops’ September 2013 submission to the Royal Commission on Towards Healing  make the claim that there was a “developing awareness” of child sexual abuse in the 1970s, implying that very little was known about it before. In the last 40 years a lot more attention was paid to the problem, and there is now a greater understanding of the damage done to children.  But the Church keeps raising this as if this were an excuse for its behaviour in failing to report such crimes to the police and failing to dismiss the offending priests.

Sexual abuse is a new name for an old crime – raping and sexually assaulting children.  There is nothing new about it, either in society or in the Church. And the history of the Church shows that until 1922, it took clergy sexual abuse of children very, very seriously.

The first century handbook for Christians, the Didache, has an explicit prohibition on adult men having sex with boys.  The first Church law against the abuse of boys was passed at the Council of Elvira in 306CE, that is, it was not just a sin, but a crime to be punished.  St. Basil of Caesarea, the fourth century Church Father, (330-379CE) required clerics or monks who had sexually abused children to be jailed, and when released should be subject to supervision without any contact with children. St. Bede the Venerable (672-735 CE) in England wrote in his Penitentials that clergy who had sex with boys should be imprisoned for 3 to 12 years on a diet of bread and water.  St. Peter Damian in his Book of Gomorrah (1051CE) recommended to Pope Leo IX that clerics who had sex with children should be immediately dismissed from the priesthood. Gratian’s Decrees, the most important source of canon law, required clerics who abused children to be punished also by the civil law.  And then there were the decrees of Popes Alexander III, Innocent III, Leo X, Pius V and those from the Third and the Firth Lateran Councils and the Council of Trent in 1551 requiring priests who sexually abused children to be dismissed from the priesthood, and then handed over to the civil authority for further punishment. In the 18^th century the practice of the Holy Office was that once a priest had been dismissed for child sexual abuse, he could never be reinstated.

That all changed in 1922 when Pope Pius XI issued Crimen Sollicitationis, imposing the Church’s top secret classification “the secret of the Holy Office” on allegations and information derived from canonical investigations of child sexual abuse by clergy. That canon law was continued by Pius XII; by John XXIII, (who reissued it in 1962); by Paul VI, (who confirmed pontifical secrecy with his decree Secreta Continere) (John Paul I doesn’t count – he died 33 days after being elected); by John Paul II (who imposed pontifical secrecy in his 2001 Motu Proprio, Sacramentorum Sanctitatis Tutela) and by Benedict XVI (who confirmed it in his revision of the 2001 Motu Proprio). Benedict XVI even expanded the reach of pontifical secrecy in 2010 by extending it to cover clergy who sexually abused intellectually impaired adults and the possession by priests of child pornography. The awareness of sexual abuse by clergy was not new. What was new was the overturning of 1500 years of canon law in 1922, with the Church setting up a system to hide these clergy crimes from the civil authority.

Religious Orders and Congregations within the Catholic Church have arisen historically in response to a particular social problem. In 1947, Fr Gerald Fitzgerald founded a religious order in the United States, the Servants of the Paraclete, to deal with alcohol and sexual problems of clergy. Fitzgerald had consistently recommended to the hierarchy a zero tolerance approach for priests who abused children. He even went to see Pope Paul VI about it in 1963. Yet, the Church spin is that it only started “learning” about the extent of the abuse in the late 1970s. What Church authorities learned was that there was an explosion of child sex abuse amongst clergy in the 1960s and 1970s, that it fell away in subsequent decades, and that the psychological damage of sexual abuse was greater than perhaps earlier thought.  That’s all.

The Church’s Truth Justice and Healing Council submission to the Royal Commission spends 28 pages listing inquiries, reports and investigations of the abuse of children from the 1970s onwards, as if there was nothing worth mentioning before.

The “learning curve” claim was also made by the Irish bishops to the Murphy Commission inquiry into the Archdiocese of Dublin. The Commission rejected it.  That rejection in November 2009 did not stop the Victorian bishops trying it out again before the Victorian Parliamentary Inquiry in 2012. The Parliamentary Committee also rejected it, and noted that if there was a lack of awareness of the extent of sexual abuse of children within society, the Church contributed to it by concealing it within its own ranks.

The “learning curve” argument is a dead horse waiting to be flogged again at the Royal Commission, if the submission of the Truth Justice and Healing Council on Towards Healing is any guide. And flogged it was at a public hearing of the Commission on 11 December 2013 by Archbishop Coleridge, a member of the Council, when he said, “..again, the Holy See has been on a learning curve in this tormented area.”

Kieran Tapsell is a retired Sydney solicitor and barrister with degrees in Theology and Law.

On 5 December 2013, the Vatican announced that it had set up a new Committee on sex abuse and that the “the initiative was also in line with the zero tolerance approach of Pope Emeritus Benedict XVI.”

Pope John Paul II has rightly been hailed for his contribution to bringing down the Soviet Union. But another thing he brought down was any chance that the Church’s canon law might prevent priests from sexually attacking more children. Pontifical secrecy under canon law prevented bishops from reporting any information they had obtained in a canonical investigation of child sex abuse to the police. But the problem might not have been so bad had John Paul II not rendered the Church’s internal disciplinary laws useless for dismissing sex abusing priests. Canon law had its faults before 1983, but under the new Code, it was hopeless.

In recent enquiries in Australia, Church figures have variously described the chances of dismissing a priest for paedophilia through the canonical processes as “very difficult” (Cardinal Pell), “close to hopeless” (Bishop Malone) “very, very difficult” (Archbishop Hart) “impossible” (Bishop Manning) and the whole procedure was “unworkable” (Fr Brian Lucas).

Pope John Paul II introduced some procedural reforms in 2001 with the Motu Proprio, Sacramentorum Sanctitatis Tutela.  Pope Benedict XVI revised them in 2010, but all they did was to simplify some of the procedures to return to the situation that existed before the 1983 Code. There was no change whatsoever to the problems that the 1983 Code created for dismissing a priest for sexually assaulting children.  The problems are:

•             The Vatican Catch 22 defence: a priest cannot be dismissed for paedophilia because he is a paedophile. (Canon 1321). The Murphy Commission in Ireland referred to three cases where appeals had been upheld in Rome on the grounds that the priest was diagnosed as a paedophile, one of them being Fr. Tony Walsh, a notorious serial paedophile who features in the documentary Mea Maxima Culpa.

•             The requirement to use “pastoral” methods to reform the priest prior to putting him on trial for sex abuse (Canon 1341). This was the reason that priests were sent off to treatment centres and shifted around – canon law required that attempts be made to reform him before he was even put on trial.

•             The standard of proof for dismissal of a priest is “moral certitude”, a standard equivalent to the criminal standard of proof under Australian, English and United States law (Canon 1608).

In any coherent legal system, where a particular law is found to be defective or inadequate, the legislature will change the wording of the law so that those involved in enforcing and applying it know that they have to act differently.  If a “zero tolerance” approach were to be adopted, it should be written into canon law. The procedural reforms of 2001 did not change the requirements for dismissal and they are not “zero tolerance”.

If the Vatican believes that people’s behaviour will change without a change in the wording of the law, then canon law, the oldest continuing legal system in the Western world, has been corrupted into what Humpty Dumpty said to Alice in Wonderland, “words mean what I choose them to mean, neither more nor less.”

Despite all the Church spin that everything changed after 2001, it is not surprising that there seems little change in practice. When asked at the Victorian Parliamentary Inquiry, why it took 18 years to dismiss Fr Desmond Gannon from the priesthood, Archbishop Hart said steps had been taken as early as 1993 to dismiss him, but Rome required “absolute certitude as to what took place” before doing so.  Gannon had been sentenced in Victorian courts four times (in 1995, 1997, 2000, and 2009) for sex crimes against children, but four convictions beyond reasonable doubt were not enough to satisfy the “absolute certitude” of the Vatican.  Despite Hart’s assertion that everything had changed after 2001, he was still having problems getting the Vatican to dismiss Gannon in 2011.

The Australian bishops were not the only ones to have had this kind of problem after the so called “reforms” of 2001. The recently released documents from the Archdiocese of Milwaukee confirm that the Vatican still had this reluctance to dismiss even when the priest was a serial paedophile and agreed to voluntary laicisation. And in three other cases where the priests refused to consent to laicisation, the directions from the Congregation for the Doctrine of the Faith were to (pastorally) ask them again to consent.

In 2003, Cardinal Francis George of Chicago, regarded as one of the American Church’s leading intellectuals, wrote an article, “Law and Culture” in the Ave Maria Law Review stating that if you want to change a culture (he was referring to racial discrimination in the United States), you have to change the law, because law entrenches and deepens a culture. Justice Ronald Sackville in his 2005 Federal Law Review article, “Courts and Social Change” made the same point.  But that principle applies equally to canon law and its pervading culture of clericalism. If the law is not changed, (as Canons 1321, 1341 and 1608 have not been), one has to expect that Vatican bureaucrats will continue to interpret the law as they always had, and that before a priest is dismissed from the priesthood, “pastoral methods” must be used, “absolute certitude” is required, and the Vatican Catch 22 defence will still apply.

In 2002, the United States bishops requested Vatican approval of “zero tolerance” as part of its Dallas Charter. It was approved, but limited to the United States. If Benedict really did believe in zero tolerance, he would have applied it to the whole world after becoming Pope in 2005. He was then the absolute monarch with power to change canon law at the stroke of a pen. He didn’t lift a finger.

Kieran Tapsell is a retired solicitor and barrister with degrees in theology and law. 

Bella figura, writes Bishop Geoffrey Robinson in his book, For Christ’s Sake, pervades the Vatican. In Italian, it means putting on a good appearance, and never admitting mistakes – what we might call “spin”.  Its opposite, bruta figura means looking dreadful. Bella figura can quickly turn bruta as Sir Walter Scott reminded us: “Oh what a tangled web we weave when first we practice to deceive.”

In 1983, Pope John Paul II promulgated the 1983 Code of Canon Law that made it virtually impossible to dismiss a paedophile priest. He had already abolished the simpler “administrative” trial, leaving only the impossibly complicated “judicial” trial.  In 1988, Cardinal Ratzinger wrote to the Church’s senior canon lawyer, Cardinal Castillo, asking for a simpler method. Castillo refused, saying that it would diminish the rights of priests. Never mind the children who were being abused.

Canon lawyers thought that the 1983 Code had repealed Crimen Sollicitationis, and so did the Vatican, because for six years, from 1988 to 1994, it negotiated a request by the American bishops to extend the Code’s limitation period of 5 years for bringing dismissal proceedings. The Americans explained that the limitation period meant there were no dismissals, because children take decades to come to terms with what happened to them. Crimen Sollicitationis had no limitation period. The Vatican eventually relented in 1994, and extended the period to when the victim reached 28 years. It gave the same extension to Ireland in 1996, confirmed it for the Americans in 1998, but left the rest of the world waiting until 2001.

Around 1996, Cardinal Ratzinger and Archbishop Bertone from the Congregation for the Doctrine of the Faith (CDF) started telling bishops that Crimen Sollicitationis had not been repealed – in other words they could ignore the limitation period, and use the simpler administrative procedure.

In 2001 Pope John Paul II issued his Motu Proprio, Sacramentorum Sanctitatis Tutela that contained an Orwellian rewrite of history by stating that Crimen Sollicitationis was “in force until now”, and that was confirmed by a letter to bishops of 18 May 2001 from Ratzinger and Bertone. According to them, for the previous 18 years or so, bishops really could have ignored the 5 year limitation period, and used the simpler procedure. The American canon lawyer, Nicholas Cafardi says that this was all bella figura. It was not true, and the Vatican was trying to cover up a dispute between Cardinals Ratzinger and Castrillon over who was in charge of the sex abuse problem by pretending that Crimen Sollicitatonis was always in force.

But there is another more sinister explanation. If bishops were not hampered by these provisions under the Code, then they could be more easily blamed for any failure to dismiss paedophile priests. And this is exactly what Ratzinger did in 2010 after becoming Pope, when in his Pastoral Letter to the Irish people, he blamed the Irish bishops for not using the “long established norms of canon law” to dismiss these priests.

There is a less Machiavellian explanation but it is still infected with bella figura. The advice given by Ratzinger and Bertone in the late 1990s about using Crimen Sollicitatonis was canonically dubious, and actions done under their instructions could have been null and void. Legal systems have a transparent way of dealing with this by legislating to validate the actions taken. But that means admitting a mistake. Ratzinger and Bertone preferred the Orwellian solution of rewriting history, and in doing so, spun the tangled web.

On the 1 October 2006, the BBC Panorama Program, “Sex Crimes and the Vatican” alleged that for twenty years, Pope Benedict XVI, as Cardinal Ratzinger, was in charge of enforcing pontifical secrecy for clergy sex abuse through Crimen Sollicitationis.  In fact he had only been enforcing it for two years. This was Ratzinger’s own fault, because of what he falsely claimed in his letter of 18 May 2001. The tangled web had come back to bite him, giving the impression that he was personally far more culpable than he really was.

The web became even further tangled for the unfortunate canon lawyers who had to explain canon law on sexual abuse to the Murphy Commission which found that even competent people were totally confused. In California, Monsignor Brian Ferme, told a court in 2005, that “technically” Crimen Sollicitationis was in force until the 2001 Motu Proprio. In other words, it wasn’t really, but technically it was – or vice versa. After all, the final interpreter of canon law, the Supreme Pontiff, Pope John Paul II himself, had declared something to be true when in fact it wasn’t. Bella figura had crossed the Atlantic.

In November 2009, the Murphy Commission Report on the Archdiocese of Dublin had some scathing criticisms of canon law, accusing it of confusion and lack of coherency. The bella figura had turned hopelessly bruta.

In April 2010, Benedict had second thoughts. He rewrote the historical introduction in his revision of the 2001 Motu Proprio, admitting that the 1983 Code had repealed Crimen Sollicitationis, and tried to cover up his “in force until now” misstatement with a marvellous piece of confusing prose that should have won him a prize for mental reservation. Mental reservation, explained Cardinal Connell to the Murphy Commission, involves using “an ambiguous expression realising that the person who you are talking to will accept an untrue version.”

Referring to the letter of 18 May 2001, the new historical introduction says: “This letter informed the bishops of the new law and the new procedures which replaced the Instruction Crimen Sollicitationis.” Benedict had mentally reserved the fact that the letter was false, and he simply referred to what the letter said.

Benedict’s resort to mental reservation was understandable. The Catholic Catechism says that mental reservation is justified to avoid scandal. It was scandalous enough for the faithful to know that the Vicars of Christ can make mistakes. It was disastrous if they found out they had been telling fibs.

Kieran Tapsell is a retired Sydney solicitor and barrister with degrees in Theology and Law.