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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. 

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

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

Canon lawyers thought that the 1983 Code had repealed Crimen Sollicitationis, and so did the Vatican, because for six years, from 1988 to 1994, it negotiated a request by the American bishops to extend the Code’s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

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the Congregation for the Doctrine of the Faith (CDF) started telling bishops that Crimen Sollicitationis had not been repealed – in other words they could ignore the limitation period, and use the simpler administrative procedure.

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

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

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

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

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

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

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

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

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

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

This is the best effort at an apology so far and “the leaders of the Catholic Church in Australia” are to be congratulated, finally. They have been dragged, fighting and squealing, to their knees, no, to their bellies, but eventually a thorough and unqualified commitment statement has been published and read to the faithful at every parish Mass on Sunday 24 November. I heard it and it produced a great sigh of relief in me and in those united in prayer with me. The sadness, the horror, the anger, the shame have been all pervasive, like a fog low over the landscape. They have hovered there in my heart, in my mind for the past few years, and the scandal continues to besmirch my image of Christ’s immaculate bride. But at last, some acceptance, some unqualified response, some expression of guilt, of humility, of understanding. The Justice and Truth Commission under the guidance of Francis Sullivan, as well as the bishops and senior clergy of Australia are to be congratulated. At last they have got something right.

They have stated clearly, and without blaming the secular press, alienated Catholics, money-grubbing victims or their faith-less and hostile opponents, that –

• Sexual abuse of a child by a priest is a crime.
• Sexual abuse of a child by any Church personnel is indefensible.
• Sexual abuse by priests or anyone associated with the Church is a fact of which the whole Church in Australia is deeply ashamed.
• The Church fully and unreservedly acknowledges the devastating, deep and ongoing impact of sexual abuse on the lives of victims and their families, and further acknowledges that many victims were not believed when they were telling the truth.
• The Church also acknowledges that, in some cases, those in authority concealed and covered up what they knew to be true, moved perpetrators to another place and enabled them to continue offending, or failed to report the allegations to the police. This behaviour is indefensible.
• The Church was too anxious to protect her reputation and the reputation of her priests and her other personnel rather than protect its children and their families. This behaviour is also inexcusable.
• The Church leaders betrayed the trust of their own people and the expectations of the whole community.

The leaders of the Church went on to express their deep sorrow for this whole dirty mess and to apologise to all those who have been harmed and betrayed. They committed themselves to repair the wrongs suffered.

In any other organization, the leaders would be submitting their letters of resignation; the authorities who appointed them (and without any real consultation) would be demanding their resignation, except that Rome and the Vatican were themselves deeply implicated in the whole smelly catastrophe. And in any company, business, government agency or secular institution, from the United Nations Organization to a local university or school, the shareholders, the members, the foot-soldiers would be holding protest meetings, calling out for heads to roll, or just walking away in disgust. These leaders are asking for forgiveness and a vote of confidence in the board. Well, let’s wait and see.

The problem is that most, if not all, of those in the firing-line, are dead, or at least comfortably retired – beyond the reach of the troops. Nevertheless, there are steps which can be taken to restore some confidence in the shareholders.

There has to be a better method for the selection of the bishops and clergy who minister in our dioceses and parishes; and they have to be better educated.

The selection process has to be much more transparent; the criteria for assessment spelt out clearly – and if the list of Episcopal requirements includes an oath of unquestioning loyalty to the Vatican, let it be spelt out for all to see; a panel of assessors has to be established within the diocese and in each parish, including a solid reinforcement of ordinary, local men and women to give their opinion and make their contribution.  Appointments from on high are not good enough. Recent experience has shown them to be somewhere on a spectrum between lame and calamitous.

Then, after a proper selection process, there has to be a school for new bishops and parish priests, some kind of formal education process to ensure the candidate is sensible to and aware of community needs and expectations, aware of their obligations to society in general, to the poor, to children, to the Christian community, free from an over-riding loyalty and subservience to Rome.

In the meantime, as well as congratulating the leaders of the Church for their act of sorrow and sincere purpose of amendment, let’s all offer a sincere word of profound gratitude to –

• The brave victims of sexual abuse who told their stories, exposed their broken lives and who were so often met with disbelief, with a cold shoulder.
• Bishop Geoff Robinson whose life as a human being and as a priest has been made miserable by many of his brother bishops who opposed his message and resisted the bleeding obvious for so long.
• The energetic faceless ones who persisted in exposing the scandals on the website of Broken Rites.
• The members of the secular press, of those who worked on various ABC programs and members of other television teams. David Marr deserves a special vote of thanks for his consistent and high-quality work, and Joanne McCarthy, the Newcastle journalist, for her commitment to the cause.
• Deirdre Grusovin – remember her and the shellacking she received?
• Julia Gillard for establishing the Royal Commission and Tony Abbott for supporting her.
• Those responsible for establishing the Victorian Parliamentary Enquiry and the members of the parliament who presided at the hearings and prepared such a powerful report.
• A special vote of gratitude to Peter Fox of Newcastle of whom it was said that he involved himself too personally in the pedophile crisis in and around Newcastle and became entangled in the mess. If it were so, pity the bishops and clergy did not become personally involved years, decades before the valiant Peter Fox. It was he and Joanne McCarthy who almost single-handedly exposed the disease and lanced the boil. Thank you Peter Fox. Well done.

The new Pope Francis has caught the eye of the world. Many people with Catholic friends know that there are two Catholic Churches in the world today – one of the popes and the Pells, the other of the rank and file Catholics and their priests. The first is doctrinaire. The second makes adjustments to doctrine and rules as required.

The Church’s central vision is one of life, forgiveness and hope. But in recent years this has been smothered by its pope and bishops’ preoccupation with today’s hot ethical issues – abortion, sexuality (including homosexuality), medical technology, divorce and gender. This has undermined the church’s credibility because all of these issues are in play – except within the ranks of a hierarchy. Then Pope Francis came along. He is aware that these issues are personal and pressing – and all under debate. He has changed the focus of the discussion from ideology to pastoral practice. We know the rules and doctrine, he says, but how do you handle the pastoral question in the lives of real people?

The pope’s practical answer is to call a synod (a representative group) of the world’s bishops to discuss the matter. The subject is to be The Church and The Family. In a new departure for such synods he wants the whole membership of the church to discuss the matter and report back before the synod convenes. The synod’s organizing committee has sent out a questionnaire for discussion. Its four major topics are:

• The teaching of the Church on the Family – and its reception;
• The place of Natural Law in the Church’s teachings – and its reception;
• The family’s place in evangelization;
• New cultural issues re marriage. These include:
  • Extra-marital co-habitation and de facto marriages;
  • Divorce and its implications;
  • Marriage annulment;
  • Same sex unions;
  • Education of children of irregular unions.

The questionnaire is surprising. Public consultation is a new thing. Issues hitherto discussed at your peril are now open for review, seemingly at the Pope’s initiative. Furthermore, all these issues are regularly discussed within the Church – but not openly. Many issues have already been operationally resolved by concerned pastors ignoring restrictions or defying them.

Now to the points:

Firstly, there is no single “Teaching of the Church” on marriage. Over the two millennia of the Christian Church’s existence we have had a variety of approaches. The Church had little to do with marriage till the 13^th century when it took legal control of marriage. Church registration followed. Since then control of the legalities of marriage was in Church hands until the secular state took over in the 19^th century. All this applies only to Europe and the West. Other cultures have their own customs which have been problems for Christianity as it became more universal.

The 20^th century teachings of the Catholic Church on Marriage can be summed up as restrictions on sex justified by Natural Law philosophy. Pope Paul VI’s decree “Humanae Vitae”, with its banning of contraception, is the poster child of this approach. He argued that contraception was against the “natural law”. His argument runs: if you study the nature of the human being you will deduce that sex is for procreation. To interfere with that is to violate the natural law.

Both aspects of this teaching are now culturally irrelevant due to cultural changes in attitudes to sex and the obsolescence of the Natural Law philosophy. These are facts. The dogged opposition of Church officials is a lost ideological cause.

Evangelization (spreading the gospel to newcomers) has never been a high priority of the Christian family. The passing of Christian affiliation from generation to generation has been a cultural phenomenon. The family might have indoctrinated, but evangelization was bypassed. Each new generation was inculturated into Catholicism – up till now. Evangelization has never been a serious issue even in the New Evangelization called for by Pope John Paul II. What he wanted was a return to the old mind set – an exercise in nostalgia.

The values that matter are justice in relationships and stability in partnerships – especially while children are involved. Taking restrictive stances on varieties of partnership and recreational sex and is moralistic ideology. The hierarchy may have missed the opportunity to deal realistically with today’s Western approach to sexuality, marriage and family by canonising a dull, wowserish past. They have alienated two generations.

Divorce is a punishing experience rendered double punishment by effectively excommunicating the remarried. Divorce in the West increased after World War II. Now at around 50%, it alone explains much of the post-War loss of affiliation.

Forget annulment. Fewer Catholics are using it because the Church’s rules are a mess and less and less socially relevant.

Contraception is a fairly reliable component of today’s living. So, either help people plan a family – or better – let them do it themselves and leave them alone.

Support all stable partnerships. Argue about what you call them if that is your thing.

Finally, give any support you can to partners doing their best to educate a new generation.

There is movement at the station but there is still a long way to go. How widely will bishops consult on the questionnaire? Will the responses to the questionnaire be filtered by conservative local bureaucracies? Will burning issues be addressed by the Synod Preparatory Committee? Will the conservative officials still pervading the Roman administration win this one as they won after Vatican II? What political colour will the Synod be when it convenes? Will it reflect the mind of the Church at large or just the hierarchy? If it does, will the resulting report be true or doctored? And will the result be consensus or division?

Past synods have been rubber stamps. How this one goes remains to be seen.

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

Pope Francis has published his first and very prolix papal teaching document entitled Evangelii Gaudium (the joy of evangelisation).  With a tone of delightful self-mocking he observes,  “I am aware that nowadays documents do not arouse the same interest as in the past and that they are quickly forgotten.” On the scale of papal authority, the document is called an Apostolic Exhortation which comes in below an Encyclical.  This gives the pope licence to be more free ranging, adding anecdotes and pastoral tips.  Since the Second Vatican Council, there have been synods of bishops convened to discuss particular topics.  In the past, the Pope has then written the synod document, ensuring Vatican control of  the outcomes.  Towards the end of Benedict’s papacy a Synod was convened on “the new evangelisation” which was often code for getting away from social justice and rediscovering pieties which might appeal to young people joining some of the new church movements which were replacing regular parish involvement.  Francis says, “I was happy to take up the request of the Fathers of the Synod to write this Exhortation”.  It has provided him an opportunity to roll out all the things he has been saying which have put a spring in the step of many Catholics who think this pope is good news, having a deep pastoral sense, a strong commitment to the poor, and a resolute conviction that Rome does not have all the answers.  Trying to sum up the 50,000 words in a few phrases, I would say his message is: “The gospel really is good news especially for the poor and anyone who takes seriously the sufferings of the world.  The church doors are open to everyone.  We are not a ghetto.  We engage with the world and he have something to say.  Get out there.  Do something to help your neighbour.  Do it joyfully. Do it with passion.  The Church is here to help, not to hinder.  Church teachings won’t be changing any time soon.  But don’t expect Rome to have all the answers.  Don’t be afraid to make mistakes.  And do something to change the unjust economic structures of the world.”  It’s refreshing that he liberally quotes statements by bishops’ gatherings from various parts of the world including Oceania.  He takes decentralisation and subsidiarity seriously.  He is doing it.  How refreshing to have a Pope write: “Nor do I believe that the papal magisterium should be expected to offer a definitive or complete word on every question which affects the Church and the world. It is not advisable for the Pope to take the place of local Bishops in the discernment of every issue which arises in their territory. In this sense, I am conscious of the need to promote a sound ‘decentralization’.”  Vatican monsignori in long flowing robes will be troubled to hear him say, “Mere administration can no longer be enough.  Throughout the world, let us be permanently in a state of mission”.

In the past, more conservative bishops have tried to downplay the significance of national bishops’ conferences, preferring their individual teaching role augmented by ready access to Roman dicasteries which could receive complaints from disaffected parishioners upset at the pastoral leanings of more liberal bishops like Pat Power and Bill Morris here in Australia.  Francis says, “Episcopal conferences are in a position to contribute in many and fruitful ways to the concrete realization of the collegial spirit”. He says that  “this desire has not been fully realized” and notes that “excessive centralization, rather than proving helpful, complicates the Church’s life and her missionary outreach.”  As a non-European pope he is particularly sensitive to cultural diversity and much of the European baggage in the Church.  For him,  the Church was never Europe and Europe is not the Church.   He happily quotes our Bishops of Oceania asking that the Church “develop an understanding and a presentation of the truth of Christ working from the traditions and cultures of the region” and inviting “all missionaries to work in harmony with indigenous Christians so as to ensure that the faith and the life of the Church be expressed in legitimate forms appropriate for each culture”. With South American gusto, he adds: “We cannot demand that peoples of every continent, in expressing their Christian faith, imitate modes of expression which European nations developed at a particular moment of their history, because the faith cannot be constricted to the limits of understanding and expression of any one culture.  It is an indisputable fact that no single culture can exhaust the mystery of our redemption in Christ.”

While not promising any changes to church teaching on contraception, divorce and remarriage, etc, he offers real hope of sacramental hospitality being offered in local churches.  Having noted that “the Church has rules or precepts which may have been quite effective in their time, but no longer have the same usefulness for directing and shaping people’s lives”, he throws open the doors with this declaration: “The Church is called to be the house of the Father, with doors always wide open. One concrete sign of such openness is that our church doors should always be open, so that if someone, moved by the Spirit, comes there looking for God, he or she will not find a closed door. There are other doors that should not be closed either. Everyone can share in some way in the life of the Church; everyone can be part of the community, nor should the doors of the sacraments be closed for simply any reason. This is especially true of the sacrament which is itself “the door”: baptism. The Eucharist, although it is the fullness of sacramental life, is not a prize for the perfect but a powerful medicine and nourishment for the weak. These convictions have pastoral consequences that we are called to consider with prudence and boldness. Frequently, we act as arbiters of grace rather than its facilitators. But the Church is not a tollhouse; it is the house of the Father, where there is a place for everyone, with all their problems.”

But there are some nettles he is not prepared to grasp, and the Church will continue to suffer for it.  He writes, “The reservation of the priesthood to males, as a sign of Christ the Spouse who gives himself in the Eucharist, is not a question open to discussion, but it can prove especially divisive if sacramental power is too closely identified with power in general.” Surely it must be even more divisive if those who reserve to themselves sacramental power determine that they alone can determine who has access to that power and legislate that the matter is not open for discussion.  Given that the power to determine the teaching of the magisterium and the provisions of canon law is not a sacramental power, is there not a need to include women in the decision that the question is not open to discussion and in the contemporary quest for an answer to the question? Francis’s position on this may be politic for the moment within the Vatican which has had a longtime preoccupation with shutting down the discussion, but the position is  incoherent.  The claim that the matter “is not a question open to discussion” can not be maintained unless sacramental power also includes the power to determine theology and the power to determine canon law.  Ultimately the Pope’s claim must be that only those possessed of sacramental power can determine the magisterium and canon law.  Conceding for the moment the historic exclusion of women from the sacramental power of presidency at Eucharist, we need to determine if “the possible role of women in decision-making in different areas of the Church’s life” could include the power to contribute to theological discussion and the shaping of the magisterium and to canonical discussion about sanctions for participating in theological discussion on set topics such as the ordination of women.  As Francis says, “Demands that the legitimate rights of women be respected, based on the firm conviction that men and women are equal in dignity, present the Church with profound and challenging questions which cannot be lightly evaded.”   This paragraph of the Exhortation on women’s ordination adds nothing to a resolution of the question nor the way forward.  This Exhortation contains some wonderful material but on this issue, Francis has attempted to lightly evade the question riding the jetstream of opposition entrenched in the magisterium and in canon law by his two predecessors.

Francis makes no pretence to having all the answers.  He won’t be moving any time soon to change church teachings.  But he has done a lot with this Exhortation to move the Church back into the world and to open the Church to all sinners without discrimination.  He makes appealing his vision of a Church which is “bruised, hurting and dirty because it has been out on the streets, rather than a Church which is unhealthy from being confined and from clinging to its own security.”

Early in the 20^th Century, the French Catholic poet and writer Charles Peguy observed that, at the turn of each age, the Catholic Church arrives a little late and a little breathless.

It was not till the 1960s, at Vatican II, that the Church absorbed and authorized the major influence of the French Revolution – that sovereignty inhered in the people rather than the Sovereign – when it declared that the Church was the People of God rather than the aristocracy of the Church (the Pope, bishops and clergy).

John XXIII brought the freedoms declared in the UN Universal Declaration of Human Rights a little faster – only a lapse of fifteen years between its proclamation and John XXIII’s encyclicals effectively endorsing them as Catholic belief too.

The internal procedures managed by Canon Law are taking a little longer, as Kieran Tapsell has described in this blog of November 17. The Vatican is catching up with where everyone else is, but slowly and reluctantly. It is only in recent years that the Vatican has allowed bishops to report sexual abuse by clergy to the police of various jurisdictions and has itself expelled convicted clerics from their status.

A key document about the practice of the Vatican – to keep any accusations against a cleric an exclusively internal matter for the Church and away from the police and any legal proceedings – is the letter to the Irish bishops from the Congregation for the Doctrine of the Faith (CDF), led then by Cardinal Ratzinger, who later became Pope Benedict in 2005. It was written in 1997 and reported in the New York Times in 2011. In 2010, Pope Benedict wrote to Irish Catholics about how “concerned” and “disturbed” he was by clerical sexual abuse in Ireland.

The 1997 communication, emphasizing that civil procedures could harm the Canonical processes, is conveniently overlooked when Benedict is being shown as the hero of the Vatican on the subject of disciplining clergy on sex abuse.

And the activities of the CDF, a small office of 25 people who were directly managed by Cardinal  Ratzinger, had their impact in Australia where some of the first formal steps by bishops’ conferences anywhere in the world occurred under the leadership of Bishop Geoff Robinson. For his efforts in the development of Towards Healing, the national protocol on what is referred to as “Professional Standards” expected of those employed in the Church’s work, the CDF attacked him for being a trouble maker, even heretical.

The truth of the matter of Cardinal Ratzinger’s change on the subject is that he was a late convert to recognizing just what a problem sex abuse had become, how extensive it was and how utterly inadequate the provisions of Canon Law were to meet its challenge. He and his then assistant and later Secretary of State, Cardinal Tarcisio Bertone, both played down attention to the issue claiming that it was exaggerated by the media and stirred up by enemies of the Church.

During Benedict’s reign as Pope, the law changed substantially and the level of openness to civil authorities went from zero to the encouragement of full cooperation.

Joseph Ratzinger’s conversion, as was explained to me by the biographer of the notorious Marcial Marciel, the disgraced and deceased founder of the Legionaries of Christ, only happened from 2004 when he discovered just how perverse, abusive and utterly deceptive Marciel was. I asked the biographer how Marciel came to be exposed.

He said that someone in the inner circle of the leadership of Legionaries had finally had enough of Marciel’s lies, deception and hypocrisy. He decided that Cardinal Ratzinger was the only one of the powerful Cardinals in Rome who could do anything about it because he hadn’t been on the receiving end of financial “gifts” from Marciel. as others had been.

It was pointless going to Pope John Paul II at the end of his long reign who could see nothing wrong with Marciel, thought him a devout supporter and that the accusations against Marciel were those of the disgruntled and disaffected whose views were biased and prejudiced.

This disaffected Legionary leader knew that every day Cardinal Ratzinger walked from his apartment on one side of St Peter’s Square, straight to his office at the CDF on the other side of the Square and at the same time every day.

He decided to introduce himself to Cardinal Ratzinger out there in the Piazza. He did just that. The Cardinal professed shock and amazement at what he was told of Marciel’s abuse of Legionary seminarians and of his two families and children from them.

Cardinal Ratzinger asked the Legionary to come to his office later in the day where he got one of his staff. a Maltese Monsignor, Charles Scicluna, onto the job immediately. From then on, Scicluna made a name for himself as an energetic prosecutor of sex abusing clerics, culminating in an unprecedented international conference (with experts and bishops and Vatican administrators attending) on the subject of sex abuse in the Church. It was convened by the Jesuits’ Gregorian University. Scicluna was the keynote speaker. He is now a bishop in Malta.

Joseph Ratzinger was a late convert not only to the scale of the problem but also to doing anything about it. The continuing presence Cardinal Bernard Law, the Archbishop of Boston who fled his See when the whole horror of sex abuse in his Archdiocese and his handling of it became clear a decade ago, is testimony that some in the Church are brought to justice and others escape it.

Cardinal Law is a prisoner of Rome and if he returned to the US, he would be charged with, among other things, extensive cover-ups which, in Australia, would be called perverting the course of justice.