There was once a rich man in England who became tired of watching his friends’ estates being eaten up by lawyers’ fees in disputes over wills. So, he made a very simple will leaving everything to a friend, and then wrote a letter to the friend explaining what he wanted the friend to do with his estate, thinking that this was the best way to keep lawyers’ snouts out of it. That will and the letter ended up becoming a lawyer’s veritable pig feast because it became the classic case in the House of Lords on secret trusts. I could not help being reminded of that while watching George Pell in the witness box at the Royal Commission, trying to explain his reasons for “vigorously” fighting John Ellis’s claim for compensation arising out of his sexual abuse by the Sydney priest, Aidan Duggan.

In 2002, Richard Carleton interviewed Pell on Sixty Minutes about his Melbourne Response. Pell admitted that the victims had to swear to observe secrecy in return for the limited compensation that the scheme offered. He said that if the victims did not want to sign this, they could “go to the courts.” Two years later, in the Ellis case, Pell demonstrated what would happen to them if they tried. Pell and the Trustees of the Archdiocese spent $756,000 paying lawyers to fight a case that Ellis initially was prepared to settle for $100,000, and then for $750,000 at the time the application for leave to extend the limitation period.

Pell and his lawyers revealed all the classic symptoms of someone wanting to run a test case to prove a point, and to indicate to potential claimants that their claims were on shaky legal ground. They succeeded: the New South Wales Court of Appeal found that the Catholic Church does not exist in law, Pell was not liable for the negligence of his predecessors as Archbishop of Sydney, and the Trustees of the Archdiocese were not liable for the sexual abuse of a priest because they had nothing to do with the appointment and supervision of priests. The High Court refused leave to appeal.

Anyone wanting to run a test case will never try to settle it. If the other side makes an offer of settlement, it is rejected, and no counter offer is made. If a counter offer were made, the other side might accept it, and that would be the end of the test case. This is precisely the strategy that Pell and his lawyers adopted with Ellis.

Pell conceded at the Victorian Parliamentary Inquiry that most priests are “not well off”, and therefore a sex abusing priest is unlikely to be able to meet a judgment. The so called “Ellis defence”, where used by the Church, saved it hundreds of millions of dollars, as is shown by a comparison between the average amounts paid out by the Toowoomba diocese, where former Bishop Morris refused to have anything to do with it, and the average payouts by the Melbourne Response and Towards Healing.

In the witness box, Pell was caught between trying to justify his test case, and denying that he was trying to protect the Church’s coffers.  Pell accepted that his instructions to his solicitors, Corrs, were to “vigorously defend the claim” and that part of that was an attempt “to encourage people not to go into litigation.” If they could not go into litigation, their only other recourse was to go cap in hand to the Church for compensation through the Melbourne Response with its official ceiling of $50,000 and Towards Healing with its unofficial ceiling of the same amount. In other words, despite what Pell said to Richard Carleton in 2002, he wanted to make sure that victims of child sexual abuse knew that they really did not have the alternative of going to the courts. As the Chair of the Royal Commission, Justice McLellan pointed out, in those circumstances, the Church, and not the courts, had complete control over the amount it would pay. Justice McLellan has already dropped a gentle hint that all the settlements achieved through Towards Healing and the Melbourne Response may need to be re-opened.

Like the man who wanted to avoid enriching lawyers by writing a letter to the beneficiary of his will, the Church will not only be paying out significantly more in compensation than it otherwise might have, but it will be enriching lawyers as well. The Church won this battle in the High Court, but it has lost the war.

Perhaps the Church should have listened to something a wise man once said that might be paraphrased: what does it profit a Church if it gains the whole world, and suffers the loss of its soul. And the loss of the Church’s soul could not have been more starkly demonstrated than by the evidence given to the Royal Commission about the treatment of John Ellis.

There is a veritable ‘whodunit’ being played out at the Royal Commission into Sex Abuse. The Commission is inquiring into the treatment of John Ellis who lent his name to the so called ‘Ellis defence’, that confirmed that the “Catholic Church”does not exist in law. If the sex abusing priest or the negligent bishop is dead or has no assets, there is no one else to sue.

John Ellis was an altar boy and was sexually abused by Fr Aidan Duggan from the age of 13. He subsequently suffered serious psychological problems, and approached the Church through its Towards Healing protocol in 2002. The Church organised an independent assessment in accordance with that protocol and the assessor found that on the balance of probabilities Ellis had in fact been abused by Duggan. An initial offer of $25,000 was made to Ellis, and it was increased to $30,000 after Ellis lost his job as a partner at a prestigious Sydney law firm. Ellis said that he would settle for $100,000. The Church rejected that. In the meantime, Ellis only had 3 years to apply for an extension of the limitation period, and that time was about to expire. So he instructed solicitors to make the application. At the time he filed it, Ellis offered to settle the case for $750,000, an offer that was rejected by the Church. It was this application for extension of time that eventually went to the New South Wales Court of Appeal and to the High Court.

The two remaining defendants in the matter, (Duggan in the meantime had died), Cardinal George Pell, and the Trustees of the Archdiocese of Sydney ended up spending $756,000 on lawyers, more than the amount of Ellis’s settlement offer. They proved their point and won the case: the “Catholic Church” in law does not exist; Cardinal Pell was not liable at law for any negligence of his predecessors at the time, and the Trustees had no role in the appointment of priests, and so were not liable. Ellis was ordered to pay costs that were estimated on a party/party basis at $500,000. Pell and the Trustees instructed their solicitors, Corrs, to pursue the claim for costs, despite that being against the advice of its senior partner, Paul McCann.

After the case was over, Ellis pleaded with the Church not to enforce the order for costs. He clearly was not in a very good situation either mentally or financially. A meeting was arranged between Cardinal Pell and Ellis and his wife, and it was agreed to waive the costs order. The Church went further than that, and agreed to assist him. It ended up paying out over $500,000 for psychiatric assistance, repairs to his house and a holiday.

So, why did the Church go to all this trouble, and put an already abused man through this nightmare, and then help him out? In our common law system, court cases not only act as precedents that later courts have to follow (in the Pao case, Justice Hoeben has already applied Ellis), but they also send out a very strong message to lawyers and their clients.

In an interview with Richard Carleton on Sixty Minutes in 2002, Cardinal Pell said that if the victims did not want to use the Church protocols that provided compensation limited to $50,000, they could always “go to the courts”.  The Ellis decision made very clear what would happen to them if they did.

But the really interesting thing is what Ellis says Cardinal Pell told him at the meeting. Pell said that he was under the impression that Ellis’s claim was for many millions of dollars, and the Church had to protect itself. He further said that he was unaware of the offers of $100,000 under the Towards Healing protocol and of the $750,000 offer of settlement at the start of the legal proceedings. Ellis told the Commission that Pell said to him, “If I knew that, there is no way I would have spent more on legal costs than you were asking for.” Now the scene was set for an interesting stoush between Pell and his lawyers, Corrs.

Solicitors are obliged under their retainer and under their ethical rules to keep the client fully informed of every aspect of litigation so that they can make informed decisions. According to Ellis, Pell had accused Corrs of negligence at best and professional misconduct at worst. The Royal Commissions Act protects legal professional privilege between a solicitor and client, but there is ample authority for the proposition that such privilege is waived if allegations of negligence or professional misconduct are made against the solicitor.  Corr’s file was produced to the Commission, and the partner, Paul McCann was cross examined about the emails going back and forth between his firm and their clients. McCann was adamant that at every stage of the proceedings, Pell was fully informed of everything, and everything Corrs did in the litigation was in accordance with their instructions, including the rejection of the $750,000 offer, the rejection of mediation suggested by Ellis, putting in issue whether Ellis had been abused (despite the assessor’s finding that he had been) and pursuing Ellis for the costs.

McCann admitted that he never spoke to the Cardinal personally, and he always dealt with his private secretary, Michael Casey whose emails represented that the Cardinal was fully informed and had personally provided instructions. We also know from McCann’s evidence how Cardinal Pell had the idea that Ellis was “claiming” many millions of dollars. It seems to have come, not from Ellis, but from McCann himself who thought that it potentially could be worth that much because Ellis had lost his job as a partner at a prestigious law firm.

Earlier witnesses, Michael Salmon, from the Church’s Professional Standards Office, and Monsignor Brian Rayner, the Archdiocesan Chancellor left very clear impressions that Pell was calling the shots on the negotiations for a settlement under the protocol. Now, we have to hear from Pell’s personal secretary, Michael Casey, the business manager, Danny Casey, and the chancellor Monsignor John Usher as to who was really calling the shots on the litigation that Monsignor Usher had conceded in a letter to Ellis was “legal abuse”. And then we have the star witness himself: Cardinal George Pell. There will be some interesting questions: why was the offer of settlement of $750,000 rejected? But more importantly: who was really responsible for this “legal abuse” of a man already sexually abused by a Catholic priest. And there might also be an added morsel: if Cardinal Pell now thinks that it is only right and just that the Church should be able to be sued by the victims of child sex abuse, why has it taken him so long to come to that realisation?

It is all being live streamed on http://www.childabuseroyalcommission.gov.au/public-hearings/case-study-march-2014/ and will continue today, Thursday 20 March from 10am. It’s the best drama in town.

Last September I addressed the Canon Law Society of Australia and New Zealand on issues the Catholic Church would need to address with the Royal Commission into Institutional Responses to Child Sexual Abuse, and in the follow-up to the Victorian Parliament’s Inquiry into the Handling of Child Abuse by Religious and other Organisations.

I said: “Those who exercised high office in our Church before 1996 will need to apprise the royal commission of the clerical structures and culture which precluded them from taking further action to arrest child abuse in the Church prior to the institution of Towards Healing and the Melbourne Response.”  At the moment, the royal commission’s focus is on Cardinal Pell and the Archdiocese of Sydney through the prism of the Ellis case.  Now is the time for the structures and culture to be explained, not just to Catholics, but to all citizens.

In his written submission to the Victorian Inquiry Cardinal Pell who had been auxiliary bishop in Melbourne between 1987 and 1996 stated, “As an auxiliary bishop to Archbishop Little I did not have the authority to handle these matters and had only some general impressions about the response that was being made at that time, but this was sufficient to make it clear to me that this was an issue which needed urgent attention and that we needed to do much better in our response.”  Back in 1988, Pell’s predecessor as Archbishop of Melbourne, Sir Frank Little had set up “a confidential subcommittee” consisting of a lawyer, a psychiatrist and a priest.  Archbishop Denis Hart, Pell’s successor as Archbishop of Melbourne, told the Victorian inquiry that in 1992, he as a priest in the Archdiocesan administration, first began to hear that priests were engaging in sexual abuse. When speaking of his installation as Archbishop of Melbourne on 16 August 1996, Cardinal Pell wrote to the parliamentary committee saying:  “At this time, the media was full of accounts detailing sex abuse in the Catholic community.”  Understandably, this left many people inside and outside the Church wondering, “If Archbishop Little didn’t respond adequately between 1987 and 1996, why didn’t his auxiliary Bishop Pell do something?” and “If the Archbishop knew during those nine years, why didn’t his Auxiliary?”

Meanwhile in Sydney in the Ellis litigation to which Cardinal Pell was initially a defendant as the new Archbishop of Sydney, Justice Mason, President of the New South Wales Court of Appeal, had cause to refer to the affidavit of Fr John Usher referring to the Archbishop of Sydney at the time of the alleged abuse, Cardinal Freeman “and a number of Auxiliary Bishops as ‘the persons within the Archdiocese with canonical/spiritual authority in relation to (the wrongdoer, Fr Duggan) in respect of the period’”.  Justice Mason later referred to the evidence “showing that it was the former Archbishop, in consultation with the Archdiocesan Council, and not the Trustees, who appointed and supervised Fr Duggan.”  These issues of authority and knowledge are in desperate need of clarification for the good of all parties and for the good of the Church.  If there were different structures and practices in the major archdioceses with auxiliary bishops, for example between Melbourne and Sydney, then this needs to be clarified at the royal commission.

There is obviously also a need to admit error and rectify the way some lawyers have acted in the name of the Church in the past.  The Ellis case is a real blot on the Church’s record in light of the letter sent by Monsignor John Usher, Chancellor of the Archdiocese of Sydney, to Mr John Ellis on 6 August 2009 stating that he was distressed to learn that the Archdiocesan lawyers had never responded to an offer of compromise  and that the Cardinal “will do all in his power to ensure that this sort of legal abuse is never repeated again”.  Presumably we will hear from Corrs, the Melbourne lawyers brought in specially by Cardinal Pell to run this piece of protracted litigation.  Major firms briefing senior counsel in the appeal courts incurring six-figure expenses are careful to act on instructions from their clients.

Appearing before the royal commission, church members and the Truth Justice and Healing Council will need to enunciate a principled position on the maintenance of legal professional privilege.  Given the undoubted instances of legal obfuscation in the past, I would suggest that there be a general waiver of privilege in the interests of transparency but with an exception being made for documents between lawyer and client in relation to matters still pending in the courts.  The questions of legal privilege are complex in this royal commission because the law of privilege varies between States and between States and the Commonwealth, bearing in mind that this is in effect seven royal commissions all rolled into one.

In November the Victorian parliamentary committee reported.  Welcoming the report, Cardinal Pell admitted past mistakes by the Melbourne Archdiocese during his time as auxiliary bishop there.  He wrote: “The report details some of the serious failures in the way the church dealt with these crimes and responded to victims, especially before the procedural reforms of the mid 1990s. Irreparable damage has been caused. By the standards of common decency and by today’s standards, church authorities were not only slow to deal with the abuse, but sometimes did not deal with it in any appropriate way at all. This is indefensible.”

This refreshing change of tone and collective acceptance of responsibility makes it possible to get some clearer air in the public domain about noble, principled and professional efforts post-1996 as well as unfortunate continued shortcomings. Many of those efforts included highly cooperative, though flawed, initiatives involving both Church and police.

If the Church maintains the approach that only deceased individual bishops and superiors were to blame prior to 1996, it will be doing a disservice not only to the victims but also to other members of the Church community hoping and praying that the Church might be the exemplar of faith, hope and love — faith in a just and forgiving God, hope for all, including those whose lives have been wrecked by criminal abuse, and love for all, including the primary and secondary victims, erring clerics, our enemies and biased critics.

This week in preparation for his appearance before the royal commission, Cardinal Pell made a second and more specific admission of the need for a change of approach.  He wrote:  “Whatever position was taken by the lawyers during the litigation, or by lawyers or individuals within the Archdiocese following the litigation, my own view is that the Church in Australia should be able to be sued in cases of this kind.”

As I said on ABC World Today: “It’s heartening to see that at the top leadership of the Catholic Church in Australia, in relation to a case where Cardinal Pell himself was involved as the Archbishop of Sydney while this litigation was playing itself out, it would seem that in hindsight he’s saying, ‘We’ve got to be able to do better than that.’ And I think that’s good news for everyone.”  No doubt, it will be excruciating for the members of the Sydney Archdiocesan administration (clerical and lay) when each of them appears in the witness box in coming days.  But let’s hope the spotlight on the Ellis case provides clarity and new learnings for better administration for the good of all Christ’s faithful, especially those who have been abused or wronged by those in authority. We all need to know which diocesan personnel appoint and supervise church workers, including priests, and which diocesan personnel actually run the show, issuing instructions to lawyers who in the past have pursued individuals like Mr Ellis.  We need to learn from our mistakes putting in place better structures and a better culture for ensuring that those who appoint, supervise and instruct act in the best interests of the little ones, the anawim to whom Jesus gave a privileged place at table.

What should we look for in a bishop for Sydney in these changing times?

A Christian.

One committed to Jesus’ message of love, forgiveness and compassion. One who holds that the Church is not just the hierarchy, but the People of God on a journey.

A citizen of the world.

One who, while suspicious of all “isms” including secularism and pluralism, loves the world’s secularity and plurality. One who sees this non-confessional culture as an ideal setting for proclaiming a message of hope and salvation amid the reality of sadness, loss, sickness, poverty and death. One who wants the believer’s response to be free, not enforced by state or tribe.

A believer.

Ideologues subscribe to platforms. Believers commit themselves to movements. Sydney needs a believer, not an ideologue. Ideologues have closed minds. Believers are self-critical and open to discussion – even change of mind. Ideologues like things to remain the same. Believers stay in contact with contemporary culture and know that all things are changing. As the cultural context changes they must recontextualize or die. They change their habits to maximise values.

Ideology has shouldered out faith over the last 35 years. Personal morality, especially sexual, has eclipsed the central Christian message. The John Paul II Institute for Marriage and The Family is an offspring of this trend. Its objective is to push the recent Vatican line on sexual morality, especially the lost cause of contraception. It is in this institute that Anthony Fisher, now Bishop of Parramatta, raised his profile to the delight of Cardinal Pell.

A Leader.

Leaders are able to formulate a practical vision of how best to implement a group’s goals in the setting of contemporary reality. They can persuasively communicate that vision to their followers. They can organise and make the right choices to staff that organization and implement the vision. Leaders identify and prioritise the issues they pursue in the public forum. They argue big issues effectively so that they appear as men of principle and strength.

An educator.

An educator is able to use his own rhetoric to educate his hearers.

He also supports the Catholic Education system and can choose the right persons to lead it. He supports education in faith within that system. He ensures that the belief exemplified by Vatican II imbues that education. He ensures that publications used in that education are similarly imbued.

He ensures that faith education specialists in Catholic schools get good formation and are given Positions of Responsibility within the system.

Brains and an awareness of history.

There is no substitute for brains. Add historical awareness and you have covered a key pre-requisite for leadership.

Anti-clerical-ism.

Clericalism is Christianity’s curse. All who belong to the Church are equally baptised; all are entitled to be a drawn on for the Church’s mission, organization and leadership. A good bishop realises that both lay and ordained leadership is necessary and organizes formation and appointments accordingly.

Clericalism is the cornerstone of the paedophilia crisis. Clerical power aided the offenders. Clericalism prompted the cover up by the bishops. Clericalism leads to corruption. It is endemic to the organizational structure of the Church.

Any priest or bishop involved in this cover up should be excluded from consideration.

An administrator.

The candidate must be a good administrator if he is to be effective.

Application.

Vatican II in the 1960s started a renewal. It embraced the modern world. Against a policy of centuries it turned its back on the confessional state and backed freedom of religion. It exchanged the imposition of imposed doctrine for freer enquiry.

The 80s, 90s and 00s opted for reverse under the leadership of John Paul and Benedict. This reverse was institutionally implemented by the appointment of conformist bishops.

Now Pope Francis’s fresh breeze is encouraging a resumption of renewal. Ideology is to give way to true belief. It is time to move out, not turn in. This questions the practice of promoting existing bishops. Some are changing their spots in the new policy climate – making one suspicious.

Pope Francis spoke to the members of the Congregation for Bishops at the end of February. He gave them the criteria he wanted them to use as they went about the selection of bishops.  This is his wish list:

• People with God’s breadth of heart (Yes, that is the term he used);
• who can speak clearly asserting the human rights of the powerless and abandoned without fear or favour;
• who are witnesses to the Risen Christ in the modern world;
  • Ready for renunciation and sacrifice;
  • Capable of healthy relationships with both men and women;
  • Culturally at home in today’s world;
• who can effectively proclaim the message of Jesus;
• Good pastors:
  • Not princes;
  • Not ambitious careerists (a mentality he likened to adultery).

The last two popes had different priorities. Bill Morris is a good example of a bishop who fits Francis’ criteria, but in 2011 he was removed from Toowoomba by Benedict.

The pope knows good bishops are hard to find. The pool of priests is very shallow. Recruitment dropped to an unsustainable level 45 years ago – a long lead time. Maybe it’s time for a lateral move. Pick a suitable layman and ordain him immediately. They did that with Ambrose in Milan in 374 A.D. That hurdle jumped, we may be ready for the next hurdle – suitable women.

Citing Samuel in the quest for a king for Israel he told the Congregation for Bishops to seek the ideal candidate out, as Samuel did David; send for him if he is hidden away. Samuel said “we will not sit down till he arrives”. Let’s hope we are not left standing for too long.

Eric Hodgens is a retired Catholic priest who ‘writes a bit’.

Sydney needs a new archbishop who has every chance of becoming a cardinal once Cardinal Pell turns 80. How do we get a new bishop?

The pope will appoint one. Since 1917 he has claimed the right to do so. History is not on the side of that claim – but that is another story.

Today’s official method is for bishops to send recommendations to the Papal Nuncio. When a diocese becomes open the nuncio does a search, checks these recommendations, and makes a list of three suggestions. This is called a “terna”. He sends it to the Congregation of Bishops in Rome – the papal personnel department. The bureaucrats of that department do their own checking and prepare the agenda for the Congregation. There are about 30 cardinals who are members of the Congregation – some live in Rome and would regularly attend; others are spread round the world and attend when they choose. The Congregation meets fortnightly, discusses the matter and sends a list of three to the pope for his approval and appointment. The pope normally takes the first name on the list.

It seems a clear process. Not so. Patronage plays a part at every level. The bishops sometimes consult before sending their list to the nuncio but ultimately they suggest their favourites. The nuncio can take notice of those lists or not. The nunciature’s staff can have their input. The final terna that goes to Rome is his selection. The desk men in the Congregation’s bureaucracy can also influence the outcome.

The cardinals who are members of the Congregation for Bishops have more or less influence on the recommendation depending on their degree of influence in the discussion room. They could make their own suggestions or bad mouth someone they do not like. So if you want promotion get into the good books of your bishop – or the nuncio’s . Even better if you have influence with members of the Congregation. In this process it is who you know, not what you know, that makes all the difference. So, bishops are usually the most ambitious priests rather than the most appropriate priests for the job.

Since the pope makes the final choice he can influence the process by his policies. During the 34 years of John Paul II and Benedict XVI, nuncios were instructed to sift out anyone who did not positively support papal policies on contraception, divorce, homosexuality, feminism, liberation theology and clerical dress. The result was a worldwide episcopate of ideological or conformist bishops. In order to maintain ideological purity the process included an ever increasing number of priests from religious orders with no experience in leading dioceses.

Appointments have been getting very slow. The Roman bureaucracy does not work at a frenetic pace. Still, their job is getting harder because of the growing shortage of priests of any kind, let alone potential bishops. The days of big numbers of high quality priests are long past. The heyday of seminary recruitment was 1950 to 1990. The youngest of this group is now in his 50s Furthermore, many priests see appointment as a bishop to be a poisoned chalice and knock back an offer.

Pope Francis is setting new criteria for bishops. Pastoral priests, not apparatchiks; broad minded priests, not ideologues. Anyone who is ambitious for episcopate or episcopal promotion should not get it. But will these criteria be followed?

Sydney’s appointment is important by anyone’s standards. If you want to back a winner find out who the kingmakers are, who they know and who they like. Here are a few facts to help you work it out. The outgoing archbishop, Cardinal Pell, will be consulted both formally and informally. Furthermore he is a member of the Congregation for Bishops and presumably will attend regularly when resident in Rome. He has always been a regular visitor to Rome and more so in the last year since he is on the Pope’s advisory Group of 8 cardinals. He has a permanent apartment at Domus Australia in Rome. He will be influential in his replacement.

He has been the promoter of Anthony Fisher, Bishop of Parramatta.

He indirectly advanced Mark Coleridge’s career by offering him for work in the Secretariat of State. He may have had mixed reasons for this. The cardinal prefects of the Roman Congregations find it hard to get good men. They tend to rely of personal contacts. So Cardinal Pell would have got brownie points by offering Mark Coleridge to the Cardinal Secretary of State. While Mark was working in Rome Archbishop Re was a deputy of the department and in 2000 became prefect of the Congregation for Bishops. Mgr. Parolin was an important specialist in the Congregation at that time. In 2009 he went to Venezuela as Nuncio and was called from there to be Secretary of State by Pope Francis. Contacts everywhere. What part these contacts will play remain to be seen.

Archbishop Wilson of Adelaide is 63 – old by secular, corporate standards, but a suitable age in a gerontocracy. He has been elected Chairman of the Australian Bishops Conference twice. Then there is always the possibility of a wild card introduced by someone somewhere in the system. Maybe Frank Brennan S.J. born exactly 60 years ago will get the nod.

Eric Hodgens is a retired Melbourne Catholic priest who ‘writes a bit’.

Sydney is vacant again, and many of the faithful are breathing a huge sigh of relief, though at the back of our minds lurks a suspicion mixed with fear that we will be saddled, for a long time to come, with a little repellent clone of the great man.

George is off to Rome – where he belongs. It’s a move long overdue. Some years ago, perhaps in anticipation of this journey, he built a home for himself close to the Vatican – a suite of rooms in Casa Australiana just waiting for him to appear with his baggage. Rumors have abounded for some years of his imminent appointment to some job or other over there. Now as head of the Vatican Finance Department, a supranational Hockey Joe, he can do little harm, and maybe he can do some good for humanity, for the Church.

But this is not the change the Vatican needed and the faithful have been crying out for.  This is only a medium force shake up. A mere rumble. The world has been waiting for, the faithful have been praying for the sound of the heavy, tectonic plates grinding and shifting under the chair of Peter. Hopefully there is more, much more, to come.

George is too old, too clerical and the wrong sex. The Pope does not need a Cardinal of advanced years or even an ordained priest to do the work involved. Someone younger, someone more experienced, more worldly, with a proven record of transparency and openness – ideally, a woman from the world of banking and finance – to bring the Vatican financial crisis out of the shadows into the modern world. This is an opportunity missed. Jobs for the boys – for the old boys. More of the same and we had been hoping for a sign to give us hope, to bring a smile to our face and put a spring in our step. A smile – yes – but for a completely different reason.

But it could have been worse. At least George has the necessary personality, if not all the credentials to do the job. He’s proved himself to be reasonably good administrator. Not so good a pastor or a leader of men. Not a man with a natural ability to choose the right man for a job. Sydney and Australia have suffered from his choices to fill episcopal positions. Some of the shoulders he has placed his hand upon have belonged to company men with limited capacities. And the most senior prelate in Australia, together with the team he has captained, has proven himself unable to provide strong moral leadership and guidance to the nation. They have all remained inexplicably mute, and in the face of constant provocation. They have not contributed in any significantly way to a national debate on critical moral issues such as the cruel and inhuman treatment of refugees by both major political parties, the tragedy of the dispossession of Aboriginals, the neglect of the growing psychiatric illness in general and particularly among Australia’s young (a national scandal), the secrecy in government, the bad behaviour of politicians in the Parliament itself, bullying in schools and in the workplace, even among politicians, the drinking and drug culture, a policy of preference for the poor and underprivileged, working poor, the obscene expansion of the rich class land an uneven distribution of wealth, the crass and unprincipled materialism of many government policies, a search for happiness, the inadequacy of our overseas relief  contributions – the list is long.

While in Sydney, the Cardinal was energetic in defending dogmatic utterances of the Church, the authority of Rome and the integrity of a monolithic Church, condemning abortion and homosexuality, but he did not prove to be an effective, attractive religious or moral leader.  Too churchy. Too reactionary. Too authoritarian. An eminent friend of the establishment. Too close to money and to power.

But most people would agree that George can get things done. He’s determined. He’s decisive. No shilly-shallying. Somewhat heavy-handed. And by reputation, he can bully with the best. Maybe he will be able to uncover corruption in the ranks and execute some clerical thugs. I don’t expect, on Rome’s past record, that these men (I presume they are all men, like they are in New South Wales) will be given a fair hearing in open court with their name spread about on the front pages of Osservatore Romano.

Perhaps he could have done much damage in other portfolios – choosing bishops for the world, conducting show-trials of dissident theologians, putting American nuns on the rack – but in this portfolio, so far away from the message and spirit of Jesus, George might shine. Let us hope so.

And now, closer to home – with the See of Sydney vacant. The last time, the position was filled in the dead of night, without consultation. A fait accompli. The faithful of the Sydney archdiocese woke up in the morning and found that God had given them George. They were not happy and some of them have not forgotten. Now that is history and we have to get over it. Nevertheless, Rome did treat us badly, without respect, high-handedly.

Now let the new process begin. We know what Pope Francis is looking for in a bishop – someone close to the people. A pastor who has the whiff of sheep on hardened hands, sheep droppings between his toes, the oily feel of wool embedded in his clothes. Someone who hears the bleating and knows his sheep by name, who will spend the night in the cold mountains in search of the lost one. Happy. Humorous. Intelligent. Outgoing and outspoken. A true believer, deeply spiritual. With an interest in the world, in literature, poetry, drama or music – it doesn’t matter, but someone who is not enclosed in a clerical club, looking for the first place at the tables of the rich. These men are not easy to find. You have to look far and wide. But the people of Sydney can help Pope Francis find the right man. The gene pool is ridiculously limited, to men, to old men, to clerical men. But some have escaped the mould and grown against the grain, into real people who can lead us out of the desert, refresh us, create a world of the Spirit and make us proud again to be recognized as Catholics. I am sure many Catholics, men and women, young and old, stand ready to lend a hand.

Cardinal Francis George, the former President of the United States Bishops Conference has been described as one of the Catholic Church’s most ‘formidable intellectuals’. In the 2003 Ave Maria Law Review he wrote an article entitled, “Law and Culture”, in which he discusses the famous U.S. Supreme Court case of Brown v The Board of Education, which ended legal segregation in the United States. He pointed out that law, whether just or unjust, acts as a teacher. The segregation laws, he wrote, were a reflection of the culture at the time when they were passed, but their very existence deepened and entrenched that culture.

Cardinal George is right. We can see that same connection between law and culture in the reported increase of gay bashing in the Soviet Union after Putin’s anti-homosexual laws. Those laws did not say that people could bash homosexuals, but that is the sort of thing that happens when you have a law which damns them as paedophiles. The philosophy behind the law trickles down, deepening and entrenching the culture that gave rise to the law in the first place.

At the recent Royal Commission hearing into the Toowoomba diocese, we can see the same ‘trickle down’ effect of canon law on the behaviour of Catholic education staff. Canon law since 1922 had prohibited bishops from reporting to the police any information from canonical inquiries into allegations of the sexual abuse of children by priests. This prohibition did not apply when allegations were made against a lay teacher at a Catholic school. There was nothing in canon law to prevent a bishop reporting such information to the police, let alone the headmaster. The Royal Commission is currently inquiring into the case of a headmaster of a Catholic school in Toowoomba who failed to report the sexual assaults on children by one of the lay teachers. The bishop knew nothing about the allegations until the teacher’s arrest.

There is in any organization a “trickle down” effect where those in the lower ranks of the organisation will look to the behaviour of those higher up for guidance. But in the case of the Catholic Church, there is the added layer of canon law, teaching everyone in the Church on how to behave in in the case of the sexual abuse of children. In 1992, the Canadian canon lawyer, Francis Morrissey wrote in an article that canon law served as a guide for dealing with lay employees, while acknowledging that it did not strictly apply to them. Canon law, coming from the Pope, reflected the right thing to do.

Victoria is a good example of this trickle-down effect from canon law. The Melbourne Archdiocese had its own response that had no provision for reporting to the police, other than to say that it would encourage the victims to do so. The other three dioceses were covered by Towards Healing which required reporting where the civil law required it. Victoria had abolished misprision of felony in 1981, and the mandatory welfare reporting laws, that is, for children currently at risk, did not apply to clergy. There was no legal obligation on senior clergy to report child sexual abuse of any kind. The end result is that the Victorian Parliamentary Inquiry found that of the 611 complaints of sexual abuse from 1996 to 2012, some of which related to Catholic lay teachers, none were directly reported by the Church to the police. In the case of offences by clergy, the failure to report was not surprising because canon law prohibited it. But that prohibition did not apply to cases of sexual abuse by lay teachers.

Toowoomba provides an even stronger example. The culture of secrecy imposed by canon law, and motivated by the need to avoid “scandal”, even had an effect in a situation where the headmaster was obliged by the civil law to report such matters to the police, because there were children currently at risk. The headmaster probably knew nothing about canon law, but the culture trickles down from those who do. This did not come from Bishop Bill Morris, who was ‘stunned’ at the dithering that went on about reporting these matters. Morris, dismissed by Pope Benedict, ostensibly for mentioning the possibility of women priests, has been one of the leading lights on dealing with sexual abuse in the Church. Not even he seems to have been able to turn around the cultural juggernaut in his diocese, driven by canon law.

Cardinal George in his article said that the first step to change a culture is to change the law. There is no indication from Pope Francis that he has any intention of changing canon law to outlaw pontifical secrecy in the Church’s inquiries about child sexual abuse amongst the clergy. His delegates at the hearing before the United Nations Committee on the Rights of the Child in Geneva resisted the Committee’s demand that the Church report all complaints of sexual abuse by clergy, irrespective of whether there was a law requiring it or not. Canon law still prohibits the reporting of any allegations of sexual abuse by clergy to the police where there are no civil laws requiring reporting. And, in all States of Australia, except New South Wales, that means in 99% of all complaints of sexual abuse, if the Victorian figures can be applied generally.

The persistent claim by the Church in Australia that “everything has changed” is spin. The cornerstone of the cover up, pontifical secrecy is still writ large in canon law. So long as it is there, in Article 30 of the Graviora Delicta, the culture of secrecy will continue, and will continue to trickle down. You have it on the authority of one of the Church’s most formidable intellectuals.

Kieran Tapsell is a retired lawyer with degrees in Theology and Law. His book, “Potiphar’s Wife: The Vatican’s Secret and Child Sexual Abuse” is due to be published in May 2014: www.atfpress.com

On 15 October 2013, Francis Sullivan, the CEO of the Truth, Justice and Healing Council, the body that speaks on behalf of the Australian Catholic Church at the Royal Commission, wrote an opinion piece for the ABC’s Religion and Ethics page. He claimed that the submission the Council had presented to the Royal Commission on the Towards Healing protocol for dealing with clergy sex abuse was “the most comprehensive document ever produced by the Church dealing with child sexual abuse” and a “warts-and-all history, going back many decades”.

The 206 page submission, dated 11 October 2013, conceded that some in positions of authority covered up clergy sex abuse, and that this behaviour was indefensible. There was no mention that canon law underpinned this behaviour. There was no mention of the secret of the Holy Office under Crimen Sollicitationis or pontifical secrecy imposed by Secreta Continere of 1974 or by Sacramentorum Sanctitatis Tutela of 2001 and again in its revision in 2010 by Pope Benedict XVI that prevented bishops from taking the information they obtained in their investigations of child sex abuse by clergy to the police. There was no mention of the findings of the Murphy Commission that the structure and rules of the Catholic Church “facilitated the cover up” in the Archdiocese of Dublin.

On 16 January 2014, the Holy See’s representative appearing before the United Nations Committee on the Rights of the Child, Bishop Scicluna, said that canon law required bishops to follow domestic law on mandatory disclosure.  That dispensation was given to the United States in 2002 and to the rest of the world by Pope Benedict XVI in 2010. Two of the UN Committee members asked Scicluna why the Church did not require the disclosure of all allegations. Scicluna said that “education is the key to empowerment. Every local church has a moral duty to instruct people about their rights.” In other words, it is up to the victim to report the abuse, not the Church, a position that was insisted on by Cardinal Castrillón, the Prefect of the Congregation for the Clergy in a letter to the Irish bishops through the Papal Nuncio, Archbishop Storero in January 1997 and in a further letter in November 1998.  Bishops’ reporting paedophile priests to the police, Castrillón insisted, not only conflicted with canon law, but it was in some ways ‘immoral’.

The absurdity of canon law on this issue is obvious from Benedict XVI’s revision of the 2001 Motu Proprio Sacramentorum Sanctitatis Tutela in 2010. He extended pontifical secrecy to cases of priests having sex with “those who habitually lack the use of reason”. It seems that the Vatican requires bishops to take on the mammoth task of educating intellectually disabled people about their rights so that they can be “empowered” to report their abuse by clergy to the police. A quick phone call by the bishop or his staff to the local police station would be easier, but canon law makes that impossible unless there happens to be a local law requiring reporting. In Australia, at the moment, only New South Wales has such a law – and very few other countries do for the vast majority of complaints about clergy sex abuse.

On 31 January 2014, the United Nations Committee on the Rights of the Child handed down its Concluding Observations on the Second Periodic Report of the Holy See. The Committee noted that some of the rules of canon law are not in conformity with the provisions of the Convention on the Rights of the Child, and it recommended a comprehensive review of canon law to ensure compliance.

It accused the Vatican of adopting “policies and practices which have led to the continuation of the abuse by and the impunity of the perpetrators.” It noted the practice of covering up known sex abusers and transferring them to other institutions under Church control. It said that despite the fact that the Church has full control of these personnel under canon law, it had declined to provide the UN Committee with information about the outcome of the canonical procedures against them. It accused the Vatican of allowing the vast majority of abusers to escape criminal prosecution by its use of its confidential disciplinary proceedings, and that:

“Due to a code of silence imposed on all members of the clergy under penalty of excommunication, cases of child sexual abuse have hardly ever been reported to the law enforcement authorities in the countries where such crimes occurred. On the contrary, cases of nuns and priests ostracized, demoted and fired for not having respected the obligation of silence have been reported to the Committee as well as cases of priests who have been congratulated for refusing to denounce child abusers, as shown in the letter addressed by Cardinal Castrillon Hojos to Bishop Pierre Pican in 2001.”

The Committee also noted that reporting to national law enforcement authorities has never been made compulsory, and was expressly rejected by the Storero letter of 1997. It also noted that in many cases, the Holy See has refused to cooperate with judicial inquiries.

The Church’s submission to the Royal Commission through the Truth, Justice and Healing Council on Towards Healing failed to mention pontifical secrecy and the restrictions it imposes on reporting clergy sex crimes to the police. The claim by the Church that it provided the Royal Commission with a “warts-and-all” history is simply untrue.

One does not have to be particularly astute to detect in the questioning of Bishop Jarrett and Brother Crowe at the Royal Commission that canon law is right within the cross hairs of the Commission. Now with this United Nations report that has honed right into the real crux of the problem, it will be interesting to see how long it is going to take the Australian Church to pull its head out of the sand and remove the make-up it has placed on the biggest wart of all: the cover up ordered, expanded and confirmed through canon law by six Popes from 1922: Pius XI, Pius XII, John XXIII, Paul VI, John Paul II and Benedict XVI.

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

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.

The Australian Catholic Coalition for Church Renewal has called for structural amd cultural change in the governance of the Catholic Church

The letter can be found on my web site.Go to top left hand of the home page and click on John Menadue web site.

John Menadue

Two years ago this Christmas message was published by Vision and Viewpoint, an e-newsletter. Sister Joan Chittister, OSB, is prioress of The Benedictine Sisters in Erie, PA.

Now and here bells everywhere are ringing again. The gift boxes are heaping up. Everybody’s saying it: “Christmas Blessings… God bless you at Christmas time… Christmas Peace to you and yours… Merry Christmas.” But is there any truth at all to any of this manufactured joy? Or is this, at best, nothing more than an exercise in auto-suggestion: Say it often enough and you’ll think it’s true, whatever the facts to the contrary.

Christians, after all, at least from one perspective, live a very schizophrenic life. As Paul puts it in one of his letters to the fragile communities of the early church, “Your standards should be different than those around you.” But at Christmas time, those standards can get terribly confusing. The Christian standard says that Christ, our Peace, has been born. But look around you. The other standard, the real public norm, the front page of our daily newspapers, says that there is no such thing as peace anywhere.

So, are we simply kidding ourselves when we put up manger scenes in our parks, and weigh our churches down with bark-covered, life-size crèches, and decorate the crib sets under our Christmas trees? Will the world ever really come to peace? In fact, is there really any such thing as peace? And, most of all, what do we have to do with it? What are we singing about? (It depends, I believe, on what you think “peace” means.)

One kind of peace is a state of life that is free from chaos and turbulence, from violence and institutionally legitimated death. That kind of peace happens often enough in history to show us that such a thing is possible. But don’t be fooled: that kind of peace can be achieved as easily through force as well as through justice. In the latter, little is gained by it.

But there is another kind of peace. This kind of peace does not come either from the denial of evil or the acceptance of oppression. This kind comes from the center of us and flows through us like a conduit to the world around us.

This kind of peace is the peace of those who know truth and proclaim it, who recognize oppression and refuse to accept it, who understand God’s will for the world and pursue it. This kind of peace comes with the realization that it is our obligation to birth it for the rest of the world so that what the mangers and crèches and crib sets of the world point to can become real in us—and because of us—in our own time.

The award-winning foreign film “Joyeux Noël” reminds us of another Christmas Eve. This one in Europe during the bloodiest period in WWI. Knee deep in wet snow and ice that jammed their weapons and froze their souls, two armies—one French and Scottish, one German—faced one another across a barbed-wired field. Hundreds of fallen soldiers had already died on both sides of the rough and blood-soaked land. Then suddenly, the Christmas truce began. The men put down their weapons, ceased for awhile to be soldiers, and bowed their heads while they listened to the other side sing Christmas carols.

That is the kind of peace—disarmed, foreign to hate, and receiving of the other—that was born in the manger we remember at Christmas time. That is the kind of Christmas peace we must ourselves seek to be. Then “Merry Christmas” will really mean something.

Is the birth of Jesus a story that can touch us deeply today, does it offer a way for us to know and follow Jesus?  Do we get glib with what we know, and skate over the story?

The advent story is like a pregnancy, it creates an intimate space to be with Mary, from her meeting with God, through conception and pregnancy, to the birth of Jesus, the Son of God.   What a marvel that a woman will bear this child, and Joseph will father him, ordinary people like us, called to do extraordinary things for God.   The story, if we are game, is not an external narrative, but one where we are called to hear God calling us, to enter into His story.

From the moment of Gabriel’s visit to Mary we feel a tension, a pause and we are witness to a meeting. God will ask Mary to carry a child, and she will say: ”Yes”.  She will become pregnant and carry the heart of Jesus inside her body, letting him nestle and grow within her, transforming her. She will, in her body and soul, bear God’s gift to us.  Now during this time of advent she will show us the way.

Aren’t we also like Mary, asked into a mystery of saying “Yes.” to Christ in us?  When I am drawn into this mystery of a life with Jesus, letting him into me, I too am like Mary, I too become a fiddle of questions and resistance, but he waits on me, as he did Mary, he gives me the time to want and need to remain the same, until the ‘yes’ comes. Our ‘yes’ becomes a pregnancy, he comes to live in us. He grows into our very fibers winnowing from the inside.  It is a grace that he bestows, utter love. Mary carries Jesus within her, His being utterly absorbing her, making her His own.

What a wonder he gives us during Advent, not just that I wait for him, make this time for him, but that he is inside of me, transforming my heart, emptying me, to see with his eyes, to receive his love.  When I receive the host, and my lips receive Him, and my tongue tastes His blood, I say “Yes”, I take Him into the cells of my being, He who gave me His heart then, at His birth, all those years ago, and now again, this Advent. He prepares us during this time for the next mystery that of His birth, Christmas.

Giving birth isn’t a passive thing, it will tear me open, pull from my depths a ‘yes’. This love we are given is not private thing, it cannot be kept inside, it must and will be born when the time is ready, a winnowing, that will strip me, break the waters, tear at my heart, so that I can receive love, to see with His eyes and His heart.

As I walk the desert to His birthplace, following the stars, looking for Him, I know that His path will lead me to Jerusalem. I follow Him to His last supper, my head on His chest waiting, pausing now, His human heart the same as mine, as He says “Yes” and moves toward His death, and resurrection, and the final mystery and the greatest act of love for me and humankind. But this is jumping ahead, and we cannot know yet what the child will become.

Advent is a time of pausing, waiting, feeling our way into Mary as she waits, feeling that space as God waits on Mary and her ‘yes.’  There seems time, on an inner level, to relish the pause, to let God have time with me.  To feel the simplicity of choice that Mary makes. He is in her body; He is in mine, His blood flows through my veins. He gave me this with His birth.  He marked me too, like Mary, with a heart that beats for Him, a pulse that jumps with His arrival.  A time to reflect on a ‘yes’, to know this in my body and in my heart, to feel the fear and the joy, the longing and intimacy of His presence. The path I take with Him may not be what I imagine for myself; there is a pause as He waits on me.

Caroline Coggins works as a Psychotherapist. He has just completed the 30 day Spiritual Exercises of St Ignatias at St. Beuno’s.

There are all kinds of years. There’s the year of living dangerously and the annus horribilis. 2013 was the Year of Grace and the Year of the Snake. For me it’s been the year of leaning.

Earlier this year I was intrigued by the title and the phenomenal publishing success of Sheryl Sandberg’s book, Lean In, which was on the New York Times best-seller list for a remarkable 36 weeks. Sandberg and her book were ubiquitous. There she was on the cover of Time magazine; I tuned in to Geraldine Doogue’s Saturday Extra show on Radio National and heard a panel discussing Lean In; and along with hundreds of thousands of others, I viewed Sandberg’s TEDTalk on YouTube.

Her message is fairly straightforward. The world will be a better place when, and only when, women lean into positions of leadership and go against their gender-wide tendency to underestimate their abilities. Sandberg’s leaning is about ambition, confidence and partnership. “A truly equal world,” she writes, “would be one where women ran half our countries and companies and men ran half our homes.”

These ideas are not altogether new, so I was left wondering if Sandberg’s impact could in part be explained by the novel use of the image of leaning.

While still pondering this, I came across two fine Christian writers who were also ‘into’ leaning. Far from the corporate world in which Sheryl Sandberg leans in, Beatrice Bruteau and John Philip Newell lean back.

In Radical Optimism, Bruteau, a Christian philosopher, proposes leaning back as an image to describe our relationship with God. She paints a word picture from John’s Gospel of the beloved disciple who “reclined on the breast of Jesus” at the Last Supper:

“I want to suppose St John positioned with his back to Jesus. Jesus is behind John, not face to face with him. Therefore, when John wished to move closer to Jesus, for instance to ask him a question, he just leaned back toward him.”

John Philip Newell, contemporary poet and Anglican priest, picks up the image.

“One of the most precious teachings in the Celtic Christian world is the memory of John the Beloved leaning after Jesus at the last Supper. It was said of him that he therefore heard the heartbeat of God… To listen for the heartbeat of God is to listen both within the vastness of the universe and within the intimacy of our own hearts.”

Where Sandberg’s ideas stir my social conscience, Bruteau’s and Newell’s image of leaning back toward Jesus and listening for the heartbeat of God, capture my imagination and heart.

This metaphor of leaning back came to mind as I travelled on a suburban train recently. Instead of reading, I was content to simply sit and enjoy the ride. Most seats were taken and there were a number of people in the foyer area of the carriage, including a man in a wheelchair. I felt myself lean back, literally and metaphorically, as I wondered how Jesus would view this man.

My circle of concern soon expanded to include other passengers – the man in the smart business suit, the teen in the black hoodie, the private school students engrossed with their iPhones. Again, how would Jesus regard them?

My wondering led to a visceral experience. I did not know these people; they were anonymous commuters on a city-bound train, but I felt myself beholding each one with compassion, acceptance and deep appreciation for their uniqueness, beholding them with God’s heart. I beheld them with love. It was as though Jesus and I were one as we together viewed these strangers.

I reached my station, alighted and went about my business, but with a heart gentled by my leaning and wondering.

Leaning has become part of my spiritual practice in that I now begin my time of prayer imagining myself leaning back toward Jesus. I feel myself ever so slightly physically move. I then try to be still (and straight), moving my awareness within, hoping to encounter and be encountered, hoping to be one with the One in whom I “live, move and have my being” (Acts 17:28), hoping to hear the heartbeat of God.

When you think about it, lovers lean into each other; they are not rigid. Love leans and persons lean. The Greek word for person – prosopon – literally means “turned toward the other”. I don’t become fully human as an isolated individual. To be human is to lean on, to allow ourselves to be leaned upon, and to lean towards the other.

Trees teach us this. Trees build up strength by moving with and into the wind. By leaning and bending trees become strong. Rigidity is weakness.

Likewise, to become strong in our relationships we, too, lean and bend. We become fully human in the give and take of life when we move beyond any self-absorbed “it’s-all-about-me” state to do our bit to create and sustain communities of care with all the imperfect people – and that’s everyone – who are part of our world.

And God leans. Rublev in his classic icon of the Trinity captures this. The three figures lean into each other symbolising that intimacy, relationship and a love that is self-giving, self-emptying and graciously receptive, is of the essence of God.

There have been other leaning experiences throughout 2013.

I went on retreat in September and there in my room – serendipity at play – was an icon of the beloved disciple at the Last Supper. The lettering was in French: Je te fiarcerai a moi dans la tendresse. I will draw you to myself with tenderness. The words are from the prophet Hosea and reminiscent of Rumi, that wonderful thirteenth century Persian poet and Sufi mystic, who says, “Let yourself be silently drawn by the strange pull of what you really love. It will not lead you astray.”

Teilhard de Chardin concurs. Teilhard often wrote about God’s attractive influence. God is “up ahead” as the ultimate force of attraction of the universe, alluring us, drawing us forward into an unknown but graced future.

During the year I listened to an interview with English theologian and Catholic priest, James Alison, who spoke of faith in a most refreshing way. Faith, Alison said, is “relaxing into the embrace of the One who likes us.”

Alison’s definition bears pondering. Think how delightful and freeing it can be to be in the presence of someone whom you know likes you. When I’m in this situation I feel myself physically and emotionally relax. I lean back in the chair, so to speak, content to be myself, secure and confident in the knowledge that I am known and accepted for who I am.

This seemingly unorthodox description of faith is utterly orthodox. Alison says that God takes the initiative and that faith is always God’s gift. God’s grace enables me to relax and lean back in surrender into God’s embrace. Within that embrace I hear God speak a unique word of love to me and to all creation. God loves us, yes, and God also likes us, is fond of us, is attracted to us and leans toward us.

Isn’t this what creation and incarnation are all about? Isn’t this what we celebrate at Christmas? By the power of the Spirit who, in Gerard Many Hopkins’ beautiful words, “… over the bent world broods with warm breast and with ah! Bright wings,” God leans over creation and humanity, not because of sin, but because of love.

With overwhelming proof of how much God loves us and likes us, God gives Godself away in becoming human. God is both the giver and the gift. God is selfless love poured out in Jesus, the Beloved Son. At Christmas we celebrate the Son of God’s humanity and also our own. We are the human place God has chosen for God’s leaning.

Look at the figures in the Christmas crib. Notice how all of them, animals included, are leaning in towards the child in the manger. Each of them is an icon of God leaning into us, all of us without exception.

During this anything but “silly” season, may we lean on each other and allow ourselves to be leaned upon. May we lean back and accept God’s embrace and constant flow of love in Jesus. May we accept this embrace with deep peace and joy at Christmas and throughout the coming year – every coming year.

Merry Christmas and a Happy Leaning New Year.

* Good Samaritan Sister, Patty Fawkner is an adult educator, writer and facilitator. Patty is interested in exploring what wisdom the Christian tradition has for contemporary issues. She has an abiding interest in questions of justice and spirituality. Her formal tertiary qualifications are in arts, education, theology and spirituality.

This article was first published in The Good Oil, the e-magazine of the Good Samaritan Sisters.  www.goodsams.org.au

You can follow Patty Fawkner on Twitter at https://twitter.com/PattyFawkner

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.

​Pope Francis has announced that he is setting up a committee to advise him on how to respond to sexual abuse within the Church.  There is a large amount of scepticism in many quarters about such a move, for there have been so many other meetings before this and they have produced so little.  So why should one more committee make any difference?

I am more hopeful than the sceptics because I think there is a new factor here, and that new factor is Pope Francis himself.  He has shown a willingness to face unpleasant aspects of the Church and a determination to change what needs to be changed that I have not seen since Pope John XXIII.  So I am more than happy to work with his initiative and to support him in any way I can.  Under his leadership I would far rather give wholehearted support to an initiative that may produce nothing than not give support to a movement that might seriously and genuinely confront all aspects of abuse.

There are three things that have to be done in overcoming sexual abuse: deal with the offenders, assist the victims, and identify and remove any factors within the Church that have contributed either to abuse or to the poor response to abuse.  The Committee will need to look at all three.

Before being ordained a bishop, every candidate is required to take a special oath of loyalty to the pope, and I know that bishops take this oath very seriously.  So I would like to see Pope Francis write a personal letter to each bishop in the world and say to them,

“The people of the world, and the Catholic people themselves, will never believe that the Church is truly serious about confronting abuse as long as no action of any kind has been taken against any bishop, no matter how badly individual bishops may have responded to abuse.  I know that there are a million different degrees of both hard-heartedness and compassion in this field, so I have looked for an objective criterion with which I am confident the Catholic people of the world would agree.  I believe I have found it in this: If a minor has been abused because of an action or decision you took, or an action or decision you should have taken but did not, I want you, in accordance with your oath of loyalty to me, to submit your resignation from office to me within the next month, for this would mean that you had been truly, if indirectly, responsible for the sexual abuse of a minor.  I am confident in stating that the Catholic people of the world do not want bishops leading them who have been a true cause of abuse.

“Furthermore, from now on, I wish to include under the oath of loyalty in a specific manner all aspects of your response to sexual abuse.  If you deal firmly and openly with all offenders and if you do everything within your power to assist victims, you will have kept your oath.  But if you do anything to hide offenders, shield them from civil authorities or allow them to continue to be a threat to the young, or if you in any way treat victims as though they were threats to the good name of the Church, or if you fail to show them compassion, you will have broken the solemn oath that you took before God.  I ask you to conduct a serious examination of conscience on this matter and I will accept the resignation of any bishop who decides that he has failed seriously.  I cannot insist on this, for I do not wish to make a present statement retrospective in its effects, and I am aware that my predecessors did not speak in these terms, but I ask you to give the most serious consideration to what I have said.

“I realise that these are dramatic steps, but I believe they are essential if the Church is to be freed from the intolerable burden of abuse.  Bishops may well feel the need to issue a public statement concerning why they are or are not offering their resignation, but that would be no bad thing.

“I also ask that each diocese nominate a series of persons to whom complaints of abuse can be made.  They should not be priests or anyone in authority, but lay persons who are capable of listening with intelligence and sympathy.  Unless this exists, a bishop simply does not know the extent of the problem in his diocese, and is certainly in no position to say that he has no problem.

“I have spoken of bishops, but leaders of religious institutes must also consider these matters.”

I have recently written a book (For Christ’s Sake) suggesting some of the causes of abuse and I shall not repeat that material here.  The only comment I wish to make here is that there are certain matters that directly involve the very credibility of the Church.   To say that celibacy is the total cause of the problem is as naïve as saying that marriage would solve all problems, but the question of celibacy must be put on the table for discussion.  To refuse to allow the matter even to be discussed, as both Pope John Paul II and Pope Benedict did, is to lose all credibility from the outset.  A celibacy that many priests experience as unwanted, unaccepted and unassimilated has its obvious dangers.  Equally, the absence of women from any positions of authority, with the consequent totally masculine ethos of authority cries out for discussion.  The idea that priests are somehow up on a pedestal, above other people, “ontologically different”, has certainly contributed to abuse.  There has been much comment on dealing with offenders and reaching out to victims, but the Committee absolutely must tackle this question of the causes of abuse.

I thank Pope Francis for this initiative and wish it well.

 Geoffrey Robinson, Retired Auxiliary Bishop of Sydney

“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.